State v. Rush

With respect to the duration of the marriage as justification
of an alimony award, we frankly do not see how “duration
of the marriage” operates to justify an alimony award in this
case—and particularly to kristi. kristi and Layne were both in
the same marriage for the same period of time, and the statute
does not tell us in whose favor this factor cuts. Of considerably
more import are the relative economic circumstances of the par-
ties and the interruption of careers and education. The latter is
not a factor, given the absence of evidence, and the economic
circumstances would favor an award of alimony to Layne before
an award of alimony to kristi. While the $40 is arguably an
inconsequential sum, the fact is that the record does not justify
an award of any alimony to kristi. The district court’s award of
alimony is unsupported by the record, is untenable, and is an
abuse of discretion, and we hereby vacate the alimony award.
CONCLUsION
We modify the decree to provide that Layne shall pay kristi
the sum of $631 within 30 days of our mandate so as to equal-
ize the division of the marital estate. We further modify the
decree to eliminate the award of alimony to kristi. In all other
respects, we affirm the decree.
aFFirmeD as moDiFieD.
state oF neBraska , appellee , v .
J onathan C. rush , appellant .
741 N.W.2d 180
Filed November 13, 2007. 	No. A-06-1318.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court 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.
2. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
3. Criminal Law: Indictments and Informations. In a multicount information
involving factual variations, such as different times, dates, places, property, or
180 	16 NebRAskA APPeLLATe RePORTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

victims, the finding on one count will not ordinarily be held inconsistent with that
on any other count.
4. Sentences: Appeal and Error. When a sentence imposed within statutory limits
is alleged on appeal to be excessive, the appellate court must determine whether
the sentencing court abused its discretion in considering and applying these fac-
tors as well as any applicable legal principles in determining the sentence to
be imposed.
Appeal from the District Court for Adams County: terri
harDer, Judge. Affirmed.
Arthur C. Toogood, Adams County Public Defender, for
appellant.
Jon bruning, Attorney General, and erin e. Leuenberger for
appellee.
sievers , C arlson, and C assel, Judges.
C assel, Judge.
INTRODUCTION
A jury found Jonathan C. Rush not guilty of unlawful dis-
charge of a firearm and use of a firearm to commit a felony,
but guilty of attempted second degree assault. The district
court entered judgment on the verdict and sentenced Rush to
365 days in jail. Rush appeals. We determine that a rational
jury could have found the state proved beyond a reasonable
doubt that Rush carried and leveled a shotgun at the potential
victims but failed to prove by the requisite standard that Rush
discharged the shotgun. We affirm.
bACkGROUND
Justin e. and Courtney D. previously had a romantic rela-
tionship. In March 2006, Courtney began living with Rush, her
new boyfriend. Courtney’s new relationship became a source of
conflict between Justin and Rush.
On the evening of April 15, 2006, Justin drove by Rush’s
house. shortly thereafter, Justin received three calls on his
cellular telephone from Courtney’s telephone number. Justin
answered the third call, and it was Rush inquiring why Justin
was driving by Rush’s house. Words and threats were exchanged.
Justin and his two passengers then drove slowly by Rush’s house
sTATe v. RUsh 	181
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again and saw Rush come out on the porch carrying a shotgun.
Justin testified that Rush walked out the door holding the shot-
gun straight up in the air and that “as [Rush] walked out he
turned towards my car and he just drew it down like that.” Justin
then drove off and heard the noise of a shotgun blast, but he did
not see the muzzle flash. One of the passengers testified that he
ducked down when Rush pointed the shotgun at the vehicle and
that 2 or 3 seconds later, he heard a “loud shot.” Rush’s next-
door neighbors also testified about hearing a “loud bang” that
sounded very close. Justin later noticed damage to his vehicle
consistent with damage caused by a shotgun.
The state charged Rush with unlawful discharge of a firearm,
use of a firearm to commit a felony, attempted second degree
assault, and criminal mischief. The state later dismissed the
criminal mischief charge. The court conducted a jury trial on
september 11 and 12, 2006.
Courtney testified that on the night in question, Justin stopped
his vehicle in front of Rush’s house, Rush went outside on the
porch, Justin “peeled off,” and Courtney heard a noise as Rush
reentered the house. Rush testified that he went out on the porch
with the intent to fight Justin but that before he could even walk
down the steps, the vehicle “screeched off” and Rush heard a
“loud boom.” Rush denied having a shotgun at the house or
carrying any weapons with him when he went out on the porch,
and Courtney provided similar testimony.
The jury found Rush not guilty of unlawful discharge of a
firearm and use of a firearm to commit a felony, but guilty of
attempted second degree assault. The district court later sen-
tenced Rush to 365 days in jail.
Rush timely appeals to this court.
AssIGNMeNTs OF eRROR
Rush alleges that the court erred in (1) finding sufficient
evidence to support the conviction and (2) imposing an exces-
sive sentence.
sTANDARD OF ReVIeW
[1] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
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for an appellate court 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. State v. Gutierrez, 272 Neb. 995,
726 N.W.2d 542 (2007).
[2] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
ANALysIs
Sufficiency of Evidence.
Rush argues that the state failed to establish beyond a rea-
sonable doubt the elements of attempted second degree assault.
he asserts, “The finding that the evidence was not sufficient to
show that [Rush] discharged a firearm at [Justin’s] automobile
leaves no evidence that any other dangerous instrument was
available for [Rush] to use in an attempted [sic] to cause bodily
injury.” brief for appellant at 7. Although Rush frames his argu-
ment upon sufficiency of the evidence, he relies in part upon a
claim that the verdicts are inconsistent.
[3] In a multicount information involving factual variations,
such as different times, dates, places, property, or victims, the
finding on one count will not ordinarily be held inconsistent
with that on any other count. see State v. Ladehoff, 228 Neb.
812, 424 N.W.2d 361 (1988). The Nebraska supreme Court has
also declined to find inconsistent verdicts where the evidence
relied on in the different counts is not identical, see State v.
Steinmark, 195 Neb. 545, 239 N.W.2d 495 (1976), or where the
counts describe two separate offenses and are not inconsistent,
see State v. Whipple, 189 Neb. 259, 202 N.W.2d 182 (1972). We
examine the counts and the evidence to determine if a rational
fact finder could acquit Rush of one offense and find him guilty
of the other.
The court instructed the jury that in order to convict Rush of
unlawful discharge of a firearm, the jury had to find beyond a
reasonable doubt that Rush “intentionally discharge[d] a fire-
arm at an occupied motor vehicle.” In order to convict Rush of
attempted second degree assault, the jury needed to find beyond
a reasonable doubt that Rush “intentionally engaged in conduct
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which, under the circumstances as he believed them to be,
constituted a substantial step in a course of conduct intended
to culminate in his commission of the crime of second Degree
Assault, to-wit: intentionally or knowingly causing bodily injury
to another with a dangerous instrument.”
Under the facts of this case, a rational jury could find beyond
a reasonable doubt, based on the testimony of what the witnesses
saw, that Rush took a shotgun onto the porch and could also find
that the state failed to prove beyond a reasonable doubt that
Rush fired the shotgun. The witnesses did not see the shotgun
discharge. even though some of the witnesses testified that they
heard sounds characterized by one as “a shotgun blast” and by
others as “a loud shot” or “loud bang,” the jury was not bound
to accept the inference that the sound came from the shotgun.
Thus, if the jury found that the state failed to prove beyond a
reasonable doubt that Rush did discharge the shotgun, the jury
could not find Rush guilty of unlawful discharge of a firearm.
but, the jury could still find that the state proved beyond a
reasonable doubt that Rush carried a shotgun and leveled it at
the vehicle and find that he thereby intentionally engaged in
conduct which constituted a substantial step toward intention-
ally or knowingly causing bodily injury, with a shotgun, to
Justin or Justin’s passengers. Viewing the evidence in the light
most favorable to the state, a rational trier of fact could have
found that the state proved the essential elements of attempted
second degree assault beyond a reasonable doubt and that the
state failed to prove by the requisite standard the elements of
unlawful discharge of a firearm. There is sufficient evidence to
support the conviction.
Excessiveness of Sentence.
[4] Rush also argues that the court imposed an excessive
sentence. The factors to be considered by a sentencing court
are well known, and we need not recite them here. see State
v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007). When a
sentence imposed within statutory limits is alleged on appeal
to be excessive, the appellate court must determine whether
the sentencing court abused its discretion in considering and
applying these factors as well as any applicable legal principles
184 	16 NebRAskA APPeLLATe RePORTs

in determining the sentence to be imposed. Id. The sentence
imposed was within statutory limits, and we have examined
the record concerning all relevant factors and applicable legal
principles. We find no abuse of discretion by the district court
in its determination of the sentence.
CONCLUsION
We conclude that the jury’s verdict is supported by the
evidence and that the district court’s sentence did not constitute
an abuse of discretion.
aFFirmeD.
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Cite as 16 Neb. App. 180