State v. Scherbarth, 24 Neb. Ct. App. 897

Trooper observed Josiah Scherbarth driving a Chevy Silverado at ~70 mph in a 65-mph zone, passing two vehicles on the right with passenger-side tires off the pavement; clear weather and straight road.
Trooper stopped Scherbarth; video and testimony show Scherbarth admitted he was "horsing around" and that his conduct was "completely stupid."
State charged Scherbarth in county court with willful reckless driving (Neb. Rev. Stat. § 60-6,214). At trial the court denied a requested instruction on the lesser-included offense of reckless driving.
Jury convicted Scherbarth of willful reckless driving; sentence included fine and 30-day license revocation. Scherbarth appealed to district court, which acted as an intermediate appellate court.
District court held the county court erred by not instructing on reckless driving but found the error harmless; this appeal to Nebraska Court of Appeals challenges that harmlessness determination.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether reckless driving is a lesser-included offense of willful reckless driving	State: Not disputed that elements overlap; focus on evidence supporting willful element	Scherbarth: Jury should have been instructed on reckless driving as a lesser offense	Held: Reckless driving is a lesser-included offense of willful reckless driving (elements test satisfied)
Whether evidence produced a rational basis for a lesser-included instruction	State: Evidence showed deliberate/willful conduct supporting greater offense	Scherbarth: Evidence could be viewed as indifferent/wanton (reckless) rather than willful	Held: Evidence generated a rational basis for acquitting of willful and convicting of reckless
Whether failure to give lesser-included instruction was harmless error	State: Jury verdict for willful offense shows no prejudice; error harmless	Scherbarth: Jury lacked option to convict of lesser offense and was prejudiced	Held: Error was not harmless; prejudice established; reversal and remand required
Whether remand for new trial is barred by double jeopardy	State: Not argued to bar retrial	Scherbarth: Double jeopardy could bar retrial if evidence insufficient for any conviction	Held: Double jeopardy does not bar remand because sufficient evidence existed to support conviction of either offense

State v. Avey, 288 Neb. 233 (standard of review for county court appeals)
State v. Draper, 289 Neb. 777 (double jeopardy and sufficiency post-reversible error)
State v. Erickson, 281 Neb. 31 (elements test for lesser-included offenses)
State v. McGuire, 286 Neb. 494 (standards to show reversible error from denied instruction)
State v. Boham, 233 Neb. 679 (distinction between reckless and willful reckless driving)
State v. Green, 182 Neb. 615 (characterization of reckless vs. willful reckless driving)
State v. Weaver, 267 Neb. 826 (trial court duty to instruct jury on issues presented)
First Nat. Bank of Omaha v. Eldridge, 17 Neb. App. 12 (appellate consideration of errors addressed by lower appellate court)