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01/31/95 STATE NEBRASKA v. MARTIN JUAREZ

January 31, 1995

STATE OF NEBRASKA, APPELLEE,
v.
MARTIN JUAREZ, APPELLANT.



Appeal from the District Court for Scotts Bluff County: Alfred J. Kortum, Judge.

As Corrected September 13, 1995.

Sievers, Chief Judge, and Hannon and Mues, Judges.

SYLLABUS BY THE COURT

1. Appeal and Error. Absent plain error, an appellate court will address only those issues that are both assigned as error and discussed in the brief of the party alleging prejudicial error.

2. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. Moreover, on such a claim, an appellate court will not set aside a verdict in a criminal case where such verdict is supported by relevant evidence.

3. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within a jury's province for Disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.

4. : Conspiracy: Intent. An overt act, as something done pursuant to a conspiracy, tends to show a preexisting conspiracy and manifests an intent or design toward accomplishment of a crime. An overt act, by itself, need not have the capacity to accomplish the conspiratorial objective and does not have to be a criminal act.

5. Sentences: Appeal and Error. A sentence within statutory limits will not be disturbed upon appeal absent an abuse of discretion; that is, a sentence within the statutory limits will not be modified as excessive unless the trial court's reasons or rulings are clearly untenable and unfairly deprive the defendant of a substantial right and a just result.

6. Sentences. It is the minimum portion of an indeterminate sentence which measures its severity.

7. Statutes: Sentences. Generally, when an offense is committed prior to a statutory change, the amendment or new statute is not applicable to that offense.

8. Statutes: Sentences. A statutory change which imposes a more burdensome punishment than what existed at the time the crime was committed runs afoul of ex post facto principles.

9. Statutes: Sentences. In a general sense, an ex post facto law is one which renders an act punishable in the manner in which it was not punishable when it was committed.

The opinion of the court was delivered by: Hannon

HANNON, Judge.

The defendant, Martin Juarez, was convicted of conspiring with others to dispense marijuana, a Class III felony, and was sentenced to a term of not Tess than 12 nor more that 14 years in prison. He appeals, claiming that certain evidence was improperly admitted, that the evidence was not sufficient to support the conviction, and that the sentence was excessive. We conclude that the evidence was properly admitted and that the evidence was sufficient to support his conviction. However, because Neb. Rev. Stat. § 83-1,105 (Reissue 1987) was still in effect at the time the crime was committed, we conclude the minimum sentence is excessive because that sentence was for more than one-third of the maximum authorized for a Class III felony. Accordingly, we affirm the conviction, but set aside the sentence and remand the cause for resentencing in accordance with the applicable statutes.

THE INFORMATION

The following is a summary of the information under which Juarez was tried. From May 1993 to August 20, 1993, Juarez unlawfully, with the intent to promote the commission of the crime of delivery of marijuana, agreed with one or more persons including Travis Buechler, Andrew Requejo, Ricardo Pina Tapia, Juvenal Sanchez Ruiz, Jesus Flores, Jose Holguin, Alden John Hill, and others to engage in, solicit, or cause the "commission of the crime of . . . knowingly or intentionally manufacturing, distributing, delivering or dispensing a controlled substance, to wit: Marijuana MARTIN JUAREZ did commit overt acts in pursuance of the conspiracy." The information contains eight paragraphs intended as allegations of overt acts pursuant to the conspiracy.

The information contains allegations that

2. on or about June, 1993, Travis Buechler did receive $200 by Western Union wire in El Paso, Texas from Martin Juarez . . . .

3. On or about August 17, 1993, Martin Juarez did meet with Travis Buechler and Andrew Requejo at a house southwest of Morrill, Nebraska . . . .

7. In May, 1993, Martin Juarez purchased a vehicle to be used to transport marijuana.

These allegations are proper allegations of overt acts, and as will be seen in the summary of the evidence, the evidence clearly supports a finding that these acts were ...


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