State v. Hoffman

• Decision Date: 11 December 1987
• Docket Number: No. 86-944,86-944
• Citation: State v. Hoffman, 416 N.W.2d 231, 227 Neb. 131 (Neb. 1987)
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Dennis L. HOFFMAN, Appellant.

Page 231

416 N.W.2d 231

227 Neb. 131

STATE of Nebraska, Appellee, v. Dennis L. HOFFMAN, Appellant.

No. 86-944.

Supreme Court of Nebraska.

Dec. 11, 1987.

Syllabus by the Court

1. Assault: Words and Phrases. Recklessly, as used in Neb.Rev.Stat. § 28-309(1)(b) (Reissue 1985), means conduct in which an actor disregards a substantial and unjustifiable risk of serious bodily injury to another, which risk, in view of the nature and purpose of the actor's conduct and circumstances known to the actor, involves a gross deviation from a standard of conduct which a law-abiding person would have observed in the actor's situation.

2. Assault: Intent. Under Neb.Rev.Stat. § 28-309(1)(b) (Reissue 1985), concerning a second degree assault based on a reckless act or conduct, an intent to inflict or cause bodily injury is not an element; rather, the reckless act or conduct, causing serious bodily injury, is the gravamen.

3. Assault: Words and Phrases. A reckless act involves a conscious choice in a course of action, made with knowledge of a serious danger or risk to another as a result of such choice of action or with knowledge of the attendant circumstances which, to a reasonable person, would indicate or disclose a serious danger or risk to another as a result of the course of action selected.

4. Criminal Law: Intent. When one deliberately does an act which proximately causes and directly produces a result which the criminal law is designed to prevent, the actor is legally and criminally responsible for all the natural or necessary consequences of the unlawful act, although a particular result of the act was not intended or desired.

5. Assault: Intent: Words and Phrases. For the purpose of a second degree assault contrary to Neb.Rev.Stat. § 28-309(1)(b) (Reissue 1985), the requisite reckless act or conduct involves the actor's conscious choice in a course of action involving a dangerous instrument, which constitutes disregard of a substantial and unjustifiable risk to another, and does not require the actor's intent to cause serious bodily injury to another.

6. Criminal Law: Intent: Intoxication. The fact that an accused, at the time of the criminal act charged, was drunk or intoxicated does not constitute, as a matter of law, a defense regarding an offense which requires a general or specific intent.

7. Criminal Law: Intent: Intoxication. Ordinarily, voluntary intoxication does not justify or excuse a crime, unless an accused is intoxicated to an extent or degree that the accused is incapable of forming the intent required as an element of the crime charged.

8. Criminal Law: Intent: Circumstantial Evidence. When an element of a crime involves existence of a defendant's mental process or other state of mind of an accused, such elements involve a question of fact and may be proved by circumstantial evidence.

9. Constitutional Law: Double Jeopardy. Both the Nebraska and U.S. Constitutions provide that no person shall be twice put in jeopardy for the same offense. Neb. Const. art. I, § 12; U.S. Const. amend. V.

10. Constitutional Law: Double Jeopardy. The double jeopardy clauses of the Nebraska and U.S. Constitutions protect against a second prosecution for the same offense, after an acquittal or conviction on that same offense, and protect against multiple punishments for the same offense.

11. Constitutional Law: Double Jeopardy: Indictments and Informations: Lesser-Included Offenses. In a prosecution on a multiple-count information, based on a single event or the same transaction, constitutional protection against double jeopardy prevents convictions for different degrees of the same offense arising out of the same event or transaction and prohibits a conviction for the lesser offense included in a greater offense.

12. Homicide: Drunk Driving: Lesser-Included Offenses. When the predicate offense for motor vehicle homicide is drunk driving in violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1984), drunk driving is a lesser-included offense in motor vehicle homicide.

Dennis R. Keefe, Lancaster County Public Defender, and Richard L. Goos, Sp. Deputy Lancaster County Public Defender, for appellant.

Robert M. Spire, Atty. Gen., and Elaine Catlin, Minden, for appellee.

BOSLAUGH, C.J., Pro Tem., WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

As the result of a bench trial in the district court for Lancaster County, Dennis L. Hoffman was convicted of, and sentenced for, three crimes, namely, assault in the second degree, Neb.Rev.Stat. § 28-309(1)(b) (Reissue 1985), a Class IV felony; motor vehicle homicide, Neb.Rev.Stat. § 28-306(1) and (3) (Reissue 1985), a Class IV felony; and drunk driving, a violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1984) and a misdemeanor. The district court sentenced Hoffman to consecutive terms of imprisonment: 1 year on the assault conviction, not less than 20 months nor more than 5 years on the motor vehicle homicide conviction, and 6 months plus a $500 fine on the drunk driving conviction. We affirm the judgment concerning the assault and motor vehicle homicide charges, but vacate the judgment of conviction and sentence for drunk driving.

MULTIPLE-COUNT INFORMATION

In its three-count information concerning an automobile collision on February 18, 1986, the State charged (count I) that Hoffman, by use of a dangerous instrument, did recklessly cause serious bodily injury to Lana G. Wagner (assault in the second degree, § 28-309(1)(b)); (count II) that Hoffman caused the death of Lana Wagner unintentionally while he was operating a motor vehicle in violation of state law, namely, that Hoffman

did operate or be in actual physical control of a motor vehicle while under the influence of alcoholic liquor or of any drug or when the said Dennis L. Hoffman had ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath or urine, or did operate a motor vehicle in such a manner as to indicate an indifferent or wanton disregard for the safety of persons or property,

(motor vehicle homicide, § 28-306(1) and (3)); and (count III) that Hoffman operated a motor vehicle while he was "under the influence of alcoholic liquor or of any drug or when he had ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath or urine," contrary to the provisions of § 39-669.07. Therefore, count II (motor vehicle homicide) was based on the alternative allegations of Hoffman's drunk driving (§ 39-669.07) or reckless driving (Neb.Rev.Stat. § 39-669.01 (Reissue 1984)). In count III, the State also alleged Hoffman's previous convictions for drunk driving.

THE FATAL COLLISION

According to a witness who was with Hoffman on February 18, 1986, while the two were working together on a car, Hoffman drank at least 2 pints of root beer schnapps between 11 a.m. and 1 p.m. on that date. At approximately 4:30 p.m. on February 18, Hoffman was involved in an automobile accident on Sun Valley Boulevard, a north-south thoroughfare with a speed limit of 45 miles per hour, in Lincoln, Nebraska.

Another witness saw the Hoffman car as it came around a curve from O Street and proceeded north on Sun Valley Boulevard. As that witness watched, Hoffman drove onto a concrete median or lane-divider on Sun Valley, where Hoffman's car struck a metal sign embedded in the median and knocked the sign into the southbound lane of Sun Valley. Hoffman's car continued north at an estimated speed of 65 miles per hour and began its ascent of an inclined viaduct or overpass for Sun Valley. A southbound motorist had to drive at the extreme right to avoid colliding with the accelerating Hoffman car, still headed north.

As it neared the crest of the viaduct, Hoffman's car struck the left rear of a northbound pickup truck driven by Joseph P. Engler. After striking the Engler pickup, Hoffman's car skidded into the southbound lane on Sun Valley and collided head on with a car driven by Lana Wagner. The impact crushed the front end of both vehicles and compressed the driver's area of the Wagner car. As the result of severe injuries received in the collision, Lana Wagner died at the scene. After the collision, root beer schnapps bottles were found in Hoffman's car.

At 5:15 p.m. on February 18, Officer Bassett of the Lincoln Police Department arrived at the hospital to which Hoffman had been taken on account of injuries sustained in the collision, where the officer found Hoffman conscious, alert, and responding to questions from medical personnel. Officer Bassett detected the odor of alcohol on Hoffman's breath and, while reading the "Implied Consent Advisement Form" to Hoffman, noted that Hoffman had difficulty in focusing his watery, reddened eyes. Hoffman was abusive and uncooperative toward the officer, but, nevertheless, Officer Bassett obtained a sample of Hoffman's blood for testing at the Nebraska State Patrol laboratory. Test results on Hoffman's blood sample showed that Hoffman had thirty-nine hundredths of 1 percent by weight of alcohol in his blood at the time Hoffman's car collided with the Wagner vehicle. Officer Bassett expressed his opinion that Hoffman was intoxicated when the officer contacted Hoffman at the hospital.

The parties stipulated that, if Hoffman were a witness at his trial, he would testify that he did not intend to cause Lana Wagner's death. A National Safety Council publication indicated that a person with a blood-alcohol content of ".40" would "have passed out." As exhibits, appropriate copies of court records showed Hoffman's four previous convictions for drunk driving in violation of § 39-669.07.

APPLICABLE STATUTES

For an assault in the second degree, § 28-309 provides: "(1) A person commits the offense of assault in the second degree if he or she: ... (b) Recklessly causes serious bodily injury to another person with a...