State v. Pribil
| Decision Date | 31 October 1986 |
| Docket Number | No. 86-113,86-113 |
| Citation | 395 N.W.2d 543,224 Neb. 28 |
| Parties | STATE of Nebraska, Appellee, v. Larry PRIBIL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Directed Verdict. A motion to dismiss a criminal complaint at the close of the State's evidence can only be granted if there was a total failure of competent proof to support the existence of a material element of the alleged crime or if the testimony adduced was of so weak or doubtful a character that a conviction based thereon could not be sustained.
2. Lesser-Included Offenses. To be a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser.
3. Lesser-Included Offenses. When some of the elements of the crime charged in the information, without the addition of any element irrelevant to the original crime charged, may constitute another crime or crimes, such other crime or crimes are included within the crime charged.
4. Lesser-Included Offenses. Where the lesser offense may be committed in two or more independent ways, one type may be a lesser-included offense even though the remaining type or types are not.
5. Indictments and Informations: Lesser-Included Offenses. The nature of the crime charged in the information must be such as to give the defendant notice that he or she could at the same time face the lesser-included offense charge.
6. Lesser-Included Offenses: Jury Instructions. Even though a lesser-included offense charge is wrongfully included in the court's instructions to the jury, where the defendant is found guilty of the greater crime, he or she has not been prejudiced by the erroneous instruction.
7. Lesser-Included Offenses: Jury Instructions: Appeal and Error. In a prosecution for a felony, error cannot be predicated upon the failure of the trial court to define a lesser offense included in the crime charged unless requested to do so.
8. Jury Instructions. It is the duty of a trial court to instruct as to the law applicable to the case. Neither the defense nor the prosecution has the option of precluding the court from carrying out this duty in hopes of forcing an "all or nothing" verdict.
9. Lesser-Included Offenses: Jury Instructions: Case Disapproved. The trial court may instruct on a lesser-included offense over the objection of the defendant if the information or complaint charging the crime is such as to give the defendant notice that he or she could at the same time face the lesser-included offense charge. To the extent that McConnell v. State, 77 Neb. 773, 110 N.W. 666 (1906), contains language to the contrary, such language is expressly disapproved.
10. Lesser-Included Offenses: Jury Instructions: Appeal and Error. Either the State or the defendant may request a lesser-included offense instruction where it is supported by the pleadings and the evidence. However, absent such a request, it is not error for the trial court to fail to give such instruction even though warranted.
L.W. Kelly, Jr., of Kelly & Kelly, Grand Island, for appellant.
Robert M. Spire, Atty. Gen., and William L. Howland, Lincoln, for appellee.
The defendant, Larry Pribil, appeals a jury trial verdict in the district court for Holt County wherein he was found guilty of attempt to commit assault in the first degree. We affirm.
On July 1, 1985, LaVonne Pribil was at a friend's home in O'Neill, Nebraska, until approximately midnight. At that time Ms. Pribil drove out of O'Neill on Highway 281 toward her home. She noticed an automobile was following her. It pulled up beside her and began crowding her, forcing her to stop. She recognized that the other automobile belonged to her ex-husband, Larry Pribil, the defendant. The defendant got out of his car, came over to Ms. Pribil's car, and yanked open her car door. He tried to pull Ms. Pribil from the car, but she grabbed ahold of the steering wheel. He then grabbed ahold of her breast and started squeezing and pinching it. Defendant finally pulled her from her car and began to beat her with his fists in the head and neck area. He also kicked her in the back, legs, and ribs. He suddenly stopped beating her, returned to his car, and left the area.
Defendant was charged with first degree assault. At the close of the State's case in chief, defendant moved the court to dismiss the complaint, arguing that the State had failed to prove the element of serious bodily injury necessary for first degree assault. The motion was overruled.
At the close of all the evidence, a jury instruction conference was held. Apparently on its own motion, the court proposed and subsequently gave instructions Nos. 4 and 5, which submitted first degree, attempted first degree, and third degree assault to the jury. Defense counsel objected to those instructions insofar as they submitted the lesser-included offenses of attempted first degree assault and third degree assault to the jury. Those objections were overruled. The case was submitted to the jury, and a verdict of guilty to attempted first degree assault was returned. A motion for new trial was filed and overruled.
Defendant raises two issues on appeal: (1) whether there was sufficient evidence of serious bodily injury to instruct the jury on first degree assault; and (2) whether it was proper for the district court to instruct the jury on the lesser-included offense of attempted first degree assault and third degree assault when the defendant had objected to the giving of those instructions.
At the close of the State's case, defendant's counsel moved the trial court to dismiss the complaint, arguing that the State had offered no evidence to prove the existence of one of the material elements of first degree assault, that being the victim's serious bodily injury. See Neb.Rev.Stat. § 28-308 (Reissue 1985). The court could have granted that motion only if there was a total failure of competent proof to support "serious bodily injury" or if the testimony adduced was of so weak or doubtful a character that a conviction based thereon could not be sustained. See State v. Rubek, 220 Neb. 537, 371 N.W.2d 115 (1985).
In Neb.Rev.Stat. § 28-109(20) (Reissue 1985), serious bodily injury is defined as "bodily injury which involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body." During the State's case, evidence was presented showing that as a result of the beating by the defendant, the victim suffered extensive tenderness and bruises on her neck and chest; scratch-type injuries and bruises on both breasts; skinned knees, ankles, and left arm; a fractured rib; limited range of motion of her neck; and some kidney trauma as evidenced by blood in her urine. She was hospitalized overnight and was in bed approximately a week, taking pain medication. A month after the beating, Ms. Pribil had to have a tooth extracted because it was split. There was evidence showing that the split tooth could have been caused either by the blow to the side of her head or by biting down on something hard.
Certainly such a beating resulting in those injuries is not a total failure of competent proof on the issue of "serious bodily injury." Contrary to defendant's argument, it is not necessary that the injury caused death, or serious permanent disfigurement or impairment of the function of any part or organ of the body, but only that it involved a substantial risk of producing those results. Clearly, from a description of the nature and extent of the injuries inflicted, there was presented to the jury a fact question on that issue. The fact that the jury ultimately determined that the defendant was not guilty of first degree assault is totally irrelevant to the issue of whether there was sufficient evidence to submit the crime of first degree assault to the jury. First degree assault was properly submitted to the jury.
Before we address the second of the defendant's allegations of error, we must first address a threshold issue: that being whether third degree assault is a lesser-included offense of first degree assault. Third degree assault may be committed in a variety of ways. It may be accomplished by intentionally, knowingly, or recklessly causing bodily injury to another person, or by threatening another in a menacing manner. Neb.Rev.Stat. § 28-310 (Reissue 1985). To commit first degree assault one must intentionally or knowingly cause serious bodily injury to another. § 28-308.
The most recent definition of the term "lesser-included offense" appears in State v. Murphrey, 220 Neb. 699, 371 N.W.2d 702 (1985). Therein we said, quoting from State v. Lovelace, 212 Neb. 356, 322 N.W.2d 673 (1982): " ' "To be a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser...." ' " 220 Neb. at 702, 371 N.W.2d at 705. If the defendant in the instant case intentionally or knowingly caused serious bodily harm to the victim, he surely had intentionally or knowingly caused bodily harm to the victim so as to be guilty of third degree assault.
The confusion in identifying a lesser-included offense, if any exists, results from the additional explanatory language offered in Lovelace and countless cases before it: "In sum the lesser included offense is one all the elements of which are necessarily included in the greater." 212 Neb. at 359, 322 N.W.2d at 675. The argument is made that because third degree assault may be established by recklessly causing bodily injury to another, or by threatening another in a menacing manner, these elements are not necessary to establish first degree assault; therefore, third degree assault is not a...
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