State v. Skalberg
| Decision Date | 06 January 1995 |
| Docket Number | No. S-93-592,S-93-592 |
| Citation | 247 Neb. 150,526 N.W.2d 67 |
| Parties | STATE of Nebraska, Appellee, v. Todd SKALBERG, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.
2. Convictions: Circumstantial Evidence. A reasonable inference from circumstantial evidence is to be taken most favorably to the accused when circumstantial evidence is the only basis upon which to support a conviction and the circumstantial evidence is reasonably susceptible of two interpretations, one of guilt and the other of nonguilt, and neither inference is stronger than the other.
3. Convictions: Circumstantial Evidence. When circumstantial evidence is the only basis upon which to support a conviction, the trial court must first determine whether the circumstantial evidence is reasonably susceptible of two interpretations, one of guilt and the other of nonguilt, and whether the inference of guilt is stronger than the inference of nonguilt.
4. Circumstantial Evidence: Appeal and Error. On appeal, the appellate court must first independently decide as a matter of law whether the circumstantial evidence is reasonably susceptible of two interpretations and whether the inference of nonguilt is stronger than or equal to the inference of guilt.
5. Evidence: Appeal and Error. If the appellate court determines that the evidence was properly submitted to the trier of fact, then on appeal the State is entitled to have all conflicting evidence and the reasonable inferences which can be drawn from the evidence viewed in its favor.
David A. Domina and Denise E. Frost, Domina & Copple, P.C., Omaha, for appellant.
Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.
We granted the State's petition for further review of the decision of the Nebraska Court of Appeals which reversed the judgment of the Knox County District Court and remanded the cause to the district court with directions that the case against Todd Skalberg be dismissed because the circumstantial evidence presented was insufficient to prove Skalberg's guilt beyond a reasonable doubt.
Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Roche, Inc., 246 Neb. 568, 520 N.W.2d 539 (1994); State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Quandt, 234 Neb. 402, 451 N.W.2d 272 (1990).
A reasonable inference from circumstantial evidence is to be taken most favorably to the accused when circumstantial evidence is the only basis upon which to support a conviction and the circumstantial evidence is reasonably susceptible of two interpretations, one of guilt and the other of nonguilt, and neither inference is stronger than the other. See, State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994); State v. Mowry, 245 Neb. 213, 512 N.W.2d 140 (1994); State v. Covarrubias, 244 Neb. 366, 507 N.W.2d 248 (1993).
Skalberg was charged with five counts of burglary, in violation of Neb.Rev.Stat. § 28-507 (Reissue 1989). At trial, Skalberg moved for a dismissal of all counts. Skalberg's motion was sustained regarding count V, but he was found guilty of committing burglaries at Kersten Auto, Pizza Kitchen, Curt's Lanes (a bowling alley), and Bloomfield Automotive (a NAPA auto parts store). All of these businesses are located within a one-block area in Bloomfield, Nebraska.
The events leading up to the investigation of the burglaries began at about 11:30 p.m on September 23, 1992, when Bloomfield police chief Palmer Haugen went to McHenry's Saloon and talked with Skalberg and Todd Edwards about a report that a truck had been vandalized. Skalberg and Edwards denied involvement in the incident, and they subsequently left the bar within minutes of each other at approximately 12:45 a.m.
At about 1:10 a.m., as Haugen was making rounds, he found a chair lying on the sidewalk outside Kersten Auto. Upon further investigation, he saw a person inside the building. The person disappeared when Haugen yelled, "What the hell are you doing in there?" Haugen did not see the person's face, but he described the person as being approximately 5 feet 10 inches tall and very thin and wearing dark-colored pants and a dark long-sleeved top.
Haugen called for additional help, and Deputy Sheriff James Janecek arrived at about 2:12 a.m. The two officers entered Kersten Auto and found that the interior of the building had been ransacked. Pieces of a Mr. Goodbar candy bar and part of its wrapper were found on a desk. Tow chains were missing from Kersten Auto's tow truck, which was parked in the alley behind the store. While investigating the scene of the Kersten Auto burglary, Haugen gave Janecek a description of the person he had seen inside the building.
At Pizza Kitchen, the back door was found open, and the glass in the front door and the door itself were broken. The premises had been ransacked, and approximately $200 was taken from the cash register, which had been smashed on the floor.
At Curt's Lanes, the glass was broken out of the front door, and the screen in the back door had been cut. The business had been ransacked. The freezer and beer cooler had been opened, and the cigarette and candy display had been rummaged through. Some candy was missing, including a Mr. Goodbar candy bar. The cash register had been removed from the building and was found outside. Curtis Strom, proprietor of Curt's Lanes, testified he found broken glass, candy bars, pop, mini-burritos, and beer cartons scattered outside the building. He said some Marlboro cigarettes that had been on display were missing, and he thought two cartons of cigarettes also were missing. Strom was not certain whether any beer was missing.
At Bloomfield Automotive, the front and back doors and front windows were broken. Drawers had been ransacked, and items taken from the store were spread out in an area in front of the store. Tools had been piled on the floor, and items had been ripped down from shelves. The cash register was open, and keys had been removed from it.
During the course of their investigation, Haugen and Janecek received a report that someone was hiding in the bushes by the library. Haugen saw a person wearing dark clothing, which included a dark long-sleeved top, running from the library. The person appeared to be the same size as the one who was seen inside Kersten Auto. The officers were not able to locate the person. Janecek then had the dispatcher contact the fire department for assistance.
At approximately 2:30 a.m., Janecek saw a person on foot about two blocks from Kersten Auto. Janecek then began pursuing a car he saw speeding down Main Street. The driver lost control of the car, was involved in a collision, and fled the scene on foot. Janecek was later able to identify the driver as Edwards. The car Edwards was driving had been stolen from a residence in Bloomfield. At that point, Janecek advised the fire department to be on the lookout for two people because Edwards did not match the description of the person seen inside Kersten Auto.
Janecek had no contact with any other suspects until a member of the fire department informed him that a car was parked on a county road north and east of Bloomfield. The vehicle's engine was running, but its headlights were off. Janecek proceeded to the vehicle and found Edwards in the driver's seat and Skalberg in the passenger's seat, both either asleep or passed out. Skalberg and Edwards were arrested, and the car was impounded and searched. The tow chains taken from Kersten Auto were found in the backseat. Cigarettes and two cans of Budweiser beer were also found in the car.
At the time of the arrest, Skalberg had $6.72 and a pack of Marlboro cigarettes in his pockets. He was wearing blue jeans and a gray shirt over a dark-blue or black thermal-underwear-type shirt. Edwards had $348 "wadded up" in his pocket, along with part of a Mr. Goodbar candy bar. He was wearing blue jeans, a white sweatshirt with blue three-quarter-length or long sleeves, and a medium-blue or turquoise T-shirt with "Service Master" written on the front. He was described as being 5 feet 10 inches tall and weighing about 200 pounds.
At trial, Skalberg testified that he had moved to Yankton, South Dakota, 2 days before the burglaries and that he had lived with Scott Wilson in Bloomfield prior to that time. Skalberg and Edwards had visited Skalberg's parents in Wausa, Nebraska, during the evening prior to the burglaries. When they left, Skalberg's mother gave him a $10 bill, a box of meat, and a pack of Marlboro cigarettes. Later in the evening, Skalberg and Edwards went to McHenry's Saloon in Bloomfield. Shortly after closing time, Skalberg started his car and headed toward Standpipe Hill.
Skalberg testified that as he went down the street west of the bowling alley, he saw Edwards standing by the front door of the bowling alley. When Skalberg asked Edwards what he was doing, Edwards told him to "get the fuck out of here." Edwards then ran through the alley between Bloomfield Automotive and the rear of Pizza Kitchen. Skalberg followed in his car and saw Edwards' feet hanging out of a window in the Kersten Auto building. Skalberg testified that he parked his car and went to the door. When Edwards opened the door, Skalberg asked what he was doing. Edwards replied, "Hey, mother fucker, I own this town and don't fuck with me...." Skalberg testified that he wanted to avoid a confrontation with Edwards, so Skalberg got in his car and drove away. Skalberg said he parked his car in the driveway of Wilson's home because he was tired and did not think he could drive to...
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