State v. King

479 N.W.2d 125 (1992)

239 Neb. 853

STATE of Nebraska, Appellee, v. John W. KING, Appellant.

No. 90-1056.

Supreme Court of Nebraska.

January 24, 1992.

*126 Barbara Thielen, of Fabian & Thielen, Omaha, for appellant.

Herbert M. Fitle, Omaha City Atty., and Gary P. Bucchino, Omaha City Prosecutor, and J. Michael Tesar, Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Following a county court bench trial, John W. King was convicted of purposely or knowingly tampering with or damaging the property of another. The property damaged was a truck. King was given a 75-day jail sentence.

Upon King's appeal to the district court for Douglas County, his conviction and sentence were affirmed. The defendant then appealed to this court. Here, King has assigned as error that the evidence was insufficient to sustain his conviction and that the sentence imposed is excessive. We affirm.

King was convicted of violating a municipal ordinance of the city of Omaha. The penalty was also set out by ordinance. When a defendant appeals a conviction and sentence under a municipal ordinance, claiming that the evidence is insufficient for a conviction and that a sentence is excessive, an appellate court's consideration of the assignments of error requires an examination of the specific ordinance involved. See State v. Topping, 237 Neb. 130, 464 N.W.2d 799 (1991). The record before us does not include the ordinance under which King was convicted or the ordinance under which he was sentenced.

When an ordinance charging an offense is not properly made a part of the record, an appellate court presumes the existence of a valid ordinance creating the offense charged, and an appellate court will not otherwise take judicial notice of the ordinance. See State v. Topping, supra. In the absence from the record of the applicable municipal ordinance, an appellate court presumes that the evidence sustains the findings of the trial court and that a sentence is within the limits set out in the applicable ordinance. See State v. Cottingham, 226 Neb. 270, 410 N.W.2d 498 (1987).

Because there is no municipal ordinance in the record in King's appeal, the order of the district court, affirming the judgment of the county court, is affirmed.

AFFIRMED.