Jury Instructions: Appeal and Error. Whether
jury instructions are correct is a question of law, which an
appellate court resolves independently of the lower
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, which an appellate
court reviews independently of the lower court's
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.
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.
Statutes. Basic principles of statutory
interpretation require a court to give statutory language its
plain and ordinary meaning.
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.
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.
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.
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.
prosecutor's conduct that does not mislead and unduly
influence the jury is not misconduct.
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.
from the District Court for Scotts Bluff County: Leo P.
Dobrovolny, Judge. Affirmed.
Island, of Island Law Office, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
a jury trial, Kelly Schmaltz was convicted of leaving the
scene of an injury accident. He appeals. We affirm.
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
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
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.
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 ...