State v. Larkins

S tate of nebraSka , appellant , v .
S teven J. larkinS, appellee .
755 N.W.2d 813
Filed September 19, 2008. 	No. S-07-1069.
1. Criminal Law: Intent: Appeal and Error. The purpose of a prosecutorial appeal
brought under Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2006) is to provide an
authoritative exposition of the law to serve as precedent in future cases.
2. Criminal Law: Appeal and Error. Under Neb. Rev. Stat. § 29-2315.01 (Cum.
Supp. 2006), an appellate court determines whether authoritative exposition of
the law is needed based upon the prosecuting attorney’s application for leave to
docket an appeal.
3. ____: ____. The scope of an appellate court’s review under Neb. Rev. Stat.
§ 29-2315.01 (Cum. Supp. 2006) is limited to providing an authoritative exposi-
tion of the law to serve as precedent in future cases.
Appeal from the District Court for Lancaster County: S teven
d. burnS, Judge. Appeal dismissed.
Gary E. Lacey, Lancaster County Attorney, and Daniel D.
Packard for appellant.
Joel G. Lonowski, of Morrow, Poppe, otte & Watermeier,
P.C., L.L.o., for appellee.
heavican, 	C.J., 	W riGht, 	connolly, 	G errard, 	S tephan,
M ccorMack, and M iller -lerMan, JJ.
G errard, J.
Steven J. Larkins was charged with tampering with a wit-
ness1 after an altercation with his estranged wife. Larkins’ wife
called police after the altercation, and Larkins asked her to call
back and tell the police not to come. Larkins was holding a
gun at the time, but he neither pointed the gun at his wife nor
expressly threatened her in any way. The district court found
this to be insufficient evidence of tampering with a witness and
dismissed that charge and a related firearms charge.
The Lancaster County Attorney filed a notice of intent
to appeal that judgment of dismissal.2 The county attorney’s
1 See Neb. Rev. Stat. § 28-919(1)(a) (Reissue 1995).
2 See Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2006).
STATE v. LARkINS 	603
Cite as 276 Neb. 603
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

application for leave to docket an appeal was signed by the
district court and filed in the Nebraska Court of Appeals. The
Court of Appeals sustained the county attorney’s application,
and the appeal was later moved to our docket.
[1-3] After considering the facts and argument in this case,
we conclude that the county attorney’s application for leave to
docket an appeal should not have been sustained. The purpose
of a prosecutorial appeal brought under § 29-2315.01 is to
provide an authoritative exposition of the law to serve as prec-
edent in future cases.3 Thus, under § 29-2315.01, an appellate
court determines whether authoritative exposition of the law
is needed based upon the prosecuting attorney’s application
for leave to docket an appeal.4 And the scope of an appellate
court’s review under § 29-2315.01 is limited to providing such
an exposition.5
Here, an authoritative exposition of the law is neither required
nor readily discernable from the asserted issue in this case. It is
not disputed that Larkins was placed legally in jeopardy before
the district court dismissed the charges at issue, so a decision
in this error proceeding would not affect the judgment of the
district court.6 And the county attorney’s sole assignment of
error is that the court erred in sustaining Larkins’ motion to
dismiss, based on the failure to prove a prima facie case. When
the county attorney’s arguments are evaluated, it is clear that
the only issue presented in this case is whether the inferences
that could reasonably be drawn from the evidence would have
been sufficient to sustain a conviction. In other words, the issue
presented is limited to the facts of this case. No issue of statu-
tory interpretation is presented, nor does any other issue appear
on which a decision would be helpful in future cases. It is not
the proper function of § 29-2315.01 to have an appellate court
render an advisory opinion on narrow factual issues regardless
3 State v. Hall, 269 Neb. 228, 691 N.W.2d 518 (2005); State v. Detweiler,
249 Neb. 485, 544 N.W.2d 83 (1996).
4 Hall, supra note 3.
5 See, id.; State v. Jennings, 195 Neb. 434, 238 N.W.2d 477 (1976).
6 See Neb. Rev. Stat. § 29-2316 (Cum. Supp. 2006).
604 	276 NEbRASkA REPoRTS

of whether the opinion may, or may not, have some marginal
precedential value in the future.
In short, the county attorney’s application does not present
us with an opportunity to provide an authoritative exposition of
the law that would be sufficiently useful as precedent. because
the scope of our review is limited to providing such an exposi-
tion, we dismiss this appeal.
appeal diSMiSSed .
STATE v. LARkINS 	605
Cite as 276 Neb. 603