State v. Johnson, 988 N.W.2d 159

Background

Lindsay M. Johnson was tried for second-degree assault (original charge) and later charged by amended information with intentional child abuse (direct file); the record shows a preliminary hearing occurred only for Count I and no arraignment/plea or preliminary hearing is recorded for Count II.
Incident facts (disputed in part): Johnson allegedly insulted a couple’s young daughter, then retrieved and threw a metal folding chair over a 3.5‑ft concrete wall, striking Jared Michaels; the child later suffered anxiety, and Jared suffered injury to his thumb/shin.
Key witnesses: Officer Jorge Rodriguez (arrived post‑incident and described scene and child demeanor), Aubrey Michaels (victim’s wife and child’s mother; eyewitness who testified for the State and in rebuttal), and Jared Michaels (victim). Johnson testified she threw the chair to distract Jared and flee and denied making the alleged sexual insults.
Before trial the court granted a sequestration order but allowed the State to “designate” Aubrey as an exception; Johnson did not object contemporaneously. Two jurors disclosed relationships with Officer Rodriguez during voir dire but defense did not question or strike them further.
Trial court refused a self‑defense instruction; jury convicted Johnson of second‑degree assault and negligent child abuse; sentencing imposed concurrent jail terms (6 and 10 months). Johnson appealed, alleging ineffective assistance (failure to move to quash Count II and inadequate voir dire), sequestration error, erroneous refusal to instruct on self‑defense, and excessive sentence.

Issues

Issue	Plaintiff's Argument (State / Prosecution)	Defendant's Argument (Johnson)	Held
1) Trial counsel ineffective for not moving to quash Count II for lack of preliminary hearing	Jury conviction cures any preliminary‑hearing defect; conviction shows sufficient evidence of guilt	Trial counsel should have moved to quash because no preliminary hearing or plea was recorded for Count II, so district court lacked jurisdiction to try that count	Held against Johnson: conviction cured any prejudice; no reversible ineffective assistance on this ground
2) Trial counsel ineffective for inadequate voir dire regarding two jurors who knew Officer Rodriguez	Rodriguez’s testimony was not contested on material facts; no prejudice shown	Defense should have followed up and excused potential biased jurors; counsel was deficient and that caused prejudice	Held: claim insufficiently prejudicial — Rodriguez did not testify to disputed matters, so no prejudice; ineffective assistance claim fails
3) Trial court erred by exempting Aubrey from sequestration	Trial court has discretion; party may show exception necessary; State designated Aubrey and court allowed it	Exempting an eyewitness (Aubrey) violated sequestration rule and prejudiced Johnson’s defense	Held: issue waived by failure to object at trial; not preserved for appeal
4) Trial court erred in refusing self‑defense instruction	N/A at trial (State opposed instruction)	Johnson had evidence she feared Jared and acted to protect herself — should have had instruction	Held: refusal proper; evidence did not support objectively reasonable belief that force was immediately necessary
5) Sentence excessive; court should have imposed probation rather than jail	Sentences within statutory limits; judge considered jury findings, PSI, risk of reoffense, and factors in §29‑2260	Imprisonment was excessive; Johnson a low‑risk, long‑term employee with little violent history; probation appropriate	Held: no abuse of discretion; judge reasonably found probation inappropriate and incarceration justified

Key Cases Cited

State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (Neb. 2023) (discusses preliminary hearing and related procedural requirements)
State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (Neb. 2022) (addresses evidence and preliminary binding procedures)
State v. Case, 304 Neb. 829, 937 N.W.2d 216 (Neb. 2020) (standards for when self‑defense instructions are warranted)
State v. Greer, 312 Neb. 351, 979 N.W.2d 101 (Neb. 2022) (context on preliminary‑hearing jurisprudence cited by court)
State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (Neb. 2002) (holding a jury verdict finding guilt cures any preliminary‑hearing probable‑cause defect for prejudice analysis)
State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (Neb. 2004) (on ineffective assistance claims where later conviction removes probable‑cause prejudice)
Coffield v. State, 44 Neb. 417, 62 N.W. 875 (Neb. 1895) (historic rule overruling earlier jurisdictional approach to preliminary examinations)
State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (Neb. 1998) (example of denying self‑defense instruction where defendant voluntarily placed himself in danger)