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STATE v. JOHNSON

Cite as 310 Neb. 527

State of Nebraska, appellee, v. 

Charlie R. Johnson, appellant.

___ N.W.2d ___

Filed December 10, 2021. No. S-20-898.

1. Criminal Law: Courts: Judgments: Appeal and Error. In an appeal 

of a criminal case from the county court, the district court acts as an 

intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. Both the district court 

and a higher appellate court generally review appeals from the county 

court for error appearing on the record. When reviewing a judgment for 

errors appearing on the record, an appellate court’s inquiry is whether 

the decision conforms to the law, is supported by competent evidence, 

and is neither arbitrary, capricious, nor unreasonable.

2. Statutes. Statutory interpretation presents a question of law.

3. Criminal Law: Statutes. While a penal statute is to be construed 

strictly in favor of the defendant, it is to be given a sensible construction in the context of the object sought to be accomplished, the evils and 

mischiefs sought to be remedied, and the purpose sought to be served.

4. Criminal Law: Statutes: Appeal and Error. In strictly construing 

penal statutes, an appellate court does not supply missing words or sentences to make clear that which is indefinite, or to supply that which is 

not there.

5. Marriage: Statutes: Legislature: Intent. It is generally held that a 

marriage is not void unless the statutes expressly so declare, and that 

courts should not so construe it unless the legislative intent to such 

effect is clear and unequivocal.

6. Marriage. A marriage is voidable when it has legal imperfections in its 

establishment which can be inquired into only during the lives of both 

of the parties in a proceeding by annulment to obtain a judgment of a 

competent court declaring its invalidity.

7. ____. The general rule is that the validity of a marriage is determined by 

the law of the place where it was contracted.

Nebraska Supreme Court Online Library

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

12/23/2021 08:07 AM CST
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8. ____. A major difference between a void marriage and a voidable marriage is that the latter is treated as valid and binding until its nullity is 

ascertained and declared by a competent court, whereas the former does 

not require such a judgment.

9. ____. A voidable marriage is legally valid for all civil purposes until its 

nullity is so pronounced.

10. Criminal Law: Marriage. A bigamy prosecution can be based on a 

voidable marriage.

11. Criminal Law: Trial: Evidence: Proof. In the absence of a statute 

placing the burden of proving an affirmative defense on the defendant 

in a criminal case, the nature of an affirmative defense is such that the 

defendant has the initial burden of going forward with evidence of the 

defense, and once the defendant has produced sufficient evidence to 

raise the defense, the issue becomes one which the State must disprove.

12. Criminal Law: Convictions: Evidence: Appeal and Error. When 

reviewing a criminal conviction for sufficiency of the evidence to 

sustain the conviction, the relevant question for an appellate court is 

whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

13. Trial: Stipulations. Stipulated facts may still involve issues of fact and 

credibility, which are the province of the trial court to resolve.

Appeal from the District Court for Lancaster County, 

Patricia A. Lamberty, Judge, on appeal thereto from the 

County Court for Lancaster County, Matthew L. Acton, 

Judge. Judgment of District Court affirmed.

Matthew K. Kosmicki for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

In this appeal from a district court judgment affirming a county court’s conviction and sentence for bigamy, 

Charlie R. Johnson challenges the sufficiency of the evidence 
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Cite as 310 Neb. 527

establishing that he was a “married person.” 1 He asserts that 

his prior marriage was legally invalid. For that marriage, a 

Nebraska marriage license was obtained, but the solemnization 

occurred in Texas. Because we conclude that a voidable marriage will support a bigamy prosecution, we affirm the district 

court’s judgment.

BACKGROUND

County Court Trial Proceedings

The State charged Johnson with bigamy, contending that 

when he married Natalie Forney he was already married to 

Shelley Petersen. Defense counsel argued that Johnson’s marriage to Petersen was not a valid marriage because it did not 

comply with statutes in Nebraska or Texas. The county court 

held a bench trial, at which the parties stipulated to the exhibits, including an exhibit setting forth what the witnesses would 

testify to, if called. Next, we summarize that evidence.

On June 29, 2015, Johnson and Petersen completed a marriage worksheet at the Lancaster County clerk’s office in 

Nebraska and paid the requisite fee. Tory Carkoski, a front 

desk clerk at the Lancaster County clerk’s office, watched 

Johnson and Petersen sign a Nebraska marriage license and 

notarized their signatures.

On July 4, 2015, Johnson’s sister, an ordained minister, performed a wedding ceremony for Johnson and Petersen in Texas. 

Johnson’s sister signed a “Keepsake Marriage Certificate,” 

but she did not sign or return the Nebraska marriage license. 

Johnson’s sister claimed that she later threw away the marriage 

license at Johnson’s request. Johnson and Petersen returned to 

Nebraska and resided together. They had an “on again - off 

again relationship.”

Carkoski recalled having repeated and frequent contact with 

the couple within a few weeks of producing the June 29, 

2015, marriage license for them. During that time, Petersen 

1 See Neb. Rev. Stat. § 28-701(1) (Reissue 2016).
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called at least 10 times to inquire whether the marriage license 

had been returned. Petersen informed Carkoski that although 

she was able to change her surname with the Social Security 

Administration using the keepsake marriage certificate, she 

wanted a certified copy of the license in order to “change her 

information” with the Nebraska Department of Motor Vehicles. 

During this timeframe, Johnson told Carkoski that he did not 

want to be married and inquired how to “prevent the marriage 

from going through.” Carkoski responded that “if they had 

already filled out the documentation and had the ceremony, 

they were married.”

In late 2016 or early 2017, Carkoski notified the records 

administrator of the Lancaster County clerk’s office that the 

marriage license between Johnson and Petersen had not been 

filed. When the records administrator determined that no marriage license was filed for the 2015 marriage, she called 

Johnson’s sister and informed her that a replacement marriage 

license would be sent which needed to be signed and returned. 

Johnson and Petersen returned to the Lancaster County clerk’s 

office, signed a copy of the replacement marriage license, and 

had Carkoski notarize their signatures. Subsequently, the marriage license was returned and filed with the Lancaster County 

clerk’s office in January 2017. The license contained signatures 

of Johnson’s sister and two witnesses. It stated that Johnson 

and Petersen were married on July 4, 2015, in Lancaster 

County, Nebraska.

At some point, possibly as late as May 2018, Johnson moved 

out of the residence he shared with Petersen. Screenshots 

of text messages between them, some of which were sent 

in September, showed that Johnson referred to himself as 

Petersen’s husband and to her as his wife.

On November 5, 2018, Carkoski received a marriage worksheet for Johnson and Forney. On November 16, a signed marriage license was filed with the Lancaster County clerk’s office 

showing that Johnson married Forney in Lancaster County on 

November 15.
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In 2019, Petersen attempted to file her income taxes as married filing jointly with Johnson. The Internal Revenue Service 

notified her that she could not do so because Johnson had filed 

income taxes as married filing jointly with Forney. Petersen 

notified the police department, and an investigation uncovered two marriage certificates on file at the Lancaster County 

clerk’s office but no intervening divorce. When a police officer 

spoke with Johnson, he said that he and Petersen were going to 

get married but never did.

At the trial’s conclusion, the county court took the matter 

under advisement to allow the parties to file briefs, which are 

not in our record. The court later convicted Johnson and subsequently imposed a sentence of 30 days in jail.

Appeal to District Court

Johnson appealed to the district court, challenging the sufficiency of the evidence. Citing Neb. Rev. Stat. § 42-104 

(Reissue 2016), the district court stated that there were only 

two requirements for a valid marriage under Nebraska law: a 

marriage license and solemnization of the marriage by a person 

authorized by law to solemnize marriages. The court stated that 

“[t]he evidence unequivocally validates [Johnson’s] marriage 

to [Petersen]” and affirmed Johnson’s conviction.

Johnson then appealed to the Nebraska Court of Appeals. 

We later granted the State’s petition to bypass review by the 

Court of Appeals. 2

ASSIGNMENT OF ERROR

Johnson assigns that the district court erred in affirming 

the county court’s finding that the State proved him guilty of 

bigamy beyond a reasonable doubt.

STANDARD OF REVIEW

[1] In an appeal of a criminal case from the county court, 

the district court acts as an intermediate court of appeals, and 

2 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
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its review is limited to an examination of the record for error 

or abuse of discretion. 3 Both the district court and a higher 

appellate court generally review appeals from the county court 

for error appearing on the record. 4 When reviewing a judgment 

for errors appearing on the record, an appellate court’s inquiry 

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable. 5

[2] Statutory interpretation presents a question of law. 6

ANALYSIS

Statute and Principles of 

Statutory Construction

We begin by quoting the statute defining the crime of bigamy and recalling principles of statutory construction regarding penal statutes. Bigamy is defined in § 28-701(1), which 

provides:

If any married person, having a husband or wife living, 

shall marry any other person, he shall be deemed guilty 

of bigamy, unless as an affirmative defense it appears that 

at the time of the subsequent marriage:

(a) The accused reasonably believes that the prior 

spouse is dead; or

(b) The prior spouse had been continually absent for 

a period of five years during which the accused did not 

know the prior spouse to be alive; or

(c) The accused reasonably believed that he was legally 

eligible to remarry.

[3] While a penal statute is to be construed strictly in favor 

of the defendant, it is to be given a sensible construction in 

3 State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).

4 Id.

5 Id.

6 Id.
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the context of the object sought to be accomplished, the evils 

and mischiefs sought to be remedied, and the purpose sought 

to be served. 7 Bigamy “destroys the happiness of families and 

social order; it places the stigma of illegitimacy upon innocent children; it complicates and prevents the regular descent 

of property, and deprives the unoffending of their rightful 

inheritance.” 8 We have recognized that the marital relationship 

“is a status, and that the state is interested in and is, in effect, 

a party to it.” 9 Long ago, we explained, “The creation of the 

status entails certain duties and obligations upon the parties 

thereto . . . .” 10 Those, we said, included duties and obligations 

of support. 11 An observation by a different court that “[t]he 

benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death” 12 was 

not mere hyperbole. Thus, we have reiterated that permitting 

bigamy would “disturb the peace of families and offend against 

the decency and good order of society.” 13

[4] Importantly, § 28-701 does not speak to the validity of 

the marriage. The Legislature used no qualifier for the term 

“married person.” Johnson’s entire argument, as he conceded 

at oral argument, depends upon reading the first phrase of 

§ 28-701(1) as “any validly married person.” But in strictly 

construing penal statutes, an appellate court does not supply 

missing words or sentences to make clear that which is indefinite, or to supply that which is not there. 14

7 See State v. Thelen, 305 Neb. 334, 940 N.W.2d 259 (2020).

8 Baker v. State, 86 Neb. 775, 783, 126 N.W. 300, 303 (1910).

9 Collins v. Hoag & Rollins, 122 Neb. 805, 807, 241 N.W. 766, 767 (1932).

10 Id.

11 See id.

12 Goodridge v. Department of Public Health, 440 Mass. 309, 323, 798 

N.E.2d 941, 955 (2003).

13 Rich v. Fulton, 104 Neb. 262, 264, 177 N.W. 175, 175 (1920).

14 See State v. Gomez, 305 Neb. 222, 939 N.W.2d 763 (2020).
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Rather than conferring the term “marriage” only on a valid 

marriage, 15 the Legislature also used that term for marriages 

that it described as void 16 or voidable. 17 We discuss the legal 

status of the various types of marriages next.

Status of Marriages

Marriage as a social institution is favored by public policy, and the law raises a strong presumption in favor of its 

legality. 18 With respect to § 42-104, which sets forth what is 

needed for a marriage to be recognized as valid in Nebraska, 

we stated:

The [statute] has particularly to do with the manner 

and method of the valid creation of the marriage relation, but, in the absence of express statutory invalidation, 

this court has held that the fact that the license required 

was wrongfully or fraudulently procured may subject the 

parties to the pains and penalties of the law for violation 

thereof, but it does not alone affect the validity of the 

marriage itself. 19

Further, “[a]ll marriages contracted without this state, which 

would be valid by the laws of the country in which the same 

were contracted, shall be valid in all courts and places in 

this state.” 20 Here, the marriage ceremony occurred in Texas. 

Although one Texas statute requires a Texas marriage license, 21

another provides that the validity of a marriage is generally 

15 See § 42-104 and Neb. Rev. Stat. § 42-117 (Reissue 2016).

16 See Neb. Rev. Stat. § 42-103 (Reissue 2016).

17 See Neb. Rev. Stat. § 42-118 (Reissue 2016).

18 See Christensen v. Christensen, 144 Neb. 763, 14 N.W.2d 613 (1944). See, 

also, Tex. Fam. Code Ann. § 1.101 (2006).

19 Christensen v. Christensen, supra note 18, 144 Neb. at 768, 14 N.W.2d at 

616.

20 § 42-117.

21 See Tex. Fam. Code Ann. § 2.001(a) (2006).
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not affected by any fraud, mistake, or illegality that occurred 

in obtaining the marriage license. 22 And Texas has declared 

that its policy is “to preserve and uphold each marriage against 

claims of invalidity unless a strong reason exists for holding 

the marriage void or voidable.” 23

[5] “An invalid marriage has traditionally been considered 

either void or voidable, depending in part on the particular 

ground for the challenge to validity, and on the varying language of particular statutory enactments.” 24 A marriage that 

is void is not valid for any legal purpose. 25 “It is generally 

held that a marriage is not void unless the statutes expressly 

so declare, and that courts should not so construe it unless the 

legislative intent to such effect is clear and unequivocal.” 26

Johnson’s marriage to Petersen does not fall within those 

classes declared to be void. 27 At oral argument, Johnson conceded that his marriage to Petersen was not void.

[6] A marriage can also be voidable. A marriage is voidable 

when it has legal imperfections in its establishment which can 

be inquired into only during the lives of both of the parties in a 

proceeding by annulment to obtain a judgment of a competent 

court declaring its invalidity. 28

Johnson’s argument attacking the validity of his marriage 

to Petersen relies on language from § 42-104. One sentence 

22 See Tex. Fam. Code Ann. § 2.301 (2006).

23 Tex. Fam. Code Ann. § 1.101.

24 177 Am. Jur. Proof of Facts 3d 111 Validity of Marriage § 2 at 126 (2019).

25 See Christensen v. Christensen, supra note 18.

26 Id. at 767, 14 N.W.2d at 615.

27 See, § 42-103 (declaring void marriages where, at time of marriage, either 

party has a living husband or wife, either party is mentally incompetent to 

enter into marriage relation, or parties are sufficiently related); Collins v. 

Hoag & Rollins, supra note 9 (common-law marriages are void). See, also, 

Tex. Fam. Code Ann. § 6.201 et seq. (2006 & Cum. Supp. 2018).

28 See Christensen v. Christensen, supra note 18.
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of § 42-104 states, “No marriage hereafter contracted shall be 

recognized as valid unless such license has been previously 

obtained and used within one year from the date of issuance 

and unless such marriage is solemnized by a person authorized 

by law to solemnize marriages.” Johnson does not contend 

that no license was obtained. For apparently the first time on 

appeal to this court, he questioned whether his sister was “a 

person authorized by law to solemnize marriages.” The parties stipulated that she was an ordained minister; there was 

no evidence casting doubt on her authority to solemnize a 

marriage. This court has previously stated that Neb. Rev. Stat. 

§ 42-114 (Reissue 2016) authorizes anyone to perform a valid 

marriage ceremony if he or she purports to be a minister of the 

gospel and if the marriage is consummated with a full belief 

on the part of either of the parties married that they have been 

lawfully joined in marriage. 29 Here, the evidence shows that 

Petersen believed she was lawfully married to Johnson.

Johnson’s argument primarily rests upon another sentence of 

§ 42-104 which states, “Prior to the solemnization of any marriage in this state, a license for that purpose shall be obtained 

from a county clerk in the State of Nebraska.” (Emphasis 

supplied.) Reading this language together, he urges that for a 

marriage based upon a Nebraska license to be valid, it must be 

solemnized in Nebraska—in other words, the solemnization in 

Texas rendered his marriage invalid in Nebraska. We are not 

persuaded. We do not read § 42-104 to govern the validity of a 

marriage solemnized in another state.

[7] The general rule is that the validity of a marriage is 

determined by the law of the place where it was contracted, 

i.e., where the ceremony was performed. 30 Here, the ceremony 

occurred in Texas and Johnson has not shown that Texas 

29 See Collins v. Hoag & Rollins, supra note 9.

30 See, Randall v. Randall, 216 Neb. 541, 345 N.W.2d 319 (1984); 11 Am. 

Jur. 2d Bigamy § 4 (2019).
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law would not recognize a marriage performed in that state 

based upon a license issued by a sister state. A Texas statute 

states that “every marriage entered into in this state is presumed to be valid unless expressly made void by Chapter 6 [of 

the Texas Family Code] or unless expressly made voidable by 

Chapter 6 and annulled as provided by that chapter.” 31 Johnson 

has cited no Texas statute arguably declaring such a marriage 

to be void or voidable, and we have not found any provision of 

chapter 6 which would do so. To the contrary, Texas case law 

persuades us that a Texas court would treat Johnson’s marriage 

to Petersen as valid. 32 If Texas law applies and that state would 

recognize the marriage as valid, § 42-117 would require that 

we do so also.

Even if Texas law is disregarded, we are not persuaded that 

Nebraska law would treat Johnson’s marriage to Petersen as 

void. If not valid under Nebraska law, it would be voidable 

only. And there is no evidence of any Nebraska proceeding to 

annul the marriage.

Prosecution Based on 

Voidable Marriage

The question becomes whether a bigamy prosecution may be 

based on a voidable marriage. We have not directly addressed 

that question in our decisions involving bigamy convictions. 33

31 Tex. Fam. Code Ann. § 1.101.

32 See, e.g., In re Estate of Loveless, 64 S.W.3d 564 (Tex. App. 2001) (even 

if parties failed to comply with formalities involved in obtaining marriage 

license, failure to comply with formalities does not render marriage 

invalid unless statute declares it so); Husband v. Pierce, 800 S.W.2d 661 

(Tex. App. 1990) (unlicensed Mexican ceremonial marriage and informal 

common-law marriage were voidable only).

33 See, Barnts v. State, 116 Neb. 363, 217 N.W. 591 (1928); Staley v. State, 

89 Neb. 701, 131 N.W. 1028 (1911) (Staley II); Staley v. State, 87 Neb. 

539, 127 N.W. 878 (1910); Baker v. State, supra note 8; Hills v. State, 61 

Neb. 589, 85 N.W. 836 (1901); Reynolds v. State, 58 Neb. 49, 78 N.W. 483 

(1899).
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Instead, our prior decisions in bigamy prosecutions have 

touched on an assertion that a marriage was void because 

both contracting parties were already married, 34 the sufficiency 

of the information alleging the prior marriage, 35 a challenge to 

a jury instruction, 36 and the validity of an Iowa marriage that 

would have been void in Nebraska. 37 And in considering our 

older decisions, it is important to recognize that prior to 1923, 

Nebraska recognized common-law marriage. 38 We said that 

§ 42-104, upon which Johnson now relies, is “purely a regulatory statute, intended to regulate the manner in which the marriage relation may be created.” 39

[8,9] Other courts have answered the question. 40 It is clear 

that a void marriage will not support a bigamy prosecution. 41

But we are mindful that “‘[a] major difference between a void 

marriage and a voidable marriage is that the latter is treated as 

valid and binding until its nullity is ascertained and declared 

by a competent court, whereas the former does not require such 

a judgment.’” 42 And while we have explicitly stated that “a 

voidable marriage is legally valid for all civil purposes until its 

nullity is so pronounced,” 43 other courts—including Texas 44—

are of the view that a voidable marriage is good for every

34 See Reynolds v. State, supra note 33.

35 See, Baker v. State, supra note 8; Hills v. State, supra note 33.

36 Hills v. State, supra note 33.

37 Staley II, supra note 33.

38 See Collins v. Hoag & Rollins, supra note 9.

39 Id. at 810, 241 N.W. at 768.

40 See 11 Am. Jur. 2d, supra note 30.

41 See id.

42 Watts v. Watts, 250 Neb. 38, 43, 547 N.W.2d 466, 470 (1996) (emphasis 

supplied).

43 Christensen v. Christensen, supra note 18, 144 Neb. at 766, 14 N.W.2d at 

615 (emphasis supplied).

44 Simpson v. Neely, 221 S.W.2d 303 (Tex. App. 1949).
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purpose. 45 With that view in mind, it is unsurprising that a 

number of states have found a voidable marriage to be sufficient for a bigamy prosecution. 46

[10] We hold that a bigamy prosecution can be based on 

a voidable marriage. Such a marriage is treated as valid. As 

another court cautioned with respect to bigamy, “if such a marriage be legal for other purposes, it would be dangerous in the 

extreme, to allow the mere form of the marriage to become a 

shield to protect those who commit such a crime.” 47 With this 

established, we turn to whether the State proved beyond a reasonable doubt that Johnson was guilty of bigamy.

Proof of Bigamy

Based on the text of § 28-701(1), there are two essential 

elements of bigamy. Under the circumstances here, the State 

had to prove beyond a reasonable doubt (1) that Johnson was 

a “married person” with a wife living and (2) that he married 

another person.

The State proved the essential elements of bigamy. It 

adduced two documents titled “License and Certificate of 

Marriage” from the Nebraska Department of Health and 

Human Services’ vital records office, each showing that the 

45 See 177 Am. Jur. Proof of Facts 3d, supra note 24. See, also, Smith v. 

Smith, 224 So. 3d 740 (Fla. 2017); Trapasso v. Lewis, 247 Md. App. 577, 

239 A.3d 703 (2020); In re De Conza’s Estate, 13 N.J. Misc. 41, 176 A. 

192 (1934); Dibble v. Meyer, 203 Or. 541, 278 P.2d 901 (1955); Brewer v. 

Miller, 673 S.W.2d 530 (Tenn. App. 1984); Toler v. Oakwood Smokeless 

Coal Corporation, 173 Va. 425, 4 S.E.2d 364 (1939); In re Hollingworth’s 

Estate, 145 Wash. 509, 261 P. 403 (1927).

46 See, e.g., Beggs v. State, 55 Ala. 108 (1876); Barber v. People, 203 Ill. 

543, 68 N.E. 93 (1903); State v. Yoder, 113 Minn. 503, 130 N.W. 10 

(1911); State v. Eden, 350 Mo. 932, 169 S.W.2d 342 (1943); Ysern v. 

Horter, 94 N.J. Eq. 135, 118 A. 774 (1922); People v. Dunbar, 194 A.D. 

144, 184 N.Y.S. 765 (1920); State v. Moore, 1 Ohio Dec. Reprint 171 

(1845); State v. Sellers, 140 S.C. 66, 134 S.E. 873 (1926).

47 Carmichael v. State, 12 Ohio St. 553, 561 (1861).
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ceremony occurred in Lancaster County: one was filed in 

January 2017 in the names of Johnson and Petersen and 

showed a July 2015 ceremony date and the other was filed in 

November 2018 in the names of Johnson and Forney. These 

records are presumptive evidence of the fact of such marriages. 48 The State produced evidence that there was no record 

Johnson divorced Petersen prior to his marriage to Forney.

[11] Section 28-701(1) identifies several affirmative 

defenses, but the statute is silent as to who carries the burden of proving them. In the absence of a statute placing the 

burden of proving an affirmative defense on the defendant in 

a criminal case, the nature of an affirmative defense is such 

that the defendant has the initial burden of going forward with 

evidence of the defense, and once the defendant has produced 

sufficient evidence to raise the defense, the issue becomes 

one which the State must disprove. 49 The evidence necessary 

to raise an affirmative defense may be adduced either by the 

defendant’s witnesses or in the State’s case in chief without the 

necessity of the defendant’s presenting evidence. 50 A defendant 

need only adduce a slight amount of evidence to satisfy this 

initial burden of raising an affirmative defense. 51

Johnson adduced sufficient evidence to raise the affirmative defense that he “reasonably believed that he was legally 

eligible to remarry.” 52 The evidence showed that Johnson and 

Petersen obtained a Nebraska marriage license, but that the ceremony occurred in Texas. Johnson argued to the county court 

that the marriage was not a valid marriage because it did not 

comply with statutes in Nebraska or Texas. If the marriage was 

void, Johnson would be eligible to remarry.

48 See Neb. Rev. Stat. § 42-116 (Reissue 2016).

49 State v. Grutell, 305 Neb. 843, 943 N.W.2d 258 (2020).

50 Id.

51 Id.

52 See § 28-701(1)(c).
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[12,13] When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant 

question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt. 53 Here, the parties 

stipulated to the evidence, including an exhibit setting forth 

what witnesses would say if called to testify. Stipulated facts 

may still involve issues of fact and credibility, which are the 

province of the trial court to resolve. 54

The evidence supports a finding that Johnson believed he 

was married to Petersen, making him ineligible to legally 

remarry. Viewing the evidence in the light most favorable to the 

State, it shows that Johnson and Petersen acquired a marriage 

license and participated in a wedding ceremony performed by 

Johnson’s sister, an ordained minister. After those events, when 

Johnson inquired as to how to “prevent the marriage from 

going through,” he was told by an employee at the Lancaster 

County clerk’s office that he was married if he already filled 

out the marriage license and had the ceremony. The evidence 

showed that after having been informed of the effect of obtaining a license and participating in a marriage ceremony, Johnson 

referred to Petersen as his wife. When, over 1 year after the 

ceremony, it was discovered that the marriage license had not 

been filed, Johnson returned to the Lancaster County clerk’s 

office and signed a replacement license, which was also signed 

by Johnson’s sister and two witnesses. The evidence supports 

Johnson’s conviction for bigamy.

CONCLUSION

We conclude that Johnson’s marriage to Petersen, even 

if not valid under statute, was at least a voidable marriage. 

53 State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).

54 See State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).
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Because a voidable marriage is treated as valid until declared 

otherwise by a court of competent jurisdiction, it will support 

a bigamy prosecution. We conclude Johnson’s conviction for 

bigamy conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 

Accordingly, we affirm the judgment of the district court, 

which upheld the county court’s judgment.

Affirmed.