State v. Schmidt

• Decision Date: 22 April 1997
• Docket Number: No. A-96-259,A-96-259
• Citation: 5 Neb.App. 653,562 N.W.2d 859
• Parties: STATE of Nebraska, Appellee, v. Richard A. SCHMIDT, Sr., Appellant.
• Court: Nebraska Court of Appeals

Page 859

562 N.W.2d 859

5 Neb.App. 653

STATE of Nebraska, Appellee, v. Richard A. SCHMIDT, Sr., Appellant.

No. A-96-259.

Court of Appeals of Nebraska.

April 22, 1997.

Syllabus by the Court

1. Motions for Mistrial: Appeal and Error. The decision to grant a motion for

mistrial is within the discretion of the trial court and will be upheld on appeal absent an abuse of discretion.

2. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

3. Jury Instructions: Appeal and Error. The proper instruction of a jury is a question of law. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court.

4. Sentences: Evidence. A sentencing court has broad discretion in the source and type of evidence that it may use in determining the kind and extent of punishment to be imposed within the limits fixed by statute.

5. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.

6. Pretrial Procedure. Under Neb.Rev.Stat. § 29-1919 (Reissue 1995), on determination that a discovery order has not been complied with, the trial court has broad discretion to enter such other order as it deems just under the circumstances.

7. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to grant a mistrial due to prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.

8. Trial: Pleadings: Evidence: Appeal and Error. When a court overrules a motion in limine to exclude evidence, the movant must object when the particular evidence is offered at trial in order to predicate error before an appellate court.

9. Trial: Evidence: Appeal and Error. A party is barred from asserting a different ground for his or her objection to the admission of evidence on appeal than was offered before the trier of fact.

10. Due Process: Police Officers and Sheriffs: Evidence. Unless a defendant can show bad faith on the part of police, failure to preserve evidence does not constitute denial of due process of law.

11. Directed Verdict. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law.

12. Criminal Attempt: Trial. Whether a defendant's conduct constitutes a substantial step toward the commission of a particular crime and is an attempt is generally a question of fact.

13. Intent: Words and Phrases. Intent is the state of the actor's mind when the actor's conduct occurs.

14. Intent: Words and Phrases. The intent operative at the time of an action may be inferred from the words and acts of an accused and from the facts and circumstances surrounding the conduct.

15. Constitutional Law: Double Jeopardy. The constitutional prohibition against double jeopardy protects one from being prosecuted for the same crime following acquittal or conviction, and also from being punished for the same offense more than once.

16. Criminal Law: Proof. Under the Blockburger, or "same elements" test, a person may be prosecuted for multiple offenses based on the same conduct so long as each offense requires proof of a factual element which the other does not.

17. Double Jeopardy: Kidnapping: False Imprisonment: Assault: Proof. Because kidnapping, false imprisonment, and third degree assault each require proof of an element the other does not, the Double Jeopardy Clause does not prohibit prosecution, punishment, or both for each offense.

18. Lesser-Included Offenses: Jury Instructions: Evidence. A trial court must instruct a jury on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.

19. Lesser-Included Offenses. When comparing the statutory elements of offenses, if it is impossible to commit the greater offense without also committing the lesser offense, then the lesser offense is a lesser-included offense of the crime charged.

20. Lesser-Included Offenses: Criminal Attempt. The statutory-elements approach for determining whether a crime is a lesser-included offense applies equally to attempted crimes.

21. Lesser-Included Offenses: Criminal Attempt. The analysis of the lesser-included offense doctrine in the context of attempted crimes must focus, in the first instance, on the elements of the choate crime itself.

22. Lesser-Included Offenses: Sexual Assault. Because sexual assault in the second degree requires serious bodily injury, an element not found in first degree sexual assault, sexual assault in the second degree is not a lesser-included offense of sexual assault in the first degree.

23. Lesser-Included Offenses: Sexual Assault. Because third degree sexual assault requires sexual contact, an element not found in first degree sexual assault, sexual assault in the third degree is not a lesser-included offense of sexual assault in the first degree.

24. Sentences: Evidence. A sentencing court in noncapital cases may consider a defendant's unadjudicated misconduct in determining an appropriate sentence.

25. Rules of Evidence: Sentences. The Nebraska rules of evidence are not applicable to sentencing hearings.

26. Appeal and Error. Errors assigned but not argued will not be addressed.

Bruce E. Stephens, York, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.

HANNON, MUES, and INBODY, JJ.

MUES, Judge.

I. INTRODUCTION

A jury found Richard A. Schmidt, Sr., guilty of committing the crimes of kidnapping, false imprisonment in the first degree, third degree assault, and attempted sexual assault in the first degree. Thereafter, he was sentenced to terms of imprisonment of 30 to 40 years for kidnapping; 4 to 5 years for first degree false imprisonment; 1 year for third degree assault; and 8 to 12 years for attempted first degree sexual assault, all sentences to run concurrently. Schmidt appeals, asserting various errors at both his trial and sentencing.

II. STATEMENT OF CASE

On June 2, 1995, the victim left Maryland en route to Idaho for a job interview. At approximately 10:30 p.m. on June 3, the victim, intending to sleep for a while, stopped at the rest area located east of York, Nebraska, off of Interstate 80. She awoke at approximately 3:30 a.m. and discovered that both tires on the passenger side of her vehicle were flat. Prior to this, she had had no problems with her tires, and she did not recall hitting anything which could have caused the flat tires. As she began searching for her spare tire, Schmidt approached her to offer his assistance. Schmidt replaced her front tire with her spare, removed her back tire, and then offered to take her into town to get her tires fixed. She accepted this offer.

Before getting into Schmidt's white van, the victim noticed the vehicle's license plate number. She also noticed binoculars and duct tape inside the van. The two proceeded toward York, exiting the Interstate at Highway 81. Schmidt eventually turned off Highway 81 onto another road and directed her attention out of the passenger window. Schmidt then began hitting her on the side of her head. When the victim attempted to leave Schmidt's vehicle, Schmidt pulled her back inside. Throughout this struggle, Schmidt's van continued to roll slowly. When Schmidt had to let go of the victim to prevent the vehicle from driving off the road, she escaped and began to run. Schmidt then began chasing her in his van, at which time she ran into a ditch, where she fell. Before she could get up, Schmidt got on top of her and she flipped onto her back. Schmidt began striking her in the head with his fists. According to the victim, she told Schmidt to " '[p]lease stop. I'll do anything,' " but she continued to scream. Eventually, Schmidt stated something to the effect of " '[t]o hell with it,' " got up, and walked away.

The victim then got up and, with her shirt in her hand, began to run. Both the victim's shirt and her bra had been removed during the course of the struggle. Schmidt proceeded to remove her tires from his van and stated, " 'Here is your stuff.' "

At approximately 4 a.m., the victim contacted police from the Palmer Inn. York police officers Kim Christensen and Michael Fitzpatrick responded to the call. According to Fitzpatrick, the victim was "hysterical," and both sides of her face were red with the appearance of some possible bruising. Christensen testified that the victim provided a description of her attacker as well as her attacker's vehicle, including its license plate number. The victim also directed police to the scene of the incident, where they found cigarette butts, a man's boot, and two tires. Fitzpatrick returned to the scene after daylight, at which time he found a skid mark and a bra.

Police discovered that the van was registered to Schmidt. Schmidt was arrested on June 6, 1995, and he signed a Miranda rights waiver form. Schmidt advised police of the van's location and gave his permission to search it. The van was located on an abandoned farmstead, covered with tarps, with its license plates removed, and it was impounded. Inside the van, police found Canyon cigarettes, the same brand of cigarettes as the butts which were found at the scene. Schmidt also gave officials permission to search his pickup truck, in which was found a pair of black...