State v. Thomas
25 Neb. Ct. App. 256
| Neb. Ct. App. | 2017Background
- At ~1:30 a.m., Michael R. Thomas and Yvette Taylor had a loud, intoxicated altercation outside an apartment; witnesses observed a young female child (estimated 3–6 years) near the adults, crying and begging them to stop.
- Witnesses testified Thomas shoved Taylor onto concrete steps; the child was very close and upset during the incident.
- Police arrived, identified Taylor (based on prior contacts), and concluded the child was her daughter and a minor; Taylor was placed in detox and the child was placed with her grandmother.
- Thomas was charged and convicted in county court of negligent child abuse (Neb. Rev. Stat. § 28-707) and disturbing the peace (§ 28-1322); county court sentenced him to 3 months’ imprisonment on each count, to run consecutively.
- Thomas appealed to the district court (which affirmed) and then to the Nebraska Court of Appeals, raising: (1) that the child’s identity/birthdate was an essential element of negligent child abuse, (2) insufficiency of evidence for both convictions, and (3) that the sentences were excessive.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Whether victim’s identity (name/birthdate) is an essential element of negligent child abuse under § 28-707 | Statute requires proof only that the victim was a “minor child,” not the child’s specific identity | The State needed to prove the child’s name and birthdate to establish minor status; absence of that proof mandates dismissal | The statute requires proof of the victim’s status as a minor, not the child’s identity; identity/birthdate are not essential elements. |
| Sufficiency of evidence for negligent child abuse (endangerment) | Witnesses placed a young child near a violent, intoxicated shove of the mother; a reasonable factfinder could find the child’s physical or mental health was endangered | No proof of actual harm; Thomas lacked intent to harm the child; child was consoling mother | Evidence was sufficient: actual injury not required, negligence sufficient, and child’s proximity/age/trauma supported endangerment. |
| Sufficiency of evidence for disturbing the peace (§ 28-1322) | Intentional acts that result in disturbing others suffice; noisy, profane, late-night altercation in a quiet neighborhood disturbed residents | No evidence Thomas intended to disturb neighbors specifically; no nexus to annoy those witnesses | Held for the State: statute requires intentional disturbance (result), not specific intent to disturb particular neighbors; facts supported conviction. |
| Whether sentences (3 months each, consecutive) were excessive | Sentences within statutory limits and court considered defendant’s extensive criminal history and risk for probation failure | Argued for probation based on post-offense rehabilitation efforts and sobriety | Sentences affirmed: within limits and not an abuse of discretion given defendant’s lengthy criminal history and probation violations. |
Key Cases Cited
- State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (Neb. 2017) (statutory interpretation reviewed de novo)
- State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (Neb. 2017) (standard for sufficiency of evidence review)
- State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (Neb. 2016) (appellate review of sentences within statutory limits)
- State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (Neb. 1998) (criminal statutes must be strictly construed; courts cannot add elements)
- State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (Neb. 1989) (court cannot supply absent statutory language for criminal offense)
- State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (Neb. 2014) (triers of fact may apply common knowledge)
- State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (Neb. 1989) (disturbing the peace includes acts disturbing public tranquility; need not be directed at complaining witness)
- The State v. Burns, 35 Kan. 387 (Kan. 1886) (disturbing the peace conviction upheld where offensive acts were not directed at complaining witness)
- State v. Gay, 18 Neb. App. 163, 778 N.W.2d 494 (Neb. Ct. App. 2009) (victim’s status under a statute is what must be proved, not necessarily the victim’s identity)
- State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (Neb. 1997) (issue concerned victim’s status as a peace officer, not the officer’s identity)
- State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (Neb. 2017) (sentencing factors to be considered)
- State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (Neb. 2013) (trial court discretion to impose or deny probation)