State v. Ross

Decision Date26 April 2012
Docket NumberNo. S–11–093.,S–11–093.
Citation811 N.W.2d 298,283 Neb. 742
PartiesSTATE of Nebraska, appellee, v. Michael L. ROSS, appellant.
CourtNebraska Supreme Court

283 Neb. 742
811 N.W.2d 298

STATE of Nebraska, appellee,
v.
Michael L. ROSS, appellant.

No. S–11–093.

Supreme Court of Nebraska.

April 26, 2012.


[811 N.W.2d 299]

Syllabus by the Court

[283 Neb. 742] 1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact exists.

3. Circumstantial Evidence: Proof. Circumstantial evidence is not inherently less probative than direct evidence, and a fact proved by circumstantial evidence is nonetheless a proven fact.

4. Convictions: Juries: Circumstantial Evidence. In finding a defendant guilty beyond a reasonable doubt, a jury may rely upon circumstantial evidence and the inferences that may be drawn therefrom.

5. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

Thomas C. Riley, Douglas County Public Defender, Timothy P. Burns, and Brenda J. Leuck, Omaha, for appellant.

Jon Bruning, Attorney General, Kimberly A. Klein, and James D. Smith, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

STEPHAN, J.

[283 Neb. 743] Michael L. Ross was convicted by a jury of discharge of a firearm at a person, building, or occupied motor vehicle while in the proximity of a motor vehicle he had just exited, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. On direct appeal, the Nebraska Court of Appeals determined the evidence was insufficient to

[811 N.W.2d 300]

support Ross' convictions. We granted the State's petition for further review and now reverse the judgment of the Court of Appeals, because we conclude that the evidence, when considered under the deferential standard of appellate review, was sufficient to support the convictions.

BACKGROUND

The following evidence was adduced at Ross' trial and pertains to the events of February 10, 2010. On that date, a shooting occurred in Omaha, Nebraska, on the block of North 33d Avenue, which is intersected by Erskine Street on the north and Grant Street on the south.

Lumonth Coleman and his girlfriend spent the morning moving out of a house located on North 33d Avenue. This is the first house south of Erskine Street on the east side of North 33d Avenue. Terrell Smith arrived at that location with his girlfriend, Tiffany Ross (Tiffany), around 9 a.m. Smith was driving a white Mercury Grand Marquis, which he parked [283 Neb. 744] facing north on the east side of North 33d Avenue, directly in front of Coleman's house. Tiffany remained in the front passenger seat of the Grand Marquis while Smith began to help Coleman move items from the house to a van parked across the street.

At one point during the move, Coleman stepped onto the front porch of his house and saw a northbound two-door silver vehicle slowly swerve around the parked Grand Marquis. A passenger in the silver vehicle was facing backward, toward the south, holding a weapon that Coleman described as a silver .38–or .44–caliber revolver. Coleman first heard shots when the rear end of the silver vehicle was square with the front of the Grand Marquis. He heard approximately five or six shots, a very short pause, and then about nine additional shots. Coleman described the second set of shots as faster than the first and sounding like the shots were being fired from a different gun. The silver vehicle left the scene by continuing north.

Coleman ran outside and saw a red northbound vehicle farther south on North 33d Avenue. Coleman heard the driver yell, “I'm going to get you,” followed by a string of expletives. The driver then backed up his vehicle down North 33d Avenue onto Grant Street. Coleman saw the driver stop and say something to a woman before leaving the scene.

Coleman walked south down North 33d Avenue and picked up two 9–millimeter shell casings, which he testified that he then threw and stomped on. He retrieved two more 9–millimeter casings and put them in his pocket. The casings were found near where Coleman had first seen the red vehicle on North 33d Avenue.

Smith was inside the house when the shots were fired. He heard four or five shots, a pause, and then seven to eight more shots. Smith testified that the seven or eight shots were fired back-to-back and were slightly louder than the first set. He went outside and saw that Tiffany had been shot. Tiffany sustained gunshot wounds to the front of her head and her arm. Smith drove her to a hospital, where she died about a month later.

Coleman's girlfriend was near the parked van in which items from Coleman's house were being loaded when the shots were [283 Neb. 745] fired. She heard two shots and then eight or nine shots that were louder and came more rapidly. Following the second set of shots, she heard a voice say, “I'm going to get you,” followed by several expletives.

Jasmine Pierce was at a residence located on the west side of North 33d Avenue, just south of Grant Street. After hearing what sounded like four or five shots, she

[811 N.W.2d 301]

stepped onto the porch. She saw a young man standing outside the driver's-side door of a vehicle that was facing north on North 33d Avenue. He was holding a gun and shooting north at what Pierce described as “her” vehicle. Pierce testified that a vehicle parked outside of a house that people were moving from separated the shooter's vehicle and another northbound vehicle located farther north on North 33d Avenue.

Pierce saw the shooter leave the scene by backing up his vehicle. He stopped in front of a house located on Grant Street, which is to the west of and adjacent to the house where Pierce was visiting. Pierce heard the shooter yell to a woman there to call “so and so” because people from “29th Street” were shooting at him. Pierce did not hear the shooter ask for the police to be called. The shooter then drove away on Grant Street. Pierce thought the shooting was gang related, because “29th Street” was a gang in Omaha. When asked about the color of the shooter's vehicle, Pierce testified that she could not remember and thought it could have been either red or white.

Lowell Berry, who lived about a block south of Pierce's location on North 33d Street, also heard the shots. From his kitchen window, Berry saw a woman running and a red vehicle near Grant Street with a man quickly moving toward it. The man was wearing a coat and came from the front of the vehicle. Berry observed the man enter the north-facing vehicle, back up on North 33d Avenue, and then drive away on Grant Street. Berry did not see who had fired the shots. Police took Berry to the area of North 14th Avenue and Pinkney Street later that morning, and Berry identified a vehicle at that location as the vehicle he had seen on North 33d Avenue. The vehicle was later identified as a maroon Chevrolet Impala.

At approximately 3:30 p.m., on February 10, 2012, Ross gave a statement to police. He said that he went to pick up his [283 Neb. 746] girlfriend in the area of North 33d Avenue and Erskine Street earlier that day and that he was driving a maroon Impala. He parked in front of a blue house, and his girlfriend came to the car. He saw people moving items into a van up the street and said there was a vehicle parked in front of him, and then a white vehicle. A silver vehicle pulled up to the white vehicle, and someone in the silver vehicle started shooting. Ross heard the first shot after a man leaned out of the passenger-side window and turned around toward the white vehicle. Ross heard two different guns being fired and thought there were two people shooting.

Ross saw that the back window of the white vehicle was shattered and that a woman in the white vehicle was hurt. After reversing his vehicle, Ross yelled to a person in a nearby pink house that people from “29th Street” were shooting and to call the police because someone just got hurt. He left the scene by backing up his vehicle and going up Grant Street.

Ross said that he then drove to his grandfather's house near 25th Avenue and Pinkney Street. He briefly went inside, along with his girlfriend. While leaving his grandfather's house, Ross saw the vehicle from which the shots had been fired on North 33d Avenue. He identified the vehicle as a silver “G-six.” Ross said people in the vehicle began to shoot at him, so he drove off toward North 14th Avenue and Pinkney Street.

Several people called the 911 emergency dispatch service to report someone in a silver vehicle chasing and shooting at a red vehicle. One caller saw shots fired from the silver vehicle, and another caller reported a vehicle “dumped” at a location on North 14th Avenue. The latter reported

[811 N.W.2d 302]

that two males had exited the “dumped” vehicle and were hiding behind a garage. This call was made from the area of North 14th Avenue and Pinkney Street, and the vehicle was later identified as a maroon...

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  • State v. Gonzales
    • United States
    • Nebraska Court of Appeals
    • 9 Febrero 2016
    ...to find that there was sufficient evidence for a reasonable jury to convict Gonzales of tampering with evidence. See State v. Ross, 283 Neb. 742, 811 N.W.2d 298 (2012). In finding a defendant guilty beyond a reasonable doubt, a jury may rely upon circumstantial evidence and the inferences t......
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