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- 897 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
State of Nebraska, appellee, v.
Josiah L. Scherbarth, appellant.
___ N.W.2d ___
Filed July 18, 2017. No. A-16-683.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies the
same standards of review that it applies to decide appeals from criminal
convictions in district court.
6. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the trial court.
7. Lesser-Included Offenses. Whether a crime is a lesser-included
offense is determined by a statutory elements approach and is a ques-
tion of law.
8. Courts: Appeal and Error. Despite a failure to file a particular state-
ment of error in the district court, a higher appellate court may still
consider the errors actually considered by the district court.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
9. Jury Instructions: Pleadings: Evidence. Whether requested to do so or
not, a trial court has the duty to instruct the jury on issues presented by
the pleadings and the evidence.
10. Lesser-Included Offenses: Jury Instructions: Evidence. A court must
instruct on a lesser-included offense if (1) the elements of the lesser
offense for which an instruction is requested are such that one cannot
commit the greater offense without simultaneously committing the lesser
offense and (2) the evidence produces a rational basis for acquitting the
defendant of the greater offense and convicting the defendant of the
lesser offense.
11. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
12. Criminal Law: Motor Vehicles: Intent. It is clear that one cannot
commit the greater offense of willful reckless driving without simultane-
ously committing the lesser offense of reckless driving.
13. ____: ____: ____. Distinction between reckless driving and willful reck-
less driving is determined by the driver’s state of mind.
14. ____: ____: ____. Indifferent or wanton disregard for the safety of
others or their property is the fundamental characteristic of reckless
driving. Willful reckless driving is characterized by a deliberate, as
distinguished from an indifferent, disregard for the safety of others or
their property.
15. ____: ____: ____. A scenario where a motorist drove in willful disregard
while not also driving with an indifferent or wanton disregard for the
safety of others is not plausible.
16. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evi-
dence is not sufficient to sustain a verdict after an appellate court finds
reversible error, then double jeopardy forbids a remand for a new trial.
17. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Sheridan County, Travis
P. O’Gorman, Judge, on appeal thereto from the County Court
for Sheridan County, Russell W. H arford, Judge. Judgment
of District Court reversed, and cause remanded for further
proceedings.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Moore, Chief Judge, and Inbody and R iedmann, Judges.
Moore, Chief Judge.
INTRODUCTION
Josiah L. Scherbarth appeals an order of the district court
for Sheridan County affirming his conviction in the county
court for willful reckless driving. On appeal, Scherbarth argues
that the county court erred in failing to instruct the jury on the
lesser-included offense of reckless driving, in determining no
prosecutorial misconduct occurred during trial, and in finding
sufficient evidence to support the conviction. For the reasons
set forth below, we reverse the order of the district court and
remand the cause for further proceedings.
FACTUAL BACKGROUND
On March 20, 2015, Trooper Kyle Kuebler of the Nebraska
State Patrol was on duty patrolling Highway 20 in Sheridan
County, Nebraska. The road in question is a two-lane stretch
of highway. Around 5 or 5:30 p.m., as Kuebler was driving
east, he spotted a Chevy Silverado truck as it was traveling
westward. The truck was traveling 70 m.p.h. in a 65-m.p.h.
zone, as clocked by Kuebler’s radar. Kuebler observed the
truck move onto the shoulder of the highway and pass two
vehicles on the right side. The driver’s side tires remained on
the pavement; however, the passenger’s side tires were off the
road. The two vehicles passed by the truck were a “truck trac-
tor, semitrailer combination” and a pickup truck. The shoulder
was approximately 12 feet wide and the highway was straight
at this location. The weather conditions were clear and sunny
at the time of the incident. Kuebler was able to see about half
a mile down the road.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
Kuebler testified that the amount of dirt being thrown up
behind the Chevy truck was what most caught his attention.
Kuebler watched the truck as it passed. Kuebler did not observe
the other vehicles slowing down, moving over, or otherwise
reacting as the truck drove past. Kuebler turned his patrol
cruiser around and initiated a traffic stop of the truck. Kuebler
approached the truck and made contact with the driver, who
was identified as Scherbarth. A patrol cruiser video recording
of the incident and interaction between Kuebler and Scherbarth
shows Kuebler asking Scherbarth a variety of questions, such
as “[w]hat were you doing back there?” and “you think that’s
a good idea to pass two people on the shoulder?” Scherbarth
responded that he was “just horsing around”; admitted it was
not a good idea and he should have waited; and stated it was
“completely stupid,” he could have caused an accident, and he
knew he should not have done it.
PROCEDURAL BACKGROUND
On March 25, 2015, the State filed a complaint in the county
court for Sheridan County, charging Scherbarth with willful
reckless driving, first offense, in violation of Neb. Rev. Stat.
§ 60-6,214 (Reissue 2010), a Class III misdemeanor pursuant
to Neb. Rev. Stat. § 60-6,216 (Reissue 2010).
On October 20, 2015, trial was held before the county court.
Kuebler was the only witness to testify, and his testimony
was as set forth above. The State also offered into evidence
the video recording of the incident and interaction between
Kuebler and Scherbarth. Following the completion of testi-
mony, Scherbarth made a motion for directed verdict, arguing
the evidence was insufficient as to willful reckless driving. The
court overruled this motion.
A jury instruction conference was subsequently held.
Scherbarth requested that the court instruct the jury on the
lesser-included offense of reckless driving. The court denied
this request based on its belief that reckless driving is not a
lesser-included offense of willful reckless driving.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
In the midst of and following closing arguments, Scherbarth
twice moved for a mistrial based upon various comments
made by the prosecution during trial. During opening state-
ments, the prosecutor said, “[Y]ou’re not going to hear from
[Kuebler] any statements made by [Scherbarth] in regard to
any reason why he might have decided to pass on the road that
was legitimate, right? That’s not going to happen.” During
closing arguments, the prosecutor stated, “[Y]ou’ll understand
that there has been no evidence shown by the defense — or
I should say any evidence the State brought forth today,
there’s no reasonable doubt presented by the defense.” The
prosecutor further stated, “[Scherbarth] never provided any
excuse or reason which would exonerate him from intention-
ally doing the act of driving around on and off the shoulder,
around these two vehicles at 70-plus miles per hour. And you
heard [Kuebler] testify to that, clearly.” Finally, the prosecutor
stated, “I don’t know much about defense counsel’s charade
here, what he is trying to tell us here.” Scherbarth’s counsel
immediately objected to this latter comment as improper. The
court overruled this objection, but instructed the prosecutor
to “keep it to the facts.” The court overruled both motions
for mistrial.
The jury returned a verdict of guilty on the charge of will-
ful reckless driving. The court imposed a $500 fine upon
Scherbarth, and his license was revoked for 30 days.
Scherbarth appealed to the district court, and in his initial
assignments of error, he asserted that (1) the evidence was
insufficient to support his conviction and (2) the county court
erred in failing to grant a mistrial based on the prosecutor’s
alleged misconduct. Several months later, Scherbarth filed an
amended assignments of error, which included an additional
assertion that the county court erred in failing to instruct the
jury on the lesser-included offense of reckless driving.
On June 22, 2016, the district court entered an order
affirming the conviction. The court first addressed whether
Scherbarth’s additional assigned error was properly before it.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
The court found that there was no provision in the rules which
allows a party to “‘Amend’” assignments of error and that
Neb. Ct. R. § 6-1452(A)(7) (rev. 2011) (appeals from county
court to district court; statement of errors) required Scherbarth
to file his assignments of error within 10 days of the filing of
the bill of exceptions. The rule further provides that review
is limited to the errors assigned and discussed, but the court
may exercise discretion and notice a plain error not assigned.
Because the amended assignments of error were filed nearly
4 months after the initial assignments of error were filed, the
district court determined that the amended assignments of error
should not be allowed.
Notwithstanding this holding, the district court proceeded
to consider the additional assigned error, recognizing a trial
court’s duty to properly instruct the jury regardless of whether
the court is requested to do so. The court agreed that reckless
driving is a lesser-included offense of willful reckless driving
and that the county court erred in failing to give this instruc-
tion. However, the district court went on to find that the failure
to give this instruction was not prejudicial. The court otherwise
sustained the findings of the county court, holding that suffi-
cient evidence supported Scherbarth’s conviction and that the
court did not err in refusing to grant a mistrial based on alleged
prosecutorial misconduct.
Scherbarth subsequently perfected this appeal.
ASSIGNMENTS OF ERROR
Scherbarth assigns, restated: (1) The county court erred in
failing to instruct the jury on the lesser-included offense of
reckless driving, and the district court erred in determining
this amounted to harmless error; (2) the county court erred in
determining there was no prosecutorial misconduct through
commenting on Scherbarth’s failure to present evidence and
implying defense counsel was dishonest; and (3) the district
court erred in determining there was sufficient evidence to sup-
port a conviction.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
STANDARD OF REVIEW
[1-5] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals,
and its review is limited to an examination of the record for
error or abuse of discretion. State v. Avey, 288 Neb. 233, 846
N.W.2d 662 (2014). Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record. Id. When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id. But an appellate court independently reviews
questions of law in appeals from the county court. Id. When
deciding appeals from criminal convictions in county court,
an appellate court applies the same standards of review that it
applies to decide appeals from criminal convictions in district
court. Id.
[6,7] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the trial
court. State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
See State v. Loyuk, 289 Neb. 967, 857 N.W.2d 833 (2015). See,
also, State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).
Whether a crime is a lesser-included offense is determined by
a statutory elements approach and is a question of law. State v.
Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
ANALYSIS
Scherbarth asserts that the county court erred in denying his
request for a jury instruction on the lesser-included offense of
reckless driving and that the district court erred in finding this
denial to be harmless error.
[8,9] Before addressing the merits of this argument, we
consider the State’s contention that this error is not preserved
for appellate review due to Scherbarth’s failure to properly
include it in a timely statement of errors. We acknowledge
that the late amendment of Scherbarth’s assignments of error,
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
to include failure to instruct on a lesser-included offense, may
have run afoul of court rules. See § 6-1452(A)(7). However,
despite a failure to file a particular statement of error in the
district court, a higher appellate court may still consider the
errors actually considered by the district court. See First Nat.
Bank of Omaha v. Eldridge, 17 Neb. App. 12, 756 N.W.2d 167
(2008). The district court considered the merits of the addi-
tional assigned error, recognizing a trial court’s duty to prop-
erly instruct the jury. See State v. Weaver, 267 Neb. 826, 677
N.W.2d 502 (2004) (whether requested to do so or not, trial
court has duty to instruct jury on issues presented by pleadings
and evidence). The district court chose to review this assigned
error, which we will likewise now address.
[10] A court must instruct on a lesser-included offense if
(1) the elements of the lesser offense for which an instruc-
tion is requested are such that one cannot commit the greater
offense without simultaneously committing the lesser offense
and (2) the evidence produces a rational basis for acquitting
the defendant of the greater offense and convicting the defend
ant of the lesser offense. State v. Erickson, supra.
[11] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. McGuire, 286
Neb. 494, 837 N.W.2d 767 (2013).
[12-15] It is clear that one cannot commit the greater
offense of willful reckless driving without simultaneously
committing the lesser offense of reckless driving. Neb. Rev.
Stat. § 60-6,213 (Reissue 2010) establishes that “[a]ny person
who drives any motor vehicle in such a manner as to indicate
an indifferent or wanton disregard for the safety of persons
or property shall be guilty of reckless driving.” (Emphasis
supplied.) Section 60-6,214 sets forth that “[a]ny person who
drives any motor vehicle in such a manner as to indicate a
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STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
willful disregard for the safety of persons or property shall be
guilty of willful reckless driving.” (Emphasis supplied.) The
only distinction between these offenses is intent. See State v.
Boham, 233 Neb. 679, 447 N.W.2d 485 (1989) (distinction
between reckless driving and willful reckless driving is deter-
mined by driver’s state of mind). See, also, State v. Green,
182 Neb. 615, 156 N.W.2d 724 (1968) (indifferent or wanton
disregard for safety of others or their property is fundamental
characteristic of reckless driving; willful reckless driving is
characterized by deliberate, as distinguished from indifferent,
disregard for safety of others or their property). A scenario
where a motorist drove in “willful disregard” while not also
driving with an “indifferent or wanton disregard” for the
safety of others is not plausible.
Although the district court found the first prong of the
requirement to instruct on a lesser-included offense (the ele-
ments test) to be satisfied, it did not specifically address the
second prong of the requirement: whether there also existed
evidence producing a rational basis for acquitting Scherbarth
of willful reckless driving and convicting him of reckless
driving. Nevertheless, the district court found it was error
not to give the lesser-included instruction, thereby implicitly
finding that the second prong was satisfied. We agree. The
record contains evidence providing a rational basis for acquit-
ting Scherbarth of willful reckless driving and convicting him
of reckless driving. In other words, the actions of Scherbarth
could be construed by the fact finder to be an indifferent or
wanton disregard, as opposed to an intentional disregard, for
the safety of persons or property.
Despite having found that it was error to not give the lesser-
included offense instruction, the district court determined that
Scherbarth was not prejudiced by the failure to instruct on the
lesser-included offense of reckless driving. In reaching this
conclusion, the district court stated that the failure to instruct
on the lesser-included offense
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. SCHERBARTH
Cite as 24 Neb. App. 897
was not prejudicial to [Scherbarth] because the jury
rejected the evidence that would have supported a find-
ing that only the lesser included offense was committed.
The jury found [Scherbarth] guilty of willful reckless
driving, thus rejecting the contention that he acted only
with an “indifferent or wanton disregard.” In view of the
actual verdict returned by the jury, there is no reasonable
and plausible basis for finding that the instructional error
affected the jury’s verdict.
We disagree with the district court’s determination that
Scherbarth was not prejudiced by failure to instruct the jury
on the lesser-included offense of reckless driving. The harm
in failing to give the lesser-included instruction in this case is
that the jury was not presented with an option of finding that
the evidence supported a conviction for reckless driving as
opposed to willful reckless driving. The jury could not have
“rejected” finding that Scherbarth acted with “‘indifferent or
wanton’” disregard, as stated by the district court, because it
was not provided with that option in the instructions. Rather,
the jury was only given the option of finding Scherbarth guilty
of the greater offense of willful reckless driving or not guilty
of any crime. Had the jury been given the option of the lesser-
included offense, it could have concluded that Scherbarth’s
actions were reckless, but were only indifferent or wanton as
opposed to intentional.
A review of Nebraska case law demonstrates that incidents
of willful reckless driving commonly involve some combina-
tion of a high level of speeding that is particularly dangerous
based on the circumstances, such as speeding on a heavily
populated roadway; fleeing arrest; hitting other vehicles or
property (or the threat of this occurring); road rage; driv-
ing through stop signs and red lights; or other forms of
particularly erratic driving. See, State v. Hill, 254 Neb. 460,
577 N.W.2d 259 (1998); State v. Boham, 233 Neb. 679, 447
N.W.2d 485 (1989); State v. Cook, 212 Neb. 718, 325 N.W.2d
159 (1982); State v. DiLorenzo, 181 Neb. 59, 146 N.W.2d
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STATE v. SCHERBARTH
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791 (1966); State v. Eberhardt, 179 Neb. 843, 140 N.W.2d
802 (1966).
On the other hand, reckless driving cases often involve
less extreme actions, such as moderate speeding, erratic lane
changes, and other forms of irresponsible driving. See, State
v. Brown, 258 Neb. 330, 603 N.W.2d 419 (1999); State v.
Douglass, 239 Neb. 891, 479 N.W.2d 457 (1992); State v.
Green, 238 Neb. 475, 471 N.W.2d 402 (1991).
The present case involved moderate speeding and passing
vehicles on the shoulder, arguably placing persons and prop-
erty at risk of harm. However, the facts could be construed to
show either indifference on the part of Scherbarth or an inten-
tional and deliberate disregard for the safety of others or prop-
erty on the part of Scherbarth. Under Nebraska jurisprudence
and the facts of this case, we cannot say that the jury could not
have found that Scherbarth’s acts lacked intent. See, e.g., State
v. Howard, 5 Neb. App. 596, 560 N.W.2d 516 (1997) (error
to not give instruction on lesser-included offense of careless
driving along with instruction on reckless driving). Based on
the evidence in this case, a jury instruction on reckless driving
was warranted and Scherbarth was prejudiced by the failure
to give the instruction as a lesser-included offense of willful
reckless driving.
[16] We reverse the order of the district court, and we
remand the cause with directions to the district court to reverse
the order of the county court and remand the matter to the
county court for further proceedings. A new trial is not pre-
cluded by double jeopardy because sufficient evidence existed
upon which to convict Scherbarth of either offense. See State
v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015) (if evi-
dence is not sufficient to sustain verdict after appellate court
finds reversible error, then double jeopardy forbids remand for
new trial).
[17] Because we are reversing the judgment and remand-
ing the cause for further proceedings, we need not address
Scherbarth’s prosecutorial misconduct and sufficiency of the
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STATE v. SCHERBARTH
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evidence arguments. See Flores v. Flores-Guerrero, 290 Neb.
248, 859 N.W.2d 578 (2015) (appellate court is not obligated to
engage in analysis that is not necessary to adjudicate case and
controversy before it).
CONCLUSION
Upon our review, we find the district court sitting as an
intermediate appellate court erred in finding Scherbarth was
not prejudiced by the failure to provide an instruction on
the lesser-included offense of reckless driving. The district
court’s order is reversed, and the cause is remanded to the
district court with directions to reverse the order of the county
court and to remand the matter to the county court for further
proceedings.
R eversed and remanded for
further proceedings.