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State v. Dortch

Supreme Court of Nebraska

May 6, 2016

STATE OF NEBRASKA, APPELLEE,
v.
MILTON B. DORTCH, JR., APPELLANT

          Appeal from the District Court for Douglas County: MARLON A. POLK, Judge.

         Glenn A. Shapiro, of Schaefer Shapiro, L.L.P., for appellant.

         Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

         HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, STACY, and KELCH, JJ.

          OPINION

         MILLER-LERMAN, J.

         NATURE OF CASE

         Milton B. Dortch, Jr., was convicted in the district court for Douglas County of first degree murder and use of a firearm to commit a felony. The court sentenced Dortch to imprisonment for life for first degree murder and to imprisonment for 5 to 10 [293 Neb. 515] years for use of a firearm to commit a felony. Dortch appeals, and his sole assignment of error is that there was insufficient evidence to support his convictions. We affirm Dortch's convictions and sentences.

         STATEMENT OF FACTS

         On the morning of September 17, 2014, Dortch walked into a jewelry store in Omaha, Nebraska, carrying a gun. Several employees, including the store owner, James Minshall, Sr., were working inside. Dortch pointed the gun at employees as he threw a bag over the counter and told them to " '[p]ick it up and fill it up.'" When another employee went to open a display case, Minshall walked from a workstation at the counter to the back room of the store. Dortch noticed that Minshall had gone to the back room; Dortch took a few steps to get a better view of Minshall. Dortch asked what Minshall was doing, and he then fired three shots in rapid succession at Minshall. Dortch ran out of the store and fled the area on foot. One of the bullets struck Minshall in the chest, and, despite the efforts of other employees to revive him, Minshall died soon after being shot.

         Dortch was arrested the next day on a warrant related to a different robbery, and during a police interview, he admitted that he had committed the shooting at Minshall's jewelry store. On October 21, 2014, Dortch was charged by information with first degree murder under a felony murder theory which set forth " the perpetration of or attempt to perpetrate a Robbery" as the underlying felony. The State also charged Dortch with use of a firearm to commit a felony.

         In a bench trial of the charges, the State presented testimony of three employees who witnessed the events in the store on September 17, 2014. During the testimony of one of the employees, the court allowed into evidence a video from the store depicting the events surrounding the alleged attempted robbery and the shooting. The video was played for the court, and various stills from the video were also allowed [293 Neb. 516] into evidence. The State presented evidence that Minshall died from a single gunshot wound to the chest. The State also presented evidence indicating that Dortch's DNA was found on gloves, a gun, and a bag that were found near the scene of the shooting.

         The State presented the testimony of a police officer who had interviewed Dortch after he was arrested on a warrant relating to another robbery. The officer testified that Dortch admitted that he had entered Minshall's jewelry store with the intention of robbing the store. According to the officer, Dortch indicated that after Minshall retrieved a gun, Dortch shot at Minshall.

         When cross-examining the State's witnesses, Dortch elicited testimony to the effect that no merchandise or money was actually taken from the store and that there was a handgun located on the floor near Minshall's body after he was shot.

         Dortch testified in his own defense. Dortch admitted that on September 17, 2014, he had walked into the jewelry store and that he threw a bag over the counter and told the employees to fill it up with merchandise. He testified that he saw Minshall walk to the back room and " grab a gun." Dortch testified that when he saw Minshall try to cock the gun, he became scared and decided he did not " want to do this no more," and that he was " just ready to get up out of there." Dortch testified that when he went into the store, he ...


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