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Nebraska's Appellate Courts Reach Different Results Weighing Evidence in Criminal Case.


Michael L. Ross was convicted by a jury who found the evidence sufficient to support criminal charges of discharge of a firearm at a person, building, or occupied vehicle while in the proximity of a motor vehicle he had just exited, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. Ross appealed to the Nebraska Court of Appeals. It reversed the trial court, holding evidence against Ross was insufficient to sustain the convictions.

Dissatisfied with the Court of Appeals’ ruling, the State petitioned the Nebraska Supreme court to reevaluate the Court of Appeals’ work.

In an April 26th Opinion, the Court reversed the Court of Appeals, reinstated the jury verdict, and concluded the evidence was sufficient to sustain it.

An Opinion which details the evidence proven at trial turned, legally, on the definition of “evidence.” The Supreme Court returned to basic rules in its pronouncement, noting that:

Whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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.
State v. Ross, 283 Neb 742, 750 (April 26, 2012).

The Supreme Court concurred with the Court of Appeals that no witness was able to identify Ross by name as the shooter. On this point, the evidence was primarily circumstantial. The court defined “ circumstantial” as follows:

Circumstantial evidence [as] evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact exists. Circumstantial in evidence is not inherently less probative than direct evidence, and a fact proved by circumstantial evidence is nonetheless a proven fact.

The court noted that when a jury finds a defendant guilty beyond a reasonable doubt, it
“may rely upon circumstantial evidence and the inferences that may be drawn therefrom.”

Ross recites familiar rules of law. But, it deals with contentious facts where a strong argument existed to the effect that the state’s evidence only proved two equal probabilities. When the jury chose one of the probabilities over the other, the real issue was whether the choice was made arbitrarily or on the basis of evidence. The Supreme Court’s decision makes it clear the Court will not lightly reweigh a jury’s decision in a criminal case where any credible evidence, or circumstantial evidence, supports the outcome.

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