IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

STATE V. ARTERBURN

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

MATTHEW JOSEPH ARTERBURN, APPELLANT.

Filed February 4, 2014. No. A-13-388.

Appeal from the District Court for Adams County: TERRI S. HARDER, Judge. Affirmed.

Sam Zeleski, Adams County Public Defender, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

IRWIN, MOORE, and BISHOP, Judges.

MOORE, Judge.

Matthew Joseph Arterburn appeals after the district court for Adams County overruled 

his motion for discharge, finding that his right to a speedy trial had not been violated. Because 

the amended information changed the nature of the charges against Arterburn, the district court 

did not err in computing the statutory running of the speedy trial clock from the date the 

amended information was filed. We affirm.

FACTUAL BACKGROUND

On July 12, 2012, the State filed an information in the district court charging Arterburn 

with three counts of generating a visual depiction of sexually explicit conduct in violation of 

Neb. Rev. Stat. § 28-1463.03 (Cum. Supp. 2012). The information alleged that Arterburn was a 

person 19 years of age or older, who on May 27, 2012, did knowingly “make, publish, direct, 

create, provide, or in any manner generate any visual depiction of sexually explicit conduct 

which has a child as one of its participants or portrayed observers.” At his arraignment on July 

18, Arterburn pleaded not guilty to these charges. The matter was set for jury trial.

At the pretrial conference in October 2012, the State requested a continuance to file an 

amended information. The State acknowledged on the record that this was not a good cause 

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continuance and noted that the speedy trial clock should continue running. The district court 

granted the continuance.

On November 14, 2012, the State filed its amended information, which charged 

Arterburn with 62 additional counts of possession of child pornography in violation of Neb. Rev. 

Stat. § 28-813.01 (Cum. Supp. 2012). For each of the 62 counts, the State alleged that on May 

23, 2012, Arterburn knowingly possessed a “visual depiction of sexually explicit conduct which 

has a child as one of its participants or portrayed observers.” Each of the additional counts 

described a particular visual depiction. The original three counts of generating a visual depiction 

of sexually explicit conduct also remained in the amended information. Arterburn pleaded not 

guilty to all counts.

On January 14, 2013, Arterburn filed a motion for discharge. In his motion, Arterburn 

alleged that his statutory right to a speedy trial had been violated because he had not been 

brought to trial within 6 months of the date when the information was first filed on July 12, 2012. 

Although Arterburn’s motion also referenced his constitutional right to speedy trial, he did not 

argue this basis before the district court and does not assign error to an alleged denial of his 

constitutional right to speedy trial in this appeal.

The district court held a hearing on this motion on March 25, 2013. At the hearing, the 

State stipulated that Arterburn’s motion for discharge should be granted as to the three original 

counts of generating a visual depiction of sexually explicit conduct. However, the State 

contended that the speedy trial clock had not run as to the 62 counts of possession of child 

pornography.

Arterburn argued at the hearing that all counts in the amended information should be 

discharged. He noted that the U.S. Supreme Court’s decision in Blockburger v. United States, 

284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), prohibits successive prosecution and 

cumulative punishment for the same offense. Arterburn claimed that proving the charges of 

generating visual depictions of sexually explicit conduct which have a child as one of the 

participants or portrayed observers first required proving possession of child pornography. Thus, 

he reasoned, they were the same charge and the possession of child pornography charges should 

have also been discharged.

On April 2, 2013, the district court overruled Arterburn’s motion for discharge. The court 

rejected Arterburn’s argument based on Blockburger v. United States, supra. The court found 

that the possession of child pornography charges were separate and distinct from the generating 

visual depiction charges and found that the speedy trial clock did not begin to run on the 

possession charges until the amended information was filed. Arterburn appeals from this order.

ASSIGNMENT OF ERROR

Arterburn assigns only one error: He contends that the district court erred when it did not 

discharge all charges against him.

STANDARD OF REVIEW

As a general rule, a trial court’s determination as to whether charges should be dismissed 

on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly 

erroneous. State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013).

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To the extent an appeal calls for statutory interpretation or presents questions of law, an 

appellate court must reach an independent conclusion irrespective of the determination made by 

the court below. State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013).

ANALYSIS

On appeal, Arterburn appears to reassert that Blockburger requires the discharge of the 62 

counts of possession of child pornography. He seems to argue that because the elements of proof 

for both charged offenses are similar, there would be cumulative punishment. We find that 

reliance upon the double jeopardy propositions from Blockburger is misplaced and without 

merit.

The Double Jeopardy Clauses of both the federal and Nebraska Constitutions protect 

against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a 

second prosecution for the same offense after conviction, and (3) multiple punishments for the 

same offense. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). Under Blockburger v. United 

States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the test to be applied to determine 

whether there are two offenses or one is whether each provision requires proof of a fact which 

the other does not. This test, otherwise known as the “same elements” test, asks whether each 

offense contains an element not contained in the other. See id. If not, they are the same offense 

and double jeopardy bars additional punishment and successive prosecution. If so, they are not 

the same offense and double jeopardy is not a bar to additional punishment. Id.

However, contrary to Arterburn’s assertions, this is not a double jeopardy case of 

successive prosecution or where cumulative punishment is imposed. In fact, jeopardy has not 

attached in this case. Jeopardy attaches (1) in a case tried to a jury, when the jury is impaneled 

and sworn; (2) when a judge, hearing a case without a jury, begins to hear evidence as to the 

guilt of the defendant; or (3) at the time the trial court accepts the defendant’s guilty plea. State v. 

Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009). Arterburn has not stood trial in this case nor has 

he entered a guilty plea. Thus, his reliance on Blockburger and double jeopardy’s prohibition of 

successive prosecution and cumulative punishment is misplaced.

Arterburn’s motion for discharge was based upon the alleged violation of his right to a 

speedy trial. As noted above, Arterburn asserts only that his statutory right to a speedy trial was 

violated. The statutory right to a speedy trial is set forth in Neb. Rev. Stat. §§ 29-1207 and 

29-1208 (Cum. Supp. 2012). If a defendant has not been brought to trial within 6 months, as 

computed by § 29-1207, he or she is entitled to absolute discharge from the offense charged. See 

§ 29-1208. To calculate the deadline for trial under the speedy trial statutes, a court must exclude 

the day the State filed the information, count forward 6 months, back up 1 day, and then add any 

time excluded under § 29-1207(4). State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).

In this case, the original information was filed on July 12, 2012. At the time Arterburn 

filed his motion for discharge on January 14, 2013, more than 6 months had expired. Because the 

State stipulated that the speedy trial time on the three counts contained in the original 

information had run, we need not discuss the speedy trial issue on these charges further. The 

issue in this case is what effect the amended information had on the speedy trial clock. In 

analyzing such situations, the Nebraska Supreme Court has noted that it is important to 

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determine whether the amended charge is for the same crime as alleged in the original complaint 

or information or is for a totally different crime. See, State v. Gibilisco, 279 Neb. 308, 778 

N.W.2d 106 (2010); State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001). If the amendment 

does not change the nature of the charges, then the time would continue to run against the State 

for purposes of the speedy trial act. Id.

In this case, the amended information charged Arterburn with 62 separate counts of 

possession of child pornography in addition to the original three counts of generating visual 

depictions of sexually explicit conduct. Although the three original counts for generating visual 

depictions remained identical in form to the original information, the additional 62 counts of 

possession of child pornography were based on separate incidents occurring on a different date 

than alleged in the original three counts and were different crimes. Each of the new possession 

charges required the State to present separate, additional evidence in order to prove each charge 

beyond a reasonable doubt. Thus, the amended information changed the nature of the charges 

against Arterburn. See, State v. Gibilisco, supra; State v. French, supra.

Because the 62 counts of possession of child pornography required the State to present 

different evidence to prove each of these crimes, the filing of the amended information restarted 

the speedy trial clock as to these charges. The amended information was filed on November 14, 

2012. There was no speedy trial violation on these new possession charges at the time Arterburn 

filed his motion to discharge on January 14, 2013. This assigned error is without merit.

CONCLUSION

The State’s amended information containing the additional 62 counts of possession of 

child pornography restarted the speedy trial clock on those charges. Arterburn has not been 

denied his right to a speedy trial on those counts. Therefore, we affirm the district court’s 

decision.

AFFIRMED.

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