A-16-0683, State of Nebraska v. Josiah L. Scherbarth (Appellant)
District Court of Sheridan County, District Judge Travis P. O'Gorman
Attorney for Appellant: Bell Island (Island & Huff, PC, LLO)
Attorneys for Appellee: Douglas J. Peterson and Austin N. Relph (Attorney General's Office)
Criminal Action: Willful Reckless Driving
Action taken by the Trial Court: The district court affirmed Scherbarth's conviction by jury verdict before the county court for willful reckless driving.
Assignments of Error and Issues on Appeal: Did the county court err in failing to instruct the jury on the lesser included offense of reckless driving, and did the district court err in determining this amounted to harmless error? Did the county court err in determining there was no prosecutorial misconduct through commenting on Scherbarth's failure to present evidence and implying defense counsel was dishonest? Did the district court err in determining there was sufficient evidence to support a conviction?
Extended Case Summary (for Educational Purposes):
A-16-0683, State of Nebraska v. Josiah L. Scherbarth (Appellant)
District Court of Sheridan County, District Judge Travis P. O'Gorman
Attorney for Appellant: Bell Island (Island & Huff, PC, LLO)
Attorneys for Appellee: Douglas J. Peterson and Austin N. Relph (Attorney General's Office)
Background: On March 20, 2015, Trooper Kyle Kuebler of the Nebraska State Patrol was patrolling a 2-lane stretch of highway in Sheridan County. Around 5:00 or 5:30 p.m., Kuebler spotted a truck traveling 70 m.p.h. in a 65 m.p.h. zone. Kuebler observed the truck move onto the highway shoulder 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. Kuebler noticed dirt being thrown up behind the truck as it was passing on the shoulder. The two vehicles passed by the truck were a semi-tractor/trailer combination and another truck. The weather conditions were clear and sunny at the time of the incident.
Kuebler initiated a traffic stop of the truck, which was being driven by Josiah Scherbarth. A patrol cruiser video recording of the incident and interaction between Kuebler and Scherbarth shows Kuebler questioning Scherbarth about why he passed the other vehicles 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 that he knew he should not have done it.
The State filed a complaint in the county court for Sheridan County, charging Scherbarth with willful reckless driving
At the trial before the county court, Scherbarth twice asked the court to grant a mistrial based upon comments made by the prosecutor. During opening statements at the beginning of the trial, the prosecutor said to the jury, 'you're not going to hear from the trooper any statements made by the defendant 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 'you'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 . . .' and '(Scherbarth) never provided any excuse or reason which would exonerate him from intentionally doing the act of driving around on and off the shoulder, around these two vehicles at 70-plus miles per hour. And you heard the officer testify to that, clearly.' Finally, the prosecutor also stated 'I don't know much about defense counsel's charade here, what he is trying to tell us here.' The court overruled both motions for mistrial.
After the evidence was completed, the court held a conference with the attorneys to discuss the written instructions that would be given to the jury. These instructions advise the jury about the law that governs the case and what the jury would have to find in order to convict Scherbarth of willful reckless driving. Scherbarth requested that in addition to an instruction setting forth the elements necessary to prove he was guilty of willful reckless driving, that the court also give an instruction on the lesser offense of reckless driving. The court denied this request based on its belief that reckless driving is not a lesser offense of willful reckless driving.
The jury returned a verdict of guilty on the charge of willful reckless driving. The county court imposed a $500 fine upon Scherbarth, and his license was revoked for 30 days. Scherbarth then appealed the case to the district court, which affirmed the conviction. The court found that reckless driving is a lesser offense of willful reckless driving, and the county court erred in failing to give this instruction. However, the district court found that failure to give this instruction did not prejudice Scherbarth because there was sufficient evidence to find that his actions were willful. The district court also found the evidence overall supported Scherbarth's conviction for willful reckless driving, and found that the county court was correct in not granting a mistrial based on the comments of the prosecutor at the beginning and end of the trial.
Issues on Appeal:
Did the county court err in failing to instruct the jury on the lesser offense of reckless driving, and did the district court err in determining this amounted to harmless error? Resolution of this question will require, in part, a comparison of Neb. Rev. Stat. ' 60-6,213 and ' 60-6,214.
Did the county court err in determining there was no misconduct by the prosecutor in commenting on Scherbarth's failure to present evidence and implying that his attorney was dishonest?
Did the district court err in determining there was sufficient evidence to support a conviction for willful reckless driving?