State v. Thompson
| Decision Date | 22 October 1993 |
| Docket Number | No. S-92-891,S-92-891 |
| Citation | 507 N.W.2d 253,244 Neb. 375 |
| Parties | STATE of Nebraska, Appellee, v. Frances L. THOMPSON, Appellant. |
| Court | Nebraska Supreme Court |
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 trier of fact, and the verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
2. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence.
3. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
4. Trial: Evidence. All relevant evidence normally is admissible. Evidence which is not relevant is not admissible.
5. Rules of Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
6. Rules of Evidence. Admission of evidence under Neb.Evid.R. 106, Neb.Rev.Stat. § 27-106 (Reissue 1989), the rule of completeness, is not automatic. Even under rule 106, the evidence sought to be admitted must be relevant to the issues in the case.
7. Motions for New Trial: Time. An application for new trial shall, except for the cause of newly discovered evidence material for the party applying, which he or she could not with reasonable diligence have discovered and produced at the trial, be filed within 10 days after the verdict was rendered unless unavoidably prevented.
8. Motions for New Trial: Time: Appeal and Error. A motion for new trial not filed in conformity with the statutory requirements as to time may not be considered by an appellate court on review.
9. Verdicts: Appeal and Error. 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. Moreover, on a claim of insufficient 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.
10. Convictions: Juries: Circumstantial Evidence. In finding a defendant guilty beyond a reasonable doubt, a jury may rely upon circumstantial evidence and the inferences that may be drawn therefrom.
11. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact exists.
12. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is evidence of one or more facts from which another fact can logically be inferred.
13. Homicide: Intent: Words and Phrases. A person commits murder in the first degree if he or she kills another person purposely and with deliberate and premeditated malice.
14. Homicide: Intent: Words and Phrases. "Purposely," as an element of first degree murder, means intentionally.
15. 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 the conduct.
16. Homicide: Intent: Circumstantial Evidence. Malice, like intent, concerns the state of mind of the slayer and may also be inferred from the words and acts of the defendant, the circumstances surrounding his or her conduct, and the evidence relating to the circumstances of the criminal act.
17. Intent: Words and Phrases. Malice is that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse.
18. Homicide: Intent: Words and Phrases. Deliberate malice and premeditated malice are separate and distinct elements of the crime of murder in the first degree.
19. Homicide: Intent: Words and Phrases. "Deliberate" means not suddenly, not rashly; but deliberation requires that the defendant considered the probable consequences of his or her act before doing the act. A person kills with deliberate malice when he or she, without just cause or excuse, kills another not suddenly or rashly, but after considering the probable consequences of doing the act.
20. Homicide: Intent: Words and Phrases. "Premeditated" means to have formed a design to commit an act before it is done. A person kills with premeditated malice if before the act causing the death occurs, he or she has formed the intent or determined to kill the victim without legal justification.
21. Homicide: Intent: Evidence. The length of time it takes to kill another is evidence from which the intent of the killer may be inferred.
22. Intent: Evidence: Weapons. Malice may be inferred from the shooting of another person with a deadly weapon.
23. Homicide: Intent: Evidence. The location, nature, and number of wounds inflicted are circumstances from which a jury may draw the inference that a killing was done with deliberate and premeditated malice.
24. Self-Defense. The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself or herself against the use of unlawful force by such other person on the present occasion.
25. Self-Defense: Death. The use of deadly force shall not be justifiable under Neb.Rev.Stat. § 28-1409 (Reissue 1989) unless the actor believes that such force is necessary to protect himself or herself against death.
26. Self-Defense. A person employing protective force may estimate the necessity thereof under the circumstances as he or she believes them to be when the force is used.
27. Self-Defense. A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force.
28. Self-Defense. Human life should not be made to depend upon conditions so unreliable and hazardous as the bare belief of any person that he or she is in danger of death or bodily harm.
29. Self-Defense. A defendant's claim of self-defense is a question of fact for the jury.
30. Trial: Juries. Except when there is a showing that without sequestration a party's rights would be prejudiced, a party has no right to examine a venireperson out of the presence of all other venirepersons.
Andrew Reid and Bruce Ellison, for appellant.
Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, for appellee.
Frances L. Thompson appeals her jury convictions for first degree murder and for use of a firearm to commit a felony in the August 18, 1991, killing of Dean Frank. Thompson admits she shot and killed Frank, but claims the killing was done in self-defense. We affirm the jury's verdicts.
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 trier of fact, and the verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Russell, 243 Neb. 106, 497 N.W.2d 393 (1993); State v. Bronson, 242 Neb. 931, 496 N.W.2d 882 (1993).
Viewed most favorably to the State, the facts of this case are as follows:
At the time Frances L. Thompson killed Dean Frank on August 18, 1991, she was a 41-year-old widow. She had just completed her third year of full-time study at the University of Nebraska at Lincoln, where she had been almost a straight-A student. Thompson hoped eventually to attend law school and pursue a career in environmental law.
During her attendance at the university, Thompson maintained an apartment in Lincoln. When not at the university, she resided in rural Knox County on an 850-acre farm near Verdigre, Nebraska. The farm was owned by Thompson's mother, and Thompson hoped to inherit the farm someday. At the time Frank was killed, Thompson's 22-year-old son, Steven, was stationed in Great Lakes, Illinois, with the U.S. Navy.
Thompson met Frank shortly after moving onto the Knox County farm in 1985. Frank did odd jobs around the farm and was paid by Thompson's mother. Frank also helped Thompson with various tasks such as moving heavy objects and helping to care for her pet pig. In exchange, Thompson did mending and typing for Frank.
Frank lived in Atkinson, Nebraska, and early in their relationship, Thompson and Frank saw each other infrequently. Thompson described her relationship with Frank as one of friendship. She testified that Frank was a "perfect gentleman" to her during the 6 years preceding the killing. She had rebuffed his one "pass" at her soon after they became acquainted. Frank sometimes spent the night at Thompson's house when he did jobs for her that required more than 1 day to complete. He slept in a spare upstairs bedroom.
The nature of the relationship between Thompson and Frank changed...
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