In Re Interest of Sean H.

711 N.W.2d 879, 271 Neb. 395, 2006 Neb. LEXIS 53
CourtNebraska Supreme Court
DecidedApril 7, 2006
DocketS-05-894
StatusPublished
Cited by32 cases

This text of 711 N.W.2d 879 (In Re Interest of Sean H.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Interest of Sean H., 711 N.W.2d 879, 271 Neb. 395, 2006 Neb. LEXIS 53 (Neb. 2006).

Opinion

Connolly, J.

While handling a revolver, 15-year-old Sean H. shot his 22-year-old friend, Jared Naughton. The State charged Sean with unlawful act manslaughter and deporting himself so as to injure another by being a minor in possession of a revolver. The juvenile court dismissed the manslaughter charge, finding that the State had failed to meet its burden of proof, but found that Sean did commit the predicate offense of unlawfully possessing a revolver. The State appeals the dismissal of the manslaughter charge under Neb. Rev. Stat. §§ 43-2,106.01 (Reissue 2004) and 29-2317 to 29-2319 (Reissue 1995 & Cum. Supp. 2004), which *397 allow the State to take exception to trial court decisions. Because the State did not strictly adhere to the statutory procedure for appeals, we dismiss the State’s exception for lack of jurisdiction.

BACKGROUND

On November 14, 2004, Sean and his 18-year-old friend, Joshua B., were watching a movie at Sean’s home when Naughton invited them to “hang out” at his home. When Joshua and Sean arrived, they found Naughton upstairs in his bedroom. The three talked while Naughton smoked marijuana. The conversation turned to guns, and Naughton showed them his handgun, pointing out the new grips. Naughton then handed the gun to Sean for inspection. When Sean asked if it was loaded, Naughton said, “[N]o, it’s not loaded, you can point it at me and shoot it and it won’t go off.”

Joshua said he warned Sean not to “trust it,” but Sean said later that he did not hear Joshua’s warning. According to Sean, Naughton then told him to go ahead and “do it.” Joshua recalled Sean pausing to think before pulling the trigger. After Sean squeezed the trigger, Naughton grabbed his chest and said, “Oh my God, you shot me.” Thinking that Naughton was playing a trick on him, Sean fired the gun into the floor. As he did so, Sean felt air rush past his leg, saw Naughton fall to the floor with blood on him, and realized the gun was loaded. Sean began to panic and called the 911 emergency dispatch service.

The court made the following factual findings: that Sean persistently asked Naughton if the gun was loaded, that Naughton reassured Sean it was not, that Naughton told Sean to aim the gun at him and shoot, and that Sean paused to think before pulling the trigger, but acted unintentionally.

From this evidence, the court found that no assault occurred because Naughton was not in fear for his safety. The court opined that the salient issue was whether the State proved beyond a reasonable doubt that Sean intended to possess the revolver. The court concluded that Naughton remained in constructive possession of the revolver and in control of his surroundings. The court said that Sean’s momentary thought before pulling the trigger could raise an issue whether Sean “thought independently of the victim’s directive,” but that the State did not meet its burden *398 of proving that he did. The court dismissed the manslaughter charge, but found that the State had met its burden on the allegation that he possessed a revolver.

ASSIGNMENTS OF ERROR

The State assigns that (1) the court erred in ruling that the crime of unlawful possession of a revolver is not sufficient to support the crime of unlawful act manslaughter and (2) the court erred in ruling that the State did not prove beyond a reasonable doubt that Sean had committed the crime of manslaughter.

STANDARD OF REVIEW

An appellate court determines jurisdictional issues not involving factual disputes as a matter of law, which requires the appellate court to reach independent conclusions. See In re Interest of William G., 256 Neb. 788, 592 N.W.2d 499 (1999).

ANALYSIS

Under Neb. Rev. Stat. § 28-305 (Reissue 1995), “[a] person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act.” Here, the State charged Sean with unlawful act manslaughter; to supply the requisite unlawful act, the State cited unlawful possession of a revolver. The State argues that any unlawful act can serve as the underlying offense in unlawful act manslaughter and asks us to apply this rule to future cases. In response, the defense points out that unlawful possession of a revolver is a status offense and argues that status offenses should not support manslaughter convictions. We do not address these issues, however, because we lack jurisdiction.

Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005). Absent specific statutory authorization, the State, as a general rule, has no right to appeal an adverse ruling in a criminal case. See, State v. Johnson, 259 Neb. 942, 613 N.W.2d 459 (2000); State v. Baird, 238 Neb. 724, 472 N.W.2d 203 (1991).

*399 Nonetheless, Nebraska statutes authorize the State to appeal criminal decisions in a few specific instances. Neb. Rev. Stat. §§ 29-2315.01 to 29-2316 (Reissue 1995 & Cum. Supp. 2004) allow the State to take exception to district court decisions. See State v. Scholl, 234 Neb. 101, 449 N.W.2d 225 (1989) (finding “trial court” synonymous with “district court” under § 29-2315.01). Similarly, §§ 29-2317 to 29-2319 allow the same with county court decisions. Under § 43-2,106.01(2)(d), the Legislature similarly limited the State’s right to appeal delinquency issues in juvenile court when jeopardy has attached. These statutory provisions allow the State to seek limited review of adverse rulings and outline the procedure to obtain such review. See State v. Johnson, supra.

However, appeals under specific statutory provisions require strict adherence to the statute’s procedures. See, e.g., State v. Johnson, supra (dismissing State’s exception for failure to comply with § 29-2315.01); In re Interest of T.W. et al., 234 Neb. 966, 453 N.W.2d 436 (1990) (dismissing parents’ appeals for failure to comply with the predecessor to § 43-2,106.01); State v. Steinbach, 11 Neb. App. 468, 652 N.W.2d 632

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Bluebook (online)
711 N.W.2d 879, 271 Neb. 395, 2006 Neb. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-interest-of-sean-h-neb-2006.