State v. Jackson, 86-667
| Decision Date | 02 July 1987 |
| Docket Number | No. 86-667,86-667 |
| Citation | 225 Neb. 843,408 N.W.2d 720 |
| Parties | STATE of Nebraska, Appellee, v. Richard Dean JACKSON, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Attempt: Convictions. To sustain a conviction for the offense of criminal attempt in violation of Neb.Rev.Stat. § 28-201(1)(a) or (b) (Reissue 1985), evidence must establish beyond a reasonable doubt that the defendant intentionally engaged in conduct which (1) would constitute a particular crime, if the attendant circumstances were as the defendant believes such circumstances to be, or (2) under the circumstances as the defendant believes such circumstances to be, constitutes a substantial step in a course of conduct intended to culminate in the defendant's commission of the crime.
2. Criminal Attempt: Trial. Whether a defendant's conduct constituted a substantial step toward commission of a particular crime is, generally, a question for the trier of fact.
3. Criminal Attempt: Sexual Assault. To commit the crime of attempted sexual assault in any degree, actual sexual penetration or sexual contact between the victim and the defendant is not required.
4. Sexual Assault: Lesser-Included Offenses: Jury Instructions. In a prosecution for sexual assault in the first degree, Neb.Rev.Stat. § 28-319 (Reissue 1985), where there is a factual dispute concerning an element of first degree sexual assault, but there is evidence which reasonably may establish a sexual assault in a degree less than first, a defendant is entitled to an instruction on the lesser degree of sexual assault as a lesser-included offense concerning the charge of sexual assault in the first degree.
5. Criminal Attempt: Sexual Assault: Lesser-Included Offenses. In the offense of a criminal attempt, Neb.Rev.Stat 6. Criminal Attempt: Lesser-Included Offenses. Within the offense of "criminal attempt," Neb.Rev.Stat. § 28-201 (Reissue 1985), an attempt to commit a particular crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted.
§ 28-201 (Reissue 1985), a substantial step in a course of conduct intended to culminate in a sexual assault in the first degree (sexual penetration) may include a substantial step in a course of conduct intended to culminate in achievement of sexual contact as well, that is, commission of a sexual assault in the second degree.
7. Indictments and Informations. The purpose of an information, Neb.Rev.Stat. § 29-1602 (Reissue 1985), is to inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to a later prosecution for the same offense.
8. Indictments and Informations: Witnesses. Endorsement of witnesses' names on the information is required to provide a defendant with the identity of persons who may testify against the defendant and to afford the defendant an opportunity to investigate concerning such witnesses, if necessary to prepare a defense at trial.
9. Habitual Criminals: Sentences. The habitual criminal penalty is not a separate criminal offense, but is an enhanced penalty permissible to punish repetitive criminal conduct after a defendant's conviction on a principal charge and a subsequent finding of the defendant's habitual criminal status.
10. Sentences. In a sentence hearing, a court, generally, has broad discretion concerning the source of information and the type of information to be considered.
11. Constitutional Law: Habitual Criminals. Regarding a hearing to determine whether a convicted defendant is a habitual criminal as defined in Neb.Rev.Stat. § 29-2221 (Reissue 1985), the defendant is entitled to be present with counsel, have an opportunity to be heard at such hearing, be confronted with witnesses against the defendant, exercise the right of cross-examination and offer evidence.
12. Indictments and Informations: Habitual Criminals: Witnesses. While Neb.Rev.Stat. § 29-2221(2) (Reissue 1985) requires that an information contain allegations of facts concerning a defendant's status as a habitual criminal, names of witnesses who may testify at the enhancement hearing are not required to be endorsed on the information charging the defendant with the crime for which a conviction will be the basis to impose the habitual criminal penalty.
13. Habitual Criminals: Sentences: Appeal and Error. In the absence of a sentencing court's abuse of discretion, the sentencing court's procedure utilized for presentation of information at a hearing for imposition of the habitual criminal penalty prescribed by Neb.Rev.Stat. § 29-2221 (Reissue 1985) will be sustained on appeal.
14. Habitual Criminals: Records: Names. Under Neb.Rev.Stat. § 29-2222 (Reissue 1985), an authenticated record establishing a prior conviction of a defendant with the same name is prima facie sufficient to establish identity for the purpose of enhancing punishment and, in the absence of any denial or contradictory evidence, is sufficient to support a finding by the court that the accused has been convicted prior thereto.
15. Habitual Criminals: Sentences: Time. It is the term of a defendant's prior sentences, not time actually served, which controls applicability of the habitual criminal penalty found in Neb.Rev.Stat. § 29-2221 (Reissue 1985).
Charles D. Hahn, Auburn, for appellant.
Robert M. Spire, Atty. Gen., and Lisa D. Martin-Price, Lincoln, for appellee.
As the result of a jury trial in the district court for Richardson County, Richard Dean Jackson was found guilty of attempted second degree sexual assault, was later determined to be a habitual criminal, and, thereafter, was sentenced to imprisonment in the Nebraska Penal and Correctional Complex for a term of 20 to 60 years. We affirm.
The victim, 59 years old and characterized at trial as "slow or semi-retarded," had grown up in the Beatrice State Home. On the evening in question, Jackson called upon the victim, and, seated in the living room of the victim's apartment, the pair watched television. Throughout the course of viewing television, Jackson frequently left the living room to use the bathroom in the victim's apartment. After his last trip to the bathroom, Jackson, stark naked, returned to the living room and asked the victim whether he "could have a little." The victim, realizing Jackson was requesting sexual intercourse, declined and told Jackson to put on his clothes and "get out" of the victim's apartment. Jackson repeated his request "for a little," and, again, the victim refused. At that point, Jackson, still naked, approached the victim, seated on the couch, and asked to touch her breasts. Jackson sat down next to the victim, but was unable to touch the victim's breasts, genital area, or any other intimate area of the victim's body because the victim was "fighting him." Sometime during the struggle with the victim, Jackson ejaculated on the victim's pant leg. When the victim started screaming, escaped from Jackson's grasp, and ran to the front door of her apartment, nude Jackson followed the frightened victim, put his hand over her mouth, and said: "Shut up, or I'll kill you." With his hand covering the victim's mouth and her arm pulled behind the victim's back, Jackson dragged the victim back to the couch. After the victim had quieted, Jackson "apologized," put on his clothes, and left the apartment.
The State's information charged Jackson with an attempt, see Neb.Rev.Stat. § 28-201 (Reissue 1985) (criminal attempt), to commit sexual assault in the first degree, see Neb.Rev.Stat. § 28-319(1) (Reissue 1985). The information also contained an allegation that Jackson was a habitual criminal according to the provisions of Neb.Rev.Stat. § 29-2221 (Reissue 1985) ("habitual criminal"; defined). Attempted first degree sexual assault is a Class III felony, punishable by imprisonment of 1 to 20 years, a fine of $25,000, or both such imprisonment and fine. See, §§ 28-201(4)(b) and 28-319(2).
Jackson, 30 years of age at the time of trial, testified and, on direct examination, acknowledged that he was "Ricky Dean Jackson" and had been previously convicted of three felonies. Jackson further testified that he was naked when he approached the victim in her apartment and asked for sex with her. Jackson, however, denied that he, by use of force, attempted to have sex with the victim and, further, denied that he attempted to touch the victim's genital area or other "intimate parts" of the victim's body or attempted in any manner to "penetrate" the victim's body. Jackson also testified that he "might have" ejaculated on the victim's pant leg. (Other evidence substantiated that Jackson had, in fact, ejaculated on the victim's pant leg.) While admitting that he had grabbed the victim, covered her mouth, and dragged the frightened victim to the couch, Jackson also acknowledged that it was "possible" that he told the victim to "Shut up, or I'll kill you."
Jackson requested, and the court gave, instructions allowing the jury to find Jackson guilty of attempted sexual assault in the first, second, or third degree, or to find Jackson not guilty. The jury found Jackson guilty of attempted sexual assault in the second degree. The court entered judgment on the verdict and ordered a
hearing to determine whether Jackson was a habitual criminal and punishable by an enhanced penalty as a habitual criminal.
As background for the enhancement hearing, all pleadings and filings in the proceedings against Jackson were captioned, "State of Nebraska, Plaintiff, vs. Richard Dean Jackson, Defendant." Jackson did not file a plea in abatement that proceedings were brought against him in...
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