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State v. Atkinson

Court of Appeals of Nebraska

July 2, 2013

State of Nebraska, appellee,
v.
Nathaniel D. Atkinson, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: Karen B. Flowers, Judge.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

Nathaniel D. Atkinson appeals from his convictions in the district court for Lancaster County for burglary and flight to avoid arrest. He challenges the court's decision to overrule his motion for a directed verdict and the sufficiency of the evidence to support his convictions. He also asserts that the court imposed excessive sentences. Because we find the evidence sufficient to support the convictions and no abuse of discretion in the sentences imposed, we affirm.

BACKGROUND

On January 26, 2012, the State filed an information in the district court, charging Atkinson with burglary in violation of Neb. Rev. Stat. § 28-507 (Reissue 2008), a Class III felony, and operating a motor vehicle to avoid arrest in violation of Neb. Rev. Stat. § 28-905(2) (Reissue 2008), a Class I misdemeanor. A jury trial was held on May 7 and 8.

James Srb was at home in the Highlands area of Lincoln, Nebraska, on the evening of October 5, 2011, when he saw a car he did not recognize parked in front of his house. About 20 minutes later, he saw the same car in a different location than it had been earlier. This time, the car was parked by a walking path, which runs behind the residence that was burglarized. When Srb went outside about 15 minutes later, he observed the car parked in a third location. Srb decided to call the police about the vehicle. He was concerned because he did not recognize the vehicle and there had been recent mailbox vandalisms in the area. The police arrived about 10 minutes later, and Srb spoke briefly with an officer about his observations.

Judy Rung, who lived on the same street as Srb, returned home about 9 p.m. on October 5, 2011, and could not get into her garage. Rung went to the back of her residence, where she discovered that the glass patio door had been broken. When Rung's husband arrived home, they entered the house, saw that it had been burglarized, and called the police. The Rungs discovered that items were missing from their home, including an unknown amount of jewelry, a big-screen television, a portable heater, a laptop computer issued to Rung's husband by Lincoln Public Schools (LPS) where he works, and some expensive perfume.

Officer Tu Tran of the Lincoln Police Department was dispatched to investigate Srb's complaint of a suspicious vehicle in the Highlands area and was later joined by Officer Matthew Fisher. Tran met with Srb, who told Tran that his son had seen three people exit the car and run through some yards toward the park area. Tran patrolled the neighborhood for a few minutes, but he did not find anyone running through the area or any suspicious activity. Tran returned to the location of the parked car near Srb's house and looked inside the car. Tran saw a television in the back seat and a laptop computer with an LPS sticker on it in the front seat. Tran was able to see identifying numbers on both items, which he wrote down. In the back seat of the car, Tran also observed what he thought was a large speaker, which he described at trial as a large wooden box. Tran ran the license plate of the car, which was a dark green 1995 Ford Taurus, and learned that it was registered to Atkinson.

Upon Fisher's arrival at the scene, Tran left to retrieve an unmarked car from the police station, so that upon his return he could observe the car and contact the three unidentified people if they came back to the car. Very shortly thereafter, as Fisher was patrolling the area, he saw an individual that matched Atkinson's photograph from Tran's license check "skipping down" the sidewalk. By the time Fisher returned to the spot where Atkinson's car had been parked, it was gone. Fisher drove around and eventually located Atkinson's car. Fisher turned on his cruiser's overhead lights, and the car pulled over. When the car pulled over, ...


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