State v. Wilson

546 N.W.2d 323, 4 Neb. Ct. App. 489, 1996 Neb. App. LEXIS 97
CourtNebraska Court of Appeals
DecidedApril 2, 1996
DocketA-95-288
StatusPublished
Cited by9 cases

This text of 546 N.W.2d 323 (State v. Wilson) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wilson, 546 N.W.2d 323, 4 Neb. Ct. App. 489, 1996 Neb. App. LEXIS 97 (Neb. Ct. App. 1996).

Opinions

Inbody, Judge.

I. INTRODUCTION

This appeal arises from Harold L. Wilson’s convictions of attempted second degree murder, robbery, and use of a weapon to commit a felony. On appeal, Wilson contends that the district court erred in admitting evidence of a subsequent crime under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 1994); that there was insufficient evidence to support his conviction for attempted second degree murder; and that the sentences imposed upon him are excessive. For the reasons set forth herein, we affirm.

[491]*491H. STATEMENT OF FACTS

On September 6, 1994, an information was filed charging Wilson with attempted second degree murder, robbery, first degree assault, and use of a weapon to commit a felony resulting from an attack on a convenience store worker on May 8, 1994, in Crete, Nebraska. At his arraignment, Wilson pled not guilty to all counts. Prior to trial, the State filed a notice of intent to offer evidence of other wrongs or acts during Wilson’s trial, and a § 27-404 hearing was held to determine the admissibility of the evidence sought to be introduced by the State.

1. § 27-404 Hearing

On November 3, 1994, a § 27-404 hearing was held to determine, among other things, the admissibility of testimony from Kimberly Paulsen regarding an incident similar to the charged incident which had occurred in Lincoln, Nebraska, on May 9, 1994. Evidence was received including a transcript of testimony by Paulsen, while under oath, as to the circumstances surrounding an attack upon her by Wilson while she was working at a Little King fast-food restaurant in Lincoln. The court determined that the testimony of Paulsen could be introduced by the State on direct examination to show proof of intent, plan or method of attack, identity, and absence of mistake or accident, and further details concerning the Lincoln incident will be set forth later in this opinion. The court denied the remainder of the State’s motion concerning admission of other evidence.

2. Trial

A jury trial was held on November 28 and 29, 1994. At trial, the victim, Peggy Kenney, testified that on May 8, 1994, she was employed at a Crete convenience store named “First & Last Stop.” Kenney worked the morning shift, opening the store at 6 o’clock. On May 8, Kenney arrived at the store at approximately 5:50 a.m. and was working alone when Wilson, who was the store’s first customer, entered the store at approximately 6:15. Kenney recognized Wilson because she had seen him in the store before and had noticed Wilson’s eyes as a distinguishing feature.

[492]*492Kenney testified that after Wilson entered the store, he walked around the store for a few minutes looking at various items. During this time, Kenney continued working behind the counter, performing various tasks, including placing money in the cash register drawer. Shortly thereafter, Kenney asked if she could help Wilson, to which Wilson responded that he did not know what he wanted. During this brief conversation, Kenney testified, Wilson acted friendly toward her and showed no sign of anger, of abnormal behavior, or that he was upset.

Shortly thereafter, Wilson walked up to a snack food display, picked up a bag of Doritos chips, and placed the bag on the counter. At this point, Wilson was only 2 feet away from Kenney. Kenney informed Wilson how much the chips would cost, and Wilson said that he had to go out to his car to get his wallet. When Wilson returned 20 to 30 seconds later, he was walking very quickly. Wilson approached Kenney, grabbed her hair with his right hand, pulled her head down behind the counter, and stabbed her neck 6 to 10 times with an object that he was holding in his left hand. Kenney testified that Wilson stabbed her with a long, cylindrical, metallic object which she thought might be an ice pick or a screwdriver.

During the attack, Wilson did not say anything to Kenney and did not demand money. After Kenney attempted to pull away from the attack, but was unable to do so, she told Wilson to take the money in the cash register. At this time, Wilson let go of Kenney’s hair; grabbed $175 in bills out of the open cash register drawer, which was within easy reach; and ran out of the store.

Kenney then ran to a house across the street, where a call was made to police, and Kenney was taken to the emergency room at the Crete hospital. David Marvin, a physician’s assistant, testified that there were several stab wounds to Kenney’s neck. This caused Marvin concern because one particular stab wound was in the area of the carotid artery and the internal jugular vein. Both Marvin and Dr. Leon Jons, who saw the victim for followup care, testified that given the nature of Kenney’s injuries, she had been placed in a situation involving a substantial risk of death, permanent disfigurement, or injury.

[493]*493The State then adduced evidence from Paulsen, regarding a similar incident that occurred to her while she was working at a restaurant in Lincoln, over Wilson’s continuing objection as to relevance and on the basis of the § 27-404 hearing. Paulsen testified that on May 9, 1994, she was working a 5 to 10:30 p.m. shift at a Little King restaurant, located at 27th and Dudley Streets. At approximately 8:15 p.m., Wilson entered the Little King store where she was working and asked to use a telephone book. After exiting and reentering the store several times over a half-hour period, Wilson ordered a sandwich from Paulsen. Paulsen testified that she did not notice anything unusual about Wilson’s behavior and that he was friendly to her and did not appear to be angry or upset.

However, as Paulsen reached down to get some Parmesan cheese for Wilson’s sandwich out of a refrigerator that was located underneath the counter, Wilson grabbed her from behind and started cutting her neck with a knife. Paulsen could tell that Wilson was holding the knife in his left hand and estimated that she felt the cutting motion on her neck approximately 10 to 15 times. After Wilson cut her neck, he stabbed her in the back with the knife three or four times, then started to stab her in her front chest area. After stabbing Paulsen approximately four times in her front chest area, Wilson stopped abruptly and ran out the door. Wilson did not say anything while he was attacking her, did not demand money, and made no attempt to steal any money or items from the store.

Corroborating testimony was adduced from Wilson’s fiance, Laura Leigh, who testified that Wilson is left handed. Leigh also testified that Wilson was driving a red four-door Ford Tempo when she last saw him early in May 1994 and that Wilson took a screwdriver with him when he left. Additionally, Leigh testified that on more than one occasion, the most recent being in early May, Wilson told her that “you know, Laura, I told you time before and time again and I always wanted to know how it was like to kill someone.”

On May 10, 1994, during an execution of a search warrant on Wilson’s room at a Lincoln Holiday Inn, Lincoln police officers found a Phillips-head screwdriver. However, the screwdriver recovered was a different one than the screwdriver [494]*494that was given to Wilson by Leigh. Additionally, no blood was detected on the seized screwdriver.

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State v. Wilson
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Bluebook (online)
546 N.W.2d 323, 4 Neb. Ct. App. 489, 1996 Neb. App. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-nebctapp-1996.