State v. Lynch, s. 86-073

• Citation: 223 Neb. 849,394 N.W.2d 651
• Decision Date: 10 October 1986
• Docket Number: Nos. 86-073,86-074,s. 86-073
• Parties: STATE of Nebraska, Appellee, v. Donald LYNCH, Appellant.
• Court: Supreme Court of Nebraska

Page 651

394 N.W.2d 651

223 Neb. 849

STATE of Nebraska, Appellee, v. Donald LYNCH, Appellant.

Nos. 86-073, 86-074.

Supreme Court of Nebraska.

Oct. 10, 1986.

Syllabus by the Court

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court to the district court, the latter acts as an intermediate court of appeal, and its review is limited to an examination of the county court record for error or for an abuse of discretion.

2. Ordinances: Judicial Notice: Appeal and Error. Where an ordinance charging an offense is not properly a part of the record, this court presumes the existence of a valid ordinance creating the offense charged, but does not otherwise take judicial notice of such an ordinance.

3. Constitutional Law: Jury Trials. Neb. Const. art. I, § 6, providing that the "right of trial by jury shall remain inviolate," preserves the right to trial by jury as it existed at common law and under the statutes in force when the Constitution was adopted.

4. Criminal Law: Licenses and Permits: Revocation. An otherwise petty offense remains such, notwithstanding the authority to revoke one's driver's license.

5. Constitutional Law: Jury Trials: Ordinances. One is not entitled to a jury trial merely because an ordinance is but a reiteration of a statute concerning the same offense.

6. Constitutional Law: Criminal Law: Due Process: Jury Trials. Because trial by jury in criminal cases is fundamental to the scheme of American justice, the due process clause of the 14th amendment to the U.S. Constitution requires states to afford a trial by jury whenever the 6th amendment to the U.S. Constitution would require such a trial if the case were in federal court.

7. Constitutional Law: Criminal Law: Due Process: Jury Trials. Neither the 6th amendment nor the 14th amendment to the U.S. Constitution requires trial by jury in crimes carrying possible imprisonment of no more than 6 months if they otherwise qualify as petty offenses.

8. Constitutional Law: Standing: Statutes. A litigant who would receive no benefit from a declaration of invalidity has no standing to challenge the constitutionality of a statute.

9. Convictions: Appeal and Error. A conviction will not be set aside in the absence of a showing that an error created prejudice.

10. Motions for Continuance: Appeal and Error. A motion for continuance is addressed to the trial court's sound discretion; the trial court's ruling thereon will not be disturbed on appeal absent a showing of an abuse of that discretion.

11. Trial: Appeal and Error. An abuse of discretion takes place where the trial court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.

12. Motions for Continuance: Appeal and Error. There is no abuse of discretion by the court in denying a continuance unless it clearly appears that the defendant suffered prejudice as a result of that denial.

13. Appeal and Error. Assignments of error not discussed are not considered by the Nebraska Supreme Court.

14. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction in a criminal prosecution, this court does not resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact, and its verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

15. Jury Instructions. A trial court may refuse to give an instruction requested by a criminal defendant where the substance of the request is covered by the instructions actually given.

16. Criminal Law: Statutes. A crime must be defined with sufficient definiteness; there must be ascertainable standards as to what conduct will render violators liable to punishment.

17. Criminal Law: Statutes. The dividing line between what is lawful and unlawful cannot be left to conjecture.

18. Criminal Law: Statutes. A crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose in advance what course it is lawful for him or her to pursue.

19. Criminal Law: Statutes. It is not necessary for a penal statute to be written so as to be beyond the mere possibility of more than one construction.

20. Criminal Law: Statutes. Although a penal statute is required to be strictly construed, it is to be given a sensible construction.

21. Criminal Law: Statutes: Appeal and Error. The prohibition against vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision.

22. Constitutional Law: Criminal Law: Statutes: Due Process. A statute which gives sufficient warning, such that one may conform his or her conduct so as to avoid that which is forbidden, does not deprive one of due process.

23. Sentences: Probation and Parole. Probation is a sentence and not part of a quasi-contract wherein the court offers something which the defendant is free to accept or reject.

24. Sentences: Probation and Parole. It is proper for a judge to base his or her rejection of probation as a sentencing alternative upon a defendant's presentence statements.

25. Sentences: Appeal and Error. Absent an abuse of discretion, this court will not modify a sentence imposed within statutory limits.

Harry R. Meister of Meister and Segrist, Gering, for appellant.

Robert M. Spire, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Defendant, Donald Lynch, was charged with second offense operating or having

"actual physical control of a motor vehicle upon a highway while under the influence of alcoholic liquor" in violation of an ordinance of the city of Scottsbluff, and with obstructing a peace officer in violation of Neb.Rev.Stat. § 28-906(1) (Reissue 1985). The county court, sitting without a jury, found defendant guilty of the driving while intoxicated charge and sentenced him to incarceration in the county jail for 30 days, revoked his operator's license for 1 year, and ordered him to pay a $500 fine and the costs. This conviction and [223 Neb. 852] sentence were affirmed by the district court, and the district court's judgment has been appealed to this court as case No. 86-073. At a separate trial a county court jury found defendant guilty of the obstruction charge. The county court thereafter so adjudged him and subsequently sentenced him to imprisonment for 1 year at the Nebraska Penal and Correctional Complex and ordered him to pay a fine of $1,000 and the costs. This conviction and sentence were also affirmed by the district court, and the district court's judgment has been appealed to this court as case No. 86-074. Pursuant to the stipulation of the parties, the cases were consolidated for briefing in this court by the State and for argument. We affirm the judgment of the district court in each case.

FACTS

At approximately 1:40 a.m. on January 19, 1985, Charles Preble, a trooper with the Nebraska State Patrol, observed a pickup truck driven by defendant moving erratically on the streets in Scottsbluff. When Trooper Preble stopped the truck, defendant fumbled for his driver's license and admitted that he had been drinking. After defendant failed several field sobriety tests, Preble concluded defendant was intoxicated and took him to the Scottsbluff Police Department for breath testing. After the testing was completed, Preble escorted defendant from the police station to his patrol car in order to drive him to the jail. Defendant, being neither handcuffed nor otherwise restrained, sat in the front passenger seat beside Preble.

Preble testified that a few blocks from the station defendant began to utter derogatory remarks about Preble and his brother and threatened repeatedly to "kick the hell" out of Preble. Defendant's version of that conversation is that it was Preble who threatened defendant. Preble testified he felt that an assault upon him was imminent and, thus, pulled off the road. Preble then picked up the hand microphone of his radio to call the patrol dispatcher. After he gave his call number, defendant knocked the microphone from Preble's hand. Preble testified that he then bailed out of the car, knowing that he would have to find some way to restrain defendant, and walked to the passenger side to attempt to handcuff defendant. He was unsuccessful because defendant was throwing his arms around. After again threatening to "kick the hell out of" Preble, defendant stood up from the car.

Defendant, on the other hand, testified that Preble opened the passenger door and grabbed him by the shirt, whereupon defendant shoved Preble, who then fell to the ground. Defendant said that he was "right on top of" Preble and swatted him across the face, missing once and hitting the pavement instead. According to defendant, Preble cried, "Don, let me up, you've whipped me, you've whipped me, let me up." Preble denied there was ever any time when either he or defendant went to the ground. According to Preble, he and defendant wrestled by the passenger side of the patrol car. After several minutes Preble abandoned the handcuffs in favor of a Kubotan, a pressure-hold-type instrument used for restraining. Defendant's strength and size, however, prevented Preble from subduing him. In fact, according to Preble, defendant grabbed the Kubotan, injuring Preble's hand in the process. Defendant continued his verbal abuses and grabbed Preble's glasses from his face.

At this time a private security guard happened upon the area and saw the struggle. He asked Preble if he needed help. Preble replied affirmatively, and with the In the meantime, the patrol dispatcher had telephoned the Scottsbluff and Gering Police Departments to ask their officers if they could locate Preble. A...