State v. Schneckloth

• Citation: 313 N.W.2d 438,210 Neb. 144
• Decision Date: 11 December 1981
• Docket Number: Nos. 43712-43714,s. 43712-43714
• Parties: STATE of Nebraska, Appellee, v. Larry W. SCHNECKLOTH, John L. Koger, and Noel J. Heathman, Appellants.
• Court: Supreme Court of Nebraska

Page 438

313 N.W.2d 438

210 Neb. 144

STATE of Nebraska, Appellee, v. Larry W. SCHNECKLOTH, John L. Koger, and Noel J. Heathman, Appellants.

Nos. 43712-43714.

Supreme Court of Nebraska.

Dec. 11, 1981.

Syllabus by the Court

1. Criminal Law: Statutes. In Nebraska, all crimes are statutory and no act is criminal unless the Legislature has in express terms declared it to be so.

2. Statutes. Where the language of a statute is plain and unambiguous, no interpretation is needed, and the court is without authority to change the language.

3. Kidnapping: Penalties. Neb.Rev.Stat. § 28-313 (Reissue 1979), the Nebraska kidnapping statute, creates only a single criminal offense and not two separate offenses, even though it is punishable by two different ranges of penalties depending on the treatment accorded the victim.

4. Kidnapping: Penalties. The factors which determine which of the two penalties is to be imposed are not elements of the offense of kidnapping, but are simply mitigating factors which may reduce the sentence of those charged under Neb.Rev.Stat. § 28-313(1) (Reissue 1979), and their existence or nonexistence should properly be determined by the trial judge.

5. Indictments and Informations. An information must inform the accused of each fact that is an essential element of the crime intended to be charged.

Thomas M. Kenney, Public Defender, and Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellants.

Paul L. Douglas, Atty. Gen. and John M. Boehm, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BRODKEY, Justice.

The three separate cases involved in this appeal were consolidated for trial below and have also been consolidated for briefing and argument in this court. The defendants below, Larry W. Schneckloth, John L. Koger, and Noel J. Heathman, were each charged in informations containing three counts with committing the offenses of kidnapping, in violation of Neb.Rev.Stat. § 28-313(1) (Reissue 1979); first degree sexual assault, in violation of Neb.Rev.Stat. § 28-319(1) (Reissue 1979); and using a firearm to commit a felony, in violation of Neb.Rev.Stat. § 28-1205(1) (Reissue 1979). Trial was had to a jury which found all the defendants guilty as charged. The court sentenced all three defendants to terms of life imprisonment for kidnapping, concurrent terms of 8 to 10 years' imprisonment for first degree sexual assault, and consecutive terms of from 3 to 5 years' imprisonment for use of a firearm in the commission of a felony. The defendants were allowed credit for the time each had spent in confinement prior to sentencing. We affirm.

Without going into great detail with reference to the background facts of this case, the record supports the conclusion that the victim was employed as a cashier at the 7-Eleven Store located at 41st and Dodge Streets in Omaha and was working alone during the late evening hours of February 26, 1980, and early morning hours of February 27, 1980. Shortly after 3 a. m. on February 27, 1980, a dark-colored station wagon, occupied by the three defendants, entered into the store parking lot and was parked near the gasoline pumps. According to the victim's testimony, she was abducted at gunpoint by the three defendants, who forced her into the automobile and thereafter sexually assaulted her against her will by performing various types of sex acts upon her during the trip through various sections of the city of Omaha, and over into a park in Council Bluffs, Iowa. In committing the various sexual acts upon her the defendants from time to time changed their seats and locations in the automobile. Following the foregoing sexual activity, the defendants ordered the victim to get dressed and lie on the back seat. Heathman, who was seated in the back seat, pointed a gun at her when the vehicle was stopped by a police cruiser. She was informed by the defendants that they belonged to a motorcycle group and that if she complained to the police she would be killed. She was subsequently rescued by the Council Bluffs policeman who removed her to one of the police cruisers, at which time she told the police that she had been abducted at gunpoint from the store, sexually molested by the occupants of the car, and threatened with death if she told anyone about the incident. The defendants were then arrested by the police and identified. A further search of the automobile revealed a .38 caliber Smith & Wesson 4-inch-barrel revolver hidden in the springs under the rear seat of the vehicle. The victim was taken to the Council Bluffs Mercy Hospital where physicians at the hospital examined her and conducted laboratory tests on smears obtained from her vaginal and rectal areas. These tests disclosed spermatazoa and high vaginal acid phosphatase, indicating recent sexual intercourse.

The story and testimony on behalf of defendants was different than that given by the victim. The only witnesses testifying for the defendants were the defendants Koger and Heathman. Schneckloth did not testify at the trial. Both Koger and Heathman admitted their presence in Koger's automobile and their sexual activity with the victim during the hours testified to by her. Both, however, denied any forcible abduction of her from the 7-Eleven Store, and contended that the victim had voluntarily consented to have sexual activity with them. They admitted possessing the revolver found in the automobile, but explained that they had used it for target practice during the afternoon of February 26, 1980.

The State then called as a rebuttal witness one Diane Johnson, who was a security officer employed by Rosen-Novak automobile company. She testified that she was on her patrol route of the Rosen-Novak properties at approximately 2:45 a.m. on February 27, 1980, and she was followed by a station wagon containing three men, which chased her vehicle. The men shouted obscenities, and one of them pointed a gun at her. At one time the station wagon blocked her exit from an alleyway; however, she then called the Omaha police emergency number on her mobile telephone and a short time later the station wagon left the scene. She subsequently identified the vehicle as bearing the license plate number of defendant Koger's station wagon.

Appellants' sole assignment of error as set out in their brief on appeal is as follows: "The District Court's sentencing of each of the defendants to life imprisonment for kidnapping, rather than the lesser alternative penalty of one-to-fifty years, based only on the Court's own fact findings of the statutory elements required for such higher penalty, violated the defendant's (sic) constitutional and other rights to have the State's informations allege the essential statutory elements required for imposition of the higher penalty, to be informed of the nature and cause of the accusation against them, and to a jury's determination of their guilt by proof beyond a reasonable doubt." In short, appellants contend that § 28-313 defines two separate kidnapping offenses, rather than one offense with two separate penalty provisions; that the information filed by the State against them in these cases failed to allege the essential statutory elements required for the imposition of the higher penalty; and that the District Court erred in sentencing them to life imprisonment on the kidnapping counts rather than the lesser penalty of 1 to 50 years' imprisonment. It is to be noted, however, that the appellants have not appealed from their convictions or sentences pertaining to the sexual assault and use of firearm in the commission of a felony charges.

We commence our discussion with the observation that in Nebraska all crimes are statutory, and no act is criminal unless the Legislature has in express terms declared it to be so. State v. Gallegos, 193 Neb. 651, 228 N.W.2d 615 (1975); State v. Ewert, 194 Neb. 203, 230 N.W.2d 609 (1975); State v. Hauck, 190 Neb. 534, 209 N.W.2d 580 (1973). It is also a fundamental principle of statutory construction that a penal statute is to be strictly construed. State v. Suhr, 207 Neb. 553, 300 N.W.2d 25 (1980); State v. Simants, 182 Neb. 491, 155 N.W.2d 788 (1968). We have also held: " 'Where the language of a statute is plain and unambiguous, no interpretation is needed and the court is without authority to change the language.' " State v. Suhr, supra 207 Neb. at 560, 300 N.W.2d at 29. See, also, State v. Gallegos, supra. The kidnapping statute involved in this appeal is § 28-313, which became effective January 1, 1979. That statute provides as follows:

"Kidnapping; penalties. (1) A person commits kidnapping if he abducts another or, having abducted another, continues to restrain him with intent to do the following:

(a) Hold him for ransom or reward; or

(b) Use him as a shield or hostage; or

(c) Terrorize him or a third person; or

(d) Commit a felony, or

(e) Interfere with the performance of any government or political function.

(2) Except as provided in subsection (3) of this section, kidnapping is a Class IA felony.

(3) If the person kidnapped was voluntarily released or liberated alive by the abductor and in a safe place without having suffered serious bodily injury, prior to trial, kidnapping is a Class II felony. " (Emphasis supplied.)

In support of their theory that § 28-313 defines two separate kidnapping offenses, rather than one offense with differing penalties, the appellants contend that to prove Class IA kidnapping, so as to subject them to the punishment of life imprisonment, the State must prove not only the abduction or restraint for one of the purposes designated in the statute but also that the kidnapped person was not voluntarily released or liberated alive by the abductor and in a safe place without having suffered serious bodily injury prior to trial. They contend that the informations filed against them in these cases were defective inasmuch as...