State v. Schumacher, S-90-1150
| Decision Date | 06 March 1992 |
| Docket Number | No. S-90-1150,S-90-1150 |
| Citation | 480 N.W.2d 716,240 Neb. 184 |
| Parties | STATE of Nebraska, Appellee, v. Mark A. SCHUMACHER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.
2. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within a jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.
3. Verdicts: Appeal and Error. On a claim of insufficiency of evidence, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
Steven Lefler of Lefler & Flick, Omaha, for appellant.
Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.
Before HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
A jury in the district court for Douglas County convicted Mark A. Schumacher on five separate felony charges: first degree forcible sexual assault, a violation of Neb.Rev.Stat. § 28-319 (Reissue 1989) and a Class II felony; two counts of using a firearm to commit a felony, violations of Neb.Rev.Stat. § 28-1205 (Reissue 1989), which is a Class III felony; and two counts of first degree false imprisonment, in violation of Neb.Rev.Stat. § 28-314 (Reissue 1989), a Class IV felony. Pursuant to Neb.Rev.Stat. § 28-105(1) (Reissue 1989), Class II felonies are punishable by imprisonment for 1 to 50 years; Class III felonies are punishable by imprisonment for 1 to 20 years, a $25,000 fine, or both imprisonment and a fine; and Class IV felonies are punishable by imprisonment not exceeding 5 years, a $10,000 fine, or both imprisonment and a fine. The district court sentenced Schumacher to a term of 5 to 10 years' imprisonment on the sexual assault conviction, 1 to 2 years for each conviction of false imprisonment, and 1 year for each conviction of use of a firearm to commit a felony. Schumacher's false imprisonment sentences run consecutively to the sexual assault sentence, and the sentences on the firearm convictions run consecutively to the sentences for the false imprisonment convictions.
Schumacher assigns two errors in his appeal: First, the evidence is insufficient to sustain a conviction on the charges against him; therefore, his motion for directed verdicts should have been granted, and, second, the sentences imposed are excessive. We affirm.
In a criminal case a court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.
State v. Pierce, 231 Neb. 966, 970, 439 N.W.2d 435, 440 (1989). Accord, State v. Zitterkopf, 236 Neb. 743, 463 N.W.2d 616 (1990); State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
In determining whether evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within a jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.
State v. Fleck, 238 Neb. 446, 447, 471 N.W.2d 132, 134 (1991). Accord, State v. Zitterkopf, supra; State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990); State v. Olsan, 231 Neb. 214, 436 N.W.2d 128 (1989).
On a claim of insufficiency of evidence, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
State v. Fleck, 238 Neb. at 447, 471 N.W.2d at 134. Accord, State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991); State v. Robertson, 223 Neb. 825, 394 N.W.2d 635 (1986).
Section 28-314 provides in pertinent part: "(1) A person commits false imprisonment in the first degree if he knowingly restrains or abducts another person (a) under terrorizing circumstances or under circumstances which expose the person to the risk of serious bodily injury...."
Section 28-319(1) states: "Any person who subjects another person to sexual penetration and (a) overcomes the victim by force, threat of force, express or implied, coercion, or deception ... is guilty of sexual assault in the first degree."
Under § 28-1205, any person who uses a firearm to commit a felony which may be prosecuted in a Nebraska court commits the separate offense of using a firearm to commit the felony.
Examining the evidence, which is construed most favorably to the State in light of Schumacher's convictions, we conclude that the convictions are based on sufficient evidence.
About midnight on April 2, 1990, Schumacher and James Vance appeared at the door of an Omaha home shared by a 21-year-old woman and her fiance. After the woman allowed the pair to enter the house, Schumacher and Vance brandished a firearm and demanded money or drugs. When the couple said they had nothing to hand over, Vance and Schumacher led the woman, at gunpoint, out of the house and into a car, and then drove to a nearby house. Vance took the woman to the house while Schumacher remained with the car.
When the door to the house opened, Vance entered, pointed...
To continue reading
Request your trial
-
State v. Stahl
...within the statutory limits will not be disturbed on appeal absent an abuse of discretion by the sentencing court. State v. Schumacher, 240 Neb. 184, 480 N.W.2d 716 (1992). Similarly, whether the sentence imposed is probation or incarceration is a matter within the discretion of the trial c......
-
State v. Starks
...below, we affirm. FACTS We review the facts in the light most favorable to the State, as we are required to do. See State v. Schumacher, 240 Neb. 184, 480 N.W.2d 716 (1992). On December 17, 1993, the First Federal Lincoln Savings and Loan Association (First Federal) located in Lincoln, Nebr......
-
State v. Rokus
...State, is sufficient to support that verdict. State v. Fleck, 238 Neb. 446, 447, 471 N.W.2d 132, 134 (1991). Accord, State v. Schumacher, 240 Neb. 184, 480 N.W.2d 716 (1992); State v. Witt, 239 Neb. 400, 476 N.W.2d 556 (1991); State v. Tuttle, 238 Neb. 827, 472 N.W.2d 712 (1991); State v. Z......
-
State v. Juarez
...sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. State v. Schumacher, 240 Neb. 184, 480 N.W.2d 716 (1992). On a claim of insufficiency of the evidence, an appellate court will not set aside a guilty verdict in a criminal cas......