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11/01/2019 01:05 AM CDT




                                                         - 74 -
                                  Nebraska Supreme Court A dvance Sheets
                                          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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             Nebraska Supreme Court A dvance Sheets
                     304 Nebraska R eports
                            STATE v. SCHMALTZ
                             Cite as 304 Neb. 74

    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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              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                            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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              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                            STATE v. SCHMALTZ
                             Cite as 304 Neb. 74

   [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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              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                            STATE v. SCHMALTZ
                             Cite as 304 Neb. 74

      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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               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                              STATE v. SCHMALTZ
                               Cite as 304 Neb. 74

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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               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                              STATE v. SCHMALTZ
                               Cite as 304 Neb. 74

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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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       STATE v. SCHMALTZ
                        Cite as 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.
