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State v. Trevor Chief Bear11/9/2004
what they think is that he said two different things at two different times . . . ." The jury returned to open court, and the judge told the jury that the judge and the court reporter had isolated those portions of the defendant's testimony regarding the liquor store and "any testimony that dealt with the starting of the vehicle." A portion of the defendant's testimony was then read back, and the jury adjourned to continue its deliberations. That portion of the defendant's testimony read back to the jury was received into evidence without objection as exhibit 19.
The jury returned with a verdict at 5:52 p.m., finding the defendant guilty of counts I, II, III, IV, and VI. The district court thereafter imposed the following sentences: on count I, a prison term of 3 to 5 years, with credit for 120 days served; on count II, a prison term of 1 to 2 years; on count III, a prison term of 1 to 2 years; on count IV, a prison term of 0 to 6 months; and on count VI, a prison term of 0 to 60 days, a $400 fine, and a mandatory 6 months' revocation of his driver's license. Sentences on counts II, III, IV, and VI were ordered to be served concurrently to one another but consecutively to the sentence under count I. The defendant filed this timely appeal.
ASSIGNMENTS OF ERROR
The defendant assigns, restated, that the district court erred (1) in finding that there was sufficient evidence for the trier of fact to find him guilty beyond a reasonable doubt of count II, possession of burglar's tools, and (2) in reading back a portion of his testimony to the jury.
STANDARD OF REVIEW
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004); State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
ANALYSIS
Sufficiency of Evidence
The defendant first argues that the evidence adduced at trial regarding count II, possession of burglar's tools, was insufficient as a matter of law to allow a reasonable trier of fact to find the defendant guilty of that offense. Neb. Rev. Stat. § 28-508 (Reissue 1995) provides in relevant part:
(1) A person commits the offense of possession of burglar's tools if:
(a) He knowingly possesses any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking; and
(b) He intends to use the explosive, tool, instrument, or article, or knows some person intends ultimately to use it, in the commission of an offense of the nature described in subdivision (1)(a) of this section.
The evidence presented at trial showed that when the defendant was arrested, a flathead screwdriver was found in his pocket. In addition, a brick was found in the front seat of the stolen vehicle he abandoned. The defendant argues that because "the brick recovered from the
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