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State v. Schmaltz

Supreme Court of Nebraska

September 20, 2019

STATE OF NEBRASKA, APPELLEE,
v.
KELLY SCHMALTZ, APPELLANT. v.

         1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         3. Motions for Mistrial: Appeal and Error. Decisions regarding motions for mistrial are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion.

         4. 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.

         5. Statutes. Basic principles of statutory interpretation require a court to give statutory language its plain and ordinary meaning.

         6.___. Basic principles of statutory interpretation prohibit a court from reading a meaning into a statute that is not there or reading anything direct and plain out of a statute.

         7. Trial: Prosecuting Attorneys: Appeal and Error. When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor's acts constitute misconduct.

         8. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various conducts because the conduct will or may undermine a defendant's right to a fair trial.

         9. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may [304 Neb. 75] have a fair and impartial trial, and prosecutors are not to inflame the prejudices or excite the passions of the jury against the accused.

         10.___:___:___.A prosecutor's conduct that does not mislead and unduly influence the jury is not misconduct.

         11. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial. The defendant must prove that the alleged error actually prejudiced him or her, rather than creating only the possibility of prejudice.

          Appeal from the District Court for Scotts Bluff County: Leo P. Dobrovolny, Judge. Affirmed.

          Bell Island, of Island Law Office, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Heavican, C.J.

         INTRODUCTION

         Following a jury trial, Kelly Schmaltz was convicted of leaving the scene of an injury accident. He appeals. We affirm.

         FACTUAL BACKGROUND

         On January 22, 2018, Schmaltz was charged by information with leaving the scene of an injury accident and driving without proof of financial responsibility. A jury trial was held August 8.

         At trial, evidence was adduced that a semi-truck hauling cattle in a trailer and driven by Schmaltz was involved in a collision with a vehicle driven by Monica Gomez. Schmaltz did not challenge that an accident had occurred, that Gomez was injured, or that he left the scene. Schmaltz instead argued that leaving the scene was justified because he had to unload the [304 Neb. 76] cattle he had been hauling in order to avoid loss of or injury to the cattle. Accordingly, Schmaltz sought an instruction on the so-called choice of evils defense as codified at Neb. Rev. Stat. § 28-1407 (Reissue 2016).

         The district court declined to instruct the jury as to this defense, concluding that it was inapplicable where the choice made was to mitigate or prevent loss to property and not to a person. The jury found Schmaltz guilty of leaving the scene of an injury accident.

         The other charge, driving without proof of financial responsibility, had earlier been dismissed following Schmaltz' motion for a directed verdict at the end of the State's case-in-chief. Schmaltz sought a mistrial based on prosecutorial misconduct. Schmaltz alleged that by attempting to introduce hearsay evidence that Schmaltz' insurer refused to pay for Gomez' injuries to prove up the elements of that charge, the ...


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