State v. Wyatt

• Decision Date: 02 February 1990
• Docket Number: No. 89-061,89-061
• Citation: 451 N.W.2d 84,234 Neb. 349
• Parties: STATE of Nebraska, Appellee, v. Myron Keith WYATT, Appellant.
• Court: Nebraska Supreme Court

Page 84

451 N.W.2d 84

234 Neb. 349

STATE of Nebraska, Appellee, v. Myron Keith WYATT, Appellant.

No. 89-061.

Supreme Court of Nebraska.

Feb. 2, 1990.

Syllabus by the Court

1. Verdicts: Evidence: Appeal and Error. On appeal, the Nebraska Supreme Court will reverse a verdict of guilty when the evidence is so lacking in probative force that the court can say as a matter of law that the evidence is insufficient to support a finding of guilt beyond a reasonable doubt.

2. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of the Nebraska Supreme 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 finder of fact. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

3. Habitual Criminals: Prior Convictions: Time. In order to warrant the enhancement of a penalty under the Nebraska habitual criminal statute, Neb.Rev.Stat. § 29-2221 (Reissue 1989), the prior convictions, except the first conviction, must be for offenses committed after each preceding conviction, and all such prior convictions must precede the commission of the principal offense.

4. Habitual Criminals: Prior Convictions: Time: Indictments and Informations. The exact time of the commission of an alleged prior felony is not of the essence of a charge under the habitual criminal statutes, and the failure of the information to accurately state the time of a prior felony does not render the information insufficient.

5. Habitual Criminals: Sentences: Time. It is the term of a defendant's prior sentences and not the time actually served which controls the applicability of the habitual criminal penalty.

Robert P. Lindemeier, Lincoln County Public Defender's Office, for appellant.

Robert M. Spire, Atty. Gen., and Steven J. Moeller, for appellee.

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

CAPORALE, Justice.

Pursuant to verdict, defendant-appellant Myron Keith Wyatt was adjudged guilty of, among other offenses, first degree false imprisonment, in violation of Neb.Rev.Stat. § 28-314 (Reissue 1989). The trial court also found him to be a habitual criminal, as defined in Neb.Rev.Stat. § 29-2221 (Reissue 1989). Wyatt assigns as error the trial court's (1) conclusion that the evidence is sufficient to support that conviction and (2) finding that he is a habitual criminal. We affirm.

On July 21, 1988, Wyatt and his fiancee, Barbara Norman, also known as Bobbie Williams, were partying with friends Kori Bancroft, Trent Simonson, Paul Basile, and Peggy Gastineau at a North Platte, Nebraska, trailer house. Norman appears to have been married but separated from her husband and was living with Wyatt, to whom she was engaged to marry.

Wyatt and Norman arrived at the trailer at approximately 10 p.m. They had been drinking beer prior to their arrival, each having consumed about five or six beers between 5 and 10 p.m. Later that evening, apparently around midnight, Wyatt, who had to work the next morning, decided to leave and asked Norman to leave with him. She, however, decided to remain at the trailer.

Wyatt left but returned 10 to 15 minutes later, at which time he was noticeably angry. While Wyatt was away, four of the five persons remaining in the trailer had played a drinking game, during the course of which Norman "chugged" five additional glasses of beer. Norman testified that she was intoxicated and did not have complete recollection of the events which transpired that night. Wyatt asked Norman if she was going to leave with him; she indicated that she wished to stay at the trailer. There is testimony that Wyatt then called Norman a "bitch" and stated that he should "pop [her] in the mouth." Wyatt testified that he tried to "coax" Norman out the door, but she would not move her feet, so he "was a little rough" and "pushed" her out the door. According to witnesses, Wyatt grabbed Norman, carried her to the door of the trailer, and threw her out the door. In throwing Norman out the trailer door, Wyatt forced her off the small porch by the trailer door, down three steps, and onto a concrete sidewalk, as the result of which fall she suffered minor injuries. In addition, Norman testified that she was frightened by the events surrounding her forcible removal from the trailer. Sixteen-year-old Bancroft also testified that she was "scared for" Norman.

After throwing Norman out the door, Wyatt picked her up from the concrete and threw her onto the hood of Basile's pickup truck. Norman testified she remembered being "held up to the truck and hit a couple of times there." Wyatt's testimony is that when he placed Norman on the hood of the pickup, he thought that she was feigning unconsciousness and that he slapped her and "blew in her eye" to determine whether she was conscious.

Meanwhile, Bancroft was telling Wyatt to leave Norman alone while Wyatt yelled at Norman, telling her not to "play her games." At one point, Wyatt told Bancroft's boyfriend, Simonson, that "he better take his woman in the house before she ended up getting hurt." Wyatt then placed Norman on his motorcycle and drove to the motel they occupied. Norman rode on the front part of the motorcycle seat while Wyatt drove to the motel, apparently at a high rate of speed.

Norman testified that after Wyatt placed her on the front of his motorcycle, her "head got hit," and after that she did not remember anything else until after the two were at the motel. The testimony suggests that Norman's head struck the handlebars of the motorcycle.

The four other persons who had been at the trailer followed Wyatt to the motel. Referring to Wyatt and Norman, Simonson testified, "We saw him pick her up off the bike and carry her into the motel room.... He closed the door and turned the lights off and closed the curtains and we heard them yelling, and I ran over and called the police."

Basile then began pounding on the door and yelling at Wyatt to open it. Although Wyatt did not do so, Bancroft was able to summon the motel manager, who then unlocked and opened the door. Wyatt then walked toward the door and indicated that someone should call an ambulance.

When the manager opened the door of the motel room, those present found that Norman had a 4-inch-long, 1/2-inch-deep cut to her abdomen. Wyatt told Norman to "tell them it was an accident." Norman's testimony was that she did not recall how she suffered the cut to her abdomen. Wyatt testified that the cut suffered by Norman was the result of an accident.

Shortly after the manager opened the door of the motel room, the police and an ambulance arrived. The ambulance then transported Norman to the hospital.

At a hearing held after his convictions, the trial court conducted an enhancement hearing to determine whether Wyatt was a habitual criminal. During the course thereof, the prosecutor introduced into evidence, inter alia, two exhibits consisting of copies of the court files regarding Wyatt's previous felony convictions. One exhibit relates to 1983 convictions, upon counseled pleas of guilty, on three counts of burglary. The other exhibit relates to 1985 convictions, pursuant to verdicts, for attempted burglary and possession of burglar's tools.

In the 1983 case Wyatt was sentenced to concurrent terms of 1 to 3 years on each of the three burglary convictions. In the 1985 case Wyatt was sentenced to concurrent terms of 1 to 4 years and 1 year, but these terms were to be served consecutively to the sentences imposed in the 1983 case. (Wyatt was apparently on parole when he committed the crimes resulting in his prosecution in the 1985 case; thus, after his convictions in that case, he still had time remaining on his earlier convictions in the 1983 case.)

At the enhancement hearing the trial court found that Wyatt had been convicted of felonies in both the 1983 and 1985 cases and that Wyatt had been sentenced and committed to prison for periods of at least 1 year on each of those convictions. Consequently, the trial court found that Wyatt was a habitual criminal pursuant to § 29-2221. The trial court then sentenced Wyatt as a habitual criminal to imprisonment for a period of 10 to 11 years on the conviction at issue in this case, a Class IV felony.

While the trial court found at the enhancement hearing that Wyatt had been convicted of felonies in both the 1983 and 1985 cases, it did not specifically state its findings regarding the dates of those prior convictions. However, a review of the two exhibits makes it clear that Wyatt committed the felonies which resulted in the 1985 case almost a year after sentencing for the felonies resulting in the 1983 case.

It is also noted that the trial court's journal entry regarding the enhancement hearing fails to set forth any finding with respect to the 1985 case and fails to detail a finding as to the date of the conviction in the 1983 case.

As his first assignment of error, Wyatt argues that the evidence adduced by the State was insufficient to permit the jury to find him guilty beyond a reasonable doubt of first degree false imprisonment.

On appeal, the Nebraska Supreme Court will reverse a verdict of guilty when the evidence is so lacking in probative force that the court can say as a matter of law that the evidence is insufficient to support a finding of guilt beyond a reasonable doubt. State v. Frazier, 234 Neb. 107, 449 N.W.2d 230 (1989); State v. Auman, 232 Neb. 341, 440 N.W.2d 254 (1989).

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 finder of fact. The verdict must be...