Articles Posted in Criminal Law

The Supreme Court affirmed Defendant's conviction and sentence for one count of attempted possession fo a controlled substance, a Class I misdemeanor, holding that the district court did not err or abuse its discretion. Specifically, the Court held (1) the district court did not err in finding that Defendant made a free, voluntary, knowing, and intelligent plea; (2) the district court did not err in accepting the plea because it did not violate double jeopardy where Defendant waived his rights in the plea agreement; (3) the district court did not abuse its discretion in sentencing Defendant to a term of incarceration; and (4) Defendant did not receive ineffective assistance of trial counsel. View "State v. Manjikian" on Justia Law

The Supreme Court affirmed the judgment of the district court convicting Defendant of first degree murder and use of a deadly weapon to commit a felony, holding that there was no plain error with regard to the prosecutor's opening statement or a witness's invocation of Fifth Amendment privilege in the jury's presence and that Defendant's claims of ineffective assistance of trial counsel were without merit. Specifically, the Court held (1) no prosecutorial misconduct occurred during opening statements; (2) the bill of exceptions did not show that the prosecutor knew a witness would assert a testimonial privilege in the jury's presence; (3) expert testimony regarding blood spatter evidence was neither irrelevant nor unfairly prejudicial; and (4) therefore, trial counsel did not provide ineffective assistance by failing to object to the prosecutor's opening statement, failing to demand compliance with Neb. Evid. R. 513(2) and failing to challenge the blood spatter evidence. View "State v. Munoz" on Justia Law

The Supreme Court affirmed Defendant's conviction and sentence for first degree sexual assault, holding there was no merit to Defendant's assignments of error. On appeal, Defendant argued, among other things, that counsel was ineffective for failing to object to the authenticity for "Snapchat" evidence and that the prosecutor committed misconduct by commenting on Defendant's use of an interpreter. The Supreme Court affirmed, holding (1) the "Snapchat" evidence was properly authenticated, and therefore, trial counsel did not perform deficiently in failing to object to it; (2) there was no plain error in the prosecutor's closing argument; (3) there was no error in Defendant's assignments alleging that the evidence was insufficient and that his sentence was excessive; and (4) the record was insufficient to reach Defendant's other ineffective assistance of counsel claims. View "State v. Mrza" on Justia Law

The Supreme Court affirmed the judgment of the district court denying Defendant's motion seeking post conviction relief from his conviction of third degree sexual assault of a child, second offense and sentence of fifty years' imprisonment, holding that Defendant could not prevail on any of his assignments of error. In his motion for postconviction relief Defendant argued that his trial counsel was ineffective at trial and on appeal. The district court denied the motion following an evidentiary hearing. Defendant appealed, asserting various grounds in support of his argument that the district court erred in denying his motion for postconviction relief. The Supreme Court affirmed, holding that there was no merit to any of Defendant's arguments on appeal. View "State v. Fuentes" on Justia Law

The Supreme Court reversed the decision of the court of appeals reversing the district court's imposition of a sentence of five years' probate with 180 days of jail time as a condition of probation for Defendant's conviction of attempted sexual assault of a child on the grounds that the sentence was excessively lenient, holding that the sentence was not unreasonable or clearly against conscience or evidence. The presentence investigation report in this case indicated that Defendant believed the child to be eighteen years old. Further, Defendant had no criminal record. The State appealed the sentence, arguing that it was excessively lenient and involved inappropriate consideration of an irrelevant factor. The court of appeals agreed with the State. The Supreme Court reversed, holding that although the sentence imposed by the district court was lenient, the sentence was not unreasonable, untenable, or clearly against justice or conscience, evidence, and reason. View "State v. Gibson" on Justia Law

The Supreme Court reversed the judgment of the district court convicting Defendant of possession of a stolen firearm, holding that the "intent to restore" clause of Neb. Rev. Stat. 28-1212.03 is an essential element of the crime such that failure to instruct the jury of this material element is plain error, and the error to so instruct in this case was not harmless. In the proceedings below, the jury was not instructed that the absence of an intent to restore the property was a material element of the crime. The Supreme Court held that the court erred when it did not instruct the jury on the intent to restore element of the crime, and the instruction error was not harmless. Thus, the Court reversed the judgment and remanded the cause for a new trial. View "State v. Mann" on Justia Law

The Supreme Court affirmed the decision of the district court imposing an aggregate sentence of forty-two to fifty-five years in prison in connection with Defendant's no contest pleas to possession of a firearm by a prohibited person, attempted first degree assault, and use of a firearm to commit a felony, holding that Defendant's sentences were not excessive, and Defendant's trial counsel was not ineffective. Specifically, the Court held (1) Defendant's claims that his counsel was ineffective for failing to utilize an interpreter when meeting with Defendant and failing to investigate, collect evidence, and interview witnesses were without merit; (2) the record was insufficient to address whether Defendant's counsel was ineffective for failing to file a motion to suppress regarding Defendant's statements to law enforcement officers; and (3) the district court did not abuse its discretion when sentencing Defendant. View "State v. Chairez" on Justia Law

The Supreme Court affirmed Defendant's conviction of the crime of assisting suicide, holding that there was sufficient evidence to support the conviction and that the district court did not err in its evidentiary rulings. Defendant was convicted of assisting the suicide of his girlfriend. On appeal, Defendant argued that the district court erred in admitting the testimony of a forensic pathologist who performed the decedent's autopsy and in admitting text messages between Defendant and his romantic acquaintance and that there was insufficient evidence to support the conviction. The Supreme Court affirmed, holding (1) the district court did not abuse its discretion in permitting the forensic pathologist's testimony regarding the findings of the post mortem examination of the decedent; (2) the district court did not abuse its discretion in admitting the text messages; and (3) the evidence adduced at trial was sufficient to sustain a conviction for assisting suicide. View "State v. Stubbendieck" on Justia Law

The Supreme Court affirmed Defendant's sentence imposed as a result of his revocation from post-release supervision, holding that the term of imprisonment imposed by the court was within the statutory range and was not an abuse of discretion. Defendant absconded from post-release supervision and failed to appear at the hearing on the State's motion for revocation. Defendant was arrested and spent ninety-eight days in jail prior to revocation. The lower court found Defendant guilty of the allegations set forth within the motion to revoke post-release supervision and ordered Defendant to serve a term of imprisonment of 365 days in the county jail with zero days' credit for time served. Defendant appealed, arguing that the district court erred in extending his remaining term of post-release supervision upon revocation. The Supreme Court affirmed, holding (1) the district court did not extend Defendant's term of post-release supervision, and therefore, Defendant's term of imprisonment was valid; (2) the term of imprisonment was within the statutory range; and (3) the court did not err in denying Defendant's request for jail time credit. View "State v. Phillips" on Justia Law

The Supreme Court reversed the judgment of the district court convicting Defendant of enticement by electronic communication, in violation of Neb. Rev. Stat. 28-833, and allowed the parties' stipulation to remand because the district court failed to instruct the jury in a manner that required it to consider whether Defendant knew that the recipient was under sixteen years of age. Although the parties stipulated to remand in this case, the Supreme Court addressed the stipulation in an opinion because it had not previously considered the precise issue. The Supreme Court allowed the stipulation, reversed the district court's judgment, and remanded the cause for a new trial, holding (1) where the prosecution under section 28-833 involves a minor child rather than a decoy, a defendant's knowledge that the recipient is under age sixteen is a material element of the crime of enticement by electronic communication device; and (2) the court erred in instructing the jury on the material elements of enticement by electronic communication device, and the error was prejudicial. View "State v. Paez" on Justia Law