State v. Russell, S-92-479

• Decision Date: 26 March 1993
• Docket Number: No. S-92-479,S-92-479
• Citation: 243 Neb. 106,497 N.W.2d 393
• Parties: STATE of Nebraska, Appellee, v. Edward A. RUSSELL, Appellant.
• Court: Nebraska Supreme Court

Page 393

497 N.W.2d 393

243 Neb. 106

STATE of Nebraska, Appellee, v. Edward A. RUSSELL, Appellant.

No. S-92-479.

Supreme Court of Nebraska.

March 26, 1993.

Syllabus by the Court

1. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of an appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, and the finding must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Convictions: Appeal and Error. An appellate court will not set aside a finding of guilty in a criminal case where the finding is supported by relevant evidence, and only where the evidence lacks sufficient probative force as a matter of law may the appellate court set aside a finding of guilty as unsupported by the evidence beyond a reasonable doubt.

3. Convictions: Circumstantial Evidence. Circumstantial evidence is adequate to support a conviction if the evidence, taken as a whole, establishes guilt beyond a reasonable doubt.

4. Intent: Words and Phrases. The intent involved in an actor's conduct is a mental process and may be inferred from the conduct itself; the actor's language, if any, in reference to the conduct; and the circumstances surrounding an incident.

5. Intent: Weapons. An intent to kill may be inferred from the deliberate use of a deadly weapon in a manner reasonably likely to cause death.

C.M. Radosevich, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

BOSLAUGH, Justice.

After a bench trial, the defendant, Edward A. Russell, was convicted of first degree murder, in violation of Neb.Rev.Stat. § 28-303 (Reissue 1989), and use of a weapon to commit a felony, in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1989). Russell was sentenced to life imprisonment on the murder conviction and to a 15-month term of imprisonment on the weapon conviction, with 283 days' credit given for time served. On appeal to this court, the defendant's sole assignment of error is that the evidence was insufficient to support his conviction of first degree murder.

In reviewing a criminal conviction, it is not the province of an appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, and the finding must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Tucker, 242 Neb. 336, 494 N.W.2d 572 (1993); State v. Alcorn, 240 Neb. 400, 481 N.W.2d 921 (1992).

An appellate court will not set aside a finding of guilty in a criminal case where the finding is supported by relevant evidence, and only where the evidence lacks sufficient probative force as a matter of law may the appellate court set aside a finding of guilty as unsupported by the evidence beyond a reasonable doubt. State v. Smith, 242 Neb. 202, 494 N.W.2d 126 (1993).

The defendant spent the morning of July 26, 1991, in the company of Curtis, Spencer, and Gary Valentine. The group, which spent the morning drinking alcoholic beverages and socializing, eventually moved to an area outside of an apartment house located near the intersection of 19th Avenue and Jones Street in Omaha, Nebraska. After a verbal dispute of some kind, the defendant was beaten by Spencer and Gary Valentine. The defendant claims that he lost his watch and gold chain in the incident. Later, the defendant returned to the scene of the incident with two other people. The defendant had a five-shot .32-caliber revolver mounted on a .38-caliber frame with him at the time. The defendant told the police that it was his intention to go back to the area where he had been beaten in order to retrieve his watch and chain.

When the defendant returned, Michael White, Rudy Rucker, and the victim, Gregory George, were seated under a tree in a grassy area between the street and apartment building near the location of the earlier altercation. White sat on a box facing east, with his back toward 19th Avenue. Rucker was seated on a chair to White's left, looking south toward Jones Street. George was sitting on a bucket directly across from White, facing west toward 19th Avenue.

White testified that the three men noticed a Cadillac head down 19th Street, turn onto Jones Street, and move toward their location. After turning onto Jones Street, the car slowed down considerably. White testified that he became concerned and jumped up to hide behind a tree. White testified that he saw the defendant jump out of the backseat of the Cadillac with a gun in his right hand. White testified that when the defendant got out of the car, White saw George turn to go toward the corner of the building near a passageway between the buildings and saw Rucker scramble toward some nearby bushes. White further testified that once the defendant had moved out of the vehicle he stood upright, raised his arm chest high, and fired a shot toward the place where George had gone. White testified that the defendant's right hand, holding the gun, was facing palm-side up. White stated that he heard the defendant ask, "Where did they go?", but he could not remember whether the question was asked before or after the gun was fired. White stated that although he did not see the defendant aim the gun at anyone, his initial reaction after the shot was fired was to look toward the corner of the building in the direction that the shot had been fired.

White testified that after the shot had been fired, the defendant moved toward the place where the men had been sitting, with the gun still in his hand. The defendant looked at Rucker, whose nickname was "Low-Life," and said, "I ought to kill you, Low." Rucker responded that he had never done anything to the defendant.

Rucker testified to a similar version of the events. Rucker testified that when the defendant got out of the vehicle he asked, "Where are they at now?" As the defendant asked this question, the gun was pointed toward where the three men were sitting and was fired. Rucker stated that he then went to his hands and knees. George got up and moved toward the space between the buildings. Rucker stated that after the shot was fired, the defendant looked at him and stated, "Low, I ought to kill you." After this statement, the...