State v. Schmaltz , 304 Neb. 74 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/25/2019 09:06 AM CDT
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    304 Nebraska R eports
    STATE v. SCHMALTZ
    Cite as 
    304 Neb. 74
    State of Nebraska, appellee, v.
    K elly Schmaltz, appellant.
    ___ N.W.2d ___
    Filed September 20, 2019.   No. S-18-925.
    1. Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion 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 appel-
    lant 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 mis-
    conduct encompasses conduct that violates legal or ethical standards for
    various conducts because the conduct will or may undermine a defend­
    ant’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
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    STATE v. SCHMALTZ
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    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 pos-
    sibility of prejudice.
    Appeal from the District Court for Scotts Bluff County: Leo
    P. Dobrovolny, Judge. Affirmed.
    Bell Island, of Island Law Office, P.C., 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 informa-
    tion 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 col-
    lision 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
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    STATE v. SCHMALTZ
    Cite as 
    304 Neb. 74
    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 respon-
    sibility, 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 evi-
    dence that Schmaltz’ insurer refused to pay for Gomez’ injuries
    to prove up the elements of that charge, the State committed
    prosecutorial misconduct that warranted a mistrial. The district
    court denied the motion for a mistrial.
    Schmaltz was convicted by a jury. His subsequent motion for
    new trial was denied. Schmaltz was sentenced to 12 months’
    probation, and his operator’s license was revoked for 1 year.
    He was also ordered to pay restitution to Gomez. Schmaltz
    appeals.
    ASSIGNMENTS OF ERROR
    Schmaltz assigns that the district court erred in failing to
    (1) give his requested instruction regarding the choice of evils
    defense and (2) grant a mistrial on the basis of prosecuto-
    rial misconduct.
    STANDARD OF REVIEW
    [1] Whether jury instructions are correct is a question of law,
    which an appellate court resolves independently of the lower
    court’s decision.1
    1
    State v. Bigelow, 
    303 Neb. 729
    , 
    931 N.W.2d 842
     (2019).
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    STATE v. SCHMALTZ
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    [2] Statutory interpretation presents a question of law, which
    an appellate court reviews independently of the lower court’s
    determination.2
    [3] 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.3
    ANALYSIS
    Jury Instruction.
    [4] Schmaltz first argues that the district court erred in
    refusing to give his proposed choice of evils instruction.
    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.4
    Section 28-1407, the choice of evils justification, provides
    as follows:
    (1) Conduct which the actor believes to be necessary
    to avoid a harm or evil to himself or another is justifi-
    able if:
    (a) The harm or evil sought to be avoided by such con-
    duct is greater than that sought to be prevented by the law
    defining the offense charged;
    (b) Neither [the Nebraska Criminal Code] nor other
    law defining the offense provides exceptions or defenses
    dealing with the specific situation involved; and
    (c) A legislative purpose to exclude the justification
    claimed does not otherwise plainly appear.
    (2) When the actor was reckless or negligent in bring-
    ing about the situation requiring a choice of harms or
    2
    State v. Lovvorn, 
    303 Neb. 844
    , 
    932 N.W.2d 64
     (2019).
    3
    State v. Briggs, 
    303 Neb. 352
    , 
    929 N.W.2d 65
     (2019).
    4
    State v. Bigelow, supra note 1.
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    evils or in appraising the necessity for his conduct, the
    justification afforded by this section is unavailable in
    a prosecution for any offense for which recklessness
    or negligence, as the case may be, suffices to establish
    culpability.
    The district court declined to give the tendered instruction.
    Specifically, the court noted that Schmaltz’ defense was that he
    left the scene of the accident in order to prevent loss to the 94
    head of cattle he was hauling.
    Schmaltz directs us to State v. Wells 5 to support his assertion
    that § 28-1407 is applicable to property. In Wells, the defendant
    and others were charged with criminal mischief in connection
    with the destruction of equipment on a construction site that
    adjoined the defendant’s farm. The defendant contended that
    the construction work being done was causing soil erosion to
    his property and that he was justified, via the choice of evils
    defense, in damaging the equipment in question to prevent the
    damage to his own property.
    In reaching our decision in Wells that such defense was not
    available, we noted that “[i]n property crimes, the defense
    of justification is available only in limited circumstances.”6
    Schmaltz suggests that had the choice of evils defense not been
    an available justification defense for property crimes, this court
    would have simply relied upon that fact to reject the argument
    of the defendant in Wells. Instead, this court went further to
    reason that the choice of evils justification was unavailable
    because the defendant in Wells had a reasonable alternative to
    the criminal damage—he could have filed for and obtained a
    temporary restraining order.
    Wells does not address § 28-1407. However, by implication,
    the court suggests that § 28-1407 would not be applicable to
    property crimes, noting that a different section, Neb. Rev. Stat.
    § 28-1415 (Reissue 2016), would provide justification for a
    5
    State v. Wells, 
    257 Neb. 332
    , 
    598 N.W.2d 30
     (1999).
    6
    Id. at 338, 598 N.W.2d at 35.
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    property crime under certain circumstances, just not those pre-
    sented in Wells.
    [5,6] In addition, the defendant in Wells destroyed the
    property of another through use of force and sought a justi-
    fication for that act in a way that is not present in this case.
    Of course, there is no allegation that Schmaltz collided with
    Gomez intentionally in an attempt to save the cattle in his
    trailer. For these reasons, Wells is distinguishable. Our basic
    principles of statutory interpretation require us to give statu-
    tory language its plain and ordinary meaning.7 Those same
    principles prohibit us from reading a meaning into a statute
    that is not there or reading anything direct and plain out of
    a statute.8
    Section 28-1407(1) provides a justification for “[c]onduct
    which the actor believes to be necessary to avoid a harm or
    evil to himself or another . . . .” This justification is available
    only if the “harm or evil sought to be avoided by such conduct
    is greater than that sought to be prevented.”9 Neb. Rev. Stat.
    § 28-1406(4) (Reissue 2016) defines “[a]ctor” as “any person
    who uses force in such a manner as to attempt to invoke the
    privileges and immunities afforded him by sections 28-1406
    to 28-1416.”
    The choice of evils justification is generally inapplicable
    here. The statutes at issue in this appeal were all enacted at the
    same time and concern “justification” for the use of force.10
    The only person in this scenario who could be the “actor”
    contemplated in § 28-1407 is Schmaltz. Even if his conduct
    in leaving the scene of the accident was done to avoid a harm
    or evil, the conduct was not done with force. A justification
    defense under these statutes is unavailable.
    There is no merit to Schmaltz’ first assignment of error.
    7
    State v. Lovvorn, supra note 2.
    8
    Id.
    9
    § 28-1407(1)(a).
    10
    See § 28-1407.
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    Prosecutorial Misconduct.
    Schmaltz also argues that the district court erred in not
    granting his motion for mistrial for the State’s act of pros-
    ecutorial misconduct. Specifically, Schmaltz argues that the
    State’s attempt to prove the charge of driving without proof of
    financial responsibility by eliciting testimony by Gomez that
    Schmaltz’ insurer had not paid her claim was both prejudicial
    and insufficient. We find this argument to be without merit.
    [7-10] When considering a claim of prosecutorial miscon-
    duct, an appellate court first considers whether the prosecu-
    tor’s acts constitute misconduct.11 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.12 Prosecutors are charged with
    the duty to conduct criminal trials in such a manner that the
    accused may have a fair and impartial trial, and prosecutors
    are not to inflame the prejudices or excite the passions of the
    jury against the accused.13 A prosecutor’s conduct that does not
    mislead and unduly influence the jury is not misconduct.14
    [11] 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.15 The defendant must prove that the alleged error actually
    prejudiced him or her, rather than creating only the possibility
    of prejudice.16 We review the denial of a motion for mistrial
    for an abuse of discretion.17
    11
    State v. Munoz, 
    303 Neb. 69
    , 
    927 N.W.2d 25
     (2019).
    12
    See State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019).
    13
    Id.
    14
    See, State v. Munoz, supra note 11; State v. Mrza, supra note 12.
    15
    State v. Briggs, supra note 3.
    16
    Id.
    17
    See id.
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    STATE v. SCHMALTZ
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    304 Neb. 74
    In this case, a review of the record supported the State’s
    assertion that Schmaltz was driving without proof of financial
    responsibility—a copy of his insurance information obtained
    prior to trial showed that his insurance was expired. The State
    did not call the correct witnesses to prove up this charge,
    and it was accordingly dismissed. The fact that the charge
    was dismissed shows that even assuming the State’s actions
    amounted to misconduct, Schmaltz did not show that he was
    prejudiced.
    Schmaltz additionally argues that the State’s attempt to
    prove the charge by inadmissible evidence affected his right
    to a fair trial. But he does not explain how the proffered testi-
    mony that his insurance did not pay Gomez’ claim, which testi-
    mony was not admitted to support a charge that was dismissed,
    led to his conviction on a separate charge for leaving the scene
    of an accident.
    We find no abuse of discretion in the district court’s denial
    of the motion for mistrial. There is no merit to Schmaltz’ final
    assignment of error.
    CONCLUSION
    The decision of the district court is affirmed.
    A ffirmed.