Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge.
Reversed and remanded with directions to vacate.
D. Brandon Brinegar, Deputy Buffalo County Public Defender, for appellant.
Jon Bruning, Attorney General, and Austin N. Relph for appellee.
HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., and STEPHAN, J., join in this dissent.
NATURE OF CASE
This case presents the issue of whether a person can be guilty of felony criminal impersonation under Neb. Rev. Stat. § 28-638(1)(c) (Cum. Supp. 2014) by uttering a false name that does not correspond to any real individual.
[290 Neb. 258] BACKGROUND
James R. Covey was charged with criminal impersonation in violation of § 28-638(1)(c). He was also charged with being a habitual criminal.
Section 28-638(1)(c) states that a person commits the crime of " criminal impersonation" if he or she " [k]nowingly provides false personal identifying information or a false personal identification document to a court or a law enforcement officer[.]" Neb. Rev. Stat. § 28-636(2) (Cum. Supp. 2014), in turn, defines " [p]ersonal identifying information" as " any name or number that may be used, alone or in conjunction with any other information, to identify a specific person including a person's: (a) Name; (b) date of birth; [et cetera]." " Person" or " specific person" are not defined.
At trial, Officer Brandon Brueggemann testified that on the afternoon of April 18, 2013, he was investigating a citizen report of a man possibly selling stolen goods out of the trunk of his vehicle. Brueggemann approached Covey at a convenience store, where he was standing near the trunk of a vehicle that matched the citizen's description. Brueggemann exited the cruiser and asked Covey some general questions.
In his police report, Brueggemann stated that from prior contacts, he recognized Covey as " James Covey." However, at trial, Brueggemann explained that he did not recognize Covey when he initially made contact.
Brueggemann testified that Covey falsely told Brueggemann that Covey's name was " Daniel Jones." Covey concurrently told Brueggemann Covey's correct birth date.
Brueggemann returned to his cruiser to run the name and birth date through his computer terminal. As he was doing so, Covey ran away. After a pursuit, Covey was apprehended and arrested. When booked, Covey identified himself truthfully as " James Covey."
There was no evidence at trial that the name " Daniel Jones" corresponded to an actual person, and the State did not argue that, as a matter of common sense, it must correspond to an actual person.
[290 Neb. 259] Covey challenged the charge of criminal impersonation on the ground that it did not apply to the utterance of a name of a fictitious individual. Covey argued that the State could have instead charged him with false reporting under Neb. Rev. Stat. § 28-907 (Reissue 2008), because he had provided the false name in an attempt to avoid an arrest warrant. False reporting is a Class I misdemeanor.
The State argued that the existence of an actual person who was being impersonated was irrelevant to the charge of criminal impersonation. It asserted prosecutorial discretion in choosing to charge Covey
with felony impersonation rather than misdemeanor false reporting.
The trial court agreed with the State and overruled Covey's plea in abatement and motion to dismiss the charge of criminal impersonation. The trial court also granted the State's motion in limine to prevent Covey from presenting any argument that he must have known he was using the name of an actual person in order to be guilty of criminal impersonation. After the trial, the jury found Covey guilty of criminal impersonation.
At the sentencing hearing, Covey objected to the admission of exhibits 2 through 7 on the ground that they had just been received by defense counsel. The court offered to continue the sentencing hearing, but Covey declined. The court overruled Covey's objections to the exhibits.
The court found that Covey was a habitual criminal and sentenced him to 10 to 14 years of incarceration. The court explained that it was sentencing Covey in such a way that he would have a period of supervised release on parole after his incarceration.
ASSIGNMENTS OF ERROR
Covey assigns as error the overruling of his plea in abatement and the overruling of his motion to dismiss. Both of these assignments can be consolidated into his third assignment of error that there was insufficient evidence to support his conviction.
Covey also assigns as error the trial court's grant of the State's motion in limine and the overruling of Covey's [290 Neb. 260] objection to exhibits 2 through 7 for purposes of enhancement. Finally, ...