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State v. Malone

Court of Appeals of Nebraska

July 24, 2018

State of Nebraska, appellee,
v.
Kevin W. Malone, appellant.

         1. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         3. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         4. Pleadings: Directed Verdict. A motion for judgment of acquittal is simply another name for a motion for directed verdict of acquittal.

         5. Directed Verdict: Waiver. Where a defendant makes a motion for a directed verdict at the end of the State's case, whether ruled upon or not, and the defendant thereafter presents evidence, the defendant has waived any error in connection with the motion for directed verdict made at the end of the State's case.

         6. Criminal Law: Pleadings: Directed Verdict. A motion for judgment of acquittal is a criminal defendant's request, at the close of the government's case or the close of all evidence, to be acquitted because there is no legally sufficient evidentiary basis on which a reasonable jury could return a guilty verdict.

         [26 Neb.App. 122] 7. Motions to Dismiss: Directed Verdict. A motion to dismiss at the close of all the evidence has the same legal effect as a motion for directed verdict.

         8. Pleadings: Motions to Dismiss: Directed Verdict. Whether styled as a motion for judgment of acquittal, motion for directed verdict, or motion to dismiss, these motions all have the same effect when used to challenge the sufficiency of the State's evidence at the conclusion of the State's case or the conclusion of the evidence.

         9. Witnesses: Juries: Appeal and Error. The credibility and weight of witness testimony are for the jury to determine, and witness credibility is not to be reassessed on appellate review.

         10. Convictions: Appeal and Error. In determining whether the evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to the jury, which are within the jury's province for disposition.

         11. Criminal Law: Motor Vehicles: Words and Phrases. Recklessness, for purposes of Neb. Rev. Stat. § 60-6, 213 (Reissue 2010), has been defined as the disregard for or indifference to the safety of another or for the consequences of one's act.

         12. Sentences. When imposing a sentence, the sentencing court should customarily consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the violence involved in the commission of the offense. However, the sentencing court is not limited to any mathematically applied set of factors.

         13.__. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

          Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge.

          William F. McGinn, of McGinn, Springer & Noethe, P.L.C., for appellant.

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

          Pirtle, Riedmann, and Bishop, Judges.

         [26 Neb.App. 123] PIRTLE, JUDGE.

         INTRODUCTION

         Kevin W. Malone appeals his convictions and sentences for motor vehicle homicide and manslaughter in the district court for Douglas County. He argues that the evidence was insufficient to support guilty verdicts on the charges and that his sentences are excessive. Based on the reasons that follow, we affirm.

         BACKGROUND

         On March 10, 2017, Malone was charged by an amended information with count 1, motor vehicle homicide, a Class II felony; count 2, manslaughter, a Class IIA felony; count 3, leaving the scene of a personal injury accident resulting in serious bodily injury or death, a Class III felony; and count 4, driving without an ignition interlock device, a Class I misdemeanor. The charges arose from a traffic accident in which Malone's car ...


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