State v. Branch

764 N.W.2d 867, 277 Neb. 738
CourtNebraska Supreme Court
DecidedMay 8, 2009
DocketS-08-781
StatusPublished
Cited by13 cases

This text of 764 N.W.2d 867 (State v. Branch) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Branch, 764 N.W.2d 867, 277 Neb. 738 (Neb. 2009).

Opinion

764 N.W.2d 867 (2009)
277 Neb. 738

STATE of Nebraska, appellee,
v.
James L. BRANCH, appellant.

No. S-08-781.

Supreme Court of Nebraska.

May 8, 2009.

*868 Mary C. Gryva, of Frank & Gryva, P.C., L.L.O., Omaha, for appellant.

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

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ., and CARLSON, Judge.

WRIGHT, J.

NATURE OF CASE

James L. Branch was convicted by a jury of kidnapping and robbery. He was sentenced to a term of 40 to 50 years in *869 prison for the robbery conviction and to a term of life to life in prison for the kidnapping conviction. The sentences were ordered to be served concurrently. Branch appeals.

SCOPE OF REVIEW

[1,2] When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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. State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009). Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

[3] Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008).

FACTS

James Clark operated a vehicle storage facility and sold used cars in Omaha, Nebraska. On July 16, 2007, he was beaten, robbed, and placed in the trunk of one of the cars at his building. The perpetrators took Clark's wallet, which contained at least one credit card, and car titles.

Clark's wife became concerned upon receiving a telephone call from a credit card company notifying her of unusual activity on the card. She tried to call Clark several times, but he did not answer. She then called a family friend and asked her to check on Clark.

The friend went to the storage facility and found that the front door of the building was locked, even though a sign stating "YES We're OPEN" was hanging on the door. She entered through a door on the side of the building and walked through the three levels. She did not find Clark and called his wife. While on the telephone, the friend saw Clark's dentures on the floor. She hung up and called the 911 emergency dispatch service.

When Clark's wife arrived at the storage facility, she saw on the floor a plastic clip from a telephone that Clark carried with him at all times. Police officers arrived and directed Clark's wife and the friend to wait in the office. About 20 minutes later, they found Clark in the trunk of a car.

Clark was hospitalized and placed in a drug-induced coma for 18 days. He remained in the hospital for a total of 27 days. Clark underwent rehabilitation for an additional 10 days and then received home health care for 4 months. At the time of trial, he was using a walker for mobility.

Clark testified that on the morning of July 16, 2007, he was on the show floor of his building. He felt an arm placed around his neck from behind. Clark identified the person as an African-American male. The man pulled tightly around Clark's neck, causing him to have difficulty breathing. Almost immediately, a second African-American male struck Clark in the face with hard, closed-fist punches. Clark said he was initially held upright by the person whose arm was around his neck. After the last punch, he was lowered to the ground. A wire was placed around his neck, and he was dragged by his feet to a nearby automobile and placed in the trunk.

Clark said he was dazed and only vaguely remembered the incident, but he believed he was unconscious when placed in the trunk. He woke up shortly afterward *870 and tried to reach the key lock on the back side of the trunk lid, but he could not get to it because the area was carpeted. He also tried to use his glasses as a screwdriver to jimmy the lock, but the glasses broke. Clark believed he was in the trunk for about 6 hours, but after losing consciousness, the next thing he remembered was waking up in the hospital 3 weeks later.

Immediately prior to the assault, three African-American males entered the building, but Clark did not remember whether he had seen them before that date. He did not remember seeing them leave prior to the assault and could not identify the person who struck him in the face.

At Clark's building, police observed signs of a struggle and drag marks in the dust on the floor. The struggle appeared to have involved more than two people. There were several sets of footprints and some drag marks indicating that the people were pushing against each other. When the Omaha Fire Department arrived, they used a crowbar and other equipment to open the trunk where Clark was found. His hands had been tied, and there was a wire around his neck.

Later that evening, Omaha police responded to a call of suspicious activity at a convenience store. A cashier told police that customers had complained about two African-American males who were trying to get people to pay them cash for gas that the men would then purchase with a credit card. Receipts showed that at least $300 worth of gas had been charged to a credit card in Clark's name. The following day, police called the credit card company. Clark's card had been used between 4:45 and 10:45 p.m. on July 16, 2007, at four different locations.

A security officer at the convenience store testified that a customer complained to him about a man outside who was attempting to sell the use of a credit card to buy gas. The security officer saw an African-American male, about 5 feet 9 inches tall and weighing about 180 pounds, leaving the gas pumps. Before the security officer could talk to the man, he got into a white Chevrolet Corsica and left. Another African-American male was in the passenger seat. The security officer obtained the license number of the car. It was registered to Laquesha Martin, who lived in an apartment in Omaha. Police located the car at Martin's apartment. Martin was the mother of Branch's child and lived with Branch at the apartment.

About an hour after the police arrived at the convenience store, the store received at least three threatening telephone calls from someone who was upset because the police had been called. The caller threatened to "shoot up the store" and the vehicles of the cashier, the assistant manager, and the security guard.

Branch was subsequently arrested on outstanding misdemeanor warrants. Following his arrest, Branch admitted to police his involvement in the use of Clark's credit card. He said that Paul Miller had arrived at Martin's apartment with the card and that they used the card to fill cars with gas. Branch denied knowing where Miller obtained the card.

At trial, Branch admitted using Clark's credit card, but denied knowing anything about the robbery and assault of Clark. Branch claimed that on July 16, 2007, he slept until he went to pick up Martin at either 11 a.m. or 2 p.m.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Wright
Nebraska Court of Appeals, 2023
State v. Branch
290 Neb. 523 (Nebraska Supreme Court, 2015)
State v. Foltz
Nebraska Court of Appeals, 2014
State v. Earith
Nebraska Court of Appeals, 2013
City of Beatrice v. Meints
830 N.W.2d 524 (Nebraska Court of Appeals, 2013)
State v. Luff
783 N.W.2d 625 (Nebraska Court of Appeals, 2010)
State v. France
776 N.W.2d 510 (Nebraska Supreme Court, 2009)
State v. Hudson
775 N.W.2d 429 (Nebraska Supreme Court, 2009)
State v. Rung
774 N.W.2d 621 (Nebraska Supreme Court, 2009)
State v. Epp
773 N.W.2d 356 (Nebraska Supreme Court, 2009)
State v. Robinson
769 N.W.2d 366 (Nebraska Supreme Court, 2009)
State v. Hilding
769 N.W.2d 326 (Nebraska Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
764 N.W.2d 867, 277 Neb. 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-branch-neb-2009.