State v. Rich

383 N.W.2d 801 (1986) 222 Neb. 394

STATE of Nebraska, Appellee,
v.
Robert Michael RICH, Appellant.

No. 85-547.

Supreme Court of Nebraska.

March 28, 1986.

Dennis R. Keefe, Lancaster Co. Public Defender, and Harry A. Moore, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Laura L. Freppel, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

Appellant, Robert Michael Rich, was charged on March 29, 1985, in the municipal court of Lincoln with larceny, a violation of Lincoln Mun.Code § 9.32.060 (1975). On April 25, 1985, trial was held, Rich was found guilty by the court, and was sentenced to 6 months' probation and a $25 fine. Rich appealed to the district court, which affirmed the judgment, and then appealed to this court. For the reasons stated below we reverse.

On March 7, 1985, Rich shopped in a convenience store where he was observed by the store's owner through a one-way mirror. At trial the owner testified that she observed Rich wipe his brow with a handkerchief and that she believed he then used the handkerchief to conceal a box of chocolate pudding, which he placed in his pants pocket. Rich paid for two soft drinks, left the store, and boarded a city bus. He was not asked to pay for any pudding, nor did he do so. The owner testified that she saw a bulge in Rich's pants pocket that appeared to have the shape of a box of pudding. She called the police but did not confront Rich herself because she did not know if he was dangerous. A police officer contacted Rich on the bus and searched him but did not find a box of pudding. Rich denied taking a box of pudding from the store.

The issue before the municipal court was whether sufficient competent evidence was adduced at trial to find the appellant guilty beyond a reasonable doubt. Appellant assigns as error that the proof was not sufficient to establish the corpus delecti beyond a reasonable doubt and that the proof was not sufficient to support the finding of guilt. To sustain a conviction for a crime, the corpus delecti must be proved beyond a reasonable doubt. State v. Workman, 213 Neb. 479, 329 N.W.2d 571 (1983). A verdict by a trier of fact in a criminal proceeding will be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Hilker, 210 Neb. 810, 317 N.W.2d 82 (1982). We believe the evidence in this case is not sufficient to have permitted the court to find guilt beyond a reasonable doubt.

REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.

WHITE, J., participating on briefs.