State v. Hernandez

Full title: STATE OF NEBRASKA, APPELLEE, v. KEVIN HERNANDEZ, APPELLANT

Court: Supreme Court of Nebraska

Date published: Oct 2, 1979

284 N.W.2d 17 (Neb. 1979)

284 N.W.2d 17

Opinion

No. 42582.

Filed October 2, 1979.

Motions, Rules, and Orders. A ruling upon a motion for severance will not be disturbed in the absence of an abuse of discretion.

Appeal from the District Court for Box Butte County: ROBERT R. MORAN, Judge. Affirmed.

Philip M. Kelly of Scott Kelly, for appellant.

Paul L. Douglas, Attorney General, and Marilyn B. Hutchinson, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BOSLAUGH, J.

The defendant, Kevin Hernandez, and his brother, Jonathan Hernandez, were charged in separate informations 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 sufficient, 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.