State v. Branch

others in his community attesting to his character and integrity
as a lawyer as well as his positive involvement in the com-
munity. The Counsel for Discipline noted that Swan assisted
the banking authorities in sorting out the confusion caused
by the Bank’s questionable lending practices and cooperated
during this disciplinary proceeding. Although the propriety of
a sanction must be considered with reference to the sanctions
imposed by this court in prior cases presenting similar circum-
stances,13 the unique facts of this case are unlike any other case
we have considered.
Considering all of the mitigating circumstances in this
case, we agree with the referee that a public reprimand is
appropriate.
CONCLUSION
Based on the record in this case, we conclude that Swan
violated DR 1-102 and DR 7-102 of the Code. It is the judg-
ment of this court that Swan should be, and hereby is, publicly
reprimanded for conduct in violation of the Code. Swan is
directed to pay costs and expenses in accordance with Neb.
Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and Neb. Ct. R.
§§ 3-310(P) and 3-323 within 60 days after an order imposing
costs and expenses, if any, is entered by this court.
Judgment of public reprimand.
H eavican, C.J., and connolly, J., not participating.
13 See Frank, supra note 12.
State of nebraSka , appellee , v.
JameS l. brancH, appellant.
764 N.W.2d 867
Filed May 8, 2009. 	No. S-08-781.
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.
738 	277 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

2. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appellate court, in review-
ing a criminal conviction, does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence.
3. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
4. Motions to Dismiss: Directed Verdict: Waiver: Convictions: Appeal and
Error. A defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution, and who, when
the court overrules the dismissal or directed verdict motion, proceeds with trial
and introduces evidence, waives the appellate right to challenge correctness in
the trial court’s overruling the motion for dismissal or a directed verdict, but may
challenge sufficiency of the evidence for the defendant’s conviction.
5. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, an
appellate court will not set aside a guilty verdict in a criminal case where such
verdict is supported by relevant evidence. Only where evidence lacks sufficient
probative force as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
Appeal from the District Court for Douglas County: W. mark
aSHford, Judge. Affirmed.
Mary 	C. 	Gryva, 	of 	Frank 	& 	Gryva, 	P.C., 	L.L.O., 	for
appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
H eavican, c.J., WrigHt, connolly, gerrard, StepHan, and
mccormack, JJ., and carlSon, Judge.
WrigHt, J.
NATURe OF CASe
James L. Branch was convicted by a jury of kidnapping and
robbery. He was sentenced to a term of 40 to 50 years in prison
for the robbery conviction and to a term of life to life in prison
for the kidnapping conviction. The sentences were ordered to
be served concurrently. Branch appeals.
SCOPe OF ReVIeW
[1,2] 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
STATe v. BRANCH 	739
Cite as 277 Neb. 738

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. Davis, ante p. 161, 762
N.W.2d 287 (2009). Regardless of whether the evidence is
direct, circumstantial, or a combination thereof, an appellate
court, in reviewing a criminal conviction, does not resolve con-
flicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence. State v. Draganescu, 276 Neb. 448, 755
N.W.2d 57 (2008).
[3] Sentences within statutory limits will be disturbed by an
appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Albers, 276 Neb. 942, 758
N.W.2d 411 (2008).
FACTS
James Clark operated a vehicle storage facility and sold used
cars in Omaha, Nebraska. On July 16, 2007, he was beaten,
robbed, and placed in the trunk of one of the cars at his build-
ing. The perpetrators took Clark’s wallet, which contained at
least one credit card, and car titles.
Clark’s wife became concerned upon receiving a telephone
call from a credit card company notifying her of unusual activ-
ity on the card. She tried to call Clark several times, but he did
not answer. She then called a family friend and asked her to
check on Clark.
The friend went to the storage facility and found that the
front door of the building was locked, even though a sign
stating “YeS We’re OPeN” was hanging on the door. She
entered through a door on the side of the building and walked
through the three levels. She did not find Clark and called his
wife. While on the telephone, the friend saw Clark’s dentures
on the floor. She hung up and called the 911 emergency dis-
patch service.
When Clark’s wife arrived at the storage facility, she saw on
the floor a plastic clip from a telephone that Clark carried with
him at all times. Police officers arrived and directed Clark’s
wife and the friend to wait in the office. About 20 minutes
later, they found Clark in the trunk of a car.
740 	277 NeBRASkA RePORTS

Clark was hospitalized and placed in a drug-induced coma
for 18 days. He remained in the hospital for a total of 27 days.
Clark underwent rehabilitation for an additional 10 days and
then received home health care for 4 months. At the time of
trial, he was using a walker for mobility.
Clark testified that on the morning of July 16, 2007, he
was on the show floor of his building. He felt an arm placed
around his neck from behind. Clark identified the person as an
African-American male. The man pulled tightly around Clark’s
neck, causing him to have difficulty breathing. Almost imme-
diately, a second African-American male struck Clark in the
face with hard, closed-fist punches. Clark said he was initially
held upright by the person whose arm was around his neck.
After the last punch, he was lowered to the ground. A wire was
placed around his neck, and he was dragged by his feet to a
nearby automobile and placed in the trunk.
Clark said he was dazed and only vaguely remembered the
incident, but he believed he was unconscious when placed in
the trunk. He woke up shortly afterward and tried to reach the
key lock on the back side of the trunk lid, but he could not
get to it because the area was carpeted. He also tried to use
his glasses as a screwdriver to jimmy the lock, but the glasses
broke. Clark believed he was in the trunk for about 6 hours, but
after losing consciousness, the next thing he remembered was
waking up in the hospital 3 weeks later.
Immediately prior to the assault, three African-American
males entered the building, but Clark did not remember whether
he had seen them before that date. He did not remember see-
ing them leave prior to the assault and could not identify the
person who struck him in the face.
At Clark’s building, police observed signs of a struggle and
drag marks in the dust on the floor. The struggle appeared to
have involved more than two people. There were several sets of
footprints and some drag marks indicating that the people were
pushing against each other. When the Omaha Fire Department
arrived, they used a crowbar and other equipment to open the
trunk where Clark was found. His hands had been tied, and
there was a wire around his neck.
STATe v. BRANCH 	741
Cite as 277 Neb. 738

Later that evening, Omaha police responded to a call of
suspicious activity at a convenience store. A cashier told police
that customers had complained about two African-American
males who were trying to get people to pay them cash for gas
that the men would then purchase with a credit card. Receipts
showed that at least $300 worth of gas had been charged
to a credit card in Clark’s name. The following day, police
called the credit card company. Clark’s card had been used
between 4:45 and 10:45 p.m. on July 16, 2007, at four differ-
ent locations.
A security officer at the convenience store testified that a
customer complained to him about a man outside who was
attempting to sell the use of a credit card to buy gas. The
security officer saw an African-American male, about 5 feet
9 inches tall and weighing about 180 pounds, leaving the gas
pumps. Before the security officer could talk to the man, he
got into a white Chevrolet Corsica and left. Another African-
American male was in the passenger seat. The security officer
obtained the license number of the car. It was registered to
Laquesha Martin, who lived in an apartment in Omaha. Police
located the car at Martin’s apartment. Martin was the mother of
Branch’s child and lived with Branch at the apartment.
About an hour after the police arrived at the convenience
store, the store received at least three threatening telephone
calls from someone who was upset because the police had
been called. The caller threatened to “shoot up the store” and
the vehicles of the cashier, the assistant manager, and the secu-
rity guard.
Branch 	was 	subsequently 	arrested 	on 	outstanding 	mis-
demeanor warrants. Following his arrest, Branch admitted to
police his involvement in the use of Clark’s credit card. He said
that Paul Miller had arrived at Martin’s apartment with the card
and that they used the card to fill cars with gas. Branch denied
knowing where Miller obtained the card.
At trial, Branch admitted using Clark’s credit card, but
denied knowing anything about the robbery and assault of
Clark. Branch claimed that on July 16, 2007, he slept until
he went to pick up Martin at either 11 a.m. or 2 p.m. He was
unable to recall the time because he had been to a party the
742 	277 NeBRASkA RePORTS

night before. He and Martin went to a bank and then to a
friend’s house to feed Branch’s dog, returning home at either
2:30 or 4:30 p.m.
Branch said Miller arrived with a credit card and asked him
to drive Miller around to fill up some gas tanks. Branch claimed
it was not unusual to see Miller with credit cards because he
had broken into lockers at a gym and stolen credit cards in the
past. Branch understood that Miller would use the cards to fill
a gas tank and then take cash from the driver.
At the first gas station, they used a credit card to fill up
Martin’s car. At a second gas station, they called friends and
relatives to offer to fill their cars with gas. Branch said he used
a credit card to fill up his brother-in-law’s car, but Branch did
not see a name on the card. Branch and Miller arrived at the
convenience store around 4 p.m., and two of Branch’s cousins
came and had their gas tanks filled.
Branch said he and Miller were at the convenience store for
about 2 hours and filled a number of tanks. They left when
it appeared that the employees were getting suspicious. After
leaving the convenience store, they went to Branch’s mother’s
residence at about 6:15 or 6:30 p.m., stopped at the house of
Miller’s mother so he could change clothes, and arrived back at
Martin’s apartment at around 7:30 or 8 p.m.
Branch said it did not concern him that he was using a sto-
len credit card. When Branch saw the news report about the
robbery, he did not connect it to the credit card he had been
using all day. He also denied having been at Clark’s busi-
ness previously.
Miller pled guilty to robbery, false imprisonment, and
assault in connection with the incident at Clark’s business. At
Branch’s trial, Miller testified as a witness for the State. Miller
explained the plan developed by Miller, Branch, and Michael
Johnson. Branch and Miller went to Clark’s business 6 days
before the robbery to “scope it out.” They talked to Clark and
told him they wanted to store a car there. Branch said the car
had big rims, and Clark asked if it could make a sharp turn
around the ramp to an upper level. Clark showed them the
ramp. They also asked the prices for several of the cars Clark
had for sale.
STATe v. BRANCH 	743
Cite as 277 Neb. 738

The following Saturday, Branch and Miller discussed the
plan for the robbery. Johnson was present and said he wanted
to be included. The plan was to rob the business and take
cars to sell. Miller was to be the lookout, and Johnson was to
grab Clark while Branch hit him. They would use duct tape
to restrain Clark’s hands and legs and lay him on the floor of
his office. They would each take a car and drive it around the
corner and park it. They would return after dark to retrieve the
cars and move them to another location. They would park the
cars there until they could get titles in different names.
Miller testified that on July 16, 2007, Branch and Johnson
picked up Miller in Martin’s white Chevrolet Corsica. They
arrived at Clark’s business at around 11 or 11:15 a.m. Clark
came out of his office and asked to help the three men, and
Miller said they wanted to look at cars for sale. Clark started
toward the back where cars were parked. When they got to the
middle of the building, Johnson grabbed Clark and Branch hit
him in the face. Miller left to sit in the car as a lookout. He
was supposed to honk the horn if anyone came to the busi-
ness. Branch came out about 10 or 15 minutes later and said
he would give Miller extra money if Miller would drive the car
inside the building.
As Miller drove into the building and up the ramp, he saw
Clark’s dentures on the floor. On the second floor, Miller saw
Johnson with car speakers and an amplifier. Miller parked the
Corsica and opened the trunk. He then looked at three other
cars to see if there was anything valuable in them. He helped
load the speakers and amplifier into the Corsica.
Branch, Miller, and Johnson drove to Johnson’s house to
drop off the speakers and amplifier. In the car, Miller was
handed 9 or 10 car titles, a wallet containing at least one credit
card in Clark’s name, and car keys with identifying tags. They
returned to Branch’s apartment and smoked marijuana for 30
or 45 minutes. They went to the gas stations and used a credit
card to fill gas tanks in exchange for cash. They obtained
about $70 at the first station, $120 at the second station, and
about $15 at the third. They also accepted marijuana in place
of cash.
744 	277 NeBRASkA RePORTS

At the convenience store, they used a credit card in Clark’s
name to fill every car present. When employees inside began
watching them and the security guard came outside, Branch
and Miller got back into the Corsica and Johnson walked off.
Branch and Miller drove to the residence of Branch’s mother.
While there, Branch used the telephone in a back room, and
Miller heard him yelling at the convenience store employees,
telling them they should not have called the police. Miller said
he did not know Clark had been placed in the trunk of a car
until he saw the report on the news.
The jury found Branch guilty of robbery and kidnapping. He
was sentenced to a term of 40 to 50 years in prison for the rob-
bery and to a term of life to life in prison for the kidnapping,
to be served concurrently. Branch appeals.
ASSIGNMeNTS OF eRROR
Branch assigns three errors: (1) The district court erred in
overruling Branch’s motion to dismiss and allowing the case
to go to the jury, (2) the evidence was insufficient to sustain
guilty verdicts for kidnapping and robbery, and (3) the sentence
for robbery was excessive.
ANALYSIS
motion to diSmiSS and SubmiSSion of caSe to Jury
[4] A defendant who moves for dismissal or a directed ver-
dict at the close of the evidence in the State’s case in chief in
a criminal prosecution, and who, when the court overrules the
dismissal or directed verdict motion, proceeds with trial and
introduces evidence, waives the appellate right to challenge
correctness in the trial court’s overruling the motion for dis-
missal or a directed verdict, but may challenge sufficiency of
the evidence for the defendant’s conviction. State v. Sanders,
269 Neb. 895, 697 N.W.2d 657 (2005).
At the close of the State’s evidence, Branch moved to dis-
miss, arguing that the evidence did not sustain a prima facie
case to go forward. The court overruled the motion, and Branch
proceeded to present evidence. Thus, he has waived the right to
challenge the court’s ruling on the motion to dismiss.
STATe v. BRANCH 	745
Cite as 277 Neb. 738

Sufficiency of evidence
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. State v. Davis, ante p. 161, 762 N.W.2d
287 (2009). Regardless of whether the evidence is direct, cir-
cumstantial, or a combination thereof, an appellate court, in
reviewing a criminal conviction, does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh
the evidence. State v. Draganescu, 276 Neb. 448, 755 N.W.2d
57 (2008).
The evidence in this case is a combination of direct and
circumstantial. Miller testified that Branch was involved in
the planning and execution of the crime. Miller said he and
Branch went to Clark’s business 6 days prior to the robbery to
“scope it out.” On the day of the robbery, Miller saw Branch
hit Clark in the face. Miller was handed Clark’s wallet and
went with Branch to several gas stations to use the credit card
in Clark’s name.
Miller testified that the original plan was to steal cars, but
ultimately, they took personal property belonging to Clark and
car titles. On cross-examination, Miller admitted that he had
not given consistent statements about the incident. However,
Miller identified Branch as a participant in the crimes. The
physical evidence showed that Clark was bound with duct tape
and placed in a locked car trunk.
Branch testified in his own behalf and admitted his involve-
ment in the use of a credit card taken from Clark during the
robbery. However, his recollection of the events of July 16,
2007, was sketchy. Branch could not state whether he picked
up Martin at 11 a.m. or 2 p.m. He stated that he did not know
whether they returned home at 2:30 or 4:30 p.m., but then he
said he and Miller left the apartment around 2 or 3 p.m. He
said they arrived at the convenience store around 4 p.m. and
were there for 2 hours.
Branch admitted that he used a credit card to purchase gas
for others, but he claimed he never looked at the card or saw
746 	277 NeBRASkA RePORTS

Clark’s name on it. It did not concern Branch that he was
using a stolen credit card, and he claimed that he did not con-
nect the credit card to the robbery when he heard about it on
the news.
Branch testified that he was about 5 feet 9 or 10 inches tall
and weighed about 145 or 150 pounds at the time of the rob-
bery. The security guard at the convenience store testified that
one of the African-American males he saw drive away in the
Corsica was about 5 feet 9 inches tall and weighed about 180
pounds. Miller testified that he was 6 feet tall and weighed
about 235 pounds.
Any conflicts in the evidence or questions concerning the
credibility of witnesses are for the finder of fact to resolve. See
State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008). An
appellate court does not reweigh the evidence in reviewing a
criminal conviction. Id. A conviction will be affirmed, in the
absence of prejudicial error, if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support the conviction. Id.
Clark was grabbed from behind and beaten. He was bound
and placed in a locked car trunk. Clark testified he was in
the trunk for hours. He sustained serious injuries which
required that he be placed in a drug-induced coma for nearly
3 weeks.
Neb. Rev. Stat. § 28-313 (Reissue 2008) defines kidnapping:
“A person commits kidnapping if he abducts another or, having
abducted another, continues to restrain him with intent to . . .
[t]errorize him or . . . [c]ommit a felony.” Robbery occurs when
a person, with the intent to steal, “forcibly and by violence, or
by putting in fear, takes from the person of another any money
or personal property of any value whatever.” Neb. Rev. Stat.
§ 28-324 (Reissue 2008). Clark was beaten and abducted so
that the perpetrators could steal from his business. The evi-
dence supports the fact that the crimes of kidnapping and rob-
bery were committed.
[5] On a claim of insufficiency of the evidence, an appellate
court will not set aside a guilty verdict in a criminal case where
such verdict is supported by relevant evidence. Only where evi-
dence lacks sufficient probative force as a matter of law may
STATe v. BRANCH 	747
Cite as 277 Neb. 738

an appellate court set aside a guilty verdict as unsupported by
evidence beyond a reasonable doubt. State v. Kuhl, 276 Neb.
497, 755 N.W.2d 389 (2008). From the evidence presented, the
jury found beyond a reasonable doubt that Branch committed
the crimes of kidnapping and robbery. Viewing the evidence
in a light most favorable to the State, any rational trier of fact
could have found the essential elements of the crimes beyond
a reasonable doubt.
exceSSive Sentence
Branch also claims that the sentence for robbery was exces-
sive. Robbery is a Class II felony and is punishable by a
sentence of 1 to 50 years in prison. § 28-324; Neb. Rev. Stat.
§ 28-105 (Reissue 2008). Branch was sentenced to a term of
40 to 50 years in prison. He argues that the sentence given for
the robbery was excessive, because the court also considered
the violent nature of the kidnapping in imposing the sen-
tence. Because kidnapping requires a mandatory life sentence,
Branch claims that violence had already been factored into
the sentence and that, therefore, the term imposed for robbery
was excessive.
Sentences within statutory limits will be disturbed by an
appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Albers, 276 Neb. 942, 758
N.W.2d 411 (2008). Although Branch had no prior criminal
history, Clark was abducted, violently assaulted, and incurred
great pain and suffering. The district court did not abuse its
discretion in imposing the sentence.
CONCLUSION
The evidence is sufficient to support the verdicts. The sen-
tence for robbery was not an abuse of discretion. The judgment
of conviction is affirmed, and the sentences are affirmed.
affirmed.
miller-lerman, J., not participating.
748 	277 NeBRASkA RePORTS