State v. Garza

• Decision Date: 31 August 1990
• Docket Number: No. 89-469,89-469
• Citation: State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (Neb. 1990)
• Parties: STATE of Nebraska, Appellee, v. Steven R. GARZA, Appellant.
• Court: Nebraska Supreme Court

Page 739

459 N.W.2d 739

236 Neb. 202

STATE of Nebraska, Appellee, v. Steven R. GARZA, Appellant.

No. 89-469.

Supreme Court of Nebraska.

Aug. 31, 1990.

Syllabus by the Court

1. Indictments and Informations: Lesser-Included Offenses. When some of the elements of the crime charged in the information, without the addition of any element irrelevant to the original crime charged, may constitute another crime or crimes, such other crime or crimes are included within the crime charged.

2. Indictments and Informations: Lesser-Included Offenses. Whether a particular offense is a lesser offense included in the offense with which the defendant is charged is determined by examining the allegations in the information and the evidence offered in support of the charge.

3. Lesser-Included Offenses: Case Disapproved. The statement in State v. Lovelace, 212 Neb. 356, 360, 322 N.W.2d 673, 675 (1982), that "[t]o determine whether one statutory offense is a lesser-included offense of the greater, we look [only] to the elements of the crime and not to the facts of the case" is expressly disapproved.

4. Criminal Attempt: Lesser-Included Offenses: Case Overruled. To the extent State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987), overrules the holding in State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986), that there are no lesser-included offenses of attempted crime prosecuted under Neb.Rev.Stat. § 28-201 (Reissue 1989), Jackson is expressly overruled.

5. Rules of Evidence: Witnesses: Prior Convictions. In attacking the credibility of a witness by cross-examination under Neb.Rev.Stat. § 27-609 (Reissue 1989) by establishing that such witness has previously committed a felony or a crime involving dishonesty or a false statement, the inquiry must end there, and it is improper to inquire into the nature of the crime, the details of the offense, or the time spent in prison as a result thereof.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Denise E. Frost, Lincoln, for appellee.

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

PER CURIAM.

Following a jury trial in district court, the defendant, Steven R. Garza, was found guilty of attempted first degree sexual assault and sentenced to 4 to 6 years in prison. He has appealed and assigned as error the trial court's refusal to instruct the jury on what Garza claims are the lesser-included offenses contained within the attempted first degree sexual assault charge and the court's overruling the defendant's motion for mistrial.

The record shows that on the night of September 20, 1988, a group of teenagers were drinking beer at Carl Ziemba's apartment. At some point during the evening, two of the girls got into a fight over Michael Garza, the defendant's cousin, who was charged with attempted first degree sexual assault. See State v. Garza, 236 Neb. 215, 459 N.W.2d 747 (1990). The defendant took one of the girls outside to calm her down.

The victim lived in the third story of an adjacent apartment building. The victim had been sleeping since about 4:30 that afternoon because she had been drinking wine earlier in the day, celebrating her birthday. When she woke up around 9:20 that night, she was still feeling the effects of alcohol. She went out onto her balcony to look for her cat. While on the balcony she saw the defendant and the girl arguing loudly and saw the defendant slap the girl. The victim took a paring knife and went outside to try to help the girl. The girl told her not to get involved and that everything was fine. The victim told the girl to "get away from this asshole."

The defendant hit the victim in the face, knocking her down. The victim testified that the defendant dragged her to the side of the building with the help of his cousin Michael and that the defendant told her he was going to "fuck [her] in the ass." She further testified that while the cousin held her by the elbows, the defendant pulled down her pants, pulled out her tampon, and then started to unbutton his pants, when she struggled enough to get free.

A neighbor testified that she heard a woman screaming and saw two men holding a woman with no pants on. She called the police.

After the victim broke away, she ran back to her apartment. The police arrived shortly after that in response to the neighbor's call. The victim suffered two black eyes and lost the feeling in her face for approximately 3 months. She also had scrapes and bruises on her arms and legs.

The victim positively identified the defendant from a photo array as the man who attempted to assault her. The photo array consisted of pictures of Hispanic males, because the victim had described her attackers as Mexican. Later, when the victim was shown a photograph of Ziemba, she stated that he was not one of her assailants.

The defendant testified that he did not pull down the victim's pants and did not threaten to have sex with her. He and the girl he was arguing with in the parking lot testified that the girl dragged the victim to the side of the apartment building after the defendant hit the victim, knocking her down. The defendant further testified that he encountered the victim for a second time while he and Ziemba were standing at the corner of the building. He stated that she started hugging Ziemba, telling him that the defendant hit her. According to the defendant, he then left Ziemba with the victim and started walking toward the wall when he heard the victim yelling at Ziemba. He turned around and saw the victim standing with her pants down. He stated he tried to calm her down, and she became irate and started trying to stab him with the knife, when Ziemba grabbed her from behind. According to the defendant, he grabbed the victim's legs and took the knife away from her while Ziemba started dragging her along the side of the building. At that point the defendant left the scene.

Defendant, relying on State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989), and State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987), first alleges that the trial court erred in failing to instruct the jury, as he had requested, as to what he claims are the lesser-included offenses of attempted first degree sexual assault: third degree assault, third degree sexual assault, and attempted third degree sexual assault.

In State v. Lovelace, 212 Neb. 356, 322 N.W.2d 673 (1982), we held that it was error for the trial court to instruct the jury that first degree assault was a lesser-included offense of attempted murder in the second degree. We recognized that although "the elements of first degree assault may be present in a case of attempted second degree murder, it is likewise clear that one may nevertheless be guilty of attempted second degree murder without having committed first degree assault." (Emphasis in original.) Id. at 359, 322 N.W.2d at 674. We then stated the following rule, which is sometimes described as the common-law or strict statutory approach: "To be a lesser included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser." Id. at 359, 322 N.W.2d at 675.

In the Lovelace case the defendant had shot the victim in the stomach. We held the facts were unimportant because under the rule adopted in that case, "we look to the elements of the crime and not to the facts of the case." Id. at 360, 322 N.W.2d at 675.

In the Lovelace case we abandoned the rule which had been followed for many years in Nebraska and which is known as the cognate theory and appears to be followed in a majority of jurisdictions. See Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 Am.Crim.L.Rev. 445, 449 (1984). That rule is illustrated by our decision in Alyea v. State, 62 Neb. 143, 86 N.W. 1066 (1901), in which we relied upon the allegations in the information and the proof offered in support of the allegations in determining that assault and battery was not a lesser-included offense of assault with intent to inflict great bodily injury. Because the information in that case alleged an assault, but not a battery, the defendant could not be convicted of assault and battery. The opinion stated: "The information alleges an assault, but not a battery. If the latter had been averred in the information, the charge would have been sufficiently broad to have sustained a conviction for an assault and battery." Id. at 144, 86 N.W. at 1067.

While Lovelace changed somewhat the rule set forth in Alyea, our decisions since the Lovelace case have not followed the Lovelace rule. See, e.g., Jackson, supra, and State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987).

In Jackson, the defendant was charged with attempted sexual assault in the first degree. The evidence showed that while the defendant was visiting the victim in her apartment, he left the living room several times to use the bathroom, and after his last trip to the bathroom, he returned to the living room naked and asked the victim if he " 'could have a little.' " Id. 225 Neb. at 845, 408 N.W.2d at 724. The victim told the defendant to put on his clothes and get out of her apartment. The defendant repeated his request, and after the victim refused, the defendant approached the victim and asked to touch her breasts. The victim began to fight the defendant, and the defendant was unable to touch her breasts, genital area, or any other intimate area of the victim's body. Sometime during the struggle with the victim, the defendant ejaculated on the victim's pant leg, and when the victim started screaming and ran to the door, the defendant covered her mouth, pulled her arm behind her back, and told her, " 'Shut up, or I'll kill you.' " State v. Jackson, 225 Neb. 843, 846, 408 N.W.2d 720, 724 (1987). After the victim quieted, the defendant apologized, put on his clothes, and left.

...