State v. Schroder

• Decision Date: 21 December 1984
• Docket Number: No. 84-389,84-389
• Citation: 359 N.W.2d 799,218 Neb. 860
• Parties: STATE of Nebraska, Appellee, v. Ernie SCHRODER, Appellant.
• Court: Nebraska Supreme Court

Page 799

359 N.W.2d 799

218 Neb. 860

STATE of Nebraska, Appellee, v. Ernie SCHRODER, Appellant.

No. 84-389.

Supreme Court of Nebraska.

Dec. 21, 1984.

Syllabus by the Court

1. Criminal Law: Courts: Appeal and Error. A district court, on criminal appeals from the county court, acts as an intermediate court of appeals reviewing the record for error.

2. Criminal Law: Constitutional Law: Appeal and Error. A review by an appellate court of a final judgment in a criminal case is not a necessary element of due process of law.

3. Statutes: Jurisdiction: Appeal and Error. There must be compliance with the requirements set forth in a statute granting the right to appeal or this court gains no jurisdiction over the case.

4. Criminal Law: Appeal and Error. An undue delay in ruling upon an appeal does not warrant dismissal of a criminal charge.

5. Records: Presumptions: Appeal and Error. While a recital in a journal entry appearing in the transcript is presumptively true, an affirmative showing in the bill of exceptions that it is not true prevails over the presumption.

6. Sentences: Probation and Parole. When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.

7. Trial: Rules of Evidence: Appeal and Error. An offer of proof is generally a prerequisite to our review of a ruling which excludes evidence unless it is apparent from the context within which the question was asked that the answer would have been material and competent.

8. Criminal Law: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this 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.

9. Verdicts: Appeal and Error. A guilty verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

10. Trial: Evidence: Presumptions: Appeal and Error. In a criminal case tried to the court without a jury, there is a presumption that the trial court, in reaching its decision, considered only evidence that is competent and relevant, and this court will not overturn such a decision where there is sufficient material, competent, and relevant evidence to sustain the judgment.

Curtis A. Sikyta, Ord, for appellant.

Paul L. Douglas, Atty. Gen., and Timothy E. Divis, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Defendant-appellant, Ernie Schroder, was convicted in the county court, following a bench trial, of a misdemeanor third degree assault upon his wife, Barbara. Defendant was thereupon sentenced to probation for a term of 6 months, the conditions of which included the payment of a $100 fine and that he serve 10 days in the county jail. The conviction and sentence were each affirmed on appeal to the district court. In this appeal defendant assigns as error (1) the failure of the district court to dismiss the charge due to the unreasonable delay of that court in processing the appeal; (2) the failure of both the county and district courts to "find the degree of assault" and to determine "whether the assault was part of a mutual scuffle"; (3) the imposition by both courts of more than one penalty; (4) the receipt of certain evidence; (5) the exclusion of certain evidence; and (6) the insufficiency of the evidence to support the conviction. The record sustains none of the assignments; accordingly, we affirm.

The Schroders spent the afternoon, evening, and night of August 10, 1982, and the early morning hours of the next day getting drunk together in a number of towns. Although the evidence is in conflict as to what transpired while defendant drove and Mrs. Schroder rode home in their truck, Mrs. Schroder testified that defendant had gotten angry, hit her several times, and then stopped the truck while she got out and began walking. According to Mrs. Schroder, her husband "came after her," hit her, kicked her, grabbed her by the hair, and pulled her back into the pickup. When the couple arrived at their home, defendant continued to hit and shove his wife, and threatened her with a gun. Later, when Mrs. Schroder was leaving in her car, defendant shot at her with his gun. Mrs. Schroder then drove to the sheriff's house for help.

The evidence is such that the trier of fact could find that as a result of the altercation Mrs. Schroder suffered pain and sustained nosebleeds, bruises on her arm and throat, and a black eye. She received no medical treatment for her injuries, nor did she miss work because of them.

Defendant testified that his wife initiated the fight while they were in the truck and that he responded by "showing speed," that is, he hit her lightly with the tips of the fingers to exhibit reflexive speed. According to defendant, after they arrived home, Mrs. Schroder continued to "rant and rave," so he went outside to shoot his pistol in order to relieve his tension. He denies assaulting Mrs. Schroder with the gun. According to defendant, when his wife proceeded to drive away in the car, she ran into him, knocking him onto the windshield.

At the behest of Mrs. Schroder the county attorney filed a complaint against defendant on August 11, 1982, charging him with assault in violation of Neb.Rev.Stat. § 28-310 (Reissue 1979). That statute provides:

(1) A person commits the offense of assault in the third degree if he:

(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or

(b) Threatens another in a menacing manner.

(2) Assault in the third degree shall be a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor.

Trial was had in the county court on September 8, 1982, and defendant was sentenced as aforesaid on that day. He appealed the conviction and sentence to the district court on September 13, 1982. On December 21, 1982, the appeal was submitted to the district court. Notwithstanding nine inquiries by the parties between January 3 and September 21, 1983, it was not until April 25, 1984, that the district court affirmed the judgment of the county court. In doing so, the district judge who acted on the appeal, and who was not responsible for the delay, noted the delay, expressed regret over its occurrence, and attributed it to the illness and retirement of the judges who had preceded him.

Defendant cites no direct authority for his contention that the delay in processing his appeal should result in a dismissal of the charge against him, but analogizes the right to a speedy trial to his situation, claiming a right to a speedy appeal.

The speedy trial statute, Neb.Rev.Stat. § 29-1205 (Reissue 1979), states that its purpose is "[t]o effectuate the right of the accused to a speedy trial and the interest of the public in prompt disposition of criminal cases ...." Neb.Rev.Stat. § 29-1207 (Reissue 1979) provides: "Every person indicted or informed against for any offense shall be brought to trial within six months ...." Neb.Rev.Stat. § 29-1208 (Reissue 1979) provides that "[i]f a defendant is not brought to trial before the running of the time for trial ... he shall be entitled to his absolute discharge from the offense charged ...."

If there was ever any basis for doubt as to the nature of the proceeding in the district court when a criminal matter has been appealed to it from the county court, that doubt has been dispelled. The proceeding is not a trial. A district court, on criminal appeals from the county court, acts as an intermediate court of appeals reviewing the record for error. Neb.Rev.Stat. § 24-541.06(1) (Cum.Supp.1982); Neb.Rev.Stat. § 29-613 (Reissue 1979); State v. Hatfield, 218 Neb. 470, 356 N.W.2d 872 (1984); State v. Turner, 218 Neb. 365, 355 N.W.2d 219 (1984); State v. Olson, 217 Neb. 130, 347 N.W.2d 862 (1984); State v. Ferris, 216 Neb. 606, 344 N.W.2d 668 (1984).

The right to appeal and the right to a speedy trial differ in two important respects.

First, the right to appeal a criminal conviction is not guaranteed by the U.S. Constitution, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), whereas a defendant is guaranteed the right to a speedy trial by the sixth amendment to the U.S. Constitution, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Neb. Const. art. I, § 23, guarantees the right to appeal in all felony criminal cases, and Neb. Const. art. I, § 24, guarantees the right to appeal in all civil cases. However, our Constitution does not guarantee the right to appeal in misdemeanor cases. Therefore, defendant's right to appeal is not constitutionally based. As such, that right may be limited in certain ways without running afoul of constitutional principles. In State v. Kelley, 198 Neb. 805, 255 N.W.2d 840 (1977), we held that a period of limitation imposed on the right to appeal is constitutionally permissible. In doing so we stated: "It should first be said that a review by an appellate court of a final judgment in a criminal case, no matter how grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law ...." 198 Neb. at 808-09, 255 N.W.2d at 843.

The appeal in this case is grounded in Neb.Rev.Stat. §§ 24-541.01 (Cum.Supp.1982) and 29-611 (Reissue 1979), each of which grants the right to appeal any county court final order or judgment and any judgment imposing a fine or imprisonment, or both, to the district court. The provisions of these statutes govern the exercise of that right. As such, that right to appeal is of a different nature than the constitutionally based right to a speedy trial, as...