State v. Lingle, 43940

• Decision Date: 17 July 1981
• Docket Number: No. 43940,43940
• Citation: 209 Neb. 492,308 N.W.2d 531
• Parties: STATE of Nebraska, Appellee, v. Mark Allen LINGLE, Appellant.
• Court: Nebraska Supreme Court

Page 531

308 N.W.2d 531

209 Neb. 492

STATE of Nebraska, Appellee, v. Mark Allen LINGLE, Appellant.

No. 43940.

Supreme Court of Nebraska.

July 17, 1981.

Syllabus by the Court

1. Indictments and Informations: Appeal and Error. An information first questioned on appeal must be held sufficient unless it is so defective that by no construction can it be said to charge the offense of which the accused was convicted.

2. Indictments and Informations: Appeal and Error. A complaint charging a statutory misdemeanor substantially in the language of the statute will be liberally rather than technically construed, and if a defect is amendable, it will be held sufficient on appeal in the absence of objection in the trial court.

3. Indictments and Informations. An information or complaint must 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 later prosecution for this same offense.

4. Criminal Law: Witnesses. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admissible if elicited from him or established by public record during cross-examination, but only if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or involved dishonesty or false statement.

5. Jury Instructions: Appeal and Error. When complaint is made of the refusal of the District Court to give an instruction asked, the burden is upon the party complaining to show not only that he was probably prejudiced by the refusal of the court to give the instruction, but he must also show that the entire instruction was correct as a proposition of law and applicable to the facts in evidence in the case.

6. Arrests: Words and Phrases. In making an arrest, an officer may use whatever force is reasonably necessary. Reasonable force is generally considered to be that which an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have deemed necessary under the circumstances.

7. Arrests. The officer is not required to determine at his peril the precise amount of force necessary in each instance and to use that much and no more, and he may be guided by the reasonable appearances and the nature of the case in determining the amount of force to be used.

8. Arrests: Juries. The reasonableness of the force used in effecting an arrest is a question for the jury.

9. Sentences: Probation and Parole. When a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life.

10. Probation and Parole: Search and Seizure: Constitutional Law. Conditions in probation orders requiring the probationer to submit to warrantless searches, to the extent that they contribute to the rehabilitation process and are done in a reasonable manner, are valid and constitutional.

11. Probation and Parole. While a person is on probation his expectations of privacy are less than those of other citizens not so categorized.

12. Probation and Parole: Waiver: Extradition. Requiring the execution of a waiver of extradition as a condition precedent to probation does not render the waiver involuntary without a specific showing of how such a condition was coercive as applied in the particular case.

H. E. Hurt, Jr., James A. Gallant, and Jeffrey S. Flores, Scribner, for appellant.

Paul L. Douglas, Atty. Gen., and Shanler D. Cronk, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, BRODKEY, WHITE, and HASTINGS, JJ., and COLWELL, Retired District Judge.

WHITE, Justice.

Appellant, Mark A. Lingle, appeals from an order of the District Court for Dodge County, Nebraska, affirming the judgment of conviction entered on the jury verdict in the county court of Dodge County, Nebraska. The jury found the appellant guilty of resisting arrest, disturbing the peace, and obstructing a police officer. The court sentenced defendant to 1 year's probation subject to numerous conditions, including one that he serve 6 months in the Dodge County jail. Appellant appealed to the District Court for Dodge County, which, on November 18, 1980, affirmed the judgment and conviction but remanded the case to the county court for resentencing after finding that the sentence of probation by the county court was not imposed in conformity with the provisions of Neb.Rev.Stat. § 29-2262 (Reissue 1979). On remand, the county court again sentenced defendant to 1 year's probation but reduced the time to be served in the Dodge County jail to 90 days; the rest of the original conditions of probation remain the same after sentencing on remand. Appellant has appealed to this court, assigning numerous errors.

Although the testimony in the record is conflicting, it appears that the facts of this case are as follows. On March 7, 1980, appellant, then age 19, and another man, Brad H. Charter, were tenants in one side of a duplex at 204 So. Clarmar Street, Fremont, Nebraska. Through the course of the evening of March 7, 1980, friends of appellant and his roommate began to gather at this duplex, and by late in the evening there were, according to the testimony, somewhere between 10 and 30 people at the duplex drinking beer, engaging in conversation, and playing either a stereo or a radio. Police officers testified that they observed some of the guests at the duplex smoking marijuana; however, no arrests for possession of marijuana were made. During the course of this evening, appellant and some friends left the duplex and went to a local lounge where they remained until sometime between 11 p. m. and 1 or 1:30 a. m. While appellant and his friends were at the lounge, the "party" continued at the duplex. Sometime after 10 p. m., a neighbor, one Russell Benjamin, who lived in the other half of the duplex, entered appellant's side of the duplex in an apparent effort to register a complaint as to the noise level in appellant's side of the duplex. Fisticuffs between Benjamin and various guests ensued, and Benjamin left. Shortly thereafter, Benjamin returned with the landlord, Gary Pebley. More fisticuffs ensued between the guests, Benjamin, and the landlord, and police were summoned. Before the police arrived, appellant and his friends arrived at the duplex from the lounge.

It is appellant's testimony, and the testimony of some defense witnesses, that when he returned, he made his way to the basement of the duplex with several other people. At the time appellant returned from the lounge, neither the police nor the landlord had yet arrived. While appellant was still in the basement, Benjamin and the landlord returned and the second incident of fisticuffs ensued. Shortly thereafter, the police arrived. Police Officer Fish testified that after breaking up two fights he went into the kitchen area of the duplex. He was followed, according to his testimony, by a large and rather noisy group of people. He "announced in a large voice that the party was over, that it was creating a disturbance." At this time, the officer testified, Mark Lingle "apparently came through a doorway, yelling and screaming and waving his hands and comes directly at me, takes both hands and pushes me back against several other parties." There is a great deal of conflict in the testimony of the witnesses as to how the initial contact between the appellant and Officer Fish came about. At any rate, after the initial contact, the officer testified that he believed the appellant was about to hit him, and as a result, the officer jabbed the appellant in the stomach with his flashlight. As he was bringing the flashlight up to strike the appellant on the chin, the appellant doubled over and the flashlight instead struck the appellant in the forehead, causing a gash which required several stitches to close.

Officer Fish and another Fremont police officer, Reserve Officer Ellis, then placed handcuffs on the appellant, advising him that he was under arrest. There is testimony in the record, although it is contradicted by some defense witnesses, that appellant resisted the officers' attempt to handcuff him. After appellant was handcuffed, he was taken out to the police car and transported to Dodge County Hospital where the wound in his head was stitched. During the time that he was being taken to the police car and to the hospital, the officers testified that he was verbally abusive toward them. After appellant's head wound received medical attention at the Dodge County Hospital, he was taken to the Dodge County jail where he spent several hours in the sobriety cell. When he was released from the sobriety cell, Officer Fish testified that he explained to appellant the charges that had been filed against him and then returned appellant to his home. Appellant was originally charged with third degree assault, resisting arrest, disturbing the peace, and obstructing a peace officer. However, at the end of the State's case during trial, appellant's attorney moved that the assault charge be dismissed since the State had failed to prove that appellant caused bodily injury to Officer Fish. The motion was granted. Following the trial, the jury found the appellant guilty on the remaining three counts of the complaint. He was sentenced as set out above and has perfected this appeal.

Appellant's first assignment of error is that the trial court erred in failing to dismiss count III of the complaint, disturbing the peace, since it does not allege specifically what defendant did that willfully disturbed the peace. However, defendant concedes that he did not file a demurrer to the pleadings. This court stated in State v. Haile, 185 Neb. 421, 423, 176 N.W.2d 232, 234 (1970), that "an information first questioned on appeal...