State v. Sutton

• Decision Date: 31 May 1985
• Docket Number: No. 84-728,84-728
• Parties: STATE of Nebraska, Appellee, v. Robert A. SUTTON, Appellant.
• Court: Nebraska Supreme Court

Page 492

368 N.W.2d 492

220 Neb. 128

STATE of Nebraska, Appellee, v. Robert A. SUTTON, Appellant.

No. 84-728.

Supreme Court of Nebraska.

May 31, 1985.

Syllabus by the Court

1. Convictions: 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.

2. Burglary: Evidence: Proof. A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value. Evidence of any act of physical force, however slight, by which the obstruction to entering is removed is sufficient to prove a breaking.

3. Robbery: Evidence: Proof. Robbery is committed when property is taken from a person through the use of force, violence, or intimidation. It is not necessary that the property be taken from the "person." It is sufficient if it is taken from the individual's personal presence, protection, or control.

4. Criminal Law: Evidence: Proof. A defendant, to establish an alibi, must not only show he was present at some other place about the time of the alleged crime but also that he was at such other place such a length of time that it was impossible for him to have been at the place where the crime was committed, either before or after the time he was at such other place.

5. Criminal Law: Evidence: Proof. Ordinarily, evidence tending to prove an alibi does not destroy the sufficiency of the evidence to support a finding of guilt, but only presents conflicting evidence on a question of fact.

James P. Miller and Owen A. Giles, Omaha, for appellant.

A. Eugene Crump, Deputy Att. Gen., and Lynne R. Fritz, Lincoln, for appellee.

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

BOSLAUGH, Justice.

The defendant, Robert A. Sutton, was convicted of burglary and robbery and sentenced to 3 years' probation. One of the conditions of probation was that the defendant be confined in jail for 90 days and make restitution. The defendant has appealed and contends the evidence was insufficient to support a finding of guilty.

The record shows that the victim, Bonnie Stephens, lived in a third-floor apartment in Bellevue, Nebraska. The theory of the State is that the burglary climbed up to the balcony of the victim's apartment from a lower balcony and entered the apartment from the balcony.

On September 10, 1983, the victim was awakened around 1:30 a.m. when she heard the sound of coins being dropped on her dining room table. When she went to investigate, she saw the defendant standing by her dining room table taking money from her billfold. When she asked him what he was doing, he replied, "I'm stealing from you."

The victim ran out the front door to a neighbor's apartment. The defendant pursued and attempted to grab her, but then ran down the back stairs when the neighbor, Richard Tucker, answered the door. Another neighbor from a lower floor came to her aid after hearing her scream. Both tried to calm her and returned with her to her apartment.

Richard Tucker then called the police, who recorded the call at 1:27 a.m.

Upon returning to her apartment the victim discovered that a gold ring worth $200 was gone from her billfold. She also noticed the screen door to her balcony had been opened, and the curtain above the door was down. She remembered shutting the screen door when she went to bed but leaving the balcony sliding glass door open. When the police arrived, the victim gave them a description of the burglar. Later, she gave them a description of the burglar for a composite drawing.

Following the incident, the victim saw the defendant near her apartment on two occasions. She first saw him as he was carrying a stereo into a neighbor's apartment. She did not call the police at that time because it was dusk and the hall was poorly lighted. She saw the defendant again on November 9 on the street near her apartment. She notified the police at that time, and the defendant was arrested.

The defendant waived a jury trial, and at the conclusion of the trial was found guilty of both counts.

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 trier of fact, and a verdict made by the trier of fact must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Goodon, 219 Neb. 186, 361 N.W.2d 537 (1985); State v. Smith, 219 Neb. 176, 361 N.W.2d 532 (1985).

With respect to the burglary, Neb.Rev.Stat. § 28-507(1) (Reissue 1979) provides, "A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value." Evidence of any act of physical force, however slight, by which the obstruction to entering is removed is sufficient to prove a breaking. State v. Classen, 216 Neb. 323, 343 N.W.2d 749 (1984); State v. Campbell, 190 Neb. 394, 208 N.W.2d 670 (1973). The opening of a closed door to enter a building is a "breaking" within the definition of burglary. State v. Sedlacek, 178 Neb. 322, 133 N.W.2d 380 (1965).

The victim testified that she had closed the screen door to the balcony before she went to bed. After the incident the door was open and the curtain above the doorway had been knocked down. This was evidence of physical force sufficient to sustain the burglary conviction.

Robbery is committed when property is taken from a person through the use of force, violence, or intimidation. State v. Davis, 214 Neb. 474, 334 N.W.2d 450 (1983); Neb.Rev.Stat. § 28-324 (Reissue 1979). "As interpreted by this court, it is not necessary that the property be taken from the 'person.' It is sufficient if it is taken from the individual's personal presence, protection, or control." State v. Welchel, 207 Neb. 337, 342-43, 299 N.W.2d 155, 159 (1980). The force relied upon must be sufficient to effect a transfer of the property from the victim to the robber, and if it is sufficient to overcome resistance, the degree is immaterial. Welchel, supra.

In the present case it was 1:30 in the morning when the victim found a stranger in her dining room, going through her billfold. She was only 1 or 2 feet from him when he told her, "I'm stealing from you." The proximity, time, words, and actions of the defendant were sufficient to intimidate and scare the victim. As she ran screaming from her apartment, the defendant pursued her. The intimidation coupled with the theft of the gold ring from the victim's billfold was sufficient evidence to constitute robbery. The evidence shows that the fear continued for several days after the robbery.

The victim's testimony at trial was sufficient to sustain the conviction on both counts. The fact that all of the events of the robbery were not directly corroborated does not impair the sufficiency of the evidence. See Davis, supra.

The victim provided the police with a description of the burglar on several occasions. The composite drawing which was prepared from her description bears a striking resemblance to the defendant. The victim made a positive identification of the defendant in a photo lineup and at the trial.

The defendant's principal contention is that his evidence of an alibi prevented a finding of guilty. The manager of the Crown Court Lounge testified that the defendant was working at the bar on the evening of September 9 and that his timecard indicated he "clocked out" at 1:21 a.m. on September 10. The arresting officer testified it would take 4 to 4 1/2 minutes to drive from the bar to the victim's apartment. The police recorded the burglary and robbery as having happened at 1:25 a.m.

This evidence presented a question of fact for the trial court. See State v. Martinez, 181 Neb. 392, 148 N.W.2d 841 (1967). Evidence tending to prove an alibi does not destroy the sufficiency of the evidence to support a finding of guilt, but only presents conflicting evidence on a question of fact. Duffey v. State, 124 Neb. 23, 245 N.W. 1...