NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Sarpy County, Max Kelch, Judge, on appeal thereto from the County Court for Sarpy County, Robert C. Wester, Judge.
Thomas P. Strigenz, Sarpy County Public Defender, and Patrick J. Boylan for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Appellant, Marcus C. Higgins, was convicted in the county court for Sarpy County of one count of third degree domestic assault, which conviction was affirmed by the district court. On appeal, Higgins contends that the trial court erred in denying his motion for a continuance made the day of trial, denying his motion for mistrial, and failing to allow the jury to decide the disturbing the peace charge or instructing the jury on disturbing the peace as a lesser-included charge of domestic assault. Finding no abuse of discretion in the denial of the motions for continuance and for mistrial, and no error in connection with the disturbing the peace charge, we affirm.
Higgins and Denisha Kelley were in a dating relationship and lived together in an apartment in Bellevue, Nebraska. On August 22, 2011, while Higgins and Kelley were together in that apartment, an argument arose after Higgins discovered Kelley's laptop computer contained sexually explicit "Facebook" messages Kelley had written to another man. During the course of this argument, Higgins slapped Kelley across the left side of her face three times. After suffering injuries to her left eye and jaw from this altercation, Kelley visited the Bellevue Medical Center for treatment. In the course of administering services, the Bellevue Medical Center notified the Bellevue Police Department. Officer Holly McQuaid interviewed Kelley regarding her injuries, and photographs of these injuries were taken. On September 7, the State filed a complaint charging Higgins with two counts of third degree domestic assault, a Class I misdemeanor, and one count of disturbing the peace, a Class III misdemeanor. Neb. Rev. Stat. § 28-323(1) (Cum. Supp. 2012); Neb. Rev. Stat. § 28-1322 (Reissue 2008).
After an oral motion for a continuance made the day of the trial was denied, trial was held in the county court on November 14, 2011. The two counts of third degree domestic assault were tried to a jury, and the disturbing the peace count was tried to the court pursuant to Neb. Ct. R. § 6-1423 of the uniform county court rules. After the court dismissed the second count of domestic assault at the conclusion of the State's case in chief, the jury found Higgins guilty of one count of third degree domestic assault. The court acquitted Higgins of disturbing the peace. On January 19, 2012, the court sentenced Higgins to 180 days in the county jail, crediting 3 days for time already served, and ordered Higgins to pay the costs of the action.
Higgins perfected an appeal to the district court, which found each of the alleged errors to be without merit and affirmed the county court's decision. Higgins files this timely appeal.
ASSIGNMENTS OF ERROR
In this appeal, Higgins asserts that the county court erred in (1) denying his motion for a continuance which was made the day of trial, (2) denying his motion for a mistrial, and (3) failing to instruct the jury of the lesser charge of disturbing the peace.
STANDARD OF REVIEW
A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). Similarly, the decision whether to grant a motion for mistrial is also within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012). An abuse of discretion occurs when a trial court's decision is based upon ...