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12/18/87 STATE NEBRASKA v. LONNIE C. PATMAN

December 18, 1987

STATE OF NEBRASKA, APPELLEE,
v.
LONNIE C. PATMAN, APPELLANT



Appeal from the District Court for Douglas County: Keith Howard, Judge.

Hastings, C.j., White, and Grant, JJ., and Brodkey, J., Retired, and Corrigan, D.j.

SYLLABUS BY THE COURT

1. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this 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. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Trial: Evidence: Appeal and Error. The trial court is given broad discretion in the admission of evidence, and such rulings will not be overturned on appeal absent a showing of an abuse of discretion.

3. Trial: Evidence: Presumptions. In cases which are tried to the bench, there is a presumption that the Judge considered only competent, relevant evidence.

4. : Appeal and Error. In reviewing a matter tried to the court without a jury, the findings of a Judge in a criminal case as to questions of fact will not be disturbed unless clearly wrong.

The opinion of the court was delivered by: Hastings

Following a bench trial, the defendant was convicted of first degree murder, second degree assault, and two counts of use of a firearm to commit a felony. He was sentenced to consecutive terms of life imprisonment, 20 months to 5 years, and two sentences of 2 to 4 years. He has appealed to this court, alleging, first, that the trial court erred in overruling his objection on the ground of insufficient foundation to the introduction into evidence of a certain written note and, secondly, that the trial court erred in overruling his motion for a directed verdict and motion to dismiss. We affirm.

In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this 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. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987). The trial court is given broad discretion in the admission of evidence, and such rulings will not be overturned on appeal absent a showing of an abuse of discretion. In cases which are tried to the bench, there is a presumption that the Judge considered only competent, relevant evidence. State v. Parsons, 226 Neb. 543, 412 N.W.2d 480 (1987).

There is little dispute concerning most of the evidence. On June 16, 1986, the defendant went over to a trailer house in which he and Juliana Moran (also known as Sam) had once lived. This was located in Omaha, Nebraska. Finding that his key no longer fit the lock, he broke a window and entered the trailer to await Moran's return. In the meantime, he retrieved his .25-caliber automatic weapon from a sewing basket where he had hidden it, and placed the gun in the spare bedroom. A short time later Moran and David Barrickman arrived at the trailer house.

According to Moran's testimony, Barrickman started down the hallway and saw the defendant. She immediately heard two "pops" like "fire crackers." According to the defendant, Barrickman had swung and hit the defendant in the head, then threatened to kill the defendant, and "started going for his pocket." The defendant stated that he then reached for his gun and started shooting. Immediately thereafter, said the defendant, the victim Barrickman fell, and he, the defendant, started backing up, because he wanted to talk to "Sam." However, he claimed that she had a footstool with which she was going to hit him, so he shot her in the leg.

Defendant admitted that he went back "in there" to see how Barrickman was, and when defendant reached him, Barrickman was lying down but still threatening to kill him. Defendant then hit him on the head and arm with a double-barreled shotgun.

Moran testified that as Barrickman started down the hall, she did not hear him say anything; rather, she heard the two "pops," and the defendant then came back into the living room. She also denied that she had a footstool in her hand, but said that the defendant first pointed the gun at her head and then lowered it and shot her in the leg. She also said that when the defendant went back to where Barrickman was, she "heard like flesh-to-flesh beating, in the head beating, and then I heard David say, 'Quit, Lonnie, quit.'" She did not at any time hear Barrickman threaten the defendant, and she heard one more shot as she was going out the door for help.

The defendant left the premises and, after finding his brother, told him that defendant had done "something wrong," and then drove to Lincoln to catch a bus. On the way, he threw his gun out the window into the Platte River. The defendant further testified that he ...


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