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05/13/88 STATE NEBRASKA v. ROGER BRUCE RINCKER

May 13, 1988

STATE OF NEBRASKA, APPELLEE,
v.
ROGER BRUCE RINCKER, APPELLANT



Appeal from the District Court for Sheridan County: Paul D. Empson, Judge.

Hastings, C.j., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.

SYLLABUS BY THE COURT

1. Rules of Evidence: Other Acts. Neb. Rev. Stat. § 27-404(2) (Reissue 1985) is an inclusionary rule permitting the use of relevant evidence of other crimes, wrongs, or acts for purposes other than to prove the character of a person in order to show that such person acted in conformity with that character.

2. Rules of Evidence: Other Acts. Neb. Rev. Stat. § 27-404(2) (Reissue 1985) permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show defendant's propensity or Disposition to commit the crime charged.

3. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question.

4. Rules of Evidence: Other Acts: Time. The admissibility of evidence concerning other conduct under the provisions of Neb. Rev. Stat. § 27-404(2) (Reissue 1985) must be determined upon the facts of each case; no exact limitation of time can be fixed as to when other conduct tending to prove intent to commit the offense charged is remote.

5. Rules of Evidence: Other Acts: Time. The question of whether evidence of other conduct otherwise admissible under the provisions of Neb. Rev. Stat. § 27-404(2) (Reissue 1985) is too remote in time is largely in the sound discretion of the trial court; while remoteness in time may weaken the value of the evidence, such remoteness does not, in and of itself, necessarily justify exclusion of the evidence.

6. Evidence: Appeal and Error. The admission or exclusion of evidence is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.

7. Witnesses: Probation and Parole. A criminal defendant has the right to show a State's witness' bias by virtue of the witness' vulnerable status as a probationer where such status provides a motive to protect the witness' own interests.

8. Jury Instructions: Appeal and Error. Prejudicial error regarding jury instructions may not be predicated solely upon a particular sentence or phrase in an isolated instruction, but must appear from consideration of the entire instruction of which the questioned sentence or phrase is a part, as well as consideration of other relevant instructions given to the jury.

9. Jury Instructions: Appeal and Error. All jury instructions must be read together, and if the instructions taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error.

10. Jury Instructions: Homicide: Indictments and Informations. Notwithstanding an information charging murder, when evidence can support different and reasonable inferences regarding the degree or grade of criminal homicide, the jury must draw the inference determining the degree of criminal homicide.

11. Jury Instructions: Homicide. In order that there be an instruction on manslaughter as a lesser degree of criminal homicide within the charge of murder, there must be evidence which tends to show that the crime was manslaughter rather than murder.

12. Jury Instructions: Homicide. When a proper factual basis is present, a court must instruct a jury on the degrees of criminal homicide.

13. Jury Instructions: Homicide. Where murder is charged, the court is required, even without request, to instruct the jury on the lesser degrees of criminal homicide for which there is proper evidence before the jury.

14. Sentences: Appeal and Error. A sentence within statutory limits will not be set aside absent an abuse of discretion.

The opinion of the court was delivered by: Caporale

Defendant-appellant, Roger Bruce Rincker, was charged with murder in the first degree, a violation of Neb. Rev. Stat. § 28-303 (Reissue 1985), and with the use of a deadly weapon to commit a felony, a violation of Neb. Rev. Stat. § 28-1205 (Reissue 1985). A jury found him guilty of manslaughter, a violation of Neb. Rev. Stat. § 28-305 (Reissue 1985), and of using a deadly weapon to commit a felony. He was so adJudged and sentenced to imprisonment for 7 years on the manslaughter conviction and to a consecutive term of 3 to 5 years on the use of a deadly weapon conviction. Rincker assigns as error the district court's (1) rejection of certain psychiatric evidence, (2) receipt of testimony concerning certain of his prior conduct, (3) refusal to permit cross-examination to show a crucial State's witness was on probation at the time of the killing, (4) instruction to the jury concerning deadly force, (5) instruction to the jury concerning intent, (6) instruction to the jury concerning manslaughter, and (7) imposition of the aforesaid sentences as excessive. The record fails to support any of the assigned errors; thus, we affirm.

BACKGROUND FACTS

At the time of the trial Rincker was living near Hay Springs, Nebraska, where he and his father had been partners in a farming operation since 1975.

In 1980 Rincker married his first and only wife, Vickie. By 1983 the couple had produced two daughters, one of whom was 5 years old and the other 4 years old at the time of trial. Rincker testified that his marriage proceeded normally until 1983, after the birth of their second daughter, at which time his wife began to drink excessively. In April of 1984 she was arrested for driving while intoxicated, and as the result of a later speeding violation was ordered to undergo 30 days of alcohol treatment. She commenced that treatment in South Dakota in December of 1984.

Before his wife commenced treatment, Rincker, in September 1984, filed for dissolution of his marriage. At some point, it is not entirely clear when, Rincker's wife moved out of the family home and lived alone in town; the couple's daughters remained with Rincker. Although Rincker had filed the dissolution action, he nonetheless joined an emotional support group for members of an alcoholic's family and continued to financially maintain his wife.

During the time his wife lived out of the family home, she engaged in a sexual relationship with the victim, Bryant Ferrel. She also had a sexual encounter with Larry Siegrist, a friend and part-time roommate of Ferrel's. In November 1984 his wife informed Rincker of her prior relationships with these two men. Rincker thought the relationship between his wife and the victim had ended before she left for treatment in December 1984, but later learned she had resumed the association.

In December 1984, shortly after his wife had entered treatment, Rincker went to check her residence in town. The house was empty, but Rincker saw a beer keg in the sink which he later spotted beside a shop belonging to the victim, notwithstanding the fact that Rincker had locked his wife's house when he left. Rincker then sought the "aid" of a friend, John Wright, to find the victim and talk with him. Rincker and Wright found the victim at a Hay Springs bar, where Rincker questioned the victim about the keg. After this ...


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