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State v. Trevor Chief Bear11/9/2004
vehicle . . . and the screwdriver . . . recovered from [the defendant] were both inside the garage before any crime was committed," these tools could not have been used to enter the garage and that therefore, "there was no nexus between the items alleged to be burglar's tools and the underlying breaking and entering." Reply brief for appellant at 3. The defendant contends that given the absence of such a nexus, the evidence was insufficient as a matter of law to find the defendant guilty of possession of burglar's tools.
The defendant's argument relies on the fact that no evidence was adduced that he used the screwdriver to "forcibly enter" the garage. However, § 28-508(1)(a) refers to "forcible entry into premises" or "theft by a physical taking." In this case, it is not the forcible entry into the garage, but, rather, the theft by physical taking of the vehicle which is at issue. In viewing the evidence in the light most favorable to the State, the jury could have determined beyond a reasonable doubt that the defendant used the brick to break the window of the vehicle and then used the screwdriver to start the vehicle and physically remove it from the premises. Under § 25-508, the State need only to prove beyond a reasonable doubt that the defendant knowingly possessed the tools and intended to use them to commit a "theft by a physical taking." We find the evidence sufficient to support such a conclusion beyond a reasonable doubt. Therefore, there is no merit to this assigned error.
Testimony
In his second assigned error, the defendant argues that the district court erred in allowing a portion of trial testimony to be read back to the jury. The Nebraska Supreme Court has stated:
[A]llowing a jury to rehear only portions of the evidence after the jury has commenced deliberations is not to be encouraged. See State v. Dixon, 259 Neb. 976, 614 N.W.2d 288 (2000). . . .
When a jury makes a request to rehear certain evidence, the common-law rule requires that the trial court discover the exact nature of the jury's difficulty, isolate the precise testimony which can solve it, and weigh the probative value of the testimony against the danger of undue emphasis. See State v. Dixon, supra. The rereading of such evidence is to be done in open court in the presence of the parties or their counsel or under other strictly controlled procedures of which the parties have been notified. Id.
State v. Gutierrez, 260 Neb. 1008, 1012-13, 620 N.W.2d 738, 742 (2001). In Gutierrez, John Gutierrez assented to the district court's proposed method of allowing the jury to rehear some of the testimony. The Supreme Court, citing the proposition that a defendant in a criminal case may not take advantage of an alleged error which that defendant invited the trial court to commit, found that Gutierrez had therefore waived any objection to the testimony being read back on appeal.
The court in the instant case, pursuant to the method outlined by the Supreme Court in Dixon and Guiterrez, discovered the nature of the jury's difficulty, isolated the testimony, weighed the probative value of the testimony against the danger of undue emphasis, and reread the testimony in open court in the presence of the parties and their counsel. In addition, prior to reading back the testimony, the court invited comments from counsel for the express purpose of allowing them to make a record of any objections. The State offered no objections, and defense counsel indicated that the way in which the court had isolated the relevant testimony was "fair"; further, defense counsel specifically stated that she did not think there would be any "undue influence." As in Gutierrez, the defendant in this case may n
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