State v. Belitz, 42366

• Decision Date: 08 May 1979
• Docket Number: No. 42366,42366
• Citation: 278 N.W.2d 769,203 Neb. 375
• Parties: STATE of Nebraska, Appellee, v. Leonard L. BELITZ, Appellant.
• Court: Nebraska Supreme Court

Page 769

278 N.W.2d 769

203 Neb. 375

STATE of Nebraska, Appellee, v. Leonard L. BELITZ, Appellant.

No. 42366.

Supreme Court of Nebraska.

May 8, 1979.

Syllabus by the Court

1. Municipal Corporations: Ordinances: Statutes. Under sections 14-101, 14-402, and 14-102.01, R.R.S.1943, the city of Omaha is given power by the State of Nebraska to enact ordinances relating to the safety and security of its citizens, and to impose fines, forfeitures, penalties, and imprisonment for the violation thereof.

2. Municipal Corporations: Ordinances: Assault and Battery. Section 25.11.010 of the Omaha municipal code, establishing the misdemeanor offense of "Assault; Battery" is a proper and valid exercise of the power granted to the city under its home rule charter to establish ordinances for the safety and security of the city and the citizens thereof.

3. Municipal Corporations: Ordinances: Statutes: Sexual Assault. Section 25.11.010, of the Omaha municipal code, and sections 28-408.01 to 28-408.05, R.R.S.1943, the sexual assault felony statutes, define and constitute separate and distinct offenses under the law, notwithstanding they may encompass elements in common.

4. Municipal Corporations: Ordinances: Statutes: Sexual Assault. Section 29-615, R.R.S.1943, does not mandate that a municipal judge, engaged in the trial of an offense charged under section 25.11.010 of the Omaha municipal code, must immediately stop further proceedings and act as an examining magistrate to determine if the defendant must be charged under the sexual assault statutes of the state.

5. Criminal Law: Prosecuting Attorneys: Evidence. It is the responsibility of the prosecutor to examine the evidence, the statutes, and the cases to make a proper determination of what charge to file. It is not always desirable that a prosecutor prosecute all crimes at the highest degree available; and in exercising his discretion in this regard, he does not neglect his public duty nor discriminate among offenders.

Walter J. Matejka, Omaha, for appellant.

Herbert M. Fitle, City Atty., Gary P. Bucchino, City Prosecutor, and Richard M. Jones, Omaha, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BRODKEY, Justice.

On December 23, 1977, the defendant below, Leonard L. Belitz, was charged in the municipal court of the city of Omaha, under a city complaint, for violating section 25.11.010 of the Omaha municipal code, of the offense of "Assault; Battery." Trial was had before Walter Cropper, judge of the municipal court of the city of Omaha, on defendant's plea of not guilty. The court found the defendant guilty and sentenced him to serve 180 days in the county jail. Defendant then appealed to the District Court for Douglas County, where, following a hearing before Judge Theodore Richling, defendant's conviction and sentence were affirmed. Defendant has now appealed to this court. We affirm.

Section 25.11.010 of the Omaha municipal code, under which defendant was charged and convicted, was enacted on July 18, 1967, and reads as follows: "25.11.010 Assault; Battery. It shall be unlawful for any person purposely or knowingly to: (a) strike or attempt to strike another person with the intent to cause bodily injury; or (b) cause or attempt to cause bodily injury to another person; or (c) place another person in fear of imminent bodily harm; or (d) touch the sexual or other intimate parts of the body of another person without his consent for the purpose of arousing or gratifying the sexual desire of either party."

The foregoing ordinance was enacted by the city of Omaha pursuant to authority granted to it as a home rule city under the Nebraska statutes. See s. 14-101 and 14-102, R.R.S.1943. Section 14-102, R.R.S.1943, provides in part: "In addition to the powers granted in section 14-101, metropolitan cities, as therein defined, shall have power by ordinance; * * * Police regulation in general. (25) To make and enforce all police regulations for the good government, general welfare, health, safety and security of the city and the citizens thereof, in addition to the police powers expressly granted herein; and in the exercise of the police power, they may pass all needful and proper ordinances, and shall have power to impose fines, for feitures, penalties, and imprisonment at hard labor for the violation of any ordinance, and to provide for the recovery, collection and enforcement thereof; and in default of payment to provide for confinement in the city or county prison, workhouse or other place of confinement with or without hard labor as may be provided by ordinance; * * *." In addition subparagraph (22) of section 14-102, R.R.S.1943, further provides: "Disorderly conduct. (Rule) (22) To provide for the punishment of persons disturbing the peace and good order of the city by clamor and noise; by intoxication, drunkenness, fighting or using obscene or profane language in the streets or other public places, or otherwise violating the public peace by indecent or disorderly conduct, or by lewd and lascivious behavior; * * *." There can be little question that the city of Omaha had authority to enact the above-quoted ordinance under which the defendant was convicted. The penalty provided for violation of the foregoing ordinance is set out in section 25.03.010 of the Omaha municipal code which provides as follows: "General Penalty. A person convicted of an offense under this title may be sentenced to pay a fine not to exceed $500 or to be imprisoned for a term not to exceed 6 months, or both, in the discretion of the court. * * * ." Since the possible penalty includes imprisonment, it is clear that the offense involves a criminal prosecution both in form and substance. See State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977). It is likewise clear that the offense with which the defendant was charged was a misdemeanor. Section 29-102, R.R.S.1943 (Reissue 1975), in effect at the time of the commission of the offense involved in this case, provided as follows: "The term felony signifies such an offense as may be punished with death or imprisonment in the Nebraska Penal and Correctional Complex. Any other offense is denominated a misdemeanor."

It is clear from an examination of section 25.11.010 of the Omaha municipal code that it is primarily an assault and battery ordinance, though specifying four different ways in which the assault or battery may be consummated. Only the last of the four items specified is sexually related. Under the complaint against the defendant filed on December 23, 1977, by the city prosecutor, all four of the elements of the offense are alleged against the defendant. It is clear from a review of the evidence in the record that although most of the emphasis of the testimony was with reference to the defendant touching the sexual or other intimate parts of the victim, yet there was also evidence, sufficient to sustain the charge against the defendant under the ordinance, that he placed the victim in fear of imminent bodily harm, and also caused or attempted to cause bodily injury to her, as will be hereinafter discussed.

The record reveals that the defendant, who was a former friend and acquaintance of the victim and her husband, came to their home in Omaha on December 8, 1977, the victim's husband being absent at the time; and after a conversation with the victim, according to her testimony, asked her if she would make love to him which she refused to do. He persisted in his amorous advances over her protests and requests that he stop and leave her alone. He then picked her up and started to carry her toward the bedroom. She struggled and tried to get away from him. He subsequently succeeded in having sexual relations with her, although this is denied by the defendant. The victim testified as follows: "Q. What were you doing, resisting? A. I was kicking and pushing. Q. Were you saying anything to him? A. I was telling him to leave me alone. Q. Okay, and then what happened? A. He continued to try to get my clothes off me, He was starting to really hurt me. Q. Were you afraid at this time? A. Yes, I was very much afraid. * * * Q. What happened then? A. By then I was very frightened that he was going to hurt me physically, very badly, so I stopped resisting, so as not to be hurt." (Emphasis supplied.) It seems clear the foregoing testimony of the prosecuting witness, if believed, would alone be sufficient to sustain a conviction of the defendant under the foregoing ordinance on the basis that he placed the victim "in fear of imminent bodily harm," and also "that he caused or attempted to cause bodily injury" to the victim.

Counsel for defendant has argued in his brief and also in his oral argument that prior to the filing of the assault and battery charge in the municipal court the matter had been...