State v. Johnson , 310 Neb. 527 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/17/2021 08:08 AM CST
- 527 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527State of Nebraska, appellee, v.
Charlie R. Johnson, appellant.
___ N.W.2d ___
Filed December 10, 2021. No. S-20-898.
1. Criminal Law: Courts: Judgments: 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 examina­
tion of the record for error or abuse of discretion. Both the district court
and a higher appellate court generally review appeals from the county
court for error appearing on the record. 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.
2. Statutes. Statutory interpretation presents a question of law.
3. Criminal Law: Statutes. While a penal statute is to be construed
strictly in favor of the defendant, it is to be given a sensible construc-
tion in the context of the object sought to be accomplished, the evils and
mischiefs sought to be remedied, and the purpose sought to be served.
4. Criminal Law: Statutes: Appeal and Error. In strictly construing
penal statutes, an appellate court does not supply missing words or sen-
tences to make clear that which is indefinite, or to supply that which is
not there.
5. Marriage: Statutes: Legislature: Intent. It is generally held that a
marriage is not void unless the statutes expressly so declare, and that
courts should not so construe it unless the legislative intent to such
effect is clear and unequivocal.
6. Marriage. A marriage is voidable when it has legal imperfections in its
establishment which can be inquired into only during the lives of both
of the parties in a proceeding by annulment to obtain a judgment of a
competent court declaring its invalidity.
7. ____. The general rule is that the validity of a marriage is determined by
the law of the place where it was contracted.
- 528 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 5278. ____. A major difference between a void marriage and a voidable mar-
riage is that the latter is treated as valid and binding until its nullity is
ascertained and declared by a competent court, whereas the former does
not require such a judgment.
9. ____. A voidable marriage is legally valid for all civil purposes until its
nullity is so pronounced.
10. Criminal Law: Marriage. A bigamy prosecution can be based on a
voidable marriage.
11. Criminal Law: Trial: Evidence: Proof. In the absence of a statute
placing the burden of proving an affirmative defense on the defendant
in a criminal case, the nature of an affirmative defense is such that the
defendant has the initial burden of going forward with evidence of the
defense, and once the defendant has produced sufficient evidence to
raise the defense, the issue becomes one which the State must disprove.
12. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
13. Trial: Stipulations. Stipulated facts may still involve issues of fact and
credibility, which are the province of the trial court to resolve.
Appeal from the District Court for Lancaster County,
Patricia A. Lamberty, Judge, on appeal thereto from the
County Court for Lancaster County, Matthew L. Acton,
Judge. Judgment of District Court affirmed.
Matthew K. Kosmicki for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
In this appeal from a district court judgment affirm-
ing a county court’s conviction and sentence for bigamy,
Charlie R. Johnson challenges the sufficiency of the evidence
- 529 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527establishing that he was a “married person.” 1 He asserts that
his prior marriage was legally invalid. For that marriage, a
Nebraska marriage license was obtained, but the solemnization
occurred in Texas. Because we conclude that a voidable mar-
riage will support a bigamy prosecution, we affirm the district
court’s judgment.
BACKGROUND
County Court Trial Proceedings
The State charged Johnson with bigamy, contending that
when he married Natalie Forney he was already married to
Shelley Petersen. Defense counsel argued that Johnson’s mar-
riage to Petersen was not a valid marriage because it did not
comply with statutes in Nebraska or Texas. The county court
held a bench trial, at which the parties stipulated to the exhib-
its, including an exhibit setting forth what the witnesses would
testify to, if called. Next, we summarize that evidence.
On June 29, 2015, Johnson and Petersen completed a mar-
riage worksheet at the Lancaster County clerk’s office in
Nebraska and paid the requisite fee. Tory Carkoski, a front
desk clerk at the Lancaster County clerk’s office, watched
Johnson and Petersen sign a Nebraska marriage license and
notarized their signatures.
On July 4, 2015, Johnson’s sister, an ordained minister, per-
formed a wedding ceremony for Johnson and Petersen in Texas.
Johnson’s sister signed a “Keepsake Marriage Certificate,”
but she did not sign or return the Nebraska marriage license.
Johnson’s sister claimed that she later threw away the marriage
license at Johnson’s request. Johnson and Petersen returned to
Nebraska and resided together. They had an “on again - off
again relationship.”
Carkoski recalled having repeated and frequent contact with
the couple within a few weeks of producing the June 29,
2015, marriage license for them. During that time, Petersen
1
See Neb. Rev. Stat. § 28-701(1) (Reissue 2016).
- 530 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527called at least 10 times to inquire whether the marriage license
had been returned. Petersen informed Carkoski that although
she was able to change her surname with the Social Security
Administration using the keepsake marriage certificate, she
wanted a certified copy of the license in order to “change her
information” with the Nebraska Department of Motor Vehicles.
During this timeframe, Johnson told Carkoski that he did not
want to be married and inquired how to “prevent the marriage
from going through.” Carkoski responded that “if they had
already filled out the documentation and had the ceremony,
they were married.”
In late 2016 or early 2017, Carkoski notified the records
administrator of the Lancaster County clerk’s office that the
marriage license between Johnson and Petersen had not been
filed. When the records administrator determined that no mar-
riage license was filed for the 2015 marriage, she called
Johnson’s sister and informed her that a replacement marriage
license would be sent which needed to be signed and returned.
Johnson and Petersen returned to the Lancaster County clerk’s
office, signed a copy of the replacement marriage license, and
had Carkoski notarize their signatures. Subsequently, the mar-
riage license was returned and filed with the Lancaster County
clerk’s office in January 2017. The license contained signatures
of Johnson’s sister and two witnesses. It stated that Johnson
and Petersen were married on July 4, 2015, in Lancaster
County, Nebraska.
At some point, possibly as late as May 2018, Johnson moved
out of the residence he shared with Petersen. Screenshots
of text messages between them, some of which were sent
in September, showed that Johnson referred to himself as
Petersen’s husband and to her as his wife.
On November 5, 2018, Carkoski received a marriage work-
sheet for Johnson and Forney. On November 16, a signed mar-
riage license was filed with the Lancaster County clerk’s office
showing that Johnson married Forney in Lancaster County on
November 15.
- 531 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527In 2019, Petersen attempted to file her income taxes as mar-
ried filing jointly with Johnson. The Internal Revenue Service
notified her that she could not do so because Johnson had filed
income taxes as married filing jointly with Forney. Petersen
notified the police department, and an investigation uncov-
ered two marriage certificates on file at the Lancaster County
clerk’s office but no intervening divorce. When a police officer
spoke with Johnson, he said that he and Petersen were going to
get married but never did.
At the trial’s conclusion, the county court took the matter
under advisement to allow the parties to file briefs, which are
not in our record. The court later convicted Johnson and subse-
quently imposed a sentence of 30 days in jail.
Appeal to District Court
Johnson appealed to the district court, challenging the suf-
ficiency of the evidence. Citing Neb. Rev. Stat. § 42-104(Reissue 2016), the district court stated that there were only
two requirements for a valid marriage under Nebraska law: a
marriage license and solemnization of the marriage by a person
authorized by law to solemnize marriages. The court stated that
“[t]he evidence unequivocally validates [Johnson’s] marriage
to [Petersen]” and affirmed Johnson’s conviction.
Johnson then appealed to the Nebraska Court of Appeals.
We later granted the State’s petition to bypass review by the
Court of Appeals. 2
ASSIGNMENT OF ERROR
Johnson assigns that the district court erred in affirming
the county court’s finding that the State proved him guilty of
bigamy beyond a reasonable doubt.
STANDARD OF REVIEW
[1] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
2
See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
- 532 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527its review is limited to an examination of the record for error
or abuse of discretion. 3 Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record. 4 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. 5
[2] Statutory interpretation presents a question of law. 6
ANALYSIS
Statute and Principles of
Statutory Construction
We begin by quoting the statute defining the crime of big-
amy and recalling principles of statutory construction regard-
ing penal statutes. Bigamy is defined in § 28-701(1), which
provides:
If any married person, having a husband or wife living,
shall marry any other person, he shall be deemed guilty
of bigamy, unless as an affirmative defense it appears that
at the time of the subsequent marriage:
(a) The accused reasonably believes that the prior
spouse is dead; or
(b) The prior spouse had been continually absent for
a period of five years during which the accused did not
know the prior spouse to be alive; or
(c) The accused reasonably believed that he was legally
eligible to remarry.
[3] While a penal statute is to be construed strictly in favor
of the defendant, it is to be given a sensible construction in
3
State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).
4
Id.5
Id.6
Id.- 533 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527the context of the object sought to be accomplished, the evils
and mischiefs sought to be remedied, and the purpose sought
to be served. 7 Bigamy “destroys the happiness of families and
social order; it places the stigma of illegitimacy upon inno-
cent children; it complicates and prevents the regular descent
of property, and deprives the unoffending of their rightful
inheritance.” 8 We have recognized that the marital relationship
“is a status, and that the state is interested in and is, in effect,
a party to it.” 9 Long ago, we explained, “The creation of the
status entails certain duties and obligations upon the parties
thereto . . . .” 10 Those, we said, included duties and obligations
of support. 11 An observation by a different court that “[t]he
benefits accessible only by way of a marriage license are enor-
mous, touching nearly every aspect of life and death” 12 was
not mere hyperbole. Thus, we have reiterated that permitting
bigamy would “disturb the peace of families and offend against
the decency and good order of society.” 13
[4] Importantly, § 28-701 does not speak to the validity of
the marriage. The Legislature used no qualifier for the term
“married person.” Johnson’s entire argument, as he conceded
at oral argument, depends upon reading the first phrase of
§ 28-701(1) as “any validly married person.” But in strictly
construing penal statutes, an appellate court does not supply
missing words or sentences to make clear that which is indefi-
nite, or to supply that which is not there. 14
7
See State v. Thelen, 305 Neb. 334, 940 N.W.2d 259 (2020).
8
Baker v. State, 86 Neb. 775, 783, 126 N.W. 300, 303 (1910).
9
Collins v. Hoag & Rollins, 122 Neb. 805, 807, 241 N.W. 766, 767 (1932).
10
Id.11
See id.12
Goodridge v. Department of Public Health, 440 Mass. 309, 323, 798
N.E.2d 941, 955 (2003).
13
Rich v. Fulton, 104 Neb. 262, 264, 177 N.W. 175, 175 (1920).
14
See State v. Gomez, 305 Neb. 222, 939 N.W.2d 763 (2020).
- 534 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527Rather than conferring the term “marriage” only on a valid
marriage, 15 the Legislature also used that term for marriages
that it described as void 16 or voidable. 17 We discuss the legal
status of the various types of marriages next.
Status of Marriages
Marriage as a social institution is favored by public pol-
icy, and the law raises a strong presumption in favor of its
legality. 18 With respect to § 42-104, which sets forth what is
needed for a marriage to be recognized as valid in Nebraska,
we stated:
The [statute] has particularly to do with the manner
and method of the valid creation of the marriage rela-
tion, but, in the absence of express statutory invalidation,
this court has held that the fact that the license required
was wrongfully or fraudulently procured may subject the
parties to the pains and penalties of the law for violation
thereof, but it does not alone affect the validity of the
marriage itself. 19
Further, “[a]ll marriages contracted without this state, which
would be valid by the laws of the country in which the same
were contracted, shall be valid in all courts and places in
this state.” 20 Here, the marriage ceremony occurred in Texas.
Although one Texas statute requires a Texas marriage license, 21
another provides that the validity of a marriage is generally
15
See § 42-104 and Neb. Rev. Stat. § 42-117 (Reissue 2016).
16
See Neb. Rev. Stat. § 42-103 (Reissue 2016).
17
See Neb. Rev. Stat. § 42-118 (Reissue 2016).
18
See Christensen v. Christensen, 144 Neb. 763, 14 N.W.2d 613 (1944). See,
also, Tex. Fam. Code Ann. § 1.101 (2006).
19
Christensen v. Christensen, supra note 18, 144 Neb. at 768, 14 N.W.2d at
616.
20
§ 42-117.
21
See Tex. Fam. Code Ann. § 2.001(a) (2006).
- 535 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527not affected by any fraud, mistake, or illegality that occurred
in obtaining the marriage license. 22 And Texas has declared
that its policy is “to preserve and uphold each marriage against
claims of invalidity unless a strong reason exists for holding
the marriage void or voidable.” 23
[5] “An invalid marriage has traditionally been considered
either void or voidable, depending in part on the particular
ground for the challenge to validity, and on the varying lan-
guage of particular statutory enactments.” 24 A marriage that
is void is not valid for any legal purpose. 25 “It is generally
held that a marriage is not void unless the statutes expressly
so declare, and that courts should not so construe it unless the
legislative intent to such effect is clear and unequivocal.” 26
Johnson’s marriage to Petersen does not fall within those
classes declared to be void. 27 At oral argument, Johnson con-
ceded that his marriage to Petersen was not void.
[6] A marriage can also be voidable. A marriage is voidable
when it has legal imperfections in its establishment which can
be inquired into only during the lives of both of the parties in a
proceeding by annulment to obtain a judgment of a competent
court declaring its invalidity. 28
Johnson’s argument attacking the validity of his marriage
to Petersen relies on language from § 42-104. One sentence
22
See Tex. Fam. Code Ann. § 2.301 (2006).
23
Tex. Fam. Code Ann. § 1.101.
24
177 Am. Jur. Proof of Facts 3d 111 Validity of Marriage § 2 at 126 (2019).
25
See Christensen v. Christensen, supra note 18.
26
Id. at 767, 14 N.W.2d at 615.
27
See, § 42-103 (declaring void marriages where, at time of marriage, either
party has a living husband or wife, either party is mentally incompetent to
enter into marriage relation, or parties are sufficiently related); Collins v.
Hoag & Rollins, supra note 9 (common-law marriages are void). See, also,
Tex. Fam. Code Ann. § 6.201 et seq. (2006 & Cum. Supp. 2018).
28
See Christensen v. Christensen, supra note 18.
- 536 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527of § 42-104 states, “No marriage hereafter contracted shall be
recognized as valid unless such license has been previously
obtained and used within one year from the date of issuance
and unless such marriage is solemnized by a person authorized
by law to solemnize marriages.” Johnson does not contend
that no license was obtained. For apparently the first time on
appeal to this court, he questioned whether his sister was “a
person authorized by law to solemnize marriages.” The par-
ties stipulated that she was an ordained minister; there was
no evidence casting doubt on her authority to solemnize a
marriage. This court has previously stated that Neb. Rev. Stat.
§ 42-114 (Reissue 2016) authorizes anyone to perform a valid
marriage ceremony if he or she purports to be a minister of the
gospel and if the marriage is consummated with a full belief
on the part of either of the parties married that they have been
lawfully joined in marriage. 29 Here, the evidence shows that
Petersen believed she was lawfully married to Johnson.
Johnson’s argument primarily rests upon another sentence of
§ 42-104 which states, “Prior to the solemnization of any mar-
riage in this state, a license for that purpose shall be obtained
from a county clerk in the State of Nebraska.” (Emphasis
supplied.) Reading this language together, he urges that for a
marriage based upon a Nebraska license to be valid, it must be
solemnized in Nebraska—in other words, the solemnization in
Texas rendered his marriage invalid in Nebraska. We are not
persuaded. We do not read § 42-104 to govern the validity of a
marriage solemnized in another state.
[7] The general rule is that the validity of a marriage is
determined by the law of the place where it was contracted,
i.e., where the ceremony was performed. 30 Here, the ceremony
occurred in Texas and Johnson has not shown that Texas
29
See Collins v. Hoag & Rollins, supra note 9.
30
See, Randall v. Randall, 216 Neb. 541, 345 N.W.2d 319 (1984); 11 Am.
Jur. 2d Bigamy § 4 (2019).
- 537 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527law would not recognize a marriage performed in that state
based upon a license issued by a sister state. A Texas statute
states that “every marriage entered into in this state is pre-
sumed to be valid unless expressly made void by Chapter 6 [of
the Texas Family Code] or unless expressly made voidable by
Chapter 6 and annulled as provided by that chapter.” 31 Johnson
has cited no Texas statute arguably declaring such a marriage
to be void or voidable, and we have not found any provision of
chapter 6 which would do so. To the contrary, Texas case law
persuades us that a Texas court would treat Johnson’s marriage
to Petersen as valid. 32 If Texas law applies and that state would
recognize the marriage as valid, § 42-117 would require that
we do so also.
Even if Texas law is disregarded, we are not persuaded that
Nebraska law would treat Johnson’s marriage to Petersen as
void. If not valid under Nebraska law, it would be voidable
only. And there is no evidence of any Nebraska proceeding to
annul the marriage.
Prosecution Based on
Voidable Marriage
The question becomes whether a bigamy prosecution may be
based on a voidable marriage. We have not directly addressed
that question in our decisions involving bigamy convictions. 33
31
Tex. Fam. Code Ann. § 1.101.
32
See, e.g., In re Estate of Loveless, 64 S.W.3d 564 (Tex. App. 2001) (even
if parties failed to comply with formalities involved in obtaining marriage
license, failure to comply with formalities does not render marriage
invalid unless statute declares it so); Husband v. Pierce, 800 S.W.2d 661(Tex. App. 1990) (unlicensed Mexican ceremonial marriage and informal
common-law marriage were voidable only).
33
See, Barnts v. State, 116 Neb. 363, 217 N.W. 591 (1928); Staley v. State,
89 Neb. 701, 131 N.W. 1028 (1911) (Staley II); Staley v. State, 87 Neb.
539, 127 N.W. 878 (1910); Baker v. State, supra note 8; Hills v. State, 61
Neb. 589, 85 N.W. 836 (1901); Reynolds v. State, 58 Neb. 49, 78 N.W. 483(1899).
- 538 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527Instead, our prior decisions in bigamy prosecutions have
touched on an assertion that a marriage was void because
both contracting parties were already married, 34 the sufficiency
of the information alleging the prior marriage, 35 a challenge to
a jury instruction, 36 and the validity of an Iowa marriage that
would have been void in Nebraska. 37 And in considering our
older decisions, it is important to recognize that prior to 1923,
Nebraska recognized common-law marriage. 38 We said that
§ 42-104, upon which Johnson now relies, is “purely a regula-
tory statute, intended to regulate the manner in which the mar-
riage relation may be created.” 39
[8,9] Other courts have answered the question. 40 It is clear
that a void marriage will not support a bigamy prosecution. 41
But we are mindful that “‘[a] major difference between a void
marriage and a voidable marriage is that the latter is treated as
valid and binding until its nullity is ascertained and declared
by a competent court, whereas the former does not require such
a judgment.’” 42 And while we have explicitly stated that “a
voidable marriage is legally valid for all civil purposes until its
nullity is so pronounced,” 43 other courts—including Texas 44—
are of the view that a voidable marriage is good for every
34
See Reynolds v. State, supra note 33.
35
See, Baker v. State, supra note 8; Hills v. State, supra note 33.
36
Hills v. State, supra note 33.
37
Staley II, supra note 33.
38
See Collins v. Hoag & Rollins, supra note 9.
39
Id. at 810, 241 N.W. at 768.
40
See 11 Am. Jur. 2d, supra note 30.
41
See id.
42
Watts v. Watts, 250 Neb. 38, 43, 547 N.W.2d 466, 470 (1996) (emphasis
supplied).
43
Christensen v. Christensen, supra note 18, 144 Neb. at 766, 14 N.W.2d at
615 (emphasis supplied).
44
Simpson v. Neely, 221 S.W.2d 303 (Tex. App. 1949).
- 539 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527purpose. 45 With that view in mind, it is unsurprising that a
number of states have found a voidable marriage to be suffi-
cient for a bigamy prosecution. 46
[10] We hold that a bigamy prosecution can be based on
a voidable marriage. Such a marriage is treated as valid. As
another court cautioned with respect to bigamy, “if such a mar-
riage be legal for other purposes, it would be dangerous in the
extreme, to allow the mere form of the marriage to become a
shield to protect those who commit such a crime.” 47 With this
established, we turn to whether the State proved beyond a rea-
sonable doubt that Johnson was guilty of bigamy.
Proof of Bigamy
Based on the text of § 28-701(1), there are two essential
elements of bigamy. Under the circumstances here, the State
had to prove beyond a reasonable doubt (1) that Johnson was
a “married person” with a wife living and (2) that he married
another person.
The State proved the essential elements of bigamy. It
adduced two documents titled “License and Certificate of
Marriage” from the Nebraska Department of Health and
Human Services’ vital records office, each showing that the
45
See 177 Am. Jur. Proof of Facts 3d, supra note 24. See, also, Smith v.
Smith, 224 So. 3d 740 (Fla. 2017); Trapasso v. Lewis, 247 Md. App. 577,
239 A.3d 703 (2020); In re De Conza’s Estate, 13 N.J. Misc. 41, 176 A.
192 (1934); Dibble v. Meyer, 203 Or. 541, 278 P.2d 901 (1955); Brewer v.
Miller, 673 S.W.2d 530 (Tenn. App. 1984); Toler v. Oakwood Smokeless
Coal Corporation, 173 Va. 425, 4 S.E.2d 364 (1939); In re Hollingworth’s
Estate, 145 Wash. 509, 261 P. 403 (1927).
46
See, e.g., Beggs v. State, 55 Ala. 108 (1876); Barber v. People, 203 Ill.
543, 68 N.E. 93 (1903); State v. Yoder, 113 Minn. 503, 130 N.W. 10(1911); State v. Eden, 350 Mo. 932, 169 S.W.2d 342 (1943); Ysern v.
Horter, 94 N.J. Eq. 135, 118 A. 774 (1922); People v. Dunbar, 194 A.D.
144, 184 N.Y.S. 765 (1920); State v. Moore, 1 Ohio Dec. Reprint 171(1845); State v. Sellers, 140 S.C. 66, 134 S.E. 873 (1926).
47
Carmichael v. State, 12 Ohio St. 553, 561 (1861).
- 540 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527ceremony occurred in Lancaster County: one was filed in
January 2017 in the names of Johnson and Petersen and
showed a July 2015 ceremony date and the other was filed in
November 2018 in the names of Johnson and Forney. These
records are presumptive evidence of the fact of such mar­
riages. 48 The State produced evidence that there was no record
Johnson divorced Petersen prior to his marriage to Forney.
[11] Section 28-701(1) identifies several affirmative
defenses, but the statute is silent as to who carries the bur-
den of proving them. In the absence of a statute placing the
burden of proving an affirmative defense on the defendant in
a criminal case, the nature of an affirmative defense is such
that the defendant has the initial burden of going forward with
evidence of the defense, and once the defendant has produced
sufficient evidence to raise the defense, the issue becomes
one which the State must disprove. 49 The evidence necessary
to raise an affirmative defense may be adduced either by the
defendant’s witnesses or in the State’s case in chief without the
necessity of the defendant’s presenting evidence. 50 A defendant
need only adduce a slight amount of evidence to satisfy this
initial burden of raising an affirmative defense. 51
Johnson adduced sufficient evidence to raise the affirma-
tive defense that he “reasonably believed that he was legally
eligible to remarry.” 52 The evidence showed that Johnson and
Petersen obtained a Nebraska marriage license, but that the cer-
emony occurred in Texas. Johnson argued to the county court
that the marriage was not a valid marriage because it did not
comply with statutes in Nebraska or Texas. If the marriage was
void, Johnson would be eligible to remarry.
48
See Neb. Rev. Stat. § 42-116 (Reissue 2016).
49
State v. Grutell, 305 Neb. 843, 943 N.W.2d 258 (2020).
50
Id.51
Id.52
See § 28-701(1)(c).
- 541 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527[12,13] When reviewing a criminal conviction for suffi-
ciency of the evidence to sustain the conviction, the relevant
question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. 53 Here, the parties
stipulated to the evidence, including an exhibit setting forth
what witnesses would say if called to testify. Stipulated facts
may still involve issues of fact and credibility, which are the
province of the trial court to resolve. 54
The evidence supports a finding that Johnson believed he
was married to Petersen, making him ineligible to legally
remarry. Viewing the evidence in the light most favorable to the
State, it shows that Johnson and Petersen acquired a marriage
license and participated in a wedding ceremony performed by
Johnson’s sister, an ordained minister. After those events, when
Johnson inquired as to how to “prevent the marriage from
going through,” he was told by an employee at the Lancaster
County clerk’s office that he was married if he already filled
out the marriage license and had the ceremony. The evidence
showed that after having been informed of the effect of obtain-
ing a license and participating in a marriage ceremony, Johnson
referred to Petersen as his wife. When, over 1 year after the
ceremony, it was discovered that the marriage license had not
been filed, Johnson returned to the Lancaster County clerk’s
office and signed a replacement license, which was also signed
by Johnson’s sister and two witnesses. The evidence supports
Johnson’s conviction for bigamy.
CONCLUSION
We conclude that Johnson’s marriage to Petersen, even
if not valid under statute, was at least a voidable marriage.
53
State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
54
See State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).
- 542 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JOHNSON
Cite as 310 Neb. 527Because a voidable marriage is treated as valid until declared
otherwise by a court of competent jurisdiction, it will support
a bigamy prosecution. We conclude Johnson’s conviction for
bigamy conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable.
Accordingly, we affirm the judgment of the district court,
which upheld the county court’s judgment.
Affirmed.