State v Nguth; child abuse conviction reversed

Felony child abuse conviction reversed because trial court refused to read justification and lesser included offense instructions, even though Def.wholly denied hitting the victim. State v. Nguth, 13 Neb. App. 783 august 16, 2005. No. A-04-1037. The Hall County District Court convicted John K. Nguth, an African immigrant, of Class IIIA felony child abuse § 28-707(1)(b)and the Court sentenced him to 9 months in the Hall County jail. Nguth appealed claiming the Court erred in refusing to accept his proposed instructions on justification and lesser included child abuse offenses. Nguth claimed § 28-1413, justification for force against a child, could apply to justify his conduct. The trial court denied the justification instruction because the def. denied hitting the child. However if any evidence supports the instruction , the court should include the defense instruction. State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997){self defense}. 28-1413 is not an excuse to the crime of child abuse, but may be a defense when evidence exists to supportit, and the adult def. is qualified to assert it. Here the Defe acted as a guardian even though he was not legally a guardian. Lesser included defenses: Nguth also alleges that the district court erred in overruling his request that negligent child abuse be nstructed as a lesser-included offense, and we take up this issue because it is likely to recur upon our remand. [A] court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.State v. Williams, 243 Neb. 959, 965, 503 N.W.2d 561, 566 (1993) The Nebraska Supreme Court has held that misdemeanor child abuse is a lesser-included offense of felony child abuse under § 28-707. See State v. Parks, 253 Neb. 939, 573 N.W.2d 453 (1998), where state of mind is an element of the offense. "one state of mind may be included ina nother" Court reverses also on lesser included offense and rules on it as it may arise in subsequent appeal; Finally the court will not resverse and dismiss, rather it will remand for a new trial. State v. Noll, 3 Neb. App. 410, 527 N.W.2d 644 (1995), overruled on other grounds, State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000) (if defendant appeals conviction and obtains reversal based on trial error, Double Jeopardy Clause does not forbid a retrial so long as sum of evidence offered by State and admitted by trial court, whether erroneously or not, would have been sufficient to sustain guilty verdict).