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.
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
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 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 committed by Juarez in furtherance of the conspiracy.
The State also alleges other acts which it claims to have been committed pursuant to the conspiracy. However, some of these alleged acts are not clearly proper allegations of overt acts involving Juarez as compared to those contained above and were not established by the evidence. Therefore, these additional alleged overt acts will not be summarized, as it would not be helpful to the understanding of this opinion.
A great deal of the record consists of lengthy cross-examinations of two coconspirators. In an attempt to develop the inconsistencies of the coconspirators' respective testimony, the defense conducted an exhaustive cross-examination of them. With these witnesses, the State wisely used every piece of information available to support them. Juarez does not allege these witnesses were unworthy of belief as a matter of law, and therefore, their credibility was for the jury. Therefore, the summary will not include evidence that served no purpose other than to support or attack the witnesses' credibility. The State also introduced elaborate evidence on the chain of custody of the drugs, other evidence that it seized, and the test results of this evidence. This foundational evidence will not be summarized.
On August 19, Travis Buechler and Andrew Requejo were stopped near Bradshaw, Nebraska, and arrested while in possession of a large amount of marijuana and cash. As a result of information the police obtained from them, the State obtained a search warrant for a home that was located about 1 mile south and 1 mile west of Morrill, Nebraska. During the search of that home, the police found scales and baggies used for packaging marijuana along with 42 pounds of marijuana. Earlier that night, a police officer watching the house had observed a car leaving the house, and he followed. The car was stopped by police, and a search revealed slightly less than a pound of marijuana.
Juarez lives in Torrington, Wyoming, and the evidence did not establish that he had any direct interest in the house located outside Morrill. The owner of the house testified that two laborers who worked for him, Ricardo Tapia and Juvenal Ruiz, lived in the house during 1993 until they were arrested in August. The owner had seen Juarez at the house and thought Juarez was a friend of Tapia's.
Buechler and Requejo both testified for the State after receiving immunity. They testified that they met about 3 months before their August arrest. At the time they were arrested on August 19, they were returning from a trip to eastern Nebraska, where they claimed to have sold between 15 and 45 pounds of marijuana. The police found a duffelbag located in the car containing around 5 pounds of marijuana and $4,000 in cash. Another $1,000 in cash was found in Requejo's wallet.
Buechler testified that just before the trip during which they were arrested, he and Requejo had gone to Torrington to talk to Juarez. Later, they met Juarez at the house near Morrill, where Juarez gave them the marijuana, most of which they sold in Omaha and some of which they still had in the vehicle when they were arrested. According to them, Juarez had "fronted" the marijuana to them. The record establishes that "fronting" is an arrangement whereby the supplier of marijuana gives the distributor marijuana and the distributor pays for the marijuana after it is sold. Buechler testified they had obtained marijuana ...