State v. Huff

State of NebraSka , appellee , v.
H ercHel H arold Huff, appellaNt.
776 N.W.2d 498
Filed December 24, 2009. 	No. S-09-286.
1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions
of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
3. Lesser-Included Offenses: Jury Instructions. In the context of jury instructions,
one offense is a lesser-included offense of another if the elements of the lesser
offense for which an instruction is requested are such that one cannot commit the
greater offense without simultaneously committing the lesser offense.
4. Double Jeopardy: Statutes: Proof. In a double jeopardy analysis, where the
same act or transaction constitutes a violation of two distinct statutory provisions,
the test to determine whether there are two offenses or one is whether each provi-
sion requires proof that the other does not.
5. Double Jeopardy. The Double Jeopardy Clauses of both the federal and the
Nebraska Constitutions protect against three distinct abuses: (1) a second pros-
ecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense.
6. ____. While the Double Jeopardy Clause may protect a defendant against
cumulative punishments for convictions on the same offense, the clause does
not prohibit the State from prosecuting a defendant for multiple offenses in a
single prosecution.
7. Judgments: Appeal and Error. Where the record adequately demonstrates that
the decision of a trial court is correct—although such correctness is based on a
ground or reason different from that assigned by the trial court—an appellate
court will affirm.
Appeal from the District Court for Furnas County: JameS
e. 	doyle 	Iv, 	Judge. Affirmed 	and 	remanded 	for 	further
proceedings.
Charles D. Brewster and Jonathan R. Brandt, of Anderson,
Klein, Swan & Brewster, and Richard Calkins for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
H eavIcaN, 	c.J., 	WrIgHt, 	coNNolly, 	gerrard, 	StepHaN,
mccormack , and mIller-lermaN, JJ.
StepHaN, J.
Following a fatal motor vehicle accident, Herchel Harold
Huff 	was 	charged 	with 	four 	criminal 	offenses, 	including
68 	279 NEBRASKA REpORTS
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manslaughter and motor vehicle homicide. After pleading
guilty to manslaughter, Huff filed a plea in bar alleging that his
continued prosecution on the motor vehicle homicide charge
would constitute double jeopardy. Huff appeals from an order
of the district court for Furnas County denying the plea in bar.
We affirm, but for reasons different from those upon which the
district court based its decision.
BACKGROUND
The accident occurred in rural Furnas County on October
3, 2007. A deputy sheriff who encountered Huff at the scene
detected a strong odor of alcohol and arrested him. Huff
admitted that he had been the driver of a vehicle involved in
the accident, and this fact was confirmed by another person
at the accident scene. Kasey Jo Warner died at the scene of
the accident.
In an amended information, Huff was charged with motor
vehicle homicide, predicated on third-offense driving under the
influence,1 and manslaughter,2 which according to the informa-
tion was predicated on the unlawful act of “operating a motor
vehicle . . . carelessly or without due caution so as to endanger
a person or property.” Huff was also charged with refusal to
submit to a chemical test3 and tampering with a witness.4 He
pled guilty to the manslaughter charge and not guilty to the
remaining charges. The court deferred sentencing on the man-
slaughter conviction until after the resolution of the remaining
three charges.
Huff then filed a plea in bar in which he alleged that because
he had been found guilty on the manslaughter charge, prosecu-
tion on the motor vehicle homicide charge would subject him
to double jeopardy in violation of his state and federal consti-
tutional rights. He requested that the motor vehicle homicide
charge be dismissed. After conducting an evidentiary hearing,
1 See Neb. Rev. Stat. § 28-306(1) and (3)(c) (Reissue 2008).
2 See Neb. Rev. Stat. § 28-305 (Reissue 2008).
3 See Neb. Rev. Stat. §§ 60-6,197 (Reissue 2004) and 60-6,197.03(6) (Supp.
2007).
4 See Neb. Rev. Stat. § 28-919 (Reissue 2008).
STATE v. HUFF 	69
Cite as 279 Neb. 68

the district court determined that manslaughter and motor
vehicle homicide are not the “same offense” for double jeop-
ardy purposes and denied the plea in bar. Huff filed this timely
appeal, which we moved to our docket pursuant to our statu-
tory authority to regulate the caseloads of the appellate courts
of this state.5
ASSIGNMENT OF ERROR
Huff’s sole assignment of error is that the district court erred
in denying his plea in bar and “allowing his continued prosecu-
tion for Motor Vehicle Homicide after a previous conviction for
Involuntary Manslaughter.”
STANDARD OF REVIEW
[1,2] Issues regarding the grant or denial of a plea in bar
are questions of law.6 On a question of law, an appellate court
reaches a conclusion independent of the court below.7
ANALYSIS
Huff’s plea in bar raises a colorable double jeopardy claim,
and we therefore have jurisdiction over this interlocutory
appeal.8 We have previously examined the relationship between
the offenses of manslaughter and motor vehicle homicide.
Most recently, in State v. Wright,9 we determined that when
a defendant is charged with manslaughter, he or she is not
entitled to have the jury instruction on the elements of motor
vehicle homicide, because it is not a lesser-included offense of
manslaughter. Wright overruled prior cases holding to the con-
trary. But Wright reaffirmed that where death results uninten-
tionally from the operation of a motor vehicle, a prosecutor is
free to choose whether to charge motor vehicle homicide or
5 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
6 State v. Jackson, 274 Neb. 724, 742 N.W.2d 751 (2007).
7 State v. Claussen, 276 Neb. 630, 756 N.W.2d 163 (2008).
8 See, Neb. Rev. Stat. § 29-1817 (Reissue 2008); State v. Williams, 278
Neb. 841, 774 N.W.2d 384 (2009); State v. Milenkovich, 236 Neb. 42, 458
N.W.2d 747 (1990).
9 State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001).
70 	279 NEBRASKA REpORTS

manslaughter, notwithstanding the fact that substantially differ-
ent criminal penalties may be imposed depending upon which
crime is charged.10
[3,4] The prosecutor in this case avoided the choice by
charging Huff with both offenses. The question that Huff asks
us to decide is not whether one is a lesser-included offense of
the other for purposes of jury instruction, but, rather, whether
they are the same offense for purposes of double jeopardy.
While both issues require a comparison of statutory elements,
the applicable legal principles are not identical. In the context
of jury instructions, one offense is a lesser-included offense
of another if the elements of the lesser offense for which an
instruction is requested are such that one cannot commit the
greater offense without simultaneously committing the lesser
offense.11 In a double jeopardy analysis, where the same act
or transaction constitutes a violation of two distinct statutory
provisions, the test to determine whether there are two offenses
or one is whether each provision requires proof that the other
does not.12 Here, involuntary manslaughter includes three statu-
tory elements: (1) causing death, (2) unintentionally, (3) while
in the commission of an unlawful act.13 Motor vehicle homi-
cide includes four statutory elements: (1) causing death, (2)
unintentionally, (3) while engaged in the operation of a motor
vehicle, (4) in violation of the law.14 Huff argues that the two
offenses are one for purposes of double jeopardy, because
while motor vehicle homicide includes an element not included
in the offense of involuntary manslaughter, i.e., operation of a
motor vehicle, all of the elements of involuntary manslaughter
are included in the offense of motor vehicle homicide, and thus
10 See, also, State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003)
(Stephan, J., concurring); State v. Burnett, 254 Neb. 771, 579 N.W.2d 513
(1998); State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986), disapproved
on other grounds, State v. Wright, supra note 9.
11 See State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).
12 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
(1932); State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009).
13 § 28-305.
14 § 28-306.
STATE v. HUFF 	71
Cite as 279 Neb. 68

it cannot be said that each offense includes an element that the
other does not.
[5] But there is a threshold issue regarding the point at which
the constitutional safeguard against double jeopardy attaches.
The Double Jeopardy Clauses of both the federal and the
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.15 Huff argues
that this is a second prosecution for the same offense after
conviction. The State counters that because both charges were
included in the same information, along with other charges,
there is only one prosecution, and no potential double jeopardy
issue arises unless and until Huff is convicted of motor vehicle
homicide and sentenced for that offense and the manslaughter
offense for which he has already been convicted.
[6] The State bases its argument on our 2006 decision in
State v. Humbert.16 In that case, the defendant was charged
with two misdemeanor and four felony offenses arising from an
alleged episode of domestic violence occurring over a period
of several hours. The defendant pled no contest to the misde-
meanor charges and then filed a plea in bar alleging that pros-
ecution on two of the felony charges would constitute double
jeopardy. Based upon the principles articulated by the U.S.
Supreme Court in Ohio v. Johnson,17 we concluded there was
no present violation of the Double Jeopardy Clause: “Double
jeopardy protects a defendant against cumulative punishments
for convictions on the same offense; however, it does not
prohibit the State from prosecuting a defendant for multiple
offenses in a single prosecution.”18
Huff argues that his case is distinguishable from Humbert,
because that case involved multiple charges resulting from
a series of related events, whereas in this case, both the
15 State v. Dragoo, supra note 12.
16 State v. Humbert, 272 Neb. 428, 722 N.W.2d 71 (2006).
17 Ohio v. Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425
(1984).
18 State v. Humbert, supra note 16, 272 Neb. at 434, 722 N.W.2d at 76.
72 	279 NEBRASKA REpORTS

manslaughter and motor vehicle homicide charges arise from
the single act of unlawful operation of a motor vehicle result-
ing in a death. But Huff makes no attempt to distinguish
Johnson, upon which our holding in Humbert was based.
Johnson involved a state prosecution in which the defendant
was charged in a single indictment with murder, involuntary
manslaughter, aggravated robbery, and grand theft, arising from
a single shooting death. He pled guilty to the involuntary
manslaughter and grand theft charges, and then sought dis-
missal of the murder and aggravated robbery charges on the
ground that continued prosecution would violate his rights
under the Double Jeopardy Clause. Characterizing this argu-
ment as “apparently based on the assumption that trial proceed-
ings, like amoebae, are capable of being infinitely subdivided,
so that a determination of guilt and punishment on one count
of a multicount indictment immediately raises a double jeop-
ardy bar to continued prosecution on any remaining counts,”19
the Supreme Court rejected it and concluded that the Double
Jeopardy Clause did not prohibit continued prosecution on the
murder and aggravated robbery charges. The homicide charges
in Johnson, like the manslaughter and motor vehicle homicide
charges in this case, arose from the same alleged act.
We conclude that this appeal is controlled by Humbert and
Johnson. This case does not involve successive prosecutions,
but, rather, a single prosecution involving multiple charges,
only one of which has been resolved by a plea. The State has
not had an opportunity to prosecute Huff on the remaining
charges, and it is not prevented by the Double Jeopardy Clause
from doing so.20 If Huff is eventually convicted and sentenced
on the motor vehicle homicide charge, he can then, but only
then, assert a double jeopardy claim based upon alleged mul-
tiple punishments for the same offense.21
[7] Where the record adequately demonstrates that the deci-
sion of a trial court is correct—although such correctness is
19 Ohio v. Johnson, supra note 17, 467 U.S. at 501.
20 See, Ohio v. Johnson, supra note 17; State v. Humbert, supra note 16.
21 See State v. Humbert, supra note 16.
STATE v. HUFF 	73
Cite as 279 Neb. 68

based on a ground or reason different from that assigned by the
trial court—an appellate court will affirm.22 Here, the district
court was correct in overruling the plea in bar, but it should
have done so under the principles of Humbert and Johnson
instead of addressing the merits of a double jeopardy claim
which does not yet exist. We express no opinion as to whether
the district court was correct in concluding that involuntary
manslaughter and motor vehicle homicide are not the “same
offense” for purposes of a double jeopardy analysis.
CONCLUSION
For the reasons discussed, we affirm the order of the dis-
trict court overruling Huff’s plea in bar and remand for fur-
ther proceedings.
affIrmed aNd remaNded for
furtHer proceedINgS.
22 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
r & d propertIeS, llc, appellaNt, v. altecH
coNStructIoN co., defeNdaNt aNd tHIrd -party
plaINtIff, aNd tHuNN coNStructIoN, INc.,
tHIrd -party defeNdaNt, appelleeS.
776 N.W.2d 493
Filed December 24, 2009. 	No. S-09-289.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.
3. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
4. Statutes. To the extent there is a conflict between two statutes on the same sub-
ject, the specific statute controls over the general statute.
5. Statutes: Legislature: Public Policy. It is the Legislature’s function through the
enactment of statutes to declare what is the law and public policy.
Appeal from the District Court for Douglas County: J ruSSell
derr, Judge. Reversed and remanded with directions.
74 	279 NEBRASKA REpORTS