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State v. Van11/12/2004
is seventh assignment of error, Van asserts that the district court erred in failing to find that the verdict was not supported by sufficient evidence or was contrary to law. In his eighth assignment of error, Van alleges prosecutorial misconduct for not disclosing certain evidence prior to trial. In his ninth assignment of error, Van asserts that the trial court erred in refusing a juror affidavit offered in support of his motion for new trial and further erred in not remanding for a new trial or at least for an evidentiary hearing on this issue. In his 10th assignment of error, Van assigns that the district court erred in denying him a new trial based upon newly discovered evidence.
(b) Standard of Review
[19,20] A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. State v. Hudson, ante p. 151, 680 N.W.2d 603 (2004). Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003).
(c) Disposition
(i) Sufficiency of Evidence
a. Terroristic Threats
With respect to the terroristic threats charge, Van argues that J.G.C. stated in the e-mail correspondence and admitted on cross-examination that he needed to be afraid of Van. Van argues that his conduct cannot be a terroristic threat "when [J.G.C.], the victim, is asking Van to threaten him, to make him afraid of Van." Brief for appellant at 32. We view this as a restatement of Van's contention that because J.G.C. originally consented to the BDSM relationship, Van cannot be convicted of terroristic threats. We find no merit in this argument.
"A person commits terroristic threats if he or she threatens to commit any crime of violence . . . ith the intent to terrorize another." § 28-311.01(1)(a). In State v. Saltzman, 235 Neb. 964, 458 N.W.2d 239 (1990), we held that the terroristic threats statute required neither an actual intent to execute the threats made nor that the recipient of the threat actually be terrorized. Because the State was not required to prove J.G.C. was actually terrorized, the only issue for the jury was whether Van possessed the intent to terrorize him. There was evidence that Van threatened J.G.C.'s life, which is sufficient to support the conviction for terroristic threats.
b. False Imprisonment
Van argues that because J.G.C. admitted the possibility that Van did not understand that J.G.C. really wanted to go home, there was insufficient evidence for the jury to find Van guilty of false imprisonment. Under Nebraska law, a person commits false imprisonment in the first degree "if he or she knowingly restrains or abducts another person (a) under terrorizing circumstances or under circumstances which expose the person to the risk of serious bodily injury; or (b) with intent to hold him or her in a condition of involuntary servitude." § 28-314(1). The statute contains no express "lack of consent" element, but it does require an inquiry into whether the restraint was "knowingly" done. Subsection (
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