IN THE SUPREME COURT OF THE STATE OF NEBRASKA
THE STATE OF NEBRASKA,
Appellee,
-vsMICHAEL MARKUS,
Appellant.
The appellant, pursuant to Neb. Rev. Stat.
Supp.
§
24-1107 ( R.S.
1994) and Rule 2.F. of this Court, petitions for further
review of State v. Markus, Case No. A-94-0674.
STATEMENT OF THE CASE
This case was
a direct appeal by Michael
conviction and sentence from the District Court for Scotts Bluff
County,
Nebraska.
The Court of Appeals affirmed the District
Court.
ASSIGNMENTS OF ERROR
1.
The
Court
of Appeals
failed
to
find
that
the
evidence
presented by the state at trial was insufficient to support the
conviction of the defendant.
2.
The Court of Appeals erred by failing to find
that the
sentencing court had abused its discretion by sentencing the
defendant to an excessively long period of
incarceration and
failed to properly take into account the defendant's impoverished
1
and troubled childhood and the shorter sentence imposed upon the
co-defendant.
STATEMENT OF FACTS
A complaint was filed in the Scotts Bluff County Court on
March
16,
1994,
charging
Michael
Markus
with
breaking
and
entering, a Class III felony, and hindering and officer, a Class I
misdemeanor (T3).
After a preliminary hearing on March 21, 1994,
Mr. Markus was bound over to the district court for trial (T5-6).
On March 28, 1994, Mr. Markus was arraigned in the District Court
of Scotts Bluff County (T11). Pretrial motions were heard by the
court on April 20, 1994 (T12).
(T16).
A jury was selected on May 2, 1994
Trial was held on May 11,
1994
(T34).
At trial the
state's witnesses consisted of Terry Dishman, Chris Cawley, Rob
Kiesel, Steven Bonds and Scott Crawford (See Index).
The state
rested (73:22-23) and defense counsel made a motion for directed
verdict which was overruled by the court (74:20-25; 75:1-9).
defendant did not present any evidence (76:6-7).
closing arguments
guilty
to
the
information.
After hearing
and the reading of instructions,
submitted the case to the jury.
charges
The
the court
The jury returned a verdict of
contained
in Counts
I
and
II
of
the
The court ordered a presentence investigation and
ordered that sentencing by held at a later date. (T34).
On June
20, 1994, the court sentenced Mr. Markus to serve an indeterminate
term of 3 to 5 years at the Nebraska Department of Correctional
Services
on
Count
I
and
a
term of
Department of Corrections on Count II.
2
1
year
at
the
Nebraska
The sentence imposed on
Count II was ordered to be served consecutively to the sentence
imposed on Count I.
already served (T35).
Court.
Mr. Markus was given credit for 101 days
Mr. Markus perfected his appeal to this
The Nebraska Court of Appeals affirmed the defendant's
conviction and sentence in a written opinion dated April 4, 1995.
The defendant now requests further review in this Court.
ARGUMENT
I
THE COURT OF APPEALS FAILED TO FIND THAT THE EVIDENCE
PRESENTED BY THE STATE AT TRIAL WAS INSUFFICIENT TO
SUPPORT THE CONVICTION OF THE DEFENDANT.
No evidence was adduced by the state to show which of any of
the two people that ran out the building used forced to enter the
building nor was any evidence adduced to establish that the two
were acting in concert to forcibly enter the building.
The Court
of Appeals found that the above issues could be inferred from the
circumstantial evidence presented at time of trial.
The appellant contends that these issues cannot be inferred
from the circumstantial evidence presented at time of trial and
that the trier of fact was allowed to assume facts not proven at
trial.
No definite information was presented to the trier of fact
regarding method of entry by the appellant, but it was assumed
that either the appellant used force to enter the building or was
acting in concert with someone else to do so.
Other scenarios as
to how the appellant might have been in the building such as
3
entering the building during normal business hours and secreting
himself until after closing time, could also be inferred. Given
the lack of evidence this theory is as likely as the state's
theory of the defendant breaking and entering.
No evidence beyond
the timing of the exit from the building was presented to show
that the two left in the building were acting in concert.
Without
these assumptions about key elements of the charge, there is a
complete failure of evidence to establish an essential element of
the charged alleged.
In determining whether evidence is sufficient to sustain a
conviction in a jury trial, the Supreme Court does not resolve
conflicts of evidence, pass on credibility of witnesses, evaluate
explanations, or reweigh evidence presented to the jury which is
within the
jury's province for disposition.
A verdict in a
criminal case must be sustained if the evidence, viewed and
construed most favorable to the State is sufficient to support the
verdict.
State v. Lonneker, 237 Neb. 207, 465 N.W.2d 737 (1991);
State v. Zitterkopf, 236 Neb. 743, 463 N.W.2d 616 (1990)
On a claim of insufficiency of evidence, the Supreme Court will
not set aside a guilty verdict in a criminal case where such
evidence is supported by relevant evidence.
Only where evidence
lacks sufficient probative force as a matter of law, the Supreme
Court may set aside a guilty verdict as unsupported by evidence
beyond a reasonable doubt.
State v. Lonneker, 237 Neb. 207, 465
N.W.2d 737 (1991); State v. Zitterkopf, 236 Neb. 743, 463 N.W.2d
616 (1990); State v. Frazier, 234 Neb. 107, 449 N.W.2d 230 (1989).
4
A Court can direct a verdict only if there is a complete failure
of evidence to establish essential element of crimes charged or if
evidence is so doubtful in character and lacking of probative
value
that
sustained.
where
finding of guilt based on evidence could not
be
That is to say, a directed verdict is proper only
reasonable
minds
cannot
differ
and
can
draw but
one
conclusion from the evidence where an issue should be decided as
matter of law.
State v. Hirsh, 245 Neb. 31, 511 N.W.2d 64 (1994).
II
THE COURT OF APPEALS ERRED BY FAILING TO FIND THAT THE
SENTENCING COURT HAD ABUSED ITS DISCRETION BY SENTENCING
THE
DEFENDANT
TO
AN
EXCESSIVELY
LONG
PERIOD
OF
INCARCERATION AND FAILED TO PROPERLY TAKE INTO ACCOUNT
THE DEFENDANT'S IMPOVERISHED AND TROUBLED CHILDHOOD AND
THE SHORTER SENTENCE IMPOSED UPON THE CO-DEFENDANT.
The defendant contends that the sentence imposed is excessive
and constitutes an abuse of discretion on the part of the trial
court.
A sentence of imprisonment should not exceed the minimum
period consistent with the protection of the public, the gravity
of the offense, and the rehabilitative needs of the defendant.
State v. Moore, 198 Neb. 317, 252 N.W.2d 617 (1977).
A sentence
will be reviewed if its imposition would constitute an abuse of
discretion, even though the sentence falls within the statutory
5
State v. Masur, 230 Neb.
parameter for the offense in question.
620, 432 N.W.2d 815 (1988);
Among the factors to be considered in the imposition of a
sentence
are
experience,
the
social
defendant's
age,
and cultural
mentality,
background
criminal or law abiding conduct,
as
education,
well
as
past
motivation for the offense,
nature of the offense and the amount of violence involved in the
State v. True 236 Neb. 274 460 N.W.2d
commission of the crime.
668 (1990);
At the time of sentencing, Mr. Markus was 22 years old.
mother and father divorced shortly before he was born.
was primarily raised by his mother Kathleen Red Cloud.
brief periods with his father in Kearney, Nebraska.
His
Mr. Markus
He spent
Mr. Markus
was physically abused by his mother between the ages of six and
fourteen; his mother requested that he be removed from her home at
the age of thirteen.
Mr. Markus suffers from alcohol abuse and
has some psychological problems which can probably be attributed
to his childhood and upbringing..
(P-5-8).
An abuse of judicial discretion means that the reasons or
rulings
of
the
trial
judge
are clearly untenable,
unfairly
depriving the litigant of a substantial right and denying a just
result in matters submitted for disposition.
230 Neb. 497, 432 N.W.2d 503 (1988).
felony conviction (84:8).
(84:9-11)
This was Mr. Markus' first
The damage to the building Mr. Markus
allegedly broke into was only $50.00.
recovered.
State v. Trevino,
All the missing items were
Mr. Markus admits that he has an alcohol
problem and expressed his desire to get a job and to continue his
6
college education
( 86:12-24).
The Appellant contends that the
sentencing court penalized him for exercising his right to have a
trial in this matter (87:8-13) and demonstrated this by imposing a
more lengthy sentence on Mr. Markus than his alleged accomplice
received (84:11-14;
88:2-9). While the co-defendant received a
sentence of 18 to 36 months on the breaking and entering charge,
the defendant received double that.
As it was both defendants'
first felony convictions,
the
deciding factor would appear to be Mr. Markus' decision to proceed
to trial.
The trial court's comments would support this view;
"The evidence was overwhelming at the trial. I have no idea why it
was tried."
(87:8-10)
" ••• I have no idea what his record is, but
he saved the state a trial and that is a rewarding situation •.. "
(87:11,12).
The
sentence
imposed
on
the
defendant
is
unjustifiably disparate to that of his co-defendant, as noted by
all parties at time of sentencing, and constitutes an abuse of
judicial discretion.
In State v. Nix, 215 Neb 410, 338 N.W.2d 782
(1983), the this Court once again expressed the view that:
Where two or more defendant's are convicted for the same
offense and different penalties are inflicted, and it
appears from the evidence that the defendant receiving
the least punishment is at least equally guilty, it may
be necessary for this court to examine the evidence to
determine whether there was
justifiable reasons
for
distinctions and whether the higher sentence should be
reduced.
(Id at 411).
7
Neb. Rev. Stat.
§
29-2308 (Reissue 1989) provides this Court
with authority to reduce the sentence on appeal when said sentence
is excessive and would result in a substantial miscarriage of
justice.
State v. Komor, 213 Neb. 376, 329 N.W.2d 120 (1983).
CONCLUSION
Based on the foregoing, Mr. Markus urges this Court to grant
his petition for further review.
Respectfully Submitted
MICHAEL MARKUS
Defendant/Appellant
BY
Deputy Public Defender
1725 lOth Street
Gering, Nebraska, 69341
(308) 436-6678
Attorney for Appellant
8
IN THE SUPREME COURT OF THE STATE OF NEBRASKA
THE STATE OF NEBRASKA,
)
CASE NO. A-94-0674
)
PROOF OF SERVICE
Appellee,
-vsMICHAEL MARKUS,
)
Appellant.
STATE OF NEBRASKA
ss.
COUNTY OF SCOTTS BLUFF
w.
E. MADELUNG, being first duly sworn on his oath, deposes
and says that he is a Deputy Public Defender for Scotts Bluff
County,
Nebraska,
and
the
court
appointed
counsel
for
the
appellant in the above-entitled case; that he served two true
copies of Appellant's Petition for Further Review and Supporting
Memorandum Brief on Delores Coe-Barbee, Assistant Attorney
General, at 2115 State Capitol, Lincoln, Nebraska 68509-8920 by
certified mail, return receipt requested on the~J day of May,
1995.
SUBSCRIBED AND SWORN to before me
this~~J
day of May, 1995.
Notary Public
9