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State v. Scherbarth

Court of Appeals of Nebraska

July 18, 2017

State of Nebraska, appellee,
v.
Josiah L. Scherbarth, appellant.

         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. Appeal and Error. An appellate court independently reviews questions of law in appeals from the county court.

         5. Criminal Law: Courts: Appeal and Error. When deciding appeals from criminal convictions in county court, an appellate court applies the same standards of review that it applies to decide appeals from criminal convictions in district court.

         6. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the trial court.

         7. Lesser-Included Offenses. Whether a crime is a lesser-included offense is determined by a statutory elements approach and is a question of law.

         8. Courts: Appeal and Error. Despite a failure to file a particular statement of error in the district court, a higher appellate court may still consider the errors actually considered by the district court.

         [24 Neb.App. 898] 9. Jury Instructions: Pleadings: Evidence. Whether requested to do so or not, a trial court has the duty to instruct the jury on issues presented by the pleadings and the evidence.

         10. 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.

         11. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

         12. Criminal Law: Motor Vehicles: Intent. It is clear that one cannot commit the greater offense of willful reckless driving without simultaneously committing the lesser offense of reckless driving.

         13. ___:___:___. Distinction between reckless driving and willful reckless driving is determined by the driver's state of mind.

         14. ___:___:___. Indifferent or wanton disregard for the safety of others or their property is the fundamental characteristic of reckless driving. Willful reckless driving is characterized by a deliberate, as distinguished from an indifferent, disregard for the safety of others or their property.

         15. ___:___:___. A scenario where a motorist drove in willful disregard while not also driving with an indifferent or wanton disregard for the safety of others is not plausible.

         16. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evidence is not sufficient to sustain a verdict after an appellate court finds reversible error, then double jeopardy forbids a remand for a new trial.

         17. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         Appeal from the District Court for Sheridan County, Travis P. O'Gorman, Judge, on appeal thereto from the County Court for Sheridan County, Russell W. Harford, Judge. Judgment of District ...


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