Tuesday, November 01, 2005
NebApp affirms Terroristic Threats conviction against Defendant who waved a loaded pistol at wife and fired it into the air, but reverses conviction for use of a weapon to commit a felony because court did not instruct jury that underlying crime had to be intentional before jury could find Def also guilty of use of a weapon to commit a crime State v. Rye, 14 Neb. App. 133 November 1, 2005. No. A-04-919. Following a jury trial, Richard R. Rye was convicted in the Lancaster County District Court of terroristic threats and use of a weapon to commit a felony. Richard appeals the convictions and the sentences. Because the trial court's instructions to the jury did not require a finding that the underlying felony for the use of a weapon charge be an intentional crime, we reverse the conviction on the use of a weapon charge and remand the cause for a new trial on such charge. The conviction for terroristic threats is affirmed. ... § 28-311.01 (Reissue 1995) provides, in relevant part, that a person commits terroristic threats if he or she threatens to commit any crime of violence with the intent to terrorize another or in reckless disregard of the risk of causing such terror. ... The Nebraska Supreme Court has defined "crime of violence" as "an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority." State v. Palmer, 224 Neb. 282, 294, 399 N.W.2d 706, 717 (1986). The Supreme Court has also said that robbery, murder, sexual assault, and assault with intent to inflict great bodily injury are crimes of violence. See, State v. Nelson, 235 Neb. 15, 453 N.W.2d 454 (1990); State v. Palmer, supra; State v. Foutch, 196 Neb. 644, 244 N.W.2d 291 (1976). The trial court correctly defined to the jury what a "crime of violence" is. ... The Nebraska Supreme Court held in State v. Ring, 233 Neb. 720, 723, 447 N.W.2d 908, 910 (1989), a case where the State prosecuted a drunk driver who injured others with his automobile, that for the defendant to be guilty of committing a violent crime with a deadly weapon, Neb. Rev. Stat. § 28-1205 (Reissue 1995), the State had to prove the used (the weapon) "for the purpose of committing a felony,".. Likewise in State v. Pruett,, 263 Neb. 99, 638 N.W.2d 809 (2002), the Nebraska Supreme Court, stated that under § 28-1205, when the underlying felony for the use of a weapon charge is an unintentional crime, the defendant cannot be convicted of use of a weapon to commit a felony. ... The trial court did not require the jury to make a separate finding on the terroristic threats charge as to whether Richard's threat was intentional under subsection (a) or reckless--unintentional--under subsection (c). See State v. Pruett, supra (state of mind to convict for reckless assault does not rise to level of intentional or knowing). As discussed earlier under State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989), and State v. Pruett, supra, the underlying felony must be intentional before the defendant can be found guilty of use of a weapon to commit a felony. Thus, because a reckless terroristic threat is an unintentional crime, it cannot be the underlying felony for the use of a weapon charge. ... We affirm the terroristic threats conviction and sentence, and we reverse the use of a weapon conviction, vacate the sentence, and remand for a new trial on the use of a weapon charge.
Posted by stan_sipple at 3:29 PM