State v. NollState v. Noll
In this appeal, we determine whether a defendant may raise a double jeopardy claim to bar a retrial where his conviction has been reversed on appeal for trial error and where the appellate court failed to address defendant’s insufficiency of the evidence claim. For the reasons set forth below, we hold that he may.
*411 FACTUAL BACKGROUND
The record from defendant Donald L. Noll’s first trial, which is contained in relevant part in the record on this appeal, establishes the following factual and procedural background of this case: On October 31,1991, Noll was charged with criminal nonsupport, a Class IV felony, in the district court for Richardson County, Nebraska. See Neb. Rev. Stat. § 28-706 (Reissue 1989). A jury trial was held on September 21, 1992. Evidence offered by the State established that Noll and his ex-wife were divorced by a decree filed on January 23,1976, in Brown County, Kansas. The decree required Noll to pay $150 per month in child suрport. Noll’s ex-wife, the only witness to testify at the trial, testified that from the date the decree was entered through August 1, 1991, she had received no child support payments from Noll. The jury found Noll guilty, and Noll was subsequently sentenced to 5 years’ рrobation.
Noll appealed his conviction to this court, claiming that the trial court had erred in omitting the element of intent from the jury instruction setting out the elements of the crime of nonsupport and that there was insufficient evidence to support the conviction. In
State
v.
Noll, 2
Neb. App. 73,
ASSIGNMENT OF ERROR
Noll claims that the district court erred in overruling his plea in bar.
STANDARD OF REVIEW
The issues presentеd on this appeal involve questions of law. An appellate court has an obligation to reach an independent, correct conclusion regarding questions of law.
State v. Roche,
*412
Inc.,
ANALYSIS
Double Jeopardy.
We begin by observing that Noll’s appeal is properly before this court because a denial of a plea in bar is a final, appealable order as defined in Neb. Rev. Stat. § 25-1902 (Reissüe 1989). See,
State
v.
Milenkovich,
Noll’s plea in bar is based on his right to be free from double jeopardy. Both the U.S. аnd Nebraska Constitutions state that “[n]o person shall be . . . twice put in jeopardy” for the same offense. U.S. Const. amend. V; Neb. Const. art. I, § 12. In
State v. Bostwick, 222
Neb. 631, 642,
As a general principle, the constitutional prohibition against double jeopardy protects “an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States,355 U.S. 184 , 187,78 S. Ct. 221 ,2 L. Ed. 2d 199 (1957). “Thе double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.” Wade v. Hunter,336 U.S. 684 , 688,69 S. Ct. 834 ,93 L. Ed. 974 (1949). In a given case the constitutional double jeopardy clause bars only a retrial in a criminal prosecution where (1) jeopardy has attached in a prior criminal proceeding (see Illinois v. Somerville,410 U.S. 458 ,93 S. Ct. 1066 ,35 L. Ed. 2d 425 (1973)); (2) the defendant is being retried for the same offense prosecuted in that prior proceeding (see Brown v. Ohio,432 U.S. 161 ,97 S. Ct. 2221 ,53 L. Ed. 2d 187 (1977)); and (3) the prior proceeding has terminated jeopardy (see Justices of Boston Municipal Court v. Lydon,466 U.S. 294 ,104 S. Ct. 1805 ,80 L. Ed. 2d 311 (1984)).
*413
In Burks v. United States,
[s]ince we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury сould not properly have returned a verdict of guilty.
Burks,
The Court in Burks noted that not all appellate reversals of criminal convictions prohibit retrial. Rather, if a defendant appeals a conviction and obtains a reversal based on a trial error, as distinguished from insufficiency of the evidence, he cannot assert double jeopardy in order to bar his retrial. The Court explained:
“It would be a high price indeed for society to pay were evеry accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” [Citations omitted.] In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutoriаl misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.
Burks,
In Noll’s first appeal to this court, he аlleged (1) that the trial
*414
court had erroneously instructed the jury and (2) that the State presented insufficient evidence to convict. This court found that the trial court had erroneously instructed the jury, and reversed on that basis alone, without аddressing Noll’s claim of evidentiary insufficiency.
State v. Noll, 2
Neb. App. 73,
In the present appeal, Noll argues that this court should have addressed the insufficiency claim in his first appeal, and because this court did not address such claim, he should be allowed to assert that claim in a plea in bar at his retrial.
An examination of Nebraska Supreme Court precedent leads us to сonclude that Noll correctly asserts that this court should have addressed his insufficiency claim on direct appeal. In
State v. Lee,
We are not yet finished, however, as we must consider Lee’s challenge to the sufficiency of the evidence to reach a complete resolution of this appeal. As we noted in State v. Palmer,224 Neb. 282 ,399 N.W.2d 706 (1986): “[T]he U.S. Supreme Court [has] held that an appellate finding of insufficient evidence to convict is tantamount to an acquittal and, therefore, that the double jeopardy clause precludes a secоnd trial once the reviewing court has found the evidence legally insufficient.” Id. at 295-96,399 N.W.2d at 718 (citing Burks v. United States,437 U.S. 1 ,98 S. Ct. 2141 ,57 L. Ed. 2d 1 (1978)). In light of our determination that joinder was improper, it is now necessary to examine the sufficiency of the evidence to support Lee’s convictions. If it appears the evidence is sufficient to support the convictions, the cause may be remanded to the district court for further proceedings; if *415 the evidence is not sufficient under Palmer, supra, the cause must be dismissed.
(Emphasis supplied.)
Lee,
Several courts have also held that where an appellаte court is presented with both a trial error and a claim of insufficiency of the evidence, the court must address the insufficiency claim. See,
U.S.
v.
Haddock,
The rationale for requiring appellate courts to address the insufficiency сlaim is that a defendant’s double jeopardy rights should not be solely dependent on the grace of a reviewing court. See,
Richardson
v.
United States,
We recognize that opinions from various other courts have held that an appellate court is not required to examine a claim of insufficient evidence where it has reversed for trial error. See,
U.S.
v.
Gutierrez-Zamarano,
Although other jurisdictions have relied on Richardson to support the view that an appellate court is not required to review an insufficiency claim where there is trial error, we find it significant that the Nebraska Supreme Court’s decision in Lee, which concluded that an appellate court must review insufficiency claims where there is trial error, was decided 3 years after Richardson. We conclude that Noll correctly asserts that this court was required to examine his insufficiency claim on direct appeal.
Noll’s Insufficiency Claim.
The question that we must now answer is, Can this court review Noll’s insufficiency claim in this appeal? Jurisdictions that have addressed this issue have permitted a review of the first trial evidence in a subsequent appeal. See,
Anderson, supra
(reviewing sufficiency of first trial evidence in appeal from defendant’s retrial);
United States
v.
Marolda,
Noll claims that the State failed to produce evidence of intent in his trial. Intent is an essential element of the crime of nonsupport. See § 28-706. An examination of the trial record establishes that the State did not produce any evidence of intent. The only witness to testify at the trial was his ex-wife, who admittedly had no knowledge of why Noll did not make *417 support payments. There was no evidence of Noll’s income or earning capacity and no evidence that he owned any assets or that he was ever emрloyed or employable since the entry of the decree in 1976. The only evidence that was presented was that Noll did not make his court-ordered support payments. That evidence alone is insufficient to convict a person under § 28-706(1).
We find it telling that the State, in preparing for Noll’s retrial, filed a motion to amend the information and endorse five additional witnesses. Such action suggests that the State would use the second trial for the purpose of supplying “evidence which it failed to muster in the first proceeding.”
CONCLUSION
We find that the State failed to produce sufficient evidence to convict at Noll’s first trial and that the Double Jeopardy Clause prohibits the State from retrying him. We therefore reverse the district court’s denial of Noll’s plea in bar, and remand to the district court with directions to dismiss this action.
Reversed and remanded with DIRECTIONS TO DISMISS.