A-14-0960 State (Appellant) v. Breanna N. Kleckner
Sarpy County, Judge William B. Zastera
Attorneys: Karen S. Nelson (Schirber & Wagner LLP) (Appellee) --- Philip K. Kleine (County Attorney's Office) (Appellant)
Criminal: Error Proceedings; domestic assault under Neb. Rev. Stat. ' 28-323(1) (a), (b), and (c)
Proceedings below: Appellee filed a Motion to Quash and/or Motion to Demurrer alleging the state should be required to elect which subsection of Neb. Rev. Stat. ' 28-323(1) the State was proceeding under. The trial court overruled the Motion to Quash and/or Motion to Demurrer. The jury found Appellee guilty of one count of domestic abuse under Neb. Rev. Stat. ' 28-323(1) (a). She was acquitted under (1) (b) and the county court dismissed (1)(c) at the close of the State's case. The district court reversed her conviction under (1) (a) of the statute.
Issues: I. The District Court misapplied the applicable law and standard found in current case law by incorrectly interpreting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) to find that the separate subsections found under Neb. Rev. Stat. ' 28-323(l), despite containing separate elements, were the same offense. II. The District Court misapplied Double Jeopardy analysis under applicable law and under the standard found in current case law by finding that two charges under the same statute were, for purposes of prosecution, the same as two charges for the same act. III. The District Court erred in finding that the State was required to elect which subsection of Neb. Rev. Stat. ' 28-323(1) the State was to proceed under because there were separate and distinct acts committed by Defendant and the State produced evidence to justify a charge for each of those separate and distinct acts. IV. The District Court was without authority to reverse the jury verdict of guilty and arbitrarily acquit Defendant of all charges. When the case was presented at trial to the jury, although the jury did not find that there was sufficient evidence to show beyond a reasonable doubt that there had been a threat of bodily harm made pursuant to Neb. Rev. Stat. ' 28-323(1) (b), the jury did find that there was sufficient evidence to show beyond a reasonable doubt that bodily harm was caused by Defendant to her intimate partner pursuant to Neb. Rev. Stat. ' 28-323(1)(a).