State v. Kleckner
| Decision Date | 07 August 2015 |
| Docket Number | No. S–14–960,S–14–960 |
| Citation | 867 N.W.2d 273 |
| Parties | State of Nebraska, Appellant, v. Breanna N. Kleckner, Appellee. |
| Court | Nebraska Supreme Court |
Philip K. Kleine, Deputy Sarpy County Attorney, for appellant.
Karen S. Nelson, of Shirber & Wagner, L.L.P., for appellee.
case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion.
3. Judgments: Appeal and Error.When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Criminal Law: Judgments: Jurisdiction: Appeal and Error.Absent specific statutory authorization, the State generally has no right to appeal an adverse ruling in a criminal case.
5. Appeal and Error.The purpose of appellate review under Neb.Rev.Stat. § 29–2315.01 (Reissue 2008) is to provide an authoritative statement of the law to serve as precedent in future cases.
6. Judgments: Appeal and Error.Only those issues on which the district court made a ruling are subject to review under Neb.Rev.Stat. § 29–2315.01 (Reissue 2008).
7. Double Jeopardy.The Double Jeopardy Clauses of the federal and the Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.
8. Constitutional Law: Double Jeopardy.The protection provided by Nebraska's double jeopardy clause is coextensive with that provided by the U.S. Constitution.
9. Criminal Law: Double Jeopardy.The Blockburger v. United States,284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or “same elements” test, does not apply if the State charges the defendant with multiple counts of a statutory crime that can be committed in different ways.
10. Criminal Law: Double Jeopardy: Legislature: Intent.Absent a contrary legislative intent, multiple counts of assault are the “same offense” for double jeopardy purposes if a break occurred between the alleged assaults that allowed the defendant to form anew the required criminal intent.
11. Criminal Law: Double Jeopardy: Convictions: Sentences.Even if the government charges the defendant with multiple counts of the same offense, the multiple punishments prong of the double jeopardy bar is not violated if the jury convicts the defendant of only one count.
12. Criminal Law: Double Jeopardy: Trial: Convictions.For double jeopardy purposes, the presence of multiple counts in a single trial does not amount to a second prosecution for the same offense after an acquittal or conviction.
13. Double Jeopardy.The application of Neb.Rev.Stat. § 29–2316 (Reissue 2008) turns on whether the trial court placed the defendant in jeopardy, not whether the Double Jeopardy Clause bars further action.
On the day after Thanksgiving, former intimate partners Breanna N. Kleckner and Chase McGee had a dispute about which of them would care for their son over the weekend. The State charged Kleckner in county court with three counts
of third degree domestic assault arising from the dispute. Each count alleged that Kleckner had violated a different subsection of the same statute. The court dismissed one count after the State rested. Of the two remaining counts, the jury convicted Kleckner of one and acquitted her of the other. Kleckner appealed to the district court, arguing that the State could not charge her with multiple counts under a single statute if each count arose from the same incident. The district court agreed with Kleckner and vacated her sentence. The State filed an objection to the district court's judgment under Neb.Rev.Stat. § 29–2315.01 (Reissue 2008). Because the State tried and punished Kleckner only once, we sustain the State's objection.
Kleckner and McGee had an intimate relationship that lasted more than 2 years. They have a son, T.M., who was about 14 months old at the time of the alleged assault. Kleckner and McGee do not have a “custody agreement” for T.M. Their childcare arrangements are informal.
On the evening of November 29, 2013, McGee was at his mother's house. He called Kleckner and asked her to give him a ride to a shoestore. Kleckner agreed, and she, McGee, and T.M. went to the store together.
On the way back to McGee's mother's house, Kleckner and McGee started to argue about who would have T.M. for the weekend. McGee testified that once they arrived, he carried T.M. to the house while Kleckner trailed behind and pushed McGee. McGee said that once inside, his niece took T.M. away and that Kleckner walked out of the house after making a telephone call.
According to McGee, he looked out the window and saw Kleckner throwing rocks at his car. McGee went outside and called the 911 emergency dispatch service. He testified that Kleckner hit him in his right eye about three times either
before or during the telephone call. McGee recalled that Kleckner drove away while he was on the telephone with the 911 operator.
Kleckner remembered the evening differently. She said that after returning from the shoestore, she walked into the house to speak with McGee's mother, with McGee following her. Kleckner said that after leaving the house, she got into her car, which was parked in the street, and backed it into the driveway. Then she got out, picked up a rock, and cocked her arm in the direction of McGee's vehicle because she “just felt really disrespected.” But Kleckner said that she had a change of heart and either “threw [the rock] to the side” or “dropped it.”
Kleckner said that at this point, she got into her car again and was prepared to leave. But McGee came out of the house and grabbed the interior of her car through an open window. Kleckner testified that she sidled out of her car and pushed McGee's shoulder to get his arm out of the way. Kleckner said that after she did so, she locked the doors and listened to McGee call 911 before driving away.
Kleckner testified that she did not touch McGee other than to push him from her car. But McGee's sister-in-law, who was at the house, testified that McGee's right eye was swollen and red after Kleckner left. Similarly, the police officer who responded to McGee's 911 call testified that McGee's right eye and cheek were swollen and red.
Kleckner testified that she did not “threaten to hurt” McGee. Neither McGee nor any of the State's other witnesses testified that Kleckner threatened McGee. But the State played a recording of the 911 call for the jury, during which McGee told the operator that Kleckner had “threatened to kill me.” In a petition for a domestic abuse protection order, McGee wrote that Kleckner told him while they were in his mother's house that “she was going to have people beat me up and kill me.”
The State filed a criminal complaint in county court charging Kleckner with three counts of third degree domestic assault under Neb.Rev.Stat. § 28–323(1) (Cum. Supp. 2014). Each count alleged that the conduct occurred in Sarpy County, Nebraska, on November 29, 2013; that McGee was the victim; and that McGee was Kleckner's intimate partner. Count I alleged that Kleckner intentionally and knowingly caused McGee bodily injury under § 28–323(1)(a). Count II alleged that Kleckner threatened McGee with imminent bodily injury under § 28–323(1)(b). Count III alleged that Kleckner threatened McGee in a menacing manner under § 28–323(1)(c).
Kleckner filed an omnibus motion to quash, a demurrer, and a motion to elect. In the operative filing, Kleckner asserted that the State “cannot charge [her] with violating all three subsection[s] simultaneously.” She alleged that the complaint violated her double jeopardy rights under the federal and Nebraska Constitutions and her due process rights under the federal Constitution.
The county court overruled Kleckner's motion to quash and demurrer but held her motion to elect in abeyance until the close of the State's case.
After the State rested, Kleckner renewed her motion to elect and moved for a directed verdict. The court overruled Kleckner's motion for a directed verdict but sustained her motion to elect as to count III because the State had not made a “prima facie showing” for that count.
The jury returned a verdict finding Kleckner guilty of count I and not guilty of count II. The county court sentenced Kleckner to 1 year of probation.
Kleckner appealed her conviction to the district court. She assigned, in relevant part, that the county court erred by overruling her motion to quash because the State violated her
double jeopardy and due process rights by charging her with three counts under the same statute.
The district court concluded that § 28–323(1) was “a single offense committable alternative ways” and, without clearly explaining why, assumed that the presence of multiple counts in the information required it to reverse Kleckner's conviction. Because the Double Jeopardy Clause bars a second trial after an acquittal, the court determined that the State could not retry Kleckner.
To continue reading
Request your trial
-
State v. Ballew
...supra note 2.19 See State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).20 Van, supra note 3.21 See State v. Kleckner, 291 Neb. 539, 867 N.W.2d 273 (2015).22 See Whalen, supra note 7.23 See State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).24 See, e.g., State v. Parks, 282 Neb. 454, 803 N......
-
State v. Thalken, S-16-830.
...we can order, because the defendant was not placed legally in jeopardy in that court. Our holding necessarily overrules cases like State v. Kleckner86 and State v. Figeroa .87 Historically, in ruling on cases brought under § 29-2315.01, we have focused on the language of §§ 29-2315.01 and 2......
-
State v. Koch
...supra, that test is applicableonly if the same act or transaction violates two distinct statutory provisions. State v. Kleckner, 291 Neb. 539, 867 N.W.2d 273 (2015). Where, as here, a defendant's course of conduct involves one or more distinct offenses under a single statutory provision, th......
-
State v. Pester
...court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. State v. Kleckner , 291 Neb. 539, 867 N.W.2d 273 (2015). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on t......