State v. Wilson
| Decision Date | 02 April 1996 |
| Docket Number | No. A-95-288,A-95-288 |
| Citation | 4 Neb.App. 489,546 N.W.2d 323 |
| Parties | STATE of Nebraska, Appellee, v. Harold L. WILSON, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Rules of Evidence: Other Acts: Proof. Neb.Evid.R. 404(2), Neb.Rev.Stat. § 27-404(2) (Cum.Supp.1994), provides that 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. However, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
2. Trial: Evidence: Other Acts: Appeal and Error. It is within the trial court's discretion to determine the admissibility of evidence of a defendant's other wrongs or acts, and the trial court's decision will not be reversed on appeal absent an abuse of discretion.
3. Trial: Words and Phrases. Judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
4. Rules of Evidence: Other Acts: Appeal and Error. When reviewing the admission of evidence of other acts, an appellate court considers (1) whether the evidence was relevant; (2) whether the evidence had a proper purpose; (3) whether the probative value of the evidence outweighed its potential for unfair prejudice as required by Neb.Evid.R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1989); and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.
5. Rules of Evidence. 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. Evidence: Words and Phrases. To be relevant, evidence must be rationally related to the issue by a likelihood, not a mere possibility, of proving or disproving the issue to be decided.
7. Rules of Evidence: Other Acts. Even when "other acts" evidence is relevant and has a proper purpose, it is still subject to overriding protection under Neb.Evid.R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1989), which permits relevant evidence to be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
8. Trial: Evidence: Other Acts. Evidence of other crimes may be admitted in a criminal prosecution where the evidence is so related in time, place, and circumstances to the offense or offenses charged as to have substantial probative value in determining the guilt of the accused.
9. Trial: Evidence: Other Acts. A separate act or acts with distinctive patterns or procedures may have probative value in determining a defendant's guilt and need not be identical to the act charged in order to be admissible.
10. Evidence: Words and Phrases. Probative value is a relative concept; the probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the ultimate issues of the case.
11. Convictions: Appeal and Error. A defendant's conviction must be sustained if, taking the view of the evidence which is most favorable to the State, there is sufficient evidence to support it.
12. Convictions: Appeal and Error. A conviction will not be reversed on appeal unless, after the court views the evidence most favorably for the State, the evidence is so lacking in probative value that it is insufficient as a matter of law to support the verdict.
13. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a 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.
14. Sentences. The Nebraska indeterminate sentencing statute provides, in relevant part, that a court imposing an indeterminate sentence must fix the minimum and maximum limits of the sentence to be served within the limits provided by law.
15. Sentences. In setting an indeterminate sentence, there must be a difference between the periods, and a sentence fixing identical minimum and maximum terms of imprisonment is not an indeterminate sentence.
Appeal from the District Court for Saline County: ORVILLE L. COADY, Judge. Affirmed in part, and in part reversed and remanded for resentencing.
Thomas L. Spinar, Saline County Public Defender, for appellant.
Don Stenberg, Attorney General, and David K. Arterburn, Lincoln, for appellee.
This appeal arises from Harold L. Wilson's convictions of attempted second degree murder, robbery, and use of a weapon to commit a felony. On appeal, Wilson contends that the district court erred in admitting evidence of a subsequent crime under Neb.Evid.R. 404(2), Neb.Rev.Stat. § 27-404(2) (Cum.Supp.1994); that there was insufficient evidence to support his conviction for attempted second degree murder; and that the sentences imposed upon him are excessive. For the reasons set forth herein, we affirm.
On September 6, 1994, an information was filed charging Wilson with attempted second degree murder, robbery, first degree assault, and use of a weapon to commit a felony resulting from an attack on a convenience store worker on May 8, 1994, in Crete, Nebraska. At his arraignment, Wilson pled not guilty to all counts. Prior to trial, the State filed a notice of intent to offer evidence of other wrongs or acts during Wilson's trial, and a § 27-404 hearing was held to determine the admissibility of the evidence sought to be introduced by the State.
On November 3, 1994, a § 27-404 hearing was held to determine, among other things, the admissibility of testimony from Kimberly Paulsen regarding an incident similar to the charged incident which had occurred in Lincoln, Nebraska, on May 9, 1994. Evidence was received including a transcript of testimony by Paulsen, while under oath, as to the circumstances surrounding an attack upon her by Wilson while she was working at a Little King fast-food restaurant in Lincoln. The court determined that the testimony of Paulsen could be introduced by the State on direct examination to show proof of intent, plan or method of attack, identity, and absence of mistake or accident, and further details concerning the Lincoln incident will be set forth later in this opinion. The court denied the remainder of the State's motion concerning admission of other evidence.
A jury trial was held on November 28 and 29, 1994. At trial, the victim, Peggy Kenney, testified that on May 8, 1994, she was employed at a Crete convenience store named "First & Last Stop." Kenney worked the morning shift, opening the store at 6 o'clock. On May 8, Kenney arrived at the store at approximately 5:50 a.m. and was working alone when Wilson, who was the store's first customer, entered the store at approximately 6:15. Kenney recognized Wilson because she had seen him in the store before and had noticed Wilson's eyes as a distinguishing feature.
Kenney testified that after Wilson entered the store, he walked around the store for a few minutes looking at various items. During this time, Kenney continued working behind the counter, performing various tasks, including placing money in the cash register drawer. Shortly thereafter, Kenney asked if she could help Wilson, to which Wilson responded that he did not know what he wanted. During this brief conversation, Kenney testified, Wilson acted friendly toward her and showed no sign of anger, of abnormal behavior, or that he was upset.
Shortly thereafter, Wilson walked up to a snack food display, picked up a bag of Doritos chips, and placed the bag on the counter. At this point, Wilson was only 2 feet away from Kenney. Kenney informed Wilson how much the chips would cost, and Wilson said that he had to go out to his car to get his wallet. When Wilson returned 20 to 30 seconds later, he was walking very quickly. Wilson approached Kenney, grabbed her hair with his right hand, pulled her head down behind the counter, and stabbed her neck 6 to 10 times with an object that he was holding in his left hand. Kenney testified that Wilson stabbed her with a long, cylindrical, metallic object which she thought might be an ice pick or a screwdriver.
During the attack, Wilson did not say anything to Kenney and did not demand money. After Kenney attempted to pull away from the attack, but was unable to do so, she told Wilson to take the money in the cash register. At this time, Wilson let go of Kenney's hair; grabbed $175 in bills out of the open cash register drawer, which was within easy reach; and ran out of the store.
Kenney then ran to a house across the street, where a call was made to police, and Kenney was taken to the emergency room at the Crete hospital. David Marvin, a physician's assistant, testified that there were several stab wounds to Kenney's neck. This caused Marvin concern because one particular stab wound was in the area of the carotid artery and the internal jugular vein. Both Marvin and Dr. Leon Jons, who saw the victim for followup care, testified that given the nature of Kenney's injuries, she had been placed in a situation involving a substantial risk of death, permanent disfigurement, or injury.
The State then adduced evidence from Paulsen, regarding a similar incident that occurred to her while she was working at a restaurant in Lincoln, over Wilson's continuing...
To continue reading
Request your trial
- State v. Wilson
-
Lupien v. Clarke, 04-1618.
...under Nebraska's system were those in which the court imposed different minimum and maximum terms of imprisonment. State v. Wilson, 4 Neb.App. 489, 546 N.W.2d 323, 332 (1996). Determinate sentences, by contrast, were those in which the minimum and maximum terms of imprisonment were the same......
-
State v. Wyatt, A-97-128
...must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Wilson, 4 Neb.App. 489, 546 N.W.2d 323 (1996). Viewing the evidence in favor of the State, as we must, we find that there is sufficient evidence that Wyatt was producing m......
-
State v. Marrs
...opposing meaning). The Nebraska Court of Appeals has reached conflicting conclusions on this issue. In State v. Wilson, 4 Neb.App. 489, 501, 546 N.W.2d 323, 332 (1996), a majority of the panel relied on authority from other jurisdictions in concluding that in an indeterminate sentence, "the......