The opinion
Wright, L,
dissenting.
I respectfully dissent from the result reached by the majority, which reverses the decision of the Nebraska Court of Appeals and reinstates the judgment of conviction and sentence. In my opinion, the evidence was insufficient to submit the matter to the jury for its determination of Pierce’s guilt or innocence.
The victim, Julie Pengelly, who had met Pierce several times before the incident, claimed she was awakened when someone *551 put his hands on her shoulders. She kicked the intruder in the chest, which sent him across the room. She got up and ran out of the house, at which time she heard a dog barking near her windows. She recognized the dog as “Bear,” which belonged to Pierce. It was not contested that Pierce let his dog ran loose during the night.
Pengelly had no interior lights on at the time of the incident, and her memories of the incident were in silhouette. She was unable to see the facial features of the intruder, but knew it was a male because of the flat chest. She said the intruder had no mustache, beard, or chest hair. She could not say whether the intruder had alcohol on his breath.
A police investigator found no fingerprints on the screen, window, hutch, kitchen counter, or door to the lake side of the house. Pengelly found a beer bottle outside, near the window through which the intruder had entered. A fingerprint was found at the base of the bottle, below the left-hand side of the label. A fingerprint technician from the state crime lab said the fingerprint on the bottle matched Pierce’s right ring finger.
Reynaldo Ramirez, the manager of Gilligan’s, said that Pierce ordinarily helped stock single bottles of beer when needed and that Pierce had worked on the day preceding the incident. Ramirez said Pierce had two or three beers at the store, and he could smell alcohol on Pierce. Ramirez stated that Pierce took a six-pack of beer when he left, which Ramirez presumed was Miller Genuine Draft because that was Pierce’s preferred brand. Ramirez said he gave Pierce a ride from Gilligan’s around 10:30 or 11 p.m.
Various witnesses testified that Pierce had come by their campsite on the night of the incident and asked whether they had seen a dog. The witnesses’ versions conflicted as to when Pierce was there, how long he stayed, and whether he left and returned. Katherine Carmodie Pierce stated that she and Pierce had gone to bed at 12:30 a.m. and that Pierce did not get out of bed between then and the time that the deputy came to their house at 3:15 a.m.
Pierce had a mustache and chest hair. Pierce had been drinking prior to the time of the incident, yet Pengelly had no memory of alcohol on the intruder’s breath. Other witnesses *552 testified that Pierce had been drinking during the evening, and one witness thought he was drunk. Pierce ordinarily stocked single bottles of beer at Gilligan’s, where he worked on the day preceding the incident, and his fingerprints could have been transferred to the bottles at that time.
In my opinion, there was not sufficient evidence to submit the case to the jury.