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State v. Ruegge

Court of Appeals of Nebraska

July 16, 2013

State of Nebraska, appellee,
v.
Larry Ruegge, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Holt County: Mark D. Kozisek, Judge.

Michael S. Borders, of Borders Law Office, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IRWIN, Judge.

I. INTRODUCTION

Larry Ruegge was convicted by a jury of burglary. The district court subsequently found Ruegge to be a habitual offender and sentenced him to 14 to 20 years' imprisonment. Ruegge appeals from his conviction for burglary here. On appeal, Ruegge assigns numerous errors, including that there was insufficient evidence to support his conviction for burglary, that the State committed various instances of misconduct, and that the district court erred in overruling Ruegge's objection during the State's closing argument. Ruegge also alleges that he received ineffective assistance of trial counsel.

Upon our review, we find no merit to Ruegge's assertions on appeal. Accordingly, we affirm his conviction for burglary.

II.BACKGROUND

The State filed a criminal complaint charging Ruegge with burglary pursuant to Neb. Rev. Stat. § 28-507(1) (Reissue 2008) and with being a habitual offender pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2008). The burglary charge against Ruegge stems from an incident which occurred in October 2010. Evidence adduced at trial revealed that in the early morning hours of October 28, 2010, the office of Sandy View Nursery, a "swine nursery" which houses and cares for baby pigs, was burglarized. The office door was pried open such that the side of the door was splintered and the metal pieces around the door's knob were "smashed in." When an employee of the nursery arrived to work that morning, she observed that there were multiple items missing from the office, including a toolbox with numerous tools inside, a nightlight, some batteries, and a case of soda.

The identity of the burglar or burglars was disputed at trial. The State presented evidence that Ruegge burglarized the nursery office along with one of his acquaintances, Collin O'Connell. The State's key piece of evidence to tie Ruegge to the burglary was the testimony of O'Connell.

O'Connell testified that on the night of the burglary, Ruegge drove to O'Connell's house in order to pick up O'Connell for a "drive." O'Connell indicated that as a part of this drive, Ruegge took him to the Sandy View Nursery. Ruegge got out of the car and pried the door of the nursery's office open. O'Connell then followed Ruegge inside the office where O'Connell stole some soda, frozen pizzas, bungee cords, and a nightlight, and where Ruegge stole a toolbox. The toolbox stolen by Ruegge was "left" at O'Connell's house, and O'Connell testified that he tried to disguise the toolbox by spray painting his father's initials on it. At the time that O'Connell admitted his involvement in the burglary to police, he also turned over the toolbox in question.

Ruegge's defense focused almost primarily on discrediting O'Connell's testimony. During his cross-examination of O'Connell, Ruegge's counsel attempted to prove that O'Connell was not being truthful about who had actually committed the burglary at the Sandy View Nursery. In order to discredit O'Connell's testimony, counsel questioned him about his extensive history of drug use, including his use of methamphetamines just prior to his interview with police. In addition, counsel asked O'Connell to explain why he had made certain conflicting statements about the burglary. Finally, counsel questioned O'Connell at length concerning the agreement O'Connell had made with the State which provided O'Connell immunity from various criminal charges in exchange for his testimony against Ruegge. After counsel exposed the potential problems with O'Connell's credibility, he presented evidence to establish that O'Connell had actually committed the burglary with another of his acquaintances and not with Ruegge.

After hearing all of the evidence, the jury convicted Ruegge of burglary. The district court subsequently found Ruegge to be a habitual criminal and sentenced him to 14 to 20 years' imprisonment.

Ruegge appeals his conviction here.

III. ASSIGNMENTS OF ERROR

On appeal, Ruegge assigns and argues eight errors, which we consolidate to four errors for our review. Ruegge first alleges that the evidence was insufficient to support his conviction. He also alleges that the State committed various instances of misconduct during voir dire, the presentation of evidence, and closing arguments. He alleges that the district court erred in overruling his objection to the State's comments during its closing argument. Finally, Ruegge asserts that he received ineffective assistance of trial counsel.

In his brief on appeal, Ruegge also argues that the district court erred in the manner in which it responded to a question posed by the jury during deliberations. However, Ruegge did not assign this assertion as error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007). Because Ruegge did not both assign and argue this issue in his brief, we decline to address his contention concerning the answer to the jury's question on appeal.

IV. ANALYSIS

1. Sufficiency of Evidence

Ruegge alleges that the State presented insufficient evidence to prove beyond a reasonable doubt that he was involved in the burglary of the Sandy View Nursery. Ruegge also alleges that the district court erred in overruling his motion for a directed verdict which was based upon insufficiency of the evidence. Upon our review, we conclude that the evidence was sufficient to support the conviction for burglary and that, accordingly, the district court did not err in overruling Ruegge's motion for a directed verdict.

(a) Standard of Review

Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009).

(b) Analysis

Ruegge was charged with and convicted of burglary pursuant to § 28-507(1). Section 28-507(1) provides, "A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value."

At trial, the State presented the testimony of O'Connell to establish that Ruegge willfully and forcibly broke into and entered the Sandy View Nursery on October 28, 2010. O'Connell testified that Ruegge drove himself and O'Connell to the Sandy View Nursery and pried the door of the office open. In addition, there was evidence that there was some damage to the door as a result of Ruegge's forcing his way into the nursery.

The State also presented evidence to establish that while Ruegge was inside the nursery, he stole a toolbox full of tools. O'Connell testified about the items that both he and Ruegge took from the nursery. He indicated that Ruegge took the toolbox. The police later recovered that toolbox from O'Connell. O'Connell indicated ...


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