State v. Foster4/15/2003
ubt.
STANDARD OF REVIEW
A conviction in a bench trial of a criminal case is sustained if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002).
ANALYSIS
Driving During Suspension.
Foster claims in his brief, citing Neb. Rev. Stat. § 60-4,129 (Reissue 1998), that the court erred in convicting him of driving during suspension, because the only evidence suggesting that he was not driving during the course of his employment when stopped was Oetter's testimony that Foster said, "what's wrong with him a guy stopping a quote, titty bar, and having a few beers after work?" Such statement would clearly be an admission, given that on his employment driving permit, Foster was to be driving only back and forth to work.
In a bench trial of a criminal case and in determining the sufficiency of 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. State v. Clark, 229 Neb. 103, 425 N.W.2d 347 (1988). Such matters are for the finder of fact. Id. The finding of a defendant's guilt must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support such finding. Id.
Taking the view most favorable to the State, we determine that Foster admitted he had gone to a bar on his way home from work, that there was evidence he had made such a stop, and that he had been drinking. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Fu v. State, 263 Neb. 848, 643 N.W.2d 659 (2002). The trial court was free to believe that Foster had made the admission. Additionally, no other evidence (not even Baud) supported Foster's claim. Clearly, there was sufficient evidence in the record to support Foster's conviction for driving during suspension.
Reckless Driving.
Foster argues that the State did not prove all the elements of reckless driving as defined by Neb. Rev. Stat. § 60-6,213 (Reissue 1998), which provides that " ny person who drives any motor vehicle in such a manner as to indicate an indifferent or wanton disregard for the safety of persons or property shall be guilty of reckless driving."
According to Foster, " o evidence was offered that [Foster] came close to hitting anyone or anything other than a curb," brief for appellant at 14, so there was no evidence that any persons or property was subjected to danger in that area. Foster cites State v. Douglass, 239 Neb. 891, 894, 479 N.W.2d 457, 460 (1992), which found insufficient evidence to support a conviction for reckless driving where " here was no evidence of the presence of any persons or property subjected to any danger in the area."
However, Douglass involved Neb. Rev. Stat. § 39-669.03 (Reissue 1988), the willful reckless driving statute. This statute, now Neb. Rev. Stat. § 60-6,214 (Reissue 1998), states that " ny person who drives any motor vehicle in such a manner as to indicate a willful disregard for the safety of persons or property shall be guilty of willful reckless driving." (Emphasis supplied.) The Douglass court held that the State had to prove "intentional or deliberate disregard for the safety or property of others." (Emphasis omitted.) 239 Neb. at 894, 479 N.W.2d at 460. An example of such conduct is found in State v. Cook, 212 Neb. 718, 325 N.W.2d 159 (1982), where the defendant, who was in the
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