State v. Piskorski, 84-158

• Decision Date: 26 October 1984
• Docket Number: No. 84-158,84-158
• Parties: STATE of Nebraska, Appellee, v. John PISKORSKI, Appellant.
• Court: Nebraska Supreme Court

Page 206

357 N.W.2d 206

218 Neb. 543

STATE of Nebraska, Appellee, v. John PISKORSKI, Appellant.

No. 84-158.

Supreme Court of Nebraska.

Oct. 26, 1984.

Syllabus by the Court

1. Indictments and Informations: Double Jeopardy. An information must inform the accused with reasonable certainty of the charge against him that he may prepare his defense and be enabled to plead the judgment thereon as a bar to a later prosecution for the same offense.

2. Indictments and Informations. A complaint or information charging an offense in substantially the words of the statute is generally sufficient.

3. Indictments and Informations: Constitutional Law. An indictment or information meets all constitutional requirements (1) if it shows that the acts which defendant is charged with committing amounted to a crime which the court had power to punish and that it was committed within the territorial jurisdiction of the court, (2) if it informs the defendant of the nature of the charge against him, and (3) if it constitutes a record from which it can be determined whether a subsequent proceeding is barred by the former adjudication.

4. Indictments and Informations: Double Jeopardy. An indictment or information alone need not be full protection against double jeopardy, because a defendant may allege and prove facts outside the record in support of a plea of former adjudication.

5. Circumstantial Evidence. One accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt. The State is not required to disprove every hypothesis but that of guilt.

6. Directed Verdict. It is only where there is a total failure of competent proof in a criminal case to support a material allegation in the information, or where the testimony adduced is of so weak or doubtful a character that a conviction based thereon could not be sustained, that the trial court will be justified in directing a verdict of not guilty.

James C. Cripe, Papillion, for appellant.

Paul L. Douglas, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.

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

KRIVOSHA, Chief Justice.

The appellant, John Piskorski, was convicted by a jury of first degree sexual assault on a child under 16 years of age in violation of Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1979). This offense is a Class II felony, punishable by imprisonment for not less than 1 nor more than 50 years. The trial court sentenced Piskorski to serve an indeterminate term of not less than 2 nor more than 5 years' imprisonment and gave him credit for 128 days previously served in jail awaiting trial and sentence. Piskorski now appeals his conviction to this court, maintaining that the conviction must be set aside because (1) the information charging Piskorski with the crime was fatally defective, (2) the evidence was insufficient to establish a violation of the crime charged, and (3) he was deprived of a fair trial. We have reviewed the record and have concluded that the conviction and sentence should be affirmed.

Piskorski's first assignment of error is based upon his claim that the information was so vague and indefinite that he could not have known the specific nature of the charges against him and could not plead this conviction as a bar to any subsequent prosecution involving the same matter, thereby subjecting him to double jeopardy in violation of both the Constitution of the State of Nebraska and the Constitution of the United States. Specifically, Piskorski cites our decision in Benedict v. State, 166 Neb. 295, 297, 89 N.W.2d 82, 85 (1958), wherein we said: " 'An information must inform the accused with reasonable certainty of the charge against him that he may prepare his defense and be enabled to plead the judgment thereon as a bar to a later prosecution for the same offense....' " Although we agree with that statement, we do not believe that the record in this case supports Piskorski's claim that he was not sufficiently informed of the charges or would not be able to plead the judgment in this case as a bar to a later prosecution for the same offense.

The complaint in the county court initially charged that Piskorski violated the laws of the State of Nebraska, in that

[o]n or about December, 1982, at or near 7408 Gertrude, in Sarpy County Nebraska, the said John Piskorski did then and there subject [name of victim] to sexual penetration and overcame such person by force, threat of force express or implied, coercion or deception, in violation of Section 28-319(1)(a), R.R.S. Nebraska. (Class II Felony)

This complaint, in the language of the statute, advised Piskorski that during a specific period of time he subjected a named individual at a specific location to sexual penetration in violation of a specifically identified statute. Other than being able to specify the exact time and hour, we can conceive of no way in which the complaint could be more specific, other than to recite in detail all of the evidence. This, of course, the State is not required to do. We have frequently held that a complaint or information charging an offense in substantially the words of the statute is generally sufficient. See, State v. John, 213 Neb. 76, 328 N.W.2d 181 (1982); State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973).

The rule first appears to have been announced by this court in Cowan v. State, 140 Neb. 837, 2 N.W.2d 111 (1942), when we specifically addressed the question of whether an information charging the crime in accordance with the language of the statute was sufficient to sustain a conviction. In holding that it was sufficient, we analyzed the history of criminal pleadings and stated:

Constitutional provisions require that a defendant be convicted by due process of law, that he be charged in writing either by indictment or information, and that the accused shall have the right to demand the nature and cause of accusation and to have a copy thereof. This does not mean that detailed particulars of the crime must be stated in the information or indictment in the meticulous manner prescribed by the common law. The trend is in the direction of simplification of statement and the elimination of technical formalities. A proper administration of justice does not require our adherence to outmoded methods or the retention of legal fictions and absurdities. The legislature has the power to determine what constitutes a crime, and when it has performed this function it may likewise determine within constitutional limits what information must be included in the written charge to sufficiently advise the accused of the nature of the offense for which he must answer. Due process of law requires only that the accused be given sufficient notice of the nature of the charge against him in order that he may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense.

Id. at 839, 2 N.W.2d at 113.

We then went on in Cowan to set out the requirements for a sufficient information, saying:

We have come to the conclusion that an indictment or information meets all constitutional requirements (1) if it shows that the acts which defendant is charged with committing amounted to a crime which the court had power to punish, and that it was committed within the territorial jurisdiction of the court, (2) if it informs the defendant of the nature of the charge against him, and (3) if it constitutes a record from which it can be determined whether a subsequent proceeding is barred by the former adjudication. And to the third requirement, it cannot be said that the indictment or information alone must be full protection against double jeopardy, for the reason that in many cases, such as where several acts constitute a single crime, the defendant is often required to allege facts outside the record to support his plea of former adjudication. If the information or indictment apprises the defendant with reasonable certainty of the accusation against him so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense, it meets the fundamental purposes of an information or indictment, as well as constitutional requirements.

Id. at 840, 2 N.W.2d at 113. See, also, State v. Adams, 181 Neb. 75, 147 N.W.2d

144 (1966); Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946). Certainly, the initial complaint met all of the requirements of law as first announced in Cowan.

On the day after the initial complaint was filed, the State sought leave to file an amended complaint. This motion was unopposed by Piskorski, and the trial court granted the State leave to file the amended complaint. The principal difference between the two complaints was that in the amended complaint the name of the victim was deleted and the State alleged that the crime was committed by subjecting a person of less than 16 years of age to sexual penetration in violation of subsection (1)(c) of § 28-319 rather than (1)(a). In all other respects the two complaints were the same. Piskorski waived a preliminary hearing on the amended complaint and was bound over to the district court to stand trial. Again, we believe that the amended complaint, being in the language of the statute, was sufficient. Furthermore, as we recently observed in State v. John, 213 Neb. 76, 328 N.W.2d 181 (1982), where the defendant pleads to the general issue, defects that might otherwise have been excepted to by a motion to quash are taken to have been waived.

The State then filed an information in the district court for Sarpy County nearly identical to the amended complaint previously filed in the county court, except that the information alleged that the offense had occurred "[o]n or after December 11, 1982 and before December 25, 1982 ...."

On the day set for trial it was discovered that Piskorski had never been formally...