State v. Schmaltz, 933 N.W.2d 435

On January 22, 2018, Kelly Schmaltz was charged with leaving the scene of an injury accident and driving without proof of financial responsibility after his semi (hauling 94 cattle) collided with Monica Gomez’s vehicle; Gomez was injured and Schmaltz left the scene.
Schmaltz conceded the collision and that Gomez was injured but claimed he left to unload the cattle to avoid loss or injury to the animals.
He requested a jury instruction invoking the "choice of evils" defense under Neb. Rev. Stat. § 28-1407. The district court refused the instruction.
The driving-without-proof charge was dismissed at the close of the State’s case; Schmaltz moved for a mistrial alleging prosecutorial misconduct for eliciting testimony that his insurer did not pay Gomez’s claim. The court denied the mistrial motion.
The jury convicted Schmaltz of leaving the scene of an injury accident. He was sentenced to 12 months’ probation, one-year license revocation, and restitution; he appealed the refusal to instruct and the denial of a mistrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing a § 28-1407 "choice of evils" instruction	Schmaltz: leaving to save cattle justified under choice of evils; instruction warranted by evidence	State: § 28-1407 and related statutes address use of force; "actor" under statutes is one who uses force, and leaving the scene is not use of force; choice-of-evils inapplicable	Court affirmed: refusal proper because the statutory justification scheme concerns use of force and does not apply to Schmaltz’s conduct protecting property by leaving the scene
Whether the court abused its discretion in denying a mistrial for alleged prosecutorial misconduct	Schmaltz: State elicited prejudicial hearsay that insurer did not pay Gomez’s claim, warranting mistrial	State: record showed insurance was expired; the driving-without-proof charge was dismissed and Schmaltz failed to show actual prejudice to his remaining charge	Court affirmed: no misconduct shown that actually prejudiced defendant; denial of mistrial not an abuse of discretion

State v. Bigelow, 303 Neb. 729, 931 N.W.2d 842 (2019) (jury-instruction questions of law reviewed de novo)
State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019) (principles of statutory interpretation; plain meaning rule)
State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019) (mistrial standard and abuse-of-discretion review)
State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999) (limited availability of justification defenses in property crimes; alternative legal remedies may preclude justification)
State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019) (mistrial and prosecutorial-conduct principles)
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019) (prosecutor's duty to preserve a fair trial and avoid inflaming jury)