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State v. Kleckner

Supreme Court of Nebraska

August 7, 2015

STATE OF NEBRASKA, APPELLANT,
v.
BREANNNNA N. KLECKNER, APPELLEE

Page 274

[Copyrighted Material Omitted]

Page 275

[Copyrighted Material Omitted]

Page 276

Appeal from the District Court for Sarpy County, WILLIAM B. ZASTERA, Judge, on appeal thereto from the County Court for Sarpy County, STEFANIE A. MARTINEZ, Judge.

EXCEPTION SUSTAINED.

SYLLABUS

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

4. Criminal Law: Judgments: Jurisdiction: Appeal and Error. Absent specific statutory authorization, the State generally has no right to appeal an adverse ruling in a criminal case.

5. Appeal and Error. The purpose of appellate review under Neb. Rev. Stat. § 29-2315.01 (Reissue 2008) is to provide an authoritative statement of the law to serve as precedent in future cases.

6. Judgments: Appeal and Error. Only those issues on which the district court made a ruling are subject to review under Neb. Rev. Stat. § 29-2315.01 (Reissue 2008).

7. Double Jeopardy. The Double Jeopardy Clauses of the federal and the Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

8. Constitutional Law: Double Jeopardy. The protection provided by Nebraska's double jeopardy clause is coextensive with that provided by the U.S. Constitution.

9. Criminal Law: Double Jeopardy. The Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or " same elements" test, does not apply if the State charges the defendant with multiple counts of a statutory crime that can be committed in different ways.

10. Criminal Law: Double Jeopardy: Legislature: Intent. Absent a contrary legislative intent, multiple counts of assault are the " same offense" for double jeopardy purposes if a break occurred between the alleged assaults that allowed the defendant to form anew the required criminal intent.

11. Criminal Law: Double Jeopardy: Convictions: Sentences. Even if the government charges the defendant with multiple counts of the same offense, the multiple punishments prong of the double jeopardy bar is not violated if the jury convicts the defendant of only one count.

12. Criminal Law: Double Jeopardy: Trial: Convictions. For double jeopardy purposes, the presence of multiple counts in a single trial does not amount to a second prosecution for the same offense after an acquittal or conviction.

13. Double Jeopardy. The application of Neb. Rev. Stat. § 29-2316 (Reissue 2008) turns on whether the trial court placed the defendant in jeopardy, not whether the Double Jeopardy Clause bars further action.

Philip K. Kleine, Deputy Sarpy County Attorney, for appellant.

Karen S. Nelson, of Shirber & Wagner, L.L.P., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. CASSEL, J., concurring in part, and in part dissenting.

OPINION

Page 277

[291 Neb. 540] Connolly, J.

SUMMARY

On the day after Thanksgiving, former intimate partners Breanna N. Kleckner and Chase McGee had a dispute about which of them would care for their son over the weekend. The State charged Kleckner in county court with three counts [291 Neb. 541] of third degree domestic assault arising from the dispute. Each count alleged that Kleckner had violated a different subsection of the same statute. The court dismissed one count after the State rested. Of the two remaining counts, the jury convicted Kleckner of one and acquitted her of the other. Kleckner appealed to the district court, arguing that the State could not charge her with multiple counts under a single statute if each count arose from the same incident. The district court agreed with Kleckner and vacated her sentence. The ...


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