§ 28-109 — Terms, defined

Nebraska § 28-109

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

For purposes of the Nebraska Criminal Code, unless the context otherwise requires:
(1) Act shall mean a bodily movement, and includes words and possession of property;
(2) Aid or assist shall mean knowingly to give or lend money or credit to be used for, or to make possible or available, or to further activity thus aided or assisted;
(3) Benefit shall mean any gain or advantage to the beneficiary including any gain or advantage to another person pursuant to the desire or consent of the beneficiary;
(4) Bodily injury shall mean physical pain, illness, or any impairment of physical condition;
(5) Conduct shall mean an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions;
(6) Conveyance shall mean a mode of transportation that includes any vehicle, aircraft, or watercraft;
(7) Deadly physical force shall mean force, the intended, natural, and probable consequence of which is to produce death, or which does, in fact, produce death;
(8) Deadly weapon shall mean any firearm, knife, bludgeon, or other device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury;
(9) Deface shall mean to alter the appearance of something by removing, distorting, adding to, or covering all or a part of the thing;
(10) Dwelling shall mean a building or other thing which is used, intended to be used, or usually used by a person for habitation;
(11) Government shall mean the United States, any state, county, municipality, or other political unit, any branch, department, agency, or subdivision of any of the foregoing, and any corporation or other entity established by law to carry out any governmental function;
(12) Governmental function shall mean any activity which a public servant is legally authorized to undertake on behalf of government;
(13) Motor vehicle shall mean every self-propelled land vehicle, not operated upon rails, except self-propelled chairs used by persons who are disabled, electric personal assistive mobility devices as defined in section 60-618.02 , and bicycles as defined in section 60-611 ;
(14) Omission shall mean a failure to perform an act as to which a duty of performance is imposed by law;
(15) Peace officer shall mean any officer or employee of the state or a political subdivision authorized by law to make arrests, and shall include members of the National Guard on active service by direction of the Governor during periods of emergency or civil disorder;
(16) Pecuniary benefit shall mean benefit in the form of money, property, commercial interest, or anything else, the primary significance of which is economic gain;
(17) Person shall mean any natural person and where relevant a corporation or an unincorporated association;
(18) Public place shall mean a place to which the public or a substantial number of the public has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings and facilities;
(19) Public servant shall mean any officer or employee of government, whether elected or appointed, and any person participating as an advisor, consultant, process server, or otherwise in performing a governmental function, but the term does not include witnesses;
(20) Recklessly shall mean acting with respect to a material element of an offense when any person disregards a substantial and unjustifiable risk that the material element exists or will result from his or her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation;
(21) Serious bodily injury shall mean bodily injury which involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body;
(22) Tamper shall mean to interfere with something improperly or to make unwarranted alterations in its condition;
(23) Thing of value shall mean real property, tangible and intangible personal property, contract rights, choses in action, services, and any rights of use or enjoyment connected therewith; and
(24) Voluntary act shall mean an act performed as a result of effort or determination, and includes the possession of property if the actor was aware of his or her physical possession or control thereof for a sufficient period to have been able to terminate it.

Legislative History

Source: Laws 1977, LB 38, § 9; Laws 1993, LB 370, § 8; Laws 2002, LB 1105, § 427; Laws 2015, LB95, § 1; Laws 2016, LB1106, § 4. Annotations: Under this section, "serious bodily injury" means bodily injury which involves a (1) substantial risk of death, (2) substantial risk of serious permanent disfigurement, or (3) protracted loss or impairment of the function of any part or organ of the body. State v. Williams, 306 Neb. 261, 945 N.W.2d 124 (2020). The statutory test for recklessness pursuant to subdivision (19) of this section is purely objective, rendering testimony as to the subjective state of mind of the defendant irrelevant. State v. Kistenmacher, 231 Neb. 318, 436 N.W.2d 168 (1989). Knife wounds which cause the victim to bleed so badly that she passes out and which require thirteen stitches create a substantial risk of death and, therefore, constitute serious bodily injury. State v. Schuette, 223 Neb. 777, 393 N.W.2d 718 (1986). Definition of "thing of value" appearing in this section applicable to prosecution under section 28-611(1). State v. Spaulding, 211 Neb. 575, 319 N.W.2d 449 (1982). Protracted or permanent hearing loss constitutes a serious bodily injury. State v. Thomas, 210 Neb. 298, 314 N.W.2d 15 (1981). Evidence indicated that shooting was intentional and not reckless. While every shooting does not automatically inflict a serious bodily injury, when one is shot in the chest above the heart and the bullet is surgically removed, the statutory definition of serious bodily injury is met. State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981). The record supported that a shoulder injury was a serious bodily injury where the victim had to be anesthetized twice in emergency room before the dislocated shoulder could be put back into place, was administered pain medication, required physical therapy and subsequent shoulder surgery, was placed on light-duty work after the injury, and was not yet fully healed at the time of testimony. State v. Kearns, 29 Neb. App. 648, 956 N.W.2d 739 (2021). The trial court did not err in declining to use the defendant's proposed jury instruction defining "recklessly" which mirrored the language of subsection (19) of this section where trial court gave pattern jury instruction definition of "reckless." State v. Walls, 17 Neb. App. 90, 756 N.W.2d 542 (2008).