State v. Ristau, 42111

• Decision Date: 06 December 1978
• Docket Number: No. 42111,42111
• Citation: 201 Neb. 784,272 N.W.2d 274
• Parties: STATE of Nebraska, Appellee, v. Steven C. RISTAU, Appellant.
• Court: Nebraska Supreme Court

Page 274

272 N.W.2d 274

201 Neb. 784

STATE of Nebraska, Appellee, v. Steven C. RISTAU, Appellant.

No. 42111.

Supreme Court of Nebraska.

Dec. 6, 1978.

Syllabus by the Court

1. The intent with which an act is done is rarely, if ever, susceptible of proof by direct evidence, but may be inferred from words or acts and the facts or circumstances surrounding the act.

2. It is not essential to a conviction for assault with intent to do great bodily injury that the accused should have intended the precise injury which followed as the result of the assault. It is sufficient if serious bodily harm of any kind was contemplated.

3. To constitute the offense of assault with intent to do great bodily injury there must be an unlawful assault, coupled with a present ability and intent to injure, but no actual battery need occur.

Raymond B. Johansen, Sioux City, Ia., for appellant.

Paul L. Douglas, Atty. Gen. and Patrick T. O'Brien, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and RIST, District Judge.

McCOWN, Justice.

The 17-year-old defendant pleaded guilty to a charge of assault with intent to inflict great bodily injury and was sentenced to imprisonment for a term of not less than 3 years nor more than 8 years. The defendant has appealed.

The defendant was charged as an adult with the offense of robbery on September 28, 1977. A motion to treat the defendant as a juvenile and proceed in juvenile court was denied. Pursuant to a plea bargain the robbery charge was dismissed and a charge of assault with intent to inflict great bodily injury was substituted. The defendant pleaded guilty to the amended charge on February 10, 1978.

The record established that the defendant threw an intoxicated woman to the pavement, took her purse, and ran. The woman bumped her head on the pavement and wrenched her back, but did not require or seek medical attention. The defendant was also intoxicated at the time.

At the arraignment, before accepting the guilty plea, the court thoroughly explained to the defendant the options he had and the constitutional rights which would be waived by a guilty plea. When the court inquired as to whether there had been any plea bargaining, the court was advised the plea bargain was that the robbery charge would be dismissed if defendant pleaded guilty to the assault charge here; that there was a chance for probation; and that the State would not object to probation nor make any recommendation as to any sentence other than probation. The court explained to the defendant that the court was not a party to any plea bargain, would not be bound by any such agreement, and that the court could very well impose the maximum sentence. The court asked whether the defendant understood that and whether he still wished to plead guilty. The defendant responded "yes."

In the discussion at the arraignment the defendant denied that he intended to beat the victim or hurt her, but admitted that he intended to take her money and to use as much "hassle" as was necessary to get it.

The court accepted the defendant's plea of guilty, finding that it was voluntarily, intelligently, and knowingly made. On March 7, 1978, the defendant was sentenced to not less than 3 nor more than 8 years in the Nebraska Penal and Correctional Complex.

The defendant first contends that there is no factual basis upon which the trial court could find a specific intent to inflict great bodily injury. The position of the defendant is that because he said he did not intend to inflict great bodily injury, and great bodily injury did not actually result, there was no factual basis for a plea of guilty. We disagree.

The record establishes that the defendant not only threw the victim to the pavement but admitted that he intended to use whatever force was necessary to take her purse. The intent with which an act is done is rarely, if ever, susceptible of proof by direct evidence, but may be inferred or gathered from outward manifestations, words, or acts, and the facts or circumstances surrounding or attendant upon the assault. It is not essential to a conviction for assault with intent to do great bodily injury that the accused should have intended the precise injury which followed as the result of the assault. It is sufficient if serious bodily harm of any kind was contemplated. State v. McDaniels, 145 Neb. 261, 16 N.W.2d 164.

To constitute the offense of assault with intent to do great bodily injury there must be an unlawful assault, coupled with a present ability and intent to injure, but no actual battery need occur....