State v. Thomas
25 Neb. Ct. App. 256
| Neb. Ct. App. | 2017Background
- At ~1:30 a.m. on June 27, 2015, Michael R. Thomas argued loudly and appeared intoxicated outside an apartment; he shoved the child’s mother onto concrete steps. A young female child (witness estimates 3–6 years old) was very near, crying and attempting to intervene.
- Neighbors and a guest heard and saw the altercation; police arrived, located the mother and child (mother taken to detox, child placed with grandmother), and later issued Thomas a citation.
- Thomas was tried in county court and convicted after a bench trial of negligent child abuse (Neb. Rev. Stat. § 28-707) and disturbing the peace (§ 28-1322); county court sentenced him to consecutive 3-month terms.
- On appeal to district court the convictions and sentences were affirmed; Thomas appealed to the Nebraska Court of Appeals.
- Central evidentiary facts at trial: multiple witnesses placed a small child immediately adjacent to the altercation; no proof of the child’s name or birth date was introduced; witnesses estimated the child’s age and described her distress.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Whether victim’s identity (name/birth date) is an element of negligent child abuse under § 28-707 | Statute requires proof only that the victim was a "minor child"; identity not required | Conviction invalid because State failed to prove the child’s identity or birth date to show she was a minor | Victim identity is not an element; proving the victim’s status as a minor suffices; conviction upheld |
| Sufficiency of evidence for negligent child abuse (§ 28-707) | Evidence that a young child was very near a violent, intoxicated altercation endangered her physical/mental health; actual injury not required | Evidence insufficient: no proof of harm, defendant lacked intent to harm child, child was consoling mother | Evidence was sufficient; negligence and endangerment could be inferred from testimony and witnesses’ general knowledge of children |
| Sufficiency of evidence for disturbing the peace (§ 28-1322) | Intentional acts that disturb peace need not be directed at complaining witness; noisy, profane, violent conduct at 1:30 a.m. disturbed neighborhood | No evidence Thomas intended to disturb neighbors or complainants | Conviction upheld; statute requires intentional disturbance but not specific intent to annoy particular witnesses; facts supported a breach of the peace |
| Whether consecutive 3-month sentences were excessive | Sentences within statutory limits; court considered defendant’s criminal history and risk of probation failure | Sentence excessive; defendant sought probation and cited rehabilitation efforts | No abuse of discretion; court reasonably weighed sentencing factors and defendant’s extensive criminal record |
Key Cases Cited
- State v. Beitel, 296 Neb. 781 (statutory interpretation is a question of law)
- State v. Burlison, 255 Neb. 190 (penal statutes must be strictly construed; courts cannot supply absent language)
- State v. Knutson, 288 Neb. 823 (factfinders may apply general knowledge presumed of any person)
- State v. Gay, 18 Neb. App. 163 (victim status under domestic-assault statute concerns class/status, not identity)
- State v. Cebuhar, 252 Neb. 796 (issues concerned victim’s status as peace officer, not identity)
- State v. Broadstone, 233 Neb. 595 (disturbing the peace may be found where conduct disturbs public tranquility even if not directed at complaining witness)