State v. Hemmer

• Decision Date: 23 May 1995
• Docket Number: No. A-94-867,A-94-867
• Parties: STATE of Nebraska, Appellee, v. Terry L. HEMMER, Appellant.
• Court: Nebraska Court of Appeals

Page 559

531 N.W.2d 559

3 Neb.App. 769

STATE of Nebraska, Appellee, v. Terry L. HEMMER, Appellant.

No. A-94-867.

Court of Appeals of Nebraska.

May 23, 1995.

Syllabus by the Court

1. Judgments: Appeal and Error. Regarding questions of law, an appellate court has an obligation to reach a conclusion independent from that of the trial court in a judgment under review.

2. Pleas: Waiver: Indictments and Informations. A plea of no contest waives every defense to the charge, whether the defense is procedural, statutory, or constitutional, except the defense that the information is insufficient to charge a crime.

3. Criminal Law: Intent: Words and Phrases. Intentionally means "willfully" or "purposely," and not accidentally or involuntarily.

4. Criminal Law: Intent. A person acts purposely with respect to a material element of an offense when: (1) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (2) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

5. Criminal Law: Statutes: Words and Phrases. The meaning of the word "know" or "knowingly" in a penal statute varies in the context in which it is used.

6. Criminal Law: Statutes: Words and Phrases. The meaning of "knowingly" in a criminal statute commonly imports a perception of facts required to make up the crime.

7. Criminal Law: Proof. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

8. Criminal Law: Words and Phrases. Recklessly shall mean acting with respect to a material element of an offense when any person disregards a substantial and unjustifiable risk that the material element exists or will result from his or her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

9. Criminal Attempt: Intent. Where a particular result is an element of the underlying crime, Neb.Rev.Stat. § 28-201(1)(a) and (b) (Reissue 1989) requires that the actor intended the result.

10. Criminal Attempt: Intent. Under Neb.Rev.Stat. § 28-201(2) (Reissue 1989), the actor can be convicted of criminal attempt if he knows that his conduct will produce the result. In other words, the actor can be convicted of attempt if he is aware of the high probability that such result will occur.

11. Criminal Attempt. One cannot commit the crime of attempt where the underlying crime contains only a reckless mens rea.

12. Criminal Law: Assault: Police Officers and Sheriffs. There is no crime in the State of Nebraska for attempted reckless assault on a peace officer in the second degree.

James G. Egley, of Moyer, Moyer, Egley, Fullner & Warnemunde, Madison, for appellant.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

HANNON, IRWIN, and MUES, JJ.

IRWIN, Judge.

In this case we determine whether the crime of attempted reckless assault on an officer in the second degree exists under the laws of this state. See Neb.Rev.Stat. §§ 28-930(1)(b) and 28-201 (Reissue 1989). Defendant, Terry L. Hemmer, was charged with such crime in the district court for Pierce County and pled no contest to the charge. Hemmer claims on appeal that the information was insufficient to charge a crime and that his sentence was excessive. We find that the crime of attempted reckless assault on an officer in the second degree does not exist in this state, and we, therefore, reverse Hemmer's conviction.

FACTUAL BACKGROUND

The factual background for this case is taken from the factual basis for Hemmer's plea, which was supplied by the Deputy Pierce County Attorney during the district court proceedings. According to the factual basis, on January 15, 1994, a Platte County sheriff's deputy attempted to stop Hemmer for a speeding violation. When Hemmer would not stop, a high-speed chase ensued. The chase continued from Platte County through Madison County and into Pierce County, at which time there were 8 to 10 law enforcement officers from four different law enforcement agencies involved in the chase.

During the chase, Hemmer ran two roadblocks set up by police. One roadblock had been set up by the Pierce County sheriff in the town of Osmond. As Hemmer's vehicle was being chased through Osmond by a State Patrol trooper, the sheriff parked his vehicle in the middle of a street in the path of the pursuit and exited the vehicle. The sheriff then attempted to "flag the Hemmer vehicle down" as it approached, but when Hemmer's vehicle did not stop, the sheriff was forced to "dive into a snowbank" to avoid being struck. Hemmer was later apprehended in a rural area after his vehicle ran out of gas.

On March 2, 1994, Hemmer was charged with several crimes relating to the incident, including attempted assault on an officer in the second degree. With regard to this charge, the information alleged that Hemmer attempted to "intentionally or recklessly cause bodily injury with a dangerous instrument to a peace officer." (Emphasis supplied.) On March 22, Hemmer filed a motion to quash the attempted assault charge, alleging that it is "legally impossible to commit the crime of attempting to recklessly cause bodily injury with a dangerous instrument to a peace officer."

Subsequently, a plea agreement was reached under which the information was amended to charge only one crime, attempt to "recklessly cause bodily injury ... to a peace officer." (Emphasis supplied.) See § 28-930(1)(b). The plea agreement called for Hemmer to plead guilty to this charge. The court accepted Hemmer's plea and found him guilty as charged in the amended information. The court subsequently sentenced Hemmer to 9 months' imprisonment and ordered him to pay court costs. Hemmer thereafter timely appealed to this court.

ASSIGNMENTS OF ERROR

Hemmer claims that the trial court erred in (1) accepting his plea and finding him guilty based upon an insufficient information, (2) imposing an excessive sentence, and (3) not sentencing him to probation. Because our resolution of the first assigned error is determinative of this appeal, we will not address Hemmer's second and third assigned errors. See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994).

STANDARD OF REVIEW

The issues raised by Hemmer's first assigned error are questions of law. Regarding questions of law, an appellate court has an obligation to reach a conclusion independent from that of the trial court in a judgment under review. State v. Roche, Inc., 246 Neb. 568, 520 N.W.2d 539 (1994); State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993).

DISCUSSION

Hemmer pled no contest to the charge of attempting to recklessly assault an officer in the second degree. A plea of no contest waives every defense to the charge, whether the defense is procedural, statutory, or constitutional, except the defense that the information is insufficient to charge a crime. State v. Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991).

Criminal attempt is defined by § 28-201 as follows:

(1) A person shall be guilty of an attempt to commit a crime if he:

(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) Intentionally engages in conduct which, under the circumstances as he believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his commission of the crime.

(2) When causing a particular result is an element of the crime, a person shall be guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, he intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.

Assault on an officer in the second degree is defined in § 28-930 as follows:

(1) A person commits the offense of assault on an officer in the second degree if he or she:

(a) Intentionally or knowingly causes bodily injury with a dangerous instrument to a peace officer or employee of the Department of Correctional Services while such officer or employee is engaged in the performance of his or her official duties; or

(b) Recklessly causes bodily injury with a dangerous instrument to a peace officer or employee of the Department of Correctional Services while such officer or employee is engaged in the performance of his or her official duties.

(2) Assault on an officer in the second degree shall be a Class III felony.

Under the amended information, Hemmer was charged only with attempt to "recklessly cause bodily injury with a dangerous instrument to a peace officer." See § 28-930(1)(b).

Hemmer claims that it is legally impossible to commit a crime of attempt to recklessly cause bodily injury because the attempt statute requires that the actor intentionally attempt to commit the underlying crime. Before addressing this argument, we find it necessary to clarify the levels of culpability that are involved in the two statutes at issue in this case.

The attempt statute mentions two levels of culpability, "intentional" and "knowing." See § 28-201(1) and (2). The crime of assault on a peace officer in the second degree has three potential levels of culpability: intentional, § 28-930(1)(a); knowing, § 28-930(1)(a); and reckless, § 28-930(1)(b). However, the information only charged Hemmer with attempted "reckless" assault on an officer in the second degree.

The Nebraska Supreme Court has stated that "[i]...