State v. Hernandez

Nebraska Supreme Court

State v. Hernandez

284 N.W.2d 17, 204 Neb. 582, 1979 Neb. LEXIS 1152

CourtNebraska Supreme Court

DecidedOctober 2, 1979

DocketNo. 42582

StatusPublished

This text of 284 N.W.2d 17 (State v. Hernandez) 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. Hernandez, 284 N.W.2d 17, 204 Neb. 582, 1979 Neb. LEXIS 1152 (Neb. 1979).

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Opinion

Boslaugh, J.

The defendant, Kevin Hernandez, and his brother, Jonathan Hernandez, were charged in separate in-formations with felonious entry of the Alliance Country Club in Box Butte County, Nebraska, on March 21, 1978. The trial court ordered the informations consolidated for trial. The defendant was convicted and sentenced to 2 years probation. He has appealed and contends the evidence does not support the conviction and the trial court erred in overruling his motion for a separate trial.

The record shows that the defendant and a companion, David Embree, broke into the Alliance Country Club and took some liquor and food. Another companion, Kevin Grieser, and the defendant’s brother participated in the crime. Later the same night, the defendant returned to the country club with his brother and Grieser and took additional liquor and food from the club.

The defendant contends the evidence was insufficient because some of the prosecution witnesses were impeached. There were questions of credibility for the jury but the evidence of the State was [583]*583sufficient, if believed, to sustain the conviction. It is not the province of this court in a criminal case to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.

The evidence of the State implicated both the defendant and his brother in the break-in. Both denied that they participated in the crime. The defendant had an alibi witness who testified in his behalf, and he argues that his chance for an acquittal would have been better if he had been tried separately. This was not a sufficient showing of prejudice to require the trial court to have granted a separate trial to the defendant. A ruling upon a motion for severance will not be disturbed in the absence of an abuse of discretion. State v. Shimp, 190 Neb. 137, 206 N. W. 2d 627.

The judgment of the District Court is affirmed.

Affirmed.

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Boslaugh, J.

The defendant, Kevin Hernandez, and his brother, Jonathan Hernandez, were charged in separate in-formations with felonious entry of the Alliance Country Club in Box Butte County, Nebraska, on March 21, 1978. The trial court ordered the informations consolidated for trial. The defendant was convicted and sentenced to 2 years probation. He has appealed and contends the evidence does not support the conviction and the trial court erred in overruling his motion for a separate trial.

The record shows that the defendant and a companion, David Embree, broke into the Alliance Country Club and took some liquor and food. Another companion, Kevin Grieser, and the defendant’s brother participated in the crime. Later the same night, the defendant returned to the country club with his brother and Grieser and took additional liquor and food from the club.

The defendant contends the evidence was insufficient because some of the prosecution witnesses were impeached. There were questions of credibility for the jury but the evidence of the State was [583]*583sufficient, if believed, to sustain the conviction. It is not the province of this court in a criminal case to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.

The evidence of the State implicated both the defendant and his brother in the break-in. Both denied that they participated in the crime. The defendant had an alibi witness who testified in his behalf, and he argues that his chance for an acquittal would have been better if he had been tried separately. This was not a sufficient showing of prejudice to require the trial court to have granted a separate trial to the defendant. A ruling upon a motion for severance will not be disturbed in the absence of an abuse of discretion. State v. Shimp, 190 Neb. 137, 206 N. W. 2d 627.

The judgment of the District Court is affirmed.

Affirmed.

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284 N.W.2d 17, 204 Neb. 582, 1979 Neb. LEXIS 1152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hernandez-neb-1979.

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