State v. SchmidtState v. Schmidt
- Reporters:
- , ,
- Before:
- Krivosha
On June 15, 1981, the appellant, Richard Schmidt, Sr. (Schmidt), was charged in an amended complaint with the crimes of attempted murder in violation of
Schmidt has assigned a number of errors. His first assignment of error is, in essence, that the evidence was insufficient to find him guilty beyond a reasonable doubt of the offenses charged. The record simply will not support that claim. There was more than sufficient evidence presented to the trial court from which the trial court could find beyond a reasonable doubt that on June 10, 1981, Schmidt, then being separated from his wife, Charlette Schmidt, the victim in this case, contacted his wife and asked her to meet him at his partment so that they could go to pick up a gift that Schmidt told her she would enjoy. Schmidt directed his wife to come alone and to bring her own car. After arriving at Schmidt’s apartment, Schmidt offered to drive, and his wife accepted. Schmidt drove to a gas station where he purchased gas, and then he drove his wife to a secluded country road in Hall County. Schmidt stopped the car on the shoulder of the road and informed his wife that he was leaving, taking only his clothes. He then handed her a letter and asked her to recopy it for him because, he maintained, the letter expressed her feelings about him and he wanted to keep this letter to remember her wherever he went. However, the letter actually referred to his wife leaving, instead of Schmidt. She refused to write the letter and asked Schmidt to take her home. Schmidt insisted that she rewrite the letter, and she finally acquiesced and rewrote the letter with a pen and stationery provided by Schmidt. Schmidt then gave her an envelope and instructed her to address it to his apartment and to place in it the rewritten letter. After she sealed the envelope, Schmidt took it from her.
We have often stated that in reviewing criminal cases this court will not set aside the judgment of the trial court if there is sufficient evidence, taking the view most favorable to the State, to support the judgment.
State v. Parks,
212 Neb. 635, 324 N.W.2d 673 (1982);
State v. King,
204 Neb. 47, 281 N.W.2d 226 (1979). The question presented to us by these assignments of error is whether the evidence introduced at trial and viewed most favorably to the State establishes the elements of the crimes charged beyond a reasonable doubt.
A second error assigned by Schmidt is that he was denied a preliminary hearing both in form and in substance and, thus, the trial court erred in overruling his plea in abatement. In view of what we have just said concerning the sufficiency of the evidence, this assignment must likewise be overruled. The general rule in. this jurisdiction
The third assignment of error is that the trial court erred in finding Schmidt, guilty of kidnapping, in that the kidnapping was simply a part of another offense. This argument has been presented to this court on previous occasions and rejected. In State v. Pankey, 202 Neb. 595, 598, 276 N.W.2d 233, 235 (1979), quoting from State v. Goham, 187 Neb. 34, 187 N.W.2d 305 (1971), we said: “ ‘The purpose of kidnapping in every instance is to make it possible to commit some other crime. Its very nature therefore embraces other crimes as well as that of kidnapping. The penalties of kidnapping are intentionally more severe than the other crimes which may be included because of the consequences which often result from its perpetration.’ ” The evidence in this case established a classic kidnapping violation. That violation occurred even before anything more took place. One may not erase the commission of a crime simply because, after committing the crime, a second crime is committed. The assignment is overruled.
Schmidt further argues that even if he had committed the crime of attempted murder, the act was completely and voluntarily abandoned and therefore, under the provisions of the Model Penal Code from which our § 28-201 is patterned, the act of abandonment should be considered as an absolute defense to the instant charge. While it is true that the Model Penal Code, which was used as a guideline by the Legislature when it adopted § 28-201, does contain the defense of abandonment in § 5.01(4) (Tent. Draft No. 10, 1960), it is further true that the defense was not included in the act when adopted by the Legislature. Nor can it be said that the omission of the defense of “voluntary abandonment’’ in connection with the crime of criminal attempt was either an oversight by the Legislature or due to its failure to know that such a defense could have been included when it adopted the criminal attempt statute in 1977. At the same time that § 28-201 was adopted, the Legislature also enacted
Schmidt’s final assignment of error is that the trial court abused its discretion in sentencing him to two concurrent terms of 7 to 15 years for the offense of attempted murder and 2 to 5 years for the offense of kidnapping. Both the offenses of attempted murder and kidnapping are Class II felonies punishable by a minimum of 1 year’s imprisonment and a maximum of 50 years’ imprisonment. In reviewing the sentences imposed by trial courts we are, of course, bound by our long-established rule that a sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. See,
State v. Beckner,
211 Neb. 442, 318 N.W.2d 889 (1982);
State v. Prosser,
209 Neb. 766, 311 N.W.2d 525 (1981). As we have already indicated, the evidence clearly establishes that Schmidt intended, on the day in question,
Having overruled all of Schmidt’s assignments of error, we therefore affirm the judgment and sentences of the trial court.
Affirmed.