§ 28-308 — Assault in the first degree; penalty

Nebraska § 28-308

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

Text

(1) A person commits the
offense of assault in the first degree if he or she intentionally or knowingly causes serious
bodily injury to another person.
(2) Assault in the first degree shall be a Class II felony.

Legislative History

Source: Laws 1977, LB 38, § 23; Laws 2009, LB63, § 4. Annotations: 1. Constitutionality 2. Generally 3. Lesser-included offense 4. Proximate cause 5. Requisite mental state 6. Serious bodily injury 1. Constitutionality This section is not unconstitutional solely because it does not allow a defense of consent. State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004). The language of this section clearly is not unconstitutionally vague. The jury properly found assault in the first degree where the defendant deliberately struck the victim four times in the jaw, causing a fracture which required surgery to prevent serious permanent disfigurement. State v. Schreck, 226 Neb. 172, 409 N.W.2d 624 (1987). 2. Generally In dealing with a criminal charge all attempts to do physical violence which amount to a statutory assault are unlawful and a breach of the peace, and a person cannot consent to an unlawful assault. State v. Hatfield, 218 Neb. 470, 356 N.W.2d 872 (1984). 3. Lesser-included offense First degree assault and attempted voluntary manslaughter are two distinct offenses. First degree assault requires serious bodily injury to occur, and attempted voluntary manslaughter does not require any injury to occur. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016). There is no double jeopardy violation where a defendant is charged and convicted of first degree assault under this section and second degree assault under section 28-309(1)(a). State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015). Attempted first degree assault is not a lesser-included offense of unlawful discharge of a firearm, and unlawful discharge of a firearm is not a lesser-included offense of attempted first degree assault. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997). First degree assault and second degree assault are two distinct offenses and second degree assault is not a lesser-included offense of first degree assault. State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981). 4. Proximate cause Where the injuries are objective and the conclusion to be drawn from proved basic facts does not require special technical knowledge or science, the use of expert testimony is not legally necessary to prove a causal connection between a blow and the injuries inflicted. A jury may properly infer from the evidence that a single blow to a victim's jaw was the proximate cause of the victim's serious injuries. State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988). 5. Requisite mental state Malice is not an element of first degree assault, and, as such, "sudden quarrel" would not be applicable to negate it. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016). The intent required under subsection (1) of this section relates to the assault, not to the injury which results. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993). The law is settled that independent evidence of specific intent is not required. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident. To determine whether the defendant acted with justification or had the required intent for assault in the first degree, the jury may consider circumstantial evidence as to the force of the blow the defendant administered. State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988). 6. Serious bodily injury This section does not classify injuries as a per se "serious bodily injury"; rather, the jury is free to make such a determination on its own for purposes of a conviction. State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013). In reference to first degree assault, assaultive conduct which results in exposure to the specific harms described in section 28-109(20), and not actual infliction of the harms described in that statute, is the gravamen of first degree assault and the criminal conduct proscribed by subsection (1) of this section; it is not necessary that the injury cause death, serious permanent disfigurement, or impairment of the function of any part or organ of the body, but only that it involved a substantial risk of producing those results. State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (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). Assault in the first degree is not a lesser-included offense of attempted murder in the second degree. State v. Lovelace, 212 Neb. 356, 322 N.W.2d 673 (1982). 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). Multiple injuries including a cerebral concussion and nasal fracture constitute serious bodily injuries which will support a conviction for first degree assault under this section. State v. Sare, 209 Neb. 91, 306 N.W.2d 164 (1981). A trier of fact can use common knowledge to determine if the victim has suffered serious bodily injury. In re Interest of Janet J., 12 Neb. App. 42, 666 N.W.2d 741 (2003).