Opinion
No. 41510.
Filed March 22, 1978.
Appeal from the District Court for Douglas County: JAMES A. BUCKLEY, Judge. Affirmed as modified.
Thomas M. Kenney, Douglas County Public Defender, and Bennett G. Hornstein, for appellant.
Paul L. Douglas, Attorney General, and Ralph H. Gillan, for appellee.
Heard before SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
The defendant was charged with two counts of robbery. After a trial to a jury, he was found guilty on the first count and guilty of larceny from the person on the second count. He was sentenced to imprisonment for 3 to 5 years on the first count and 2 to 5 years on the second count, the sentences to run concurrently. He has appealed and contends the sentences imposed were excessive.
The record shows that on March 19, 1977, at just before 8 p.m., three boys were walking east on California Street in the vicinity of 38th Street in Omaha, Nebraska. Two of the boys were brothers, being 14 and 12 years old, and the third boy was 13. The defendant and a companion stopped the boys and the defendant asked if he could borrow a quarter. When the oldest boy said no, the defendant said "Let me check," and removed $3 from the oldest boy's pocket. The 13-year-old gave the defendant a nickel, which was all the money he had. The defendant went through the pockets of the other two boys and then made the boys remove their coats and went through the pockets of the coats. While this was going on the defendant's companion was holding a wire coat hanger, which had been straightened, and he was slapping it against his hand. Immediately after the incident the boys who had been robbed called the police and the defendant and his companion were apprehended. Between the time the robberies occurred and the defendant and his companion were apprehended, the defendant broke into a truck and removed a tape player from the truck.
The defendant testified, claiming that his companion had searched the boys and obtained the money. Although there is no evidence that the defendant made any verbal threats, the evidence is clear that the boys were afraid of the defendant, largely because of the fact that he was older and bigger than they were.
The defendant was 18 years of age, 5 feet, 8 inches tall, and weighed 160 pounds. He was attending Omaha Technical High School, was in the 12th grade, had been active in sports, and had played on the varsity football team. The defendant has no prior juvenile record and his only prior offense was a charge of assault and battery which occurred 6 days before the robberies when the defendant and two companions followed three girls into a restroom at Westroads Shopping Center and molested them. The defendant was sentenced to 30 days in jail for that offense.
The trial court was of the opinion that the defendant was a poor risk for probation and that any sentence other than imprisonment would depreciate the seriousness of the crime and promote disrespect for the law. The nature of the crime was such that we cannot say a minimum sentence should not have been imposed.
There are mitigating circumstances in this case. In view of the defendant's age and the fact he had no substantial prior criminal record, we believe the sentences should be reduced to the statutory minimum. The judgment of the District Court is modified to provide for a sentence of 3 years on count I and 2 years on count II, the sentences to run concurrently, and the judgment as modified is affirmed.
AFFIRMED AS MODIFIED.