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05/06/2016 09:09 AM CDT




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                                            Nebraska A dvance Sheets
                                             293 Nebraska R eports
                                                  STATE v. DORTCH
                                                  Cite as 293 Neb. 514




                                         State of Nebraska, appellee, v.
                                        Milton B. Dortch, Jr., appellant.
                                                    ___ N.W.2d ___

                                           Filed May 6, 2016.     No. S-15-841.

                1.	 Convictions: Evidence: Appeal and Error. When reviewing the suf-
                    ficiency of the evidence to sustain a criminal conviction, it is not the
                    province of an appellate court to resolve conflicts in the evidence, pass
                    on the credibility of witnesses, determine the plausibility of explana-
                    tions, or reweigh the evidence; such matters are for the finder of fact.
                    The relevant question is whether, after viewing the evidence in the light
                    most favorable to the prosecution, any rational trier of fact could have
                    found the essential elements of the crime beyond a reasonable doubt.

                 Appeal from the District Court for Douglas County: M arlon
               A. Polk, Judge. Affirmed.

                    Glenn A. Shapiro, of Schaefer Shapiro, L.L.P., for appellant.

                 Douglas J. Peterson, Attorney General, and Melissa R.
               Vincent for appellee.

                 Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
               Stacy, and K elch, JJ.

                    Miller-Lerman, J.
                                       NATURE OF CASE
                  Milton B. Dortch, Jr., was convicted in the district court for
               Douglas County of first degree murder and use of a firearm to
               commit a felony. The court sentenced Dortch to imprisonment
               for life for first degree murder and to imprisonment for 5 to 10
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                  Nebraska A dvance Sheets
                   293 Nebraska R eports
                        STATE v. DORTCH
                        Cite as 293 Neb. 514

years for use of a firearm to commit a felony. Dortch appeals,
and his sole assignment of error is that there was insufficient
evidence to support his convictions. We affirm Dortch’s con-
victions and sentences.

                   STATEMENT OF FACTS
   On the morning of September 17, 2014, Dortch walked into
a jewelry store in Omaha, Nebraska, carrying a gun. Several
employees, including the store owner, James Minshall, Sr.,
were working inside. Dortch pointed the gun at employees
as he threw a bag over the counter and told them to “‘[p]ick
it up and fill it up.’” When another employee went to open
a display case, Minshall walked from a workstation at the
counter to the back room of the store. Dortch noticed that
Minshall had gone to the back room; Dortch took a few steps
to get a better view of Minshall. Dortch asked what Minshall
was doing, and he then fired three shots in rapid succession at
Minshall. Dortch ran out of the store and fled the area on foot.
One of the bullets struck Minshall in the chest, and, despite
the efforts of other employees to revive him, Minshall died
soon after being shot.
   Dortch was arrested the next day on a warrant related to a
different robbery, and during a police interview, he admitted
that he had committed the shooting at Minshall’s jewelry store.
On October 21, 2014, Dortch was charged by information with
first degree murder under a felony murder theory which set
forth “the perpetration of or attempt to perpetrate a Robbery”
as the underlying felony. The State also charged Dortch with
use of a firearm to commit a felony.
   In a bench trial of the charges, the State presented testi-
mony of three employees who witnessed the events in the
store on September 17, 2014. During the testimony of one
of the employees, the court allowed into evidence a video
from the store depicting the events surrounding the alleged
attempted robbery and the shooting. The video was played for
the court, and various stills from the video were also allowed
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                  Nebraska A dvance Sheets
                   293 Nebraska R eports
                        STATE v. DORTCH
                        Cite as 293 Neb. 514

into evidence. The State presented evidence that Minshall
died from a single gunshot wound to the chest. The State also
presented evidence indicating that Dortch’s DNA was found
on gloves, a gun, and a bag that were found near the scene of
the shooting.
    The State presented the testimony of a police officer who
had interviewed Dortch after he was arrested on a warrant
relating to another robbery. The officer testified that Dortch
admitted that he had entered Minshall’s jewelry store with the
intention of robbing the store. According to the officer, Dortch
indicated that after Minshall retrieved a gun, Dortch shot
at Minshall.
    When cross-examining the State’s witnesses, Dortch elicited
testimony to the effect that no merchandise or money was actu-
ally taken from the store and that there was a handgun located
on the floor near Minshall’s body after he was shot.
    Dortch testified in his own defense. Dortch admitted that on
September 17, 2014, he had walked into the jewelry store and
that he threw a bag over the counter and told the employees to
fill it up with merchandise. He testified that he saw Minshall
walk to the back room and “grab a gun.” Dortch testified that
when he saw Minshall try to cock the gun, he became scared
and decided he did not “want to do this no more,” and that he
was “just ready to get up out of there.” Dortch testified that
when he went into the store, he had no intention to harm any-
one, and that when he saw Minshall had a gun, he abandoned
his plans to commit a robbery.
    On cross-examination, Dortch admitted that the day before
the shooting, he and an associate had “cased” the jewelry
store for a robbery, and that when he entered the store, he
knew his gun was loaded and his intent was to “point a gun
in somebody’s face and take property from them.” He also
admitted that he fired the gun at Minshall and that he did not
pull the trigger accidentally. However, he refused to admit that
he “intentionally” pulled the trigger, because he testified that
while he shot the gun, he “didn’t want to.”
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
                         STATE v. DORTCH
                         Cite as 293 Neb. 514

   At the conclusion of the bench trial, the court found Dortch
guilty of first degree felony murder and use of a weapon to
commit a felony. The court specifically found that Minshall’s
“death occurred in connection with the perpetration of the
crime of attempted robbery.” The court thereafter sentenced
Dortch to imprisonment for life for first degree murder and to
imprisonment for 5 to 10 years for use of a firearm to commit
a felony and ordered the sentences to run consecutively.
   Dortch appeals his convictions.
                 ASSIGNMENT OF ERROR
   Dortch claims that there was insufficient evidence to support
his convictions.
                   STANDARD OF REVIEW
   [1] When reviewing the sufficiency of the evidence to sus-
tain a criminal conviction, it is not the province of this court to
resolve conflicts in the evidence, pass on the credibility of wit-
nesses, determine the plausibility of explanations, or reweigh
the evidence; such matters are for the finder of fact. State v.
Smith, 292 Neb. 434, 873 N.W.2d 169 (2016). The relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Id.
                          ANALYSIS
   Dortch’s sole assignment of error is that there was not suf-
ficient evidence to support his convictions. We conclude that
viewed in the light most favorable to the State, there was suf-
ficient evidence to support the convictions.
   Dortch was convicted of first degree murder under a felony
murder theory and of use of a firearm to commit a felony. In
order to prove felony murder under Neb. Rev. Stat. § 28-303
(Reissue 2008), the State must prove that the defendant
“kill[ed] another person . . . in the perpetration of or attempt
to perpetrate any sexual assault in the first degree, arson,
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
                        STATE v. DORTCH
                        Cite as 293 Neb. 514

robbery, kidnapping, hijacking of any public or private means
of transportation.” In order to prove use of a firearm to commit
a felony under Neb. Rev. Stat. § 28-1205 (Cum. Supp. 2014),
the State must prove that the defendant “use[d] a firearm . . .
to commit a felony.”
   When the State charged Dortch with first degree murder
under a felony murder theory, it alleged that the underlying
felony was an attempted robbery. At trial, the State presented
evidence, including witness testimony and physical evidence,
which showed that Dortch entered the jewelry store with a gun,
pointed the gun at employees of the store, threw a bag over
the counter, and told the employees to fill it with merchan-
dise. The State presented evidence that Dortch fired a gun at
Minshall and that Minshall died from the gunshot wound. The
State also presented evidence of statements Dortch made to
police in which he admitted that he entered the store with the
intent of robbing it and that he shot Minshall. Finally, Dortch’s
testimony in his own defense, both on direct and on cross-
examination, established that he intended to rob the jewelry
store and that he shot Minshall. Such evidence was sufficient
for the district court to find that Dortch killed Minshall in the
attempt to perpetrate a robbery and that he used a firearm to
kill Minshall. These findings support convictions for felony
murder under § 28-303 and for use of a firearm to commit a
felony under § 28-1205.
   Dortch makes two main arguments to support his contention
that the evidence did not support his convictions. We find both
arguments to be without merit.
   For his first argument, Dortch points to evidence that he
did not actually take anything from the store; he contends that
because he did not actually commit a robbery, he did not kill
Minshall in the perpetration of a robbery. This argument fails,
because § 28-303 by its terms applies to a killing that occurs
“in the perpetration of or attempt to perpetrate” one of the
listed felonies. (Emphasis supplied). The State alleged that
the underlying felony in this case was an attempted robbery.
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
                        STATE v. DORTCH
                        Cite as 293 Neb. 514

Nebraska’s criminal attempt statute, Neb. Rev. Stat. § 28-201
(Cum. Supp. 2014), defines “attempt” in part as intentionally
engaging in conduct which constitutes a substantial step in a
course of conduct intended to culminate in the commission
of the crime. The evidence in this case showed that Dortch’s
intent was to commit a robbery and that he took substantial
steps intended to culminate in the commission of a robbery.
The fact that Dortch did not actually complete the robbery
does not negate a finding, for purposes of § 28-303, that he
attempted to perpetrate a robbery.
   For his second argument, Dortch directs our attention to
his testimony to the effect that when he saw that Minshall
had a gun, he abandoned his plan to commit a robbery. He
contends that because he had abandoned the plan at the time
he shot Minshall, the killing did not occur in the perpetration
of a robbery. However, as noted above, the State alleged that
the underlying felony in this case was an attempted robbery.
In response to Dortch’s assertion that he abandoned his plan
to commit a robbery, the State cites State v. Schmidt, 213
Neb. 126, 327 N.W.2d 624 (1982), for the proposition that
abandonment is not a defense to attempt under Nebraska
law. See, also, State v. Banks, 278 Neb. 342, 771 N.W.2d 75
(2009) (stating that evidence did not support instruction on
abandonment defense to felony murder charge where kill-
ing occurred while defendant was escaping scene of com-
pleted robbery).
   With regard to the elements of felony murder, in State v.
Perkins, 219 Neb. 491, 500, 364 N.W.2d 20, 27 (1985), we
approved a felony murder jury instruction which stated in
part that “‘a homicide is committed in the perpetration of
or attempt to perpetrate a robbery . . . if the initial crime of
perpetration or of attempt to perpetrate a robbery and the
homicide were closely connected in point of time, place and
causal relation, and were parts of one continuous transaction.’”
(Emphasis omitted.) We determined in Perkins that the instruc-
tion fairly stated the elements of felony murder. See, also, State
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
                        STATE v. DORTCH
                        Cite as 293 Neb. 514

v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001) (approving
similar jury instruction).
   Even if Dortch abandoned his plan to commit the robbery
when he saw that Minshall had a gun, the evidence indicates
that Dortch shot Minshall very soon thereafter. Whether the
shooting occurred while Dortch was still attempting to perpe-
trate a robbery or whether it occurred soon after he had aban-
doned his plan and was escaping from an attempted robbery,
based on the evidence, the district court could have found
that the killing and the attempted robbery “‘were closely con-
nected in point of time, place and causal relation, and were
parts of one continuous transaction.’” See Perkins, 219 Neb.
at 500, 364 N.W.2d at 27. Such determination would support
a finding that the killing occurred in the attempt to perpetrate
a robbery.
   Dortch’s arguments that he did not complete the robbery
and that he abandoned his plan to commit the robbery before
he shot Minshall do not negate the evidence noted above that
supports convictions for felony murder under § 28-303 and for
use of a firearm to commit a felony under § 28-1205. We reject
Dortch’s claim that there was not sufficient evidence to support
his convictions.
                        CONCLUSION
   The State presented sufficient evidence for the district court
to find that Dortch killed Minshall in an attempt to perpetrate
a robbery and that he used a firearm to do so. Therefore there
was sufficient evidence to support convictions for first degree
murder and use of a firearm to commit a felony. We affirm
Dortch’s convictions and sentences.
                                                    A ffirmed.
