State v. Tomrdle

• Decision Date: 10 June 1983
• Docket Number: No. 82-584,82-584
• Citation: 214 Neb. 580,335 N.W.2d 279
• Parties: STATE of Nebraska, Appellee, v. Marty R. TOMRDLE, Appellant.
• Court: Nebraska Supreme Court

Page 279

335 N.W.2d 279

214 Neb. 580

STATE of Nebraska, Appellee, v. Marty R. TOMRDLE, Appellant.

No. 82-584.

Supreme Court of Nebraska.

June 10, 1983.

Syllabus by the Court

1. Directed Verdict. A directed verdict is granted when there is no evidence to justify a finding that the accused is guilty of the charge contained in the complaint or information filed in the proceedings.

2. Burglary: Proof. A conviction of burglary can be based on circumstantial evidence.

3. Burglary: Intent. Nocturnal entry into a building known to contain property is a circumstance from which an intent to steal may be inferred.

4. Pleadings. A motion in limine is a step preliminary to the introduction of evidence.

5. Evidence: Appeal and Error. An objection to the adduced evidence must appear in the record for preservation of a question to be reviewed on appeal.

6. Plea in Abatement: Appeal and Error. Rejection of a plea in abatement will not be reversed after a verdict of guilty which is based on sufficient evidence that a crime has been committed.

Avis R. Andrews, Fremont, for appellant.

Paul L. Douglas, Atty. Gen., and Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

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

SHANAHAN, Justice.

Marty R. Tomrdle was charged with burglary, Neb.Rev.Stat. § 28-507 (Reissue 1979), convicted, and sentenced to 5 to 10 years for the commission of that offense. Tomrdle assigns errors of the District Court as follows: (1) Failing to direct a verdict in favor of Tomrdle at the conclusion of the State's case; (2) Overruling a motion in limine; (3) Overruling a plea in abatement; and (4) Abuse of discretion regarding the sentence imposed. The proceedings and judgment in the District Court are affirmed.

After drinking beers throughout the late hours of November 4, 1981, Ricky Marsoun, Kenneth Burger, and Tomrdle were riding around Fremont in Marsoun's van. They had heard that a 1955 or 1957 Thunderbird, a vintage automobile, was stored in the barn on the "Diers place" approximately 1 mile outside Fremont. Sometime after midnight, the trio drove to the Diers place. Marsoun testified that there was then a possibility that parts would be taken from the Thunderbird. Marsoun parked the van on a public road near the Diers place, and, under cover of fog, the trio walked to the barn. Neither Tomrdle nor his companions had permission to be on the Diers place. On arrival at the barn Burger pushed open a door; Tomrdle and his companions entered the barn through the opened door; and there they found the disassembled Thunderbird. When the three departed 15 minutes later, they carried out the "hard top" and the "soft top" of the Thunderbird and, additionally, its tires, fender skirts, wheel rims, and hood. The threesome loaded the parts in Marsoun's van and left. Tomrdle was dropped at his place in Fremont. Marsoun and Burger then drove to Snyder, Nebraska, and stored the parts in Marsoun's garage. Marsoun later shipped the Thunderbird parts to Texas for sale; the parts were sold; and Marsoun received and cashed a check as payment for the parts.

The first error assigned relates to the trial court's overruling a motion for acquittal or dismissal of the charge so that the question of guilt was thereby submitted to the jury. In Nebraska the rule concerning an accused's right to a directed verdict was stated in Wanzer v. State, 41 Neb. 238, 242, 59 N.W. 909, 910 (1894), as follows: "It is only when there is a total want of proof to support a material allegation of the information, or where the testimony in a criminal case is of so weak or doubtful a character that a conviction based thereon could not be sustained, that a court will be justified in directing a verdict of not guilty." A motion for a directed verdict of acquittal can be sustained only if there is no substantial evidence reasonably tending to support the charge against the accused. Cf. State v. McClelland, 162 N.W.2d 457 (Iowa 1968).

Tomrdle claims that he was entitled to the directed verdict of acquittal at the end of the State's case because there was no evidence that he intended to steal any property located in the barn. Intent is a subjective element of a crime, that is, it exists in the mind of the perpetrator. In crimes of burglary it is the exceptional case in which there is direct evidence that the accused possessed the felonious intent which must be established beyond a reasonable doubt in order to sustain a conviction of burglary. Most recognize that burglars usually do not publicize or declare their intent concerning any breaking and entering. Therefore, the felonious intent necessary for a conviction of burglary may be proved by circumstantial evidence. State v. Rich, 183 Neb. 128, 158 N.W.2d 533 (1968). There is no categorical condemnation that circumstantial evidence is so worthless and untrustworthy that such evidence cannot be the basis for a conviction of a crime. Cf. Oseman v. State, 32 Wis.2d 523, 145 N.W.2d 766 (1966).

Applying these rules to the evidence which existed at the conclusion of the State's case, we must see whether there was sufficient evidence to warrant submitting the case to the jury. We have a situation where Tomrdle and his companions on a foggy night went to the barn which they knew contained a valuable, vintage automobile. After 15 minutes inside the barn they methodically removed those parts which could most easily be transported in the van which was parked at some distance from the barn. When considered together, the foggy weather, the lateness of the hour, and the location of the parked van were circumstances from which a jury could reasonably infer that the trio did not want anyone to observe their activities at the Diers place. Nocturnal entry into a building known to contain property is a circumstance from which a jury may infer an intent to steal. In Hebb v. State, 10 Md.App. 145, 149, 268 A.2d 578, 581 (1970), the Maryland court held: "[T]he evidence was sufficient to convict .... The attempt by the appellants to enter a storehouse (which they knew carried a substantial inventory) in the nighttime ... was sufficient to support a rational inference that they intended to steal everything of value that they could find and carry away."

Likewise, in Mirich v. State, 593 P.2d 590, 593 (Wyo.1979), facts similar to the present case justified a conviction of burglary under the statement: "The law is well settled and widespread that where one breaks into the property of another in the nighttime, an inference may be drawn that he did so with the intent to commit larceny. A reasonable mind recognizes that people do not usually break into and enter the building of another under the shroud of darkness with innocent intent and that the most usual intent is to steal.... Defendant had been in the building and knew its contents. Knowledge of what a structure contains, coupled with an attempt to enter it, supports a rational inference of intent to steal whatever is of value within the building." See, also, State v. Allnutt, 261 Iowa 897, 156 N.W.2d 266 (1968).

The automobile parts removed from the barn were shipped to Texas and sold. Such disposition after the burglary is a circumstance from which larcenous intent can be inferred. In this respect Tomrdle's situation is much like People v. Rollins, 119 Ill.App.2d 116, 255 N.E.2d 471 (1970), where the defendant helped carry away a television set and an accomplice later attempted to sell the stolen television. As expressed by the Illinois court: "Indeed, what could be more probative of an intent to commit theft here than the removal of the television set from the owner's house to the apartment whence defendants had just come and, so, too, proof of the television's ultimate disposition--sale? Proof of an intent to deprive an owner of a given article would include proof of the article's sale and anything in between." Id. at 126-27, 255 N.E.2d at 475. In Simmons v. State, 493 S.W.2d 937 (Tex.Cr.App.1973), there was testimony from an accomplice that the defendant and he had committed the burglary; had stored the goods at the defendant's house; and had tried to sell part of the goods. Such evidence was permissible in support of a conviction of burglary with intent to commit theft.

Tomrdle contends that under the circumstances presented to the jury the State was not able to rule out every hypothesis of innocence. It may be open to question that any reasonable hypothesis other than guilt might be extracted from a midnight prowl...