State v. Williams

• Decision Date: 06 August 1993
• Docket Number: No. S-91-837,S-91-837
• Citation: 503 N.W.2d 561,243 Neb. 959
• Parties: STATE of Nebraska, Appellee, v. Clarence J. WILLIAMS, Appellant.
• Court: Nebraska Supreme Court

Page 561

503 N.W.2d 561

243 Neb. 959

STATE of Nebraska, Appellee, v. Clarence J. WILLIAMS, Appellant.

No. S-91-837.

Supreme Court of Nebraska.

Aug. 6, 1993.

Syllabus by the Court

1. Assault: Intent. The intent required by Neb.Rev.Stat. §§ 28-308(1), 28-309(1), and 28-310(1) (Reissue 1989) relates to the assault, not to the injury which results.

2. Lesser-Included Offenses: Case Overruled. To the extent that State v. Grant, 242 Neb. 364, 495 N.W.2d 253 (1993); State v. Massa, 242 Neb. 70, 493 N.W.2d 175 (1992); State v. Woodfork, 239 Neb. 720, 478 N.W.2d 248 (1991); and State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990), rely upon and apply the cognate-evidence approach, they are overruled.

3. Lesser-Included Offenses. The rule announced in State v. Lovelace, 212 Neb. 356, 322 N.W.2d 673 (1982), that 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, is readopted.

4. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct 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.

5. Criminal Law: Intent: Words and Phrases. In the context of a criminal statute, "intentionally" means willfully or purposely, and not accidentally or involuntarily.

6. Criminal Law: Words and Phrases. While in a criminal statute the meaning of the word "knowingly" varies with the context, it commonly imports a perception of the facts requisite to make up the crime.

7. Presumptions: Evidence: Juries. The presumption of innocence demands that all factual elements of a government's case be submitted to the jury.

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

CAPORALE, Justice.

Pursuant to verdict, the district court adjudged the defendant-appellant, Clarence J. Williams, guilty of first degree assault, in violation of Neb.Rev.Stat. § 28-308(1) (Reissue 1989). The Nebraska Court of Appeals reversed the conviction and remanded the cause for a new trial because of the district court's refusal of Williams' request that the jury be instructed on the elements of third degree assault, which he claims to be a lesser offense included within the crime of first degree assault. In the course of doing so, the Court of Appeals characterized first degree assault as a specific intent crime and second and third degree assaults as general intent crimes. Upon the petition of the plaintiff-appellee State, we granted further review and now reverse the judgment of the Court of Appeals.

While the victim, Tisha Caston, was babysitting at a girl friend's house, she was visited by her friends Shawnia Fleming and Toyce Wakefield. The two told Caston that when she finished working, they would meet her in front of a convenience store.

When Caston completed her babysitting duties, she proceeded to meet Fleming and Wakefield, who were in the parking lot of a bar across the street from the designated meetingplace. Wakefield was standing outside of a vehicle talking with Williams; Fleming was seated in the passenger side of the vehicle talking with Mark Smith, the owner of the vehicle. Caston, who had not previously met Williams or Smith, approached her two friends and asked them if they were ready to go. They replied affirmatively, and Fleming thereupon left the vehicle and walked across the street to the convenience store. Wakefield and Caston began to leave shortly thereafter. However, Williams attempted to persuade Wakefield to "ride" and "party" with him and Smith. When Wakefield said no, Williams began coaxing Caston, who also said no. According to Caston, when she tried to walk away, Williams "started cussing [her] out" and struck her on her left temple with his fist. Although Williams denies having struck Caston at that time, security guards from the bar grabbed him and told him to leave.

Caston turned and ran across the street to a pay telephone to call her aunt for a ride. Being unable to reach her aunt, Caston telephoned 911. While she was on the telephone, Smith drove by with Williams, obscenities were exchanged, and, according to Williams, Caston threw a bottle at Smith's vehicle. In any event, while Smith remained in his vehicle, Williams got out and, despite Caston's repeated pleas of "no," struck her with a closed fist on the lower part of her left jaw.

Williams admits hitting Caston, claiming it to have been "just an impulsive reaction," but claims that he "didn't want to cause her no [sic] injury." Williams then jogged off and left with Smith in Smith's automobile.

Caston was taken by her mother to the hospital, where she remained for approximately 4 days. She had suffered two fractures to her lower jaw, injuries which the oral and maxillofacial surgeon who treated Caston found to be consistent with a blow to the jaw. The injuries required surgery and the insertion of metal plates, which resulted in the permanent scarring of Caston's chin.

We concern ourselves first with the nature of the intent required by the various assault statutes. The pertinent part of § 28-308(1) reads: "A person commits the offense of assault in the first degree if he intentionally or knowingly causes serious bodily injury to another person." The applicable passage of Neb.Rev.Stat. § 28-309(1) (Reissue 1989) proclaims: "A person commits the offense of assault in the second degree if he or she: (a) Intentionally or knowingly causes bodily injury to another person with a dangerous instrument; (b) Recklessly causes serious bodily injury to another person with a dangerous instrument...." And the relevant portion of Neb.Rev.Stat. § 28-310(1) (Reissue 1989) provides: "A person commits the offense of assault in the third degree if he: (a) Intentionally, knowingly, or recklessly causes bodily injury to another person...."

Although we have not been cited to, nor do we find, any case in which we have directly considered the precise nature of the intent required by the first degree assault statute, cases exist in which we have addressed the issue with respect to the second degree assault statute. Most recently, in State v. Ayres, 236 Neb. 824, 828, 464 N.W.2d 316, 320 (1991), we wrote that the second degree assault statute "does not require that the weapon in question be used in a manner, or with the intent, to cause serious bodily injury or death." See, also, State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987). We had earlier observed that "[a]ssault with a dangerous instrument, like simple assault, is a 'general intent' crime." State v. Duis, 207 Neb. 851, 854, 301 N.W.2d 587, 589 (1981). Although we did not define a "simple assault," it is clear from the context in which the phrase is used that we were distinguishing assaults which do not involve the use of a dangerous weapon from those assaults which do involve such use. Thus, Duis implies that all assaults are general intent crimes. That is to say, the intent relates to the act which produces the injury, not to the consequences which result from the assault.

We last dealt with the matter in connection with the first degree assault statute in State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988). Therein, the defendant claimed, among other things, that there was insufficient evidence to support a finding that he had intended to inflict serious bodily injury. In rejecting that claim, we first remarked it was well settled that " ' "independent evidence of specific intent is not required...." ' " Id. at 623, 419 N.W.2d at 162. We then commented that the intent with which " ' "an act is committed ... may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident." ' " (Emphasis supplied.) Id. Thus, Costanzo implies that the requisite intent relates to the prohibited act, i.e., the assault, and not to the result achieved, i.e., the injury. That is to say, first degree assault is a general intent, not a specific intent, crime.

We also rejected the claim that because the defendant in the earlier case of State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989), claimed not to have intended to cause the victim serious bodily injury, the evidence was insufficient to establish guilt. However, in the course of concluding that the circumstantial evidence did indeed prove guilt, we improvidently quoted from State v. Ristau, 201 Neb. 784, 272 N.W.2d 274 (1978), the statement that 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.' " 233 Neb. at 520-21, 446 N.W.2d at 219. The quotation was improvident because whereas Swigart arose under the present § 28-308(1), Ristau was decided under the predecessor statute, Neb.Rev.Stat. § 28-413 (Reissue 1975), which read: "Whoever assaults another with intent to inflict a great bodily injury shall be punished upon conviction...." The two statutes differ markedly, for while under § 28-413 it was the infliction of the injury which was prohibited, under § 28-308(1) the prohibited conduct consists of the act which "causes" injury in some degree.

In that last respect, the second and third degree assault statutes are the same as the first degree assault statute. We therefore now specifically hold, as we implied in State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981), that all three offenses are general, and not specific, intent crimes; that...