State v. Zaritz

• Decision Date: 15 June 1990
• Docket Number: No. 89-240,89-240
• Citation: 456 N.W.2d 479,235 Neb. 599
• Parties: STATE of Nebraska, Appellee, v. William Michael ZARITZ, also known as Mick Zaritz, Appellant.
• Court: Nebraska Supreme Court

Page 479

456 N.W.2d 479

235 Neb. 599

STATE of Nebraska, Appellee, v. William Michael ZARITZ, also known as Mick Zaritz, Appellant.

No. 89-240.

Supreme Court of Nebraska.

June 15, 1990.

Syllabus by the Court

1. Convictions: Appeal and Error. A criminal conviction will be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Motions for Mistrial: Appeal and Error. The decision to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent an abuse of discretion.

3. Trial: Prosecuting Attorneys: Motions for Mistrial. Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.

4. Trial: Testimony: Appeal and Error. The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.

5. Rules of Evidence: Witnesses: Testimony: Proof. Specific instances of the conduct of a witness, for the purpose of 6. Trial: Evidence: Presumptions. In a case tried to a court without a jury, there is a presumption that the trial court, in reaching its decision, considered only evidence that is competent and relevant.

attacking or supporting his credibility, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning his character for truthfulness or untruthfulness.

7. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of the 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, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

8. Convictions: Testimony: Proof. A defendant's conviction of a crime may be based on uncorroborated testimony of an accomplice.

9. Confessions: Proof: Corroboration. A confession, standing alone, is insufficient to prove that a crime has been committed.

10. Confessions: Proof: Corroboration. Where the crime involves physical damage to a person or property, the prosecution must generally show that the injury for which the accused confessed responsibility did in fact occur and that some person was criminally culpable. There need be no link, outside the confession, between the injury and the confessor.

11. Sentences: Appeal and Error. A sentence within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

12. Sentences. It is within the discretion of the trial court to direct that sentences imposed for separate crimes be served consecutively.

Winfield J. Scott, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.

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

FAHRNBRUCH, Justice.

William M. Zaritz appeals his three bench trial felony convictions and sentences for conspiracy to commit a theft, for theft of a $77,800 truck, and for failing to appear in court for his scheduled trial.

The defendant was sentenced to concurrent 6- to 20-year prison terms on the conspiracy and theft charges and fined $10,000 on each count. For failing to appear at his scheduled trial, Zaritz received a prison term of not less than 20 nor more than 60 months, that sentence to run consecutively to the other sentences. We affirm the judgment of the district court for York County.

Zaritz sets forth several assignments of error, which may be consolidated to allege that the trial court erred in (1) failing to grant a mistrial for prosecutorial misconduct, (2) allowing the prosecutor to ask the alibi witness during cross-examination if he had ever hauled drugs for the defendant, (3) finding that the evidence was sufficient to prove Zaritz guilty beyond a reasonable doubt, (4) convicting the defendant solely upon his own admissions without corroborating independent evidence, and (5) imposing excessive sentences.

A criminal conviction will be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Badami, 235 Neb. 118, 453 N.W.2d 746 (1990). Taking the view most favorable to the State, the evidence shows the following.

From September 1984 through July 1986, the Federal Bureau of Investigation (FBI) conducted an undercover investigation which targeted dealers and purchasers of stolen heavy equipment. A confidential informant was employed by the FBI to introduce an undercover FBI agent to individuals who stole trucks, cars, and construction During the investigation, the informant came in contact with Noel Gene Amerman. Amerman acted as a broker arranging meetings between sellers and buyers of stolen property. Amerman apprised the informant that Roger Southard was the leader of a group of truck thieves operating around Saint James, Missouri.

equipment. After the undercover agent was introduced to dealers of stolen property, the agent and the informant were to purchase the property and to obtain introductions to other sellers of stolen merchandise. Agent Dennis Mattes was the assigned undercover agent.

On August 28, 1985, Amerman introduced Mattes to Southard in Saint James as an individual who was looking for and willing to pay money for stolen equipment and trucks. Southard informed Mattes that he had some of the best thieves in the business working for him and that they would go into a dealership carrying their own fuel, start a truck, and drive it away. At the conclusion of this meeting, Mattes told Southard that he wanted either a new or low-mileage Kenworth or Peterbilt truck and that he was willing to pay $10,000. In conversations after the initial meeting, Southard, Mattes, and the informant discussed the theft of trucks and construction equipment and the price to be paid for the stolen property. On October 22, 1985, Southard and Mattes agreed that if Southard could provide a new Peterbilt or Kenworth truck, Mattes would buy it.

At approximately 9 p.m. on October 23, Southard called Mattes and told him that he had found a Kenworth truck. The parties agreed on a price of $12,000 for the truck and to meet at a truckstop in either Sioux City or Council Bluffs.

It is uncontradicted that sometime after 5:30 p.m. on October 23, 1985, a new Kenworth truck with a retail value of $77,800 was taken from a truck dealership lot near York. At about 3 a.m. on October 24, Southard called Mattes from a rest stop and informed him that he had a new truck and was 70 miles from a truckstop in Council Bluffs where the parties were to meet between 5 and 5:30 a.m.

During the early morning hours of October 24, a scale officer for the Nebraska State Patrol on duty near Wahoo, Nebraska, pursued a truck which did not stop at the scales. The officer observed a maroon and white vehicle following the truck just before it arrived at the scales. It was later determined that the maroon and white car belonged to Southard's mother and was driven by Southard. When the officer reached the truck, it was parked by the side of the highway. The truck's engine was running, and no one was found in the vicinity. It was later determined that the truck was the Kenworth taken from the dealership near York. While the officer was parked, Southard, who had been following the officer, drove past him.

A dent puller, which Southard testified is a device that can be used to remove a lock from a door of a truck, and a "line sheet," which described the truck and identified the customer as "Sahling KW-Kearney," were recovered from the truck. Sahling was a truck dealership with offices in Kearney and York. Two sets of footprints in mud, one made by cowboy boots and the other by tennis shoes, led from the passenger side of the truck into a nearby field. With the aid of police dogs, the footprints were followed, but no suspects were located. No identifiable fingerprints could be found anywhere on the truck. A Wahoo police officer observed Southard's automobile parked in the parking lot of a convenience store in Wahoo at about 4:55 on the morning of October 24. The officer testified that the sole occupant of the vehicle appeared to be asleep. Shortly after 6 a.m., an officer with the Saunders County sheriff's office saw Southard's car parked near a phone booth in Mead. Southard was alone in the car and informed the officer that he was in the area looking at some tractor-trailers.

Mattes, along with the confidential informant, arrived at the truckstop in Council Bluffs between 5:30 and 6 a.m. At 8:05 a.m., an FBI agent conducting surveillance at the truckstop observed Southard's vehicle pull into a parking space next to Mattes' car. The agent watched Southard Mattes and the informant met with Southard and Zaritz in the truckstop's restaurant. Zaritz was dressed in damp cowboy boots. The legs of his grass-stained bib overalls were wet from the hems upward for about 1 foot. The defendant explained that his pants were wet because he had run through a cornfield. Southard identified Zaritz as his driver. When Southard reached the booth, he stated, "We lost the truck." Southard told Mattes that he had dropped two drivers off at a dealership, where they stole a truck; that the truck then was driven on Highway 92 toward Omaha; and that when the truck passed a weigh scale, it was pursued by the officer. Southard said he was following the truck in his mother's car. He passed the truck and the officer. Southard said that the drivers escaped into a cornfield, that he parked his car in a small town and was sleeping when he was awakened and questioned by a local police officer, that he eventually...