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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. SCHMALTZ

Cite as 304 Neb. 74

State of Nebraska, appellee, v. 

Kelly Schmaltz, appellant.

___ N.W.2d ___

Filed September 20, 2019. No. S-18-925.

1. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

3. Motions for Mistrial: Appeal and Error. Decisions regarding motions 

for mistrial are directed to the discretion of the trial court, and will be 

upheld in the absence of an abuse of discretion.

4. Jury Instructions: Proof: Appeal and Error. 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.

5. Statutes. Basic principles of statutory interpretation require a court to 

give statutory language its plain and ordinary meaning.

6. ____. Basic principles of statutory interpretation prohibit a court from 

reading a meaning into a statute that is not there or reading anything 

direct and plain out of a statute.

7. Trial: Prosecuting Attorneys: Appeal and Error. When considering 

a claim of prosecutorial misconduct, an appellate court first considers 

whether the prosecutor’s acts constitute misconduct.

8. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for 

various conducts because the conduct will or may undermine a defendant’s right to a fair trial.

9. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the 

duty to conduct criminal trials in such a manner that the accused may 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/01/2019 09:07 AM CDT
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STATE v. SCHMALTZ

Cite as 304 Neb. 74

have a fair and impartial trial, and prosecutors are not to inflame the 

prejudices or excite the passions of the jury against the accused.

10. ____: ____: ____. A prosecutor’s conduct that does not mislead and 

unduly influence the jury is not misconduct.

11. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A 

mistrial is properly granted in a criminal case where an event occurs 

during the course of a trial that is of such a nature that its damaging 

effect cannot be removed by proper admonition or instruction to the jury 

and thus prevents a fair trial. The defendant must prove that the alleged 

error actually prejudiced him or her, rather than creating only the possibility of prejudice.

Appeal from the District Court for Scotts Bluff County: Leo

P. Dobrovolny, Judge. Affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Following a jury trial, Kelly Schmaltz was convicted of 

leaving the scene of an injury accident. He appeals. We affirm.

FACTUAL BACKGROUND

On January 22, 2018, Schmaltz was charged by information with leaving the scene of an injury accident and driving 

without proof of financial responsibility. A jury trial was held 

August 8.

At trial, evidence was adduced that a semi-truck hauling 

cattle in a trailer and driven by Schmaltz was involved in a collision with a vehicle driven by Monica Gomez. Schmaltz did 

not challenge that an accident had occurred, that Gomez was 

injured, or that he left the scene. Schmaltz instead argued that 

leaving the scene was justified because he had to unload the 
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304 Nebraska Reports

STATE v. SCHMALTZ

Cite as 304 Neb. 74

cattle he had been hauling in order to avoid loss of or injury to 

the cattle. Accordingly, Schmaltz sought an instruction on the 

so-called choice of evils defense as codified at Neb. Rev. Stat. 

§ 28-1407 (Reissue 2016).

The district court declined to instruct the jury as to this 

defense, concluding that it was inapplicable where the choice 

made was to mitigate or prevent loss to property and not to a 

person. The jury found Schmaltz guilty of leaving the scene of 

an injury accident.

The other charge, driving without proof of financial responsibility, had earlier been dismissed following Schmaltz’ motion 

for a directed verdict at the end of the State’s case-in-chief. 

Schmaltz sought a mistrial based on prosecutorial misconduct. 

Schmaltz alleged that by attempting to introduce hearsay evidence that Schmaltz’ insurer refused to pay for Gomez’ injuries 

to prove up the elements of that charge, the State committed 

prosecutorial misconduct that warranted a mistrial. The district 

court denied the motion for a mistrial.

Schmaltz was convicted by a jury. His subsequent motion for 

new trial was denied. Schmaltz was sentenced to 12 months’ 

probation, and his operator’s license was revoked for 1 year. 

He was also ordered to pay restitution to Gomez. Schmaltz 

appeals.

ASSIGNMENTS OF ERROR

Schmaltz assigns that the district court erred in failing to 

(1) give his requested instruction regarding the choice of evils 

defense and (2) grant a mistrial on the basis of prosecutorial misconduct.

STANDARD OF REVIEW

[1] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision.1

1 State v. Bigelow, 303 Neb. 729, 931 N.W.2d 842 (2019).
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304 Nebraska Reports

STATE v. SCHMALTZ

Cite as 304 Neb. 74

[2] Statutory interpretation presents a question of law, which 

an appellate court reviews independently of the lower court’s 

determination.2

[3] Decisions regarding motions for mistrial are directed 

to the discretion of the trial court, and will be upheld in the 

absence of an abuse of discretion.3

ANALYSIS

Jury Instruction.

[4] Schmaltz first argues that the district court erred in 

refusing to give his proposed choice of evils instruction. 

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.4

Section 28-1407, the choice of evils justification, provides 

as follows:

(1) Conduct which the actor believes to be necessary 

to avoid a harm or evil to himself or another is justifiable if:

(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law 

defining the offense charged;

(b) Neither [the Nebraska Criminal Code] nor other 

law defining the offense provides exceptions or defenses 

dealing with the specific situation involved; and

(c) A legislative purpose to exclude the justification 

claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or 

2 State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).

3 State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).

4 State v. Bigelow, supra note 1.
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304 Nebraska Reports

STATE v. SCHMALTZ

Cite as 304 Neb. 74

evils or in appraising the necessity for his conduct, the 

justification afforded by this section is unavailable in 

a prosecution for any offense for which recklessness 

or negligence, as the case may be, suffices to establish 

culpability.

The district court declined to give the tendered instruction. 

Specifically, the court noted that Schmaltz’ defense was that he 

left the scene of the accident in order to prevent loss to the 94 

head of cattle he was hauling.

Schmaltz directs us to State v. Wells5 to support his assertion 

that § 28-1407 is applicable to property. In Wells, the defendant 

and others were charged with criminal mischief in connection 

with the destruction of equipment on a construction site that 

adjoined the defendant’s farm. The defendant contended that 

the construction work being done was causing soil erosion to 

his property and that he was justified, via the choice of evils 

defense, in damaging the equipment in question to prevent the 

damage to his own property.

In reaching our decision in Wells that such defense was not 

available, we noted that “[i]n property crimes, the defense 

of justification is available only in limited circumstances.”6

Schmaltz suggests that had the choice of evils defense not been 

an available justification defense for property crimes, this court 

would have simply relied upon that fact to reject the argument 

of the defendant in Wells. Instead, this court went further to 

reason that the choice of evils justification was unavailable 

because the defendant in Wells had a reasonable alternative to 

the criminal damage—he could have filed for and obtained a 

temporary restraining order.

Wells does not address § 28-1407. However, by implication, 

the court suggests that § 28-1407 would not be applicable to 

property crimes, noting that a different section, Neb. Rev. Stat. 

§ 28-1415 (Reissue 2016), would provide justification for a 

5 State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).

6 Id. at 338, 598 N.W.2d at 35.
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304 Nebraska Reports

STATE v. SCHMALTZ

Cite as 304 Neb. 74

property crime under certain circumstances, just not those presented in Wells.

[5,6] In addition, the defendant in Wells destroyed the 

property of another through use of force and sought a justification for that act in a way that is not present in this case. 

Of course, there is no allegation that Schmaltz collided with 

Gomez intentionally in an attempt to save the cattle in his 

trailer. For these reasons, Wells is distinguishable. Our basic 

principles of statutory interpretation require us to give statutory language its plain and ordinary meaning.7

 Those same 

principles prohibit us from reading a meaning into a statute 

that is not there or reading anything direct and plain out of 

a statute.8

Section 28-1407(1) provides a justification for “[c]onduct 

which the actor believes to be necessary to avoid a harm or 

evil to himself or another . . . .” This justification is available 

only if the “harm or evil sought to be avoided by such conduct 

is greater than that sought to be prevented.”9 Neb. Rev. Stat. 

§ 28-1406(4) (Reissue 2016) defines “[a]ctor” as “any person 

who uses force in such a manner as to attempt to invoke the 

privileges and immunities afforded him by sections 28-1406 

to 28-1416.”

The choice of evils justification is generally inapplicable 

here. The statutes at issue in this appeal were all enacted at the 

same time and concern “justification” for the use of force.10

The only person in this scenario who could be the “actor” 

contemplated in § 28-1407 is Schmaltz. Even if his conduct 

in leaving the scene of the accident was done to avoid a harm 

or evil, the conduct was not done with force. A justification 

defense under these statutes is unavailable.

There is no merit to Schmaltz’ first assignment of error.

7 State v. Lovvorn, supra note 2.

8 Id.

9 § 28-1407(1)(a).

10 See § 28-1407.
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. SCHMALTZ

Cite as 304 Neb. 74

Prosecutorial Misconduct.

Schmaltz also argues that the district court erred in not 

granting his motion for mistrial for the State’s act of prosecutorial misconduct. Specifically, Schmaltz argues that the 

State’s attempt to prove the charge of driving without proof of 

financial responsibility by eliciting testimony by Gomez that 

Schmaltz’ insurer had not paid her claim was both prejudicial 

and insufficient. We find this argument to be without merit.

[7-10] When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor’s acts constitute misconduct.11 Prosecutorial misconduct 

encompasses conduct that violates legal or ethical standards for 

various conducts because the conduct will or may undermine a 

defendant’s right to a fair trial.12 Prosecutors are charged with 

the duty to conduct criminal trials in such a manner that the 

accused may have a fair and impartial trial, and prosecutors 

are not to inflame the prejudices or excite the passions of the 

jury against the accused.13 A prosecutor’s conduct that does not 

mislead and unduly influence the jury is not misconduct.14

[11] A mistrial is properly granted in a criminal case where 

an event occurs during the course of a trial that is of such a 

nature that its damaging effect cannot be removed by proper 

admonition or instruction to the jury and thus prevents a fair 

trial.15 The defendant must prove that the alleged error actually 

prejudiced him or her, rather than creating only the possibility 

of prejudice.16 We review the denial of a motion for mistrial 

for an abuse of discretion.17

11 State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).

12 See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).

13 Id.

14 See, State v. Munoz, supra note 11; State v. Mrza, supra note 12.

15 State v. Briggs, supra note 3.

16 Id.

17 See id.
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STATE v. SCHMALTZ

Cite as 304 Neb. 74

In this case, a review of the record supported the State’s 

assertion that Schmaltz was driving without proof of financial 

responsibility—a copy of his insurance information obtained 

prior to trial showed that his insurance was expired. The State 

did not call the correct witnesses to prove up this charge, 

and it was accordingly dismissed. The fact that the charge 

was dismissed shows that even assuming the State’s actions 

amounted to misconduct, Schmaltz did not show that he was 

prejudiced.

Schmaltz additionally argues that the State’s attempt to 

prove the charge by inadmissible evidence affected his right 

to a fair trial. But he does not explain how the proffered testimony that his insurance did not pay Gomez’ claim, which testimony was not admitted to support a charge that was dismissed, 

led to his conviction on a separate charge for leaving the scene 

of an accident.

We find no abuse of discretion in the district court’s denial 

of the motion for mistrial. There is no merit to Schmaltz’ final 

assignment of error.

CONCLUSION

The decision of the district court is affirmed.

Affirmed.