Petition for Writ of Certiorari — Goering v. Nebraska

Supreme Court, U.S.

FILED

941 87 6 MAR 2 4 9G

OERGE ME THE CLERK

IN THE

Supreme Court of the United States

October Term, 1994

KENNETH GOERING, ANN M. BOWEN,

LISA K. STRIMPLE-PADIOS and EMILIE J. VOLQUARTSEN,

Petitioners,

Vv.

STATE OF NEBRASKA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF NEBRASKA

PETITION FOR WRIT OF CERTIORARI

Alexis I. Crow

Counsel of Record

Anne-Marie Amiel

THE RUTHERFORD INSTITUTE

1445 E. Rio Road

Charlottesville, VA 22901

(804) 978-3888

Peter C. Bataillon

SODORO, DALY & SODORO

7000 Spring Street

Omaha, NE 68106

(402) 397-6200

March 24, 1995

Baimar Legal Publishing Services, Washington, D.C. (202) 682-9800

i

QUESTIONS PRESENTED

WHETHER DEFENDANTS WHO ARE CHARGED

WITH MULTIPLE OFFENSES ARISING OUT OF

ONE INCIDENT WHICH, CUMULATIVELY, EX-

POSE DEFENDANTS TO MORE THAN SIX

MONTHS IMPRISONMENT, MAY BE DENIED

THE CONSTITUTIONALLY PROTECTED

RIGHT TO A JURY TRIAL.

WHETHER AN OFFENSE MUST BE DEFINED AS

A “SERIOUS” OFFENSE WITHIN THE GUIDE-

LINES ESTABLISHED BY THIS COURT, WHEN

IMPOSITION OF A PRISON SENTENCE OF LESS

THAN SIX MONTHS WOULD NECESSARILY IN-

FLICT A FURTHER PENALTY JUPON A DEFEN-

DANT IN THE EXERCISE OF DEFENDANT’S

FUNDAMENTAL CONSTITUTIONAL RIGHTS.

u

LIST OF PARTIES

The parties to the Douglas County Court, the District Court

for Douglas County, Nebraska and the Court of Appeals of the

State of Nebraska were Kenneth Goering, Ann M. Bowen, Lisa

K. Strimple-Padios and Emilie J. Volquartsen, and the State of

Nebraska.

iii

TABLE OF CONTENTS

PAGES

QUESTIONS PRESENTED ....-.-----:-:°>

SIGT OF PARTIES... ce te te eee ees

TABLE OF CONTENTS. ...------ +e?

TABLE OF AUTHORITIES ....-----+-:-:-:

OPINIONS BELOW .....----:+seeet?

FURISDICTION ...--- ee etree eeeeres

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE....-------:>

REASONS FOR GRANTING THE WRIT ....- -

I. WHERE DEFENDANTS ARE CHARGED

WITH MULTIPLE OFFENSES ARISING

OUT OF ONE INCIDENT WHICH,

CUMULATIVELY, EXPOSE DEFEN-

ANTS TO MORE THAN SIX MONTHS

IMPRISONMENT, THE CONSTITU-

TIONAL RIGHT TO A JURY TRIAL

MAY NOT BEDENIED. ....------

Il. WHERE IMPOSITION OF A PRISON

SENTENCE OF LESS THAN SIX

MONTHS WILL NECESSARILY INFLICT

A FURTHER PENALTY UPON A

DEFENDANT IN THE EXERCISE OF

DEFENDANT’S FUNDAMENTAL

CONSTITUTIONAL RIGHTS, THE

OFFENSE MUST BE DEFINED AS A

“SERIOUS” OFFENSE WITHIN THE

GUIDELINES ESTABLISHED BY

.. (oe | 9 Sa a

‘e: & bl. °c

si eaeeaata aetna anne

IV

TABLE OF AUTHORITIES

CASES PAGES

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886,

rR et ee ee eee 4,7,11

Blanton vy. City of North Las Vegas, 489 U.S. 538,

109 S.Ct. 1289, 103 L.Ed.2d 550 (1989) ... 5,10

Bruce v. State, 126 Anz. 271, 614 P.2d 813 (1980) . 6

Duncan vy. Louisiana, 391 U.S. 145, 88 S.Ct. 1444,

le ee Ce a vce Ss ee es 7

Frank v. U.S., 395 U.S. 147, 89 S.Ct. 1503, 23

mY ei eee ee a ee 10

Haar v. Hanrahan, 708 F.2d 1547 (10th Cir. 1983) . 7

Owen v. City of Independence, 445 U.S. 622 (1980) . 1]

State v. Sanchez, 109 N.M. 428, 786 P.2d 42 (1990) . 6

U.S. v. Coleman, 664 F.Supp. 548 (D.D.C. 1985) . 8

U.S. v. Coppins, 953 F.2d 86 (4th Cir. 1991)... . 6

U.S. v. Jenkins, 780 F.2d 472 (4th Cir. 1986) i

U.S. v. Kozel, 908 F.2d 205 (7th Cir. 1990),

cert. denied 489 U.S. 1089, 111 S.Ct. 969,

ORZ Cee Fe CREED bet ee we es 6

U.S. v. McAlister, 630 F.2d 772 (10th Cir. 1980). 11

U.S. v. Musgrave, 695 F.Supp. 231 (W.D. Va. 1988) . 7-8

U.S. v. Potvin, 481 F.2d 380 (10th Cir. 1973) .. . 5,7

U.S. v. Thomas, 574 F.Supp. 197 (D.D.C. 1983),

affirmed without opinion, 753 F.2d 167

Ce a SE be ke ae ee ewe 10-11

Vallejos v. Barnhart, 102 N.M. 438,

7k Ey oi. ee 8

CONSTITUTIONAL PROVISIONS

Nebraska Constitution, Article 1,§6......

Nebraska Constitution, Article 1,§ 11] .....

United States Constitution, Amendment I

United States Constitution, Amendment VI

United States Constitution, Amendment XIV

- 2,4

os 2,4

. .2,4,9,10,12

2,4,12

2,4,12

No.

IN THE

Supreme Court of the United States

October Term, 1994

KENNETH GOERING, ANN M. BOWEN,

LISA K. STRIMPLE-PADIOS and EMILIE J. VOLQUARTSEN,

Petitioners,

Vv.

STATE OF NEBRASKA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF NEBRASKA

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the Court of Appeals of

the State of Nebraska in this case.

OPINIONS BELOW

The dispositions of the cases against each Petitioner in the

Douglas County Court, dated March 2, 1992, appear at Appen-

dix A. The disposition sheets do not accurately reflect the guilty

verdicts for Petitioner Goering or Bowen, and an excerpt from

the transcribed transcript of proceedings therefore also appears

at Appendix A. This excerpt of Judge Cropper’s decision states

the findings of guilty on each charge for each Petitioner. The

District Court of Douglas County, Nebraska’s Opinions and

Orders of November 17, 1993, appear at Appendix B below.

2

The Opinion of the Court of Appeals of the State of Nebraska,

dated October 25, 1994, appears at Appendix C below. The

Order of the Nebraska Supreme Court, denying Petitioners’

petition for review, entered December 29, 1994, appears at

Appendix D below.

JURISDICTION

This case seeks review of a decision of the Court of Appeals

of the State of Nebraska entered on October 25, 1994.

Jurisdiction for review of this matter by certiorari is con-

ferred on this Court by 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment I

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof. . .

United States Constitution, Amendment VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed. . .

United States Constitution, Amendment XIV

[NJor shall any State deprive any person of life, liberty, or

property without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Nebraska Constitution, Article I, § 6

The right of trial by ry shall remain inviolate.

Nebraska Constitution, Article I, § 11

In all criminal prosecutions the accused shall have the right

to... a speedy trial by an impartial jury.

3

STATEMENT OF THE CASE

This case involves charges arising out of a peaceful dem-

onstration outside a Nebraska abortion clinic held on December

14, 1991. Criminal charges were filed against each of the

Petitioners for trespass, request to leave, and obstructing admini-

stration of law. Each of these charges carried maximum penal-

ties of six months imprisonment, a $500 fine, or both.

Petitioners’ request for a jury trial, based on the federal and

state constitutions, was denied. On March 2, 1992, Petitioners

were each found guilty in the Douglas County Court of all three

charges. Appeal was properly made to the District Court of

Douglas County. The Statement of Errors filed with the appeal

included, inter alia, the denial of a jury trial to Petitioners.

On November 17, 1993, the District Court reversed the

trespass convictions, but affirmed Petitioners’ convictions for

request to leave and obstructing administration of law. Appeal

was properly made to the Nebraska Court of Appeals, which

affirmed the District Court’s decision, by a 2-1 majority, on

October 25, 1994. A Petition for Review was denied by the

Nebraska Supreme Court on December 29, 1994, without opin-

ion being rendered.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari in order to resolve a

conflict that has arisen within the circuits, and is being perpetu-

ated by the decision of the Court of Appeals for the State of

Nebraska. The conflict involves the right of a defendant to

demand a jury trial when the cumulative penalty for all offenses

charged arising out of one incident exceeds six months in jail or

$500, or both. At least three different tests are being applied by

courts of appeal and district courts in making a determination of

the extent of the constitutional right to a jury trial, and Petitioners

respectfully request that this Court grant certiorari in the instant

4

case in order to resolve the conflict and avoid confusion and

uncertainty in the law.

This Court should also grant certiorari in order to resolve

an issue of public importance, in that the practice of charging

protestors with multiple “petty” offenses and subsequently de-

nying those protestors the right to a jury trial is undermining the

constitutional protections historically afforded even unpopular

speech under the First Amendment to the Constit:tion of the

United States and under the Nebraska Constitution. Petitioners

respectfully request this Court to grant certiorari in order to

clarify for all circuits and all States the importance of upholding

the fundamental constitutional rights of all citizens, even when

current public social policy disapproves of certain forms of

protected speech.

These reasons for granting certiorari are further expanded

hereafter in this Petition.

I. WHERE DEFENDANTS ARE CHARGED WITH

MULTIPLE OFFENSES ARISING OUT OF ONE

INCIDENT WHICH, CUMULATIVELY, EXPOSE

DEFENDANTS TO MORE THAN SIX MONTHS

IMPRISONMENT, THE CONSTITUTIONAL

RIGHT TO A JURY TRIAL MAY NOT BE DENIED.

Under Amendment VI and Amendment XIV of the United

States Constitution, and Article I, §§ 6 and 11 of the Nebraska

Constitution, criminal defendants are constitutionally entitled to

have their cases tried by a jury. Nevertheless, in laying down

rules for the efficient administration of justice, this Court and

courts in all States have developed principles whereby certain

criminal offenses, deemed to be “petty” offenses, do not entitle

defendants to jury trials. In defining the level at which an

offense could no longer be considered “petty,” this Court held,

in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d

437 (1970), that “no offense is petty for which imprisonment for

more than six months is authorized.” (Id. at 69.)

"iene aa

5

In Blanton v. City of North Las Vegas, 489 U.S. 538, 109

S.Ct. 1289, 103 L.Ed.2d 550 (1989), this Court held that an

offense which carried a maximum penalty of six months impris-

onment was to be deemed a “petty” offence and did not afford

a defendant the right to a jury trial, absent some additional factor

which would elevate the offense to “serious.” It must be noted,

however, that in Blanton this Court discussed the question of

the right to a jury trial in the context of a potential exposure to

imprisonment of no more than six months, regardless of whether

the crime was deemed “petty” or “serious.”

Petitioners respectfully submit that Blanton, cited by the

Nebraska Court of Appeals in rendering its decision, does not

stand for the proposition that defendants charged with multiple

offenses arising out of one incident, offenses which expose the

defendants to a potential term of imprisonment of up to 18

months, are to be denied the right to a jury trial. Petitioners

believe that such a mistaken reading of this Court’s decisions

led to the decision of the Nebraska Court of Appeals in the

instant case, and is leading to a split in the circuits in upholding

the constitutional right of defendants to a jury trial.

In U.S. v. Potvin, 481 F.2d 380 (10th Cir. 1973), the appeals

court stated:

We believe that the defendants can view as no less

serious a possible penalty of a year in prison when

charged with two offenses arising out of the same act,

transaction, or occurrence, than if charged with one

offense having a potential penalty of one year’s im-

prisonment. Nor, in our view, should the court view

the offenses any less seriously.

Id. at 382.

The Nebraska Court of Appeals in the instant case appears

to have followed a line of cases which holds that the right to a

jury trial is to be determined post trial, when one considers the

6

actual sentence imposed, i.e. if no more than six months in prison

is imposed by the judge, the defendant had no right to a jury

trial. (See U.S. v. Kozel, 908 F.2d 205 (7th Cir. 1990), cert.

denied 489 U.S. 1089, 111 S.Ct. 969, 112 L.Ed.2d 1055 (1991);

Bruce v. State, 126 Ariz. 271, 614 P.2d 813 (1980).)

Petitioners respectfully submit that this is a classic case of

putting the cart before the horse. It is a well known axiom that

justice must not only be done, but must be seen to be done. If

a constitutional right to a jury trial is to be given a defendant,

then that right attaches at the time of the trial, not at the time of

sentencing or appeal.

Petitioners submit that the proper test for granting a defen-

dant a jury trial is the aggregate sentence to which that defendant

is exposed as a result of the trial. In U.S. v. Coppins, 953 F.2d

86 (4th Cir. 1991), the Court of Appeals held that the defendant

was entitled to a jury trial because a conviction on all three

charges arising out of the same incident would expose her to a

potential prison sentence of 15 months. Judge Phillips stated in

his opinion that:

[T]he district court erred in holding that a defendant’s

constitutional right to jury trial can in effect be

trumped by the imposition of a sentence which, be-

cause of its binding effect on retrial, thereby effec-

tively becomes the determinant of the original right.

What is being asserted on appeal is the right not to be

convicted in the first place except by a jury. An

arguably unconstitutionally obtained conviction can-

not be immunized from challenge by finding the

challenge mooted by the sentence imposed.

Id. at 88.

Similarly, in State v. Sanchez, 109 N.M. 428, 786 P.2d 42

(1990), the court held that the issue of whether a jury trial is

required in any particular case should be objectively measured

|

7

by looking at the maximum statutory penalties to which the

defendants are exposed, rather than subjectively measured by

the penalty threatened at the time of the trial.

In Haar v. Hanrahan, 708 F.2d 1547 (10th Cir. 1983), the

Court of Appeals held that:

[Bjecause modern criminal codes permit multiple

charges to flow from a single discrete act of criminal-

ity, a criminal prosecution can threaten a defendant

with the consequences of a serious offense, even

though the defendant is not charged with an offense

deemed serious under Duncan [v. Louisiana, 391 U.S.

145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)] or Bald-

win. Thus, strictly applying the serious offense defi-

nition may not protect the defendant from an

oppressive prosecution. Potvin addresses this prob-

lem by identifying the “act, transaction or occurrence”’

that underlies the criminal charges. In determining

the right to a jury trial, it looks to the aggregate penalty

that could result from the various charges arising out

of a discrete criminal transaction.

Haar at 1551. Petitioners believe that such a common-sense

approach is the appropriate standard for determining the nght

of a defendant to a jury trial.

The Fourth Circuit Court of Appeals, in U.S. v. Jenkins,

780 F.2d 472 (4th Cir. 1986), applied this Court’s rules in

Baldwin, holding that a determination of the classification of a

crime as “serious” or “petty” includes a consideration of “1) the

intrinsic nature of the offense itself, and 2) the maximum poten-

tial penalty.” (Jenkins, at 474 (emphasis added).)

In U.S. v. Musgrave, 695 F.Supp. 231 (W.D. Va. 1988),

the district court upheld defendants’ right to a jury trial, “believ-

ing that the potential aggravated sentences the defendants could

receive placed these particular crimes into the category of ‘seri-

8

ous offenses,’ thus implicating the defendants’ right to a jury

trial.” (/d. at 231.) Both in this case, and in the case of U.S. v.

Coleman, 664 F.Supp. 548 (D.D.C. 1985), where the court also

upheld the right to a jury trial, the opinions commented on the

fact that this Court has not clarified the issue of aggregation of

penalties in the determination of the right to a jury trial. Peti-

tioners believe that such a clarification would greatly benefit the

proper administration of justice throughout the circuits.

The Supreme Court of New Mexico, in Vallejos v. Barn-

hart, 102 N.M. 438, 697 P.2d 121 (1985), was faced with

interpreting statutory provisions relating to sentencing limits

and the right to a jury trial. The Court discussed legislative

intent as well as statutory construction, and held:

[W Jhere the language of the legislative act is doubtful

or an adherence to the literal use of words would lead

to injustice, absurdity or contradiction, the statute will

be construed according to its obvious spirit or reason,

even though this requires the rejection of words or the

substitution of others.

Id. at 123. The New Mexico Supreme Court held that the proper

interpretation of the sentencing statute demanded that the term

“penalty” refer to the aggregate penalty to which the defendant

was exposed, rather than each, individual, penalty.

Petitioners respectfully submit that to use any measure but

an objective one, as outlined above, would be to open up our

legal system to abuse. Petitioners in the instant case were

charged in connection with an incident involving an issue of

great public controversy, i.e. pro-life demonstrations. The cur-

rent social and political environment views such demonstrators

in an extremely negative fashion, so much so that there have

been strenuous efforts to curtail pro-life demonstrators’ consti-

tutional right to free speech. That many of these efforts can be

traced to a knee-jerk reaction to the few violent pro-life protes-

tors among the many thousands of non-violent demonstrators

9

does not lessen the impact on all citizens who wish to publicly

express their support of any cause, not just the pro-life cause.

One tool that can be used to circumvent the constitutional

rights of persons charged in connection with demonstrations is

to charge them with multiple, “petty” offenses none of which,

individually, may entitle the defendant to a jury trial. Thus,

taken to its logical conclusion, it is entirely conceivable that

those citizens taking a stand on any issue that, by the political

standards of the day, is a highly controversial one, could find

themselves in the unenviable situation of having a string of

convictions on their records for multiple offenses, never having

had the opportunity to have their cases tried by jury.

Proper, speedy, and efficient administration of justice does

not demand that each and every defendant in a criminal case be

entitled to a jury trial. It does, however, demand that those

defendants who are potentially subject to extensive criminal

records, lengthy prison sentences and/or considerable fines, be

entitled to have their cases heard by a jury of their peers.

Il. WHERE IMPOSITION OF A PRISON SENTENCE OF

LESS THAN SIX MONTHS WILL NECESSARILY

INFLICT A FURTHER PENALTY UPON A

DEFENDANT IN THE EXERCISE OF DEFEN-

DANT’S FUNDAMENTAL CONSTITUTIONAL

RIGHTS, THE OFFENSE MUST BE DEFINED AS

A “SERIOUS” OFFENSE WITHIN THE GUIDE-

LINES ESTABLISHED BY THIS COURT.

Petitioners submit that, even where an individual offense

may be considered “petty” under sentencing criteria, the impo-

sition of a further penalty that would impact on the ability of

Petitioners’ ability to exercise their First Amendment rights is

sufficient to classify the offense as “serious,” and implicate the

right to trial by jury.

10

This Court, in Blanton, discussed the “objective indications

of the seriousness with which society regards the offense,”

(Blanton, 489 U.S. at 541 (quoting Frank v. U.S., 395 U.S. 147,

148, 89 S.Ct. 1503, 1505, 23 L.Ed.2d. 162 (1969)). Since

Blanton, the seriousness of the offense has largely been inter-

preted to be that maximum penalty authorized by the legislature,

as representative of the people. However, the people of the

United States are also represented by the Constitution, and

Petitioners’ believe that any proper interpretation of the serious-

ness accorded any offense must include consideration of statu-

tory and Constitutional enactments.

Thus, incarcerating a defendant convicted of a charge

arising out of an explicit exercise of that defendant’s free speech

rights, deprives the convicted person of the ability to exercise

that constitutional right for the duration of the incarceration. In

such a case, the defendant (and perhaps society itself) may see

the penalty chilling the speech as more important than the

imprisonment.

Recognition of the importance of jealously protecting our

Constitutional freedoms in prosecuting criminal activity was

given by the courts in U.S. v. Thomas, 574 F.Supp. 197 (D.D.C.

1983), affirmed without opinion, 753 F.2d 167 (D.C. Cir. 1984).

A charge subjecting the defendant to imprisonment of not more

than six months and a fine of not more than $500 was filed for

a violation of an Interior Department regulation against placing

a structure on the White House sidewalk. Defendant had erected

a cardboard “missile” on the sidewalk expressly to protest public

policy to which he was opposed.

The court in Thomas held that the offense charged must be

considered “serious,” and not “petty,” since a conviction “could

have a chilling effect on a variety of future protest activities by

defendant and others.” (Jd.) The First Amendment implications

of the charge therefore constituted an additional penalty, over

1]

and above the statutorily prescribed ones, and entitled the de-

fendant to a jury trial. As the court stated:

[T]he defendant’s alleged conduct has two elements:

one proscribed and one constitutionally protected.

Confinement as a punishment for the proscribed ele-

ment would spill over onto the constitutionally pro-

tected element. The risk to the constitutionally

protected conduct inherent in the sanction imposable

for the proscribed conduct escalates the crime from

the petty to one for which a jury trial should be

available to a defendant who demands one. . . {T]he

primary purpose of the jury is to prevent the possibil-

ity of oppression by the Government.

Id. at 199 and n.3 (quoting Baldwin, 399 U.S. at 72 (1970)).

In U.S. v. McAlister, 630 F.2d 772 (10th Cir. 1980), the

Court of Appeals stated that “[u]nless the right to a trial by jury

in cases such as this has been clearly abrogated by history and

reason, a defendant should have the benefit of the constitutional

protection, “ (Id. at 774 (citing Owen v. City of Independence,

445 U.S. 622, 652 (1980).)

The instant case is one implicating the fundamental consti-

tutional right of all citizens to protest policies which they

oppose, and Petitioners respectfully request that this Court

consider the Constitutional issues in deciding to grant certiorari.

12

CONCLUSION

Petitioners submit that the constitutional right of a trial by

jury afforded defendants under Amendments VI and XIV of the

United States Constitution extend to those defendants charged

with multiple offenses arising out of one incident.

Petitioners further submit that, where constitutional free

speech rights are implicated in the activity giving rise to criminal

charges, the further penalty imposed on the defendants by the

chilling of their First Amendment nght of free speech requires

the granting of a jury trial.

Accordingly, we respectfully request that this Court re-

verse the decision of the lower courts with respect to the granting

of a jury trial to Petitioners.

Respectfully submitted,

Alexis I. Crow

Counsel of Record

Anne-Marie Amiel

THE RUTHERFORD INSTITUTE

1445 E. Rio Road

Charlottesville, VA 22901

(804) 978-3888

Peter C. Bataillon

SODORO, DALY & SODORO

7000 Spring Street

Omaha, NE 68106

(402) 397-6200

March 24, 1995

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—

A-5

I, Walter H. Cropper, County Judge for Douglas County

Court in the Fourth Judicial District of the State of Nebraska, do

hereby settle and allow the within and following as the bill of

exceptions in this case; do hereby state that the tape recording

from which this bill of exceptions was prepared, is the official

record made at the time of the proceedings had in or at the trial

of the foregoing cause in said court ; and that said tape recording

constituting the official record has been at all times in the

custody and/or under the control of the County Court.

Dated this _23rd_ day of _April_, 1992.

[s/

COUNTY JUDGE

* *+ *£ * *

THE COURT: Yeah. The burden of proof rests upon the

State to prove each and every element beyond a reasonable

doubt. And that’s really all the lawsuit is about. Now my own

personal convictions do not involve in this at all. So we'll just

stick to what the allegations are. Trespassing - Purposely or

knowingly entered upon the property of the Women’s Medical

Center of Nebraska without being invited, licensed or privileged

to do so. I feel the testimony of Sergeant Fidone is borne out in

the Exhibit 1 document — it’s quite clear — coupled with his

own testimony. I find guilt beyond a reasonable doubt on that.

Now the request to leave, once again from my notes here, which

Sergeant Fidone said, “They blocked the entrance gate.” The

sergeant told the defendants to leave. They were given, in fact,

one minute to leave. They didn’t. I find them guilty of that.

They failed to refuse to leave the property of another person after

being so notifed by the owner, occupant or person in control.

Now, as to the third charge, obstructing the administration of

law, there the State has to show that the defendants purposely

or knowingly — where is the verb — refused to do any act or

commit any act of omission with the intent to obstruct or intefere

with any law enforcement officer. There, the sergeant went on

and said al] were charged with trespass, and told if they didn’t

leave, they’d be charged with resisting, which really doesn’t

involve itself here. Or a comparable ordinance would take its

place. Now obstructing the administration of law is quite clear.

Passive resistance is what was contemplated, and by the change

in the ordinance, I think they caught it. I feel that they’ve all

been proved beyond a reasonable doubt; and therefore, accord-

ingly, I will find guilt. Now — What about penalties? Do you

want me to run over all those now?

ne

B-1l

IN THE

DISTRICT COURT OF

DOUGLAS COUNTY, NEBRASKA

Docket 130 Page 600

THE STATE OF NEBRASKA,

Plaintiff,

VS.

KENNETH E. GOERING,

Defendant.

Order

On the 4th day of November, 1993 hearing was had on the

appeal of the defendant from the final judgment and sentence of

the County Court of Douglas County, Nebraska. Oral argu-

ments were made and the matter was taken under advisement.

Upon consideration thereof, the Court finds that the record

supports the final judgments and sentences of the defendant on

the complaint charging the defendant with the crime of obstruct-

ing administration of law and on the complaint charging the

defendant with the crime of refusing request to leave, and that,

therefore, said final judgments and sentences should be af-

firmed.

The Court further finds that the record does not support the

final judgment and sentence on the complaint charging the

defendant with the crime of trespassing and that, therefore, said

final judgment and sentence should be reversed with direction

to dismiss the complaint.

WHEREFORE, IT IS ORDERED that the final judgments

and sentences of the Douglas County Court for the crimes of

obstructing administration of law and refusing request to leave

be and the same are hereby affirmed.

B-2

IT IS FURTHER ORDERED that the final judgments and

sentences of the Douglas County Court for the crimes of tres-

passing be and the same is hereby reversed and the case is

remanded to the Douglas County Court with direction to dismiss

the complaint.

Dated: November 17, 1993

BY THE COURT:

/s/

JUDGE

B -3

IN THE

DISTRICT COURT OF

DOUGLAS COUNTY, NEBRASKA

Docket 130 Page 597

THE STATE OF NEBRASKA,

Plaintiff,

VS.

ANN M. BOWEN,

Defendant.

On the 4th day of November, 1993 hearing was had on the

appeal of the defendant from the final judgment and sentence of

the County Court of Douglas County, Nebraska. Oral argu-

ments were made and the matter was taken under advisement.

Upon consideration thereof, the Court finds that the record

supports the final judgments and sentences of the defendant on

the complaint charging the defendant with the crime of obstruct-

ing administration of law and on the complaint charging the

defendant with the crime of refusing request to leave, and that,

therefore, said final judgments and sentences should be af-

firmed.

The Court further finds that the record does not support the

final judgment and sentence on the complaint charging the

defendant with the crime of trespassing and that, therefore, said

final judgment and sentence should be reversed with direction

to dismiss the complaint.

WHEREFORE, IT IS ORDERED that the final judgments

and sentences of the Douglas County Court for the crimes of

obstructing administration of law and refusing request to leave

be and the same are hereby affirmed.

B-4

IT IS FURTHER ORDERED that the final judgment and i

sentence of the Douglas County Court for the crime of trespass- }

ing be and the same is hereby reversed and the case is remanded |

to the Douglas County Court with direction to dismiss the ;

complaint. ;

Dated: November: i7, 1993.

BY THE COURT:

/s/

JUDGE

B-5

IN THE

DISTRICT COURT OF

DOUGLAS COUNTY, NEBRASKA

Docket 130 Page 379

THE STATE OF NEBRASKA,

Plaintiff

VS.

LISA K. STRIMPLE-PADIOS,

Defendant.

Order

On the 4th day of November, 1993 hearing was had on the

appeal of the defendant from the final judgment and sentence of

the County Court of Douglas County, Nebraska. Oral argu-

ments were made and the matter was taken under advisement.

Upon consideration thereof, the Court finds that the record

supports the final judgments and sentences of the defendant on

the complaint charging the defendant with the crime of obstruct-

ing administration of law and on the complaint charging the

defendant with the crime of refusing request to leave, and that,

therefore, said final judgments and sentences should be af-

firmed.

The Court further finds that the record does not support the

final judgment and sentence on the complaint charging the

defendant with the crime of trespassing and that, therefore, said

final judgment and sentence should be reversed with direction

to dismiss the complaint.

WHEREFORE, IT IS ORDERED that the final judgments

and sentences of the Douglas County Court for the crimes of

obstructing administration of law and refusing request to leave

be and the same are hereby affirmed.

B-6

IT IS FURTHER ORDERED that the final judgment and

sentence of the Douglas County Court for the crime of trespass-

ing be and the same is hereby reversed and the case is remanded

to the Douglas County Court with direction to dismiss the

complaint.

Dated: November 17, 1993

BY THE COURT:

haf

JUDGE

B-7

IN THE

DISTRICT COURT OF

DOUGLAS COUNTY, NEBRASKA

Docket 130 Page 602

THE STATE OF NEBRASKA,

Plaintiff,

vs.

EMILIE J. VOLQUARTSEN,

Defendant.

Order

On the 4th day of November, 1993 hearing was had on the

appeal of the defendant from the final judgment and sentence of

the County Court of Douglas County, Nebraska. Oral argu-

ments were made and the matter was taken under advisement.

Upon consideration thereof, the Court finds that the record

supports the final judgments and sentences of the defendant on

the complaint charging the defendant with the crime of obstruct-

ing administration of law and on the complaint charging the

defendant with the crime of refusing request to leave, and that,

therefore, said final judgments and sentences should be af-

firmed.

The Court further finds that the record does not support the

final judgment and sentence on the complaint charging the

defendant with the crime of trespassing and that, therefore, said

final judgment and sentence should be reversed with direction

to dismiss the complaint.

WHEREFORE, IT IS ORDERED that the final judgments

and sentences of the Douglas County Court for the crimes of

obstructing administration of law and refusing request to leave

be and the same are hereby affirmed.

B-8

IT IS FURTHER ORDERED that the final judgment and

sentence of the Douglas County Court for the crime of trespass-

ing be and the same is hereby reversed and the case is remanded

to the Douglas County Court with direction to dismiss the

complaint.

Dated: November 17, 1993

BY THE COURT:

/s/

JUDGE

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& hep ea ar Kin Se ait NEES

Hose Onbtivem

C-1

OPINION OF THE NEBRASKA COURT OF APPEALS

(Not Designated for Permanent Publication)

Case Title

State of Nebraska,

Appellee,

V.

Kenneth E. Goering et al.,

Appellants.

Case Caption

State v. Goering

Filed October 25, 1994.

Nos. A-93-1128, A-93-1129, A-93-1130, A-93-1133.

Appeal from the District Court for Douglas County, James

A. Buckley, Judge, on appeal thereto from the County Court for

Douglas County, Walter H. Cropper, Judge. Judgment of Dis-

trict Court affirmed.

Peter C. Bataillon, of Sodoro, Daly & Sodoro, for appel-

lants.

Herbert M. Fitle, Omaha City Attorney, and Gary P. Buc-

chino, Omaha City Prosecutor, and Richard L. Dunning for

appellee.

STATE V. GOERING

NOS. A-93-1128, A-93-1129, A-93-1130, A-93-1133 - filed

October 25, 1994.

1. Judgments: Presumptions: Appeal and Error. In a case

tried to the court without a jury, there is a presumption that the

trial court, in reaching its decision, considered only evidence

that is competent and relevant. This court will not overturn such

a decision where there is sufficient material, competent, and

relevant evidence to sustain the judgment.

2. Courts: Appeal and Error. In an appeal from county court

to district court, the district court reviews the case for error

appearing on the record.

3. Constitutional Law: Criminal Law: Jury Trials. There is

no constitutional right to trial by jury for petty offenses carrying

a maximum sentence of 6 months or less.

4. Constitutional Law: Presumptions: Jury Trials. Offenses

Carrying a maximum prison term of 6 months are presumed by

society and for purposes of the Sixth Amendment to be petty

and do not require a jury trial.

5. Criminal Law: Jury Trials. Petty crimes do not require a

jury trial, whereas serious offenses entitle a defendant to trial by

jury.

6. __:__. Astooffenses for which authorized incarceration

is less than 6 months, seriousness, and hence a right to jury trial,

is to be ascertained by reference to objective indications of the

seriousness with which society regards the offense.

7. Criminal Law: Legislature. The prime indicator of soci-

ety’s judgment about the seriousness of an offense is the maxi-

mum penalty authorized by a legislature.

8. Criminal Law: Trial. Trying petty offenses together as a

procedural device does not alter or elevate the seriousness of any

of the crimes charged.

np RR a OA RT

C-3

9. Constitutional Law: Criminal Law: Jury Trials. The ap-

propriate constitutional inquiry regarding the right to a jury trial

is an examination of the individual offenses charged, not a

review of their accumulated penalties.

Cas

Irwin, Miller-Lerman, and Mues, Judges.

MILLER-LERMAN, Judge.

Emilie J. Volquartsen, Lisa K. Strimple-Padios, Ann M.

Bowen, and Kenneth E. Goering were charged and convicted in

county court of violating three Omaha city ordinances: “Tres-

pass,” “Request to leave,” and “Obstructing Administration of

Law,” codified at Omaha Mun. Code, ch. 20, art. VI §§ 20-154

and 20-155, and at Omaha Mun. Code, ch. 20, art. I, § 20-21

(1991). Three separate complaints, each charging one crime,

were filed against each defendant. The charges arose when the

above-named defendants along with 28 other protesters, who are

not parties to this appeal, blocked the entrance to the Women’s

Medical Center on 49th and L Streets in Omaha, Nebraska, on

December 14, 1991. Each of the above-named defendants was

found guilty as charged and was individually sentenced. Each

appealed to the district court. The district court reversed each

defendant’s conviction for trespass, holding that there was in-

sufficient evidence in the record to support those portions of the

judgments. The remaining portions of the judgments were

affirmed. The defendants subsequently perfected these appeals,

asserting that the trial court erred in (1) refusing to allow them

to assert the defense of justification, (2) denying them a jury

trial, and (3) finding that the evidence was sufficient to sustain

convictions for violating the “Request to leave” and “Obstruct-

ing Administration of Law” ordinances. For the reasons recited

below, we affirm the district court’s judgments affirming por-

tions of the county court’s judgments.

SCOPE OF REVIEW

[1] In a case tried to the court without a jury, there is a

presumption that the trial court, in reaching its decision, con-

sidered only evidence that is competent and relevant. This court

will not overturn such a decision where there is sufficient

C-3

material, competent, and relevant evidence to sustain the judg-

ment.

State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991);

State v. Blair, 230 Neb. 775, 433 N.W.2d 518 (1988); State v.

Methe, 228 Neb. 468, 422 N.W.2d 803 (1988).

[2] In an appeal from county court to district court, the

district court reviews the case for error appearing on the record.

Neb. Rev. State. § 25-2733 (Reissue 1989). That is also the

standard of review for this court. See Neb. Rev. Stat. § 25-1911

(Cum. Supp. 1992).

FACTS

The parties to this action stipulated as to what the witnesses

would say had they testified. The State offered that the repre-

sentative of the medical center would testify that on December

14, 1991, at approximately 8 a.m. a group of protesters entered

onto the private property of the medical center and barred the

entrance gate to the center. The protesters were asked to leave

by the representative, and when they did not the police were

called. When the police arrived, the protesters were again asked

to leave, and when they did not they were warned that if they

remained they would be subject to arrest for trespassing and

refusing to leave private property. After police gave the protest-

ers 1 minute to leave, each protester was approached by officers

who explained that they were under arrest and that if they had

to be carried to the police bus, they would also be charged with

obstructing the administration of law. Each of the above-named

defendants had to be carried to the bus. They were then trans-

ported to the police station and charged with violating the

above-identified city ordinances. The county court found all the

above-named defendants guilty of each offense. Volquartsen

and Bowen were sentenced to 10 days’ incarceration for each

count, to be served concurrently, for a total of 10 days’ jail time,

and Strimple-Padios and Goering were fined $50 per count for

a total of $150. Other protesters who are not parties to this

C-6

appeal received different, and in some cases greater, sentences.

On appeal to the district court, the conviction for trespass was

reversed for each defendant. This reversal is not before us, and

this court addresses only the errors assigned by the defendants.

JURY TRIAL

In three separate complaints filed against each defendant,

the defendants were charged with violating three Omaha city

ordinances: trespass, request to leave, and obstructing admini-

stration of law. Each violation is punishable by a maximum of

a $500 fine, 6 months’ imprisonment, or both, at the discretion

of the trial judge.

The defendants assert that the trial court erred in refusing

to allow them a jury trial. The defendants rely on the Nebraska

Constitution, which states: “The right of trial by jury shall

remain inviolate,” Neb. Const. art. I, § 6, and “[iJn all criminal

prosecutions the accused shall have the right to . . . a speedy

public trial by an impartial jury,” Neb. Const. art. I, § 11. The

defendants also rely on the U.S. Constitution to the same effect.

See U.S. Const. amends VI and XIV.

[3-5] Notwithstanding the quoted constitutional provi-

sions, not every criminal charge is triable to a jury. Consistent

with U.S. Supreme Court authority, the Nebraska Supreme

Court historically and frequently concluded that there is no

constitutional right to trial by jury for petty offenses carrying a

maximum sentence of 6 months or less. State v. Miller, 226

Neb. 576, 412 N.W.2d 849 (1987); State v. Kennedy, 224 Neb.

164, 396 N.W.2d 722 (1986); State v. Lynch, 223 Neb. 849, 394

N.W. 2d 651 (1986). In 1989, in Blanton v. North Las Vegas,

489 U.S. 538, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989), the

U.S. Supreme Court stated that offenses carrying a maximum

prison term of 6 months are presumed by society and for

purposes of the Sixth Amendment to be “petty” and do not

require a jury trial. The Court continued:

C-7

A defendant is entitled to a jury trial in such circumstances

only if he can demonstrate that any additional statutory

penalties, viewed in conjunction with the maximum

authorized period of incarceration, are so severe that they

clearly reflect a legislative determination that the offense

in question is a “serious” one. This standard, albeit some-

what imprecise, should ensure the availability of a jury trial

in the rare situation where a legislature packs an offense it

deems “serious” with onerous penalties that nonetheless

“do not puncture the 6-month incarceration line.” “[Quot-

ing from the brief for petitioners. ]

489 U.S. at 543. Thus, the focus of Blanton is on the issue of

whether the crime charged is “petty” or “serious.” “Petty”

crimes do not require a jury trial, whereas “serious” offenses

entitle a defendant to trial by jury.

Following Blanton, as interpreted by the U.S. Court of

Appeals for the Eighth Circuit in Richter v. Fairbanks, 903 F.

2d 1202 (8th Cir. 1990), the Nebraska Supreme Court in 1992

concluded that a defendant charged with third-offense driving

while intoxicated (DWI), punishable by up to 6 months in jail

and a 15-year license suspension, was charged with a “serious”

offense and was therefore entitled to a jury trial. Srate v.

Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992). In Wiltshire,

the defendant was charged with DWI, in violation of a municipal

ordinance, and asserted that he was entitled to a jury trial because

the DWI was a third offense, and in addition to a 6-month

sentence, he was subject to a 15-year license suspension. The

Wiltshire court also held that a jury trial was not required for

second-offense DWI. The court stated the additional penalty for

second-offense DWI is a 1-year license suspension, which does

not approach the severity of the additional penalty for a third-

offense DWI. The court concluded that “a jury trial is required

for DWI cases only when the charge is third offense or greater.”

Id. at 822, 491 N.W.2d at 327. In Wiltshire, the court noted the

C-8

statutory provision found at Neb. Rev. Stat. § 25-2705 (Reissue

1989), which provides that “[e]ither party to any case in county

court, except criminal cases arising under city or village ordi-

nance ... may demand trial by jury.” The Wiltshire court held

that to the extent that § 25-2705 precludes a jury trial for

third-offense driving under the influence, the statute is uncon-

stitutional.

The defendants in this case assert that because they were

charged with violating three city ordinances, they faced the risk

of being incarcerated for 18 months. They argue that the aggre-

gated penalties to which they were exposed require a trial by

jury. They rely on Codispoti v. Pennsylvania, 418 U.S. 506, 94

S.Ct. 2687, 41 L. Ed. 2d 912 (1974), and U.S. v. Coppins, 953

F.2d 86 (4th Cir. 1991), as support for the proposition that

because they could have been sentenced to 18 months of incar-

ceration they were entitled to a jury trial. Defendants also claim

that the factually similar case of State v. Cozzens, 241 Neb. 565,

490 N.W.2d 184 (1992), in which the defendants were denied a

jury trial, is distinguishable because the defendants in that case

were charged with violating only one city ordinance and there-

fore subject to a maximum of 6 months’ incarceration, a fine of

$500, or both.

The State argues generally that a jury trial is precluded in

a criminal case arising under a city ordinance under § 25-2705;

that none of the offenses charged is serious; that the judge’s

comments at sentencing show that the defendants were never at

risk of a sentence greater that 6 months in jail; that none of the

defendants received a sentence greater than 6 months in jail; and

that, therefore, the defendants were not entitled to a jury trial.

In support of its argument that the defendants were not at risk

for incarceration greater than 6 months, the State refers to the

following dialog in connection with the sentencing of a protester

who is not a party to this appeal:

ss te sapere |

c-9

THE COURT: .. . Sentence you to 150 days and costs

on each count; they [sic] to run concurrent. Wait a minute.

On second thought, 50 days on each count because I'm

afraid you may be — This was not under the statute. This

was under the ordinance. Let’s see — Yeah. You can

imprison for up to six months, can’t you?

{Counsel for the State]: Yeah. It’s concurrent.

THE COURT: Yeah. It’s concurrent. Okay. Total,

150 days.

[DEFENDANT]: That’s 50 on each?

THE COURT: No. 150 on each, each to run concur-

rent. Total - 150.

We have reviewed state and federal literature regarding the

right to a jury trial in connection with multiple charged petty

crimes where the penalty for each is a period of incarceration of

6 months or less. In circumstances where there are multiple

petty offenses charged, the aggregated penalties for which could

exceed 6 months’ incarceration, there is a split of authority as to

whether or not a jury trial is required. See, generally, U.S. v.

Bencheck, 926 F.2d 1512 (10th Cir. 1991) (holding that al-

though five petty offenses were charged, no jury was required

where trial judge promised not to sentence the defendant to more

than 6 months’ imprisonment if found guilty). See, also, U.S.

v. Kozel, 908 F.2d 205 (7th Cir. 1990), cert. denied 498 U.S.

1089, 111 S. Ct. 969, 112 L. Ed. 2d 1055 (1991) (holding that

right to jury trial depends upon sentence actually imposed); U.S.

vy. Garner, 874 F.2d 1510 (11th Cir. 1989) (Holding no jury trial

required for first-offense driving under the influence); U.S. v.

Musser, 873 F.2d 1513 (D.C. Cir. 1989), cert. denied 493 U.S.

983, 110 S.Ct. 518, 107 L. Ed 2d 519 (holding no jury trial

required for nonserious offense of having unattended sign in

across the street from the White House); Bruce v. State,

126 Ariz. 271, 614 P.2d 813 (1980) (holding that constitutional

C-10

right to jury trial for “petty offenses” depends upon the term of

imprisonment actually imposed). Compare U.S. v. Coppins,

953 F.2d 86 (4th Cir. 1991) (holding jury trial required where

defendant charged with multiple petty crimes arising out of same

occurrence), with Richter v. Fairbanks, 903 F.2d 1202 (8th Cir.

1990) (holding jury trial required for third-offense driving under

the influence where penalty was 6 months incarceration and

15-year license suspension), and State v. Sanchez, 109 N.M.

428, 786 P.2d 42 (1990) (holding that in determining whether

or not a jury trial is required, court should consider objective

measure of combined maximum statutory penalties rather than

subjective measure of actual penalty threatened at time trial

commences.) We have reviewed Codispoti v. Pennsylvania,

418 U.S. 506, 94S. Ct. 2687, 41 L. Ed. 2d 912 (1974), on which

the defendants rely, and find that its holding requiring a jury trial

where multiple criminal contempt charges were tried together is

distinguishable because, inter alia, each criminal contempt

charge carried a potential penalty of greater than 6 months’

incarceration.

[6,7] Following our review of the case law, it is clear that

by judicial interpretation, a jury trial is not required in criminal

cases involving “petty” offenses, but is required in criminal

cases involving “serious” offenses. Blanton v. North Law

Vegas, 489 U.S. 538, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989);

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed.

2d 491 (1968). One guideline for determining if an offense is

petty or serious is found in Baldwin v. New York, 399 U.S. 66,

69, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970), in which it was

stated that “no offense can be deemed ’petty’ . .. where impris-

onment for more than six months is authorized.” As to offenses

for which authorized incarceration is less than 6 months, seri-

ousness, and hence a right to jury trial, is to be ascertained by

reference to “objective indications of the seriousness with

which society regards the offense.’” Blanton v. North Las

Vegas, 489 U.S. at 541 (quoting Frank v. United States, 395

C- 11

U.S. 147, 89 S. Ct. 1503, 23 L. Ed. 2d 162 (1969). Under

Blanton, the prime indicator of society’s judgment about the

seriousness of an offense is the maximum penalty authorized by

a legislature.

[8,9] In the instant case, the offenses separately considered

are all punishable by imprisonment of less than 6 months and

$500 and are, therefore, “petty.” There is nothing in the sen-

tencing structure, such as additional penalties, which converts

any of the offenses viewed separately into a “serious” offense.

Cf. State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992).

Thus, trying petty offenses together as a procedural device does

not alter or elevate the seriousness of any of the crimes charged.

Under Blanton, the appropriate constitutional inquiry is an

examination of the individual offenses charged, not a review of

their accumulated penalties. In the instant case, elements of the

multiple crimes charged appear to permit their separate prose-

cution without offending double jeopardy protection. We note

that the three crimes were charged in three separate charging

documents as to each defendant. At oral argument, counsel for

the defendants stated that each offense could have been tried

separately, although all the charges stemmed from events occur-

ring on December 14, 1991. The fact that the three crimes were

tried together does not elevate the seriousness of any one of the

offenses.

We note that several cases have held that where the defen-

dant did not actually receive a sentence greater than 6 months,

although the possibility for a sentence greater than 6 months

existed, the defendant was not entitled to a jury trial. See, ¢.g.,

U.S. v. Kozel, supra; Bruce v. State, supra. We find the reason-

ing in the foregoing cases to be comparable to Nebraska juris-

prudence in cases which analyze a defendant’s right to counsel.

See, e.g., State v. Austin, 219 Neb. 420, 363 N.W. 2d 397 (1985)

(holding that although criminal defendants are generally entitled

to appointment of counsel, in criminal case where defendant was

C-12

not actually imprisoned for any period of time, he was not

entitled to appointment of counsel). Thus, ia the instant case, it

may be posited that defendants in criminal matters are generally

entitled to jury trials except where the sentence actually imposed

is not greater than 6 months.

Given the legislative sentence authorized for each offense,

we conclude that the three crimes separately charged in the

instant case are petty and tried separately or together do not

require a jury. The implication of § 25-2705 is that the offenses

at issue here are not viewed as serious, and a jury is not required

in the prosecution of the violations of the municipal ordinances

allegedly violated. We further note that there is case law,

referred to above, concluding that where a defendant did not

actually receive a sentence of incarceration greater than 6

months, a jury trial was not required. The trial court did not err

in denying the defendants’ requests for a jury trial.

DEFENSE OF JUSTIFICATION

The defendants asserts that the trial court erred in refusing

to allow them to assert the defense of justification as expressed

in Neb. Rev. Stat. § 28-1407 (Reissue 1989). The Supreme

Court determined in State v. Cozzens, 241 Neb. 565, 490 N.W.

2d 184 (1992), that the defense of justification was not available

to defendants under circumstances similar to the circumstances

in this case. The assigned error is without merit.

SUFFICIENCY OF THE EVIDENCE

The defendants finally assert that the trial court erred in

finding that the evidence was sufficient to sustain a conviction

for violating the “Request to leave” and “Obstructing Admini-

stration of Law” ordinances.

The “Request to leave” ordinance, § 20-155, provides: “It

shall be unlawful for any person to fail or refuse to leave the

property of another person after being notified to do so by the

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owner, occupant or person in control thereof, or by his agent.”

It is undisputed in the record that the defendants were notified

by the representative of the medical center and by the police to

leave. They did not leave; therefore they violated the ordinance.

The defendants assert that their mere election not to walk

to the bus is insufficient to show that they intended to interfere

with the officers’ duty to arrest them. We are not persuaded by

this argument. The “Obstructing Administration of Law” ordi-

nance, § 20-21, provides: “It shall be unlawful for any person

to purposefully or knowingly do any act, refuse to do any act,

or to commit an act of omission with the intent to obstruct or

interfere with any law enforcement officer or firefighter per-

forming an official duty.”

It is undisputed in the record that after the defendants were

arrested, they each had to be carried to the bus. The defendants

assert that during this process they were peaceful and polite, and

we must infer that in order to conduct themselves in this manner,

they were conscious. The record shows that they chose to have

the officers carry them to the bus after their arrest. It is not

reasonable to infer that this choice was made in order to assist

the officers, rather than to “obstruct” or “interfere” with the

officers “performing an official duty.” The evidence is suffi-

cient to support the convictions, and the judgments of the district

court affirming those portions of the county court’s judgments

are affirmed.

AFFIRMED

C-14

IRWIN, Judge, dissenting.

This case involves the right to a jury trial when a citizen is

charged with multiple, aithough admittedly petty, offenses aris-

ing out of the same act, transaction, or occurrence. Neither the

U.S. or the Nebraska Supreme Court has resolved the scope of

the right to a jury trial under these circumstances. United States

v. Potvin, 481 F.2d 380 (10th Cir. 1973), dealt with this issue of

whether an individual is entitled to a trial by jury when the

potential aggregate penalty on several “petty” offenses is in

excess of 6 months’ imprisonment. Particularly on point is the

following language from Potvin, 481 F.2d at 382-83:

We believe that the defendants can view as no less

serious a possible penalty of a year in prison when charged

with two offenses arising out of the same act, transaction,

or occurrence, than if charged with one offense having a

potential penalty of one year’s imprisonment. Nor, in our

view, should the court view the offenses any less seriously.

Mr. Justice White, in the opinion in Baldwin v. New York,

399 U.S. 66, 73, 90 S.Ct. 1886, 1890, 26 L.Ed.2d 437, said:

“*... Where the accused cannot possibly face more than

six months’ imprisonment, we have held that these disad-

vantages [the lack of the right to trial by jury], onerous

though they may be, may be outweighed by the benefits

that results from speedy and inexpensive nonjury adjudi-

cations. We cannot, however, conclude that these admin-

istrative conveniences, . . . can similarly justify denying an

accused the important right to trial by jury where the

possible penalty exceeds six months’ imprisonment... .”

I agree.

Three schools of thought have evolved in various courts’

attempts to fashion a rule of law dealing with cases where

multiple petty offenses are charged. See People v. DiLorenzo,

153 Misc. 2d 1021, 585 N. Y.S.2d 670 (1992).

C-15

The first subscribes to the “penalty-oriented” approach,

which is based on the notion that the right to a jury trial depends

not just on a legislative determination that offenses are “petty,”

but also requires adding together the maximum authorized

sentences of each petty offense. Therefore, according to this

approach, when multiple “petty” crimes expose a citizen to an

aggregate sentence exceeding 6 months’ imprisonment, a jury

trial is required.

The second approach requires a jury trial when the sentence

actually imposed is more than 6 months’ imprisonment.

Third is a minority of courts which hold that whether a jury

trial is required is determined by the punishment authorized by law

for each individual offense. Consolidation of multiple petty of-

fenses does not impact this approach, nor does the fact that con-

secutive terms of incarceration when aggregated exceed 6 months.

Id.

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L.

Ed. 2d 491 (1968), does not answer our inquiry, since it exam-

ined the question of a citizen’s constitutional right to a jury trial

when a person is charged with a single offense.

Insight into this dilemma of determining whether a jury is

required when an individual is charged with multiple petty

offenses is provided in a discussion of Potvin contained in Haar

v. Hanrahan, 708 F.2d 1547, 1551 (10th Cir. 1983):

Potvin implicitly recognizes that modern criminal codes

contain proscriptions that are far more complex, detailed,

and extensive than the criminal law that existed at the time

of the adoption of the Constitution. See Duncan, 391 U.S.

at 188, 88 S.Ct. at 1469 (Harlan, J., dissenting). In particu-

lar, it recognizes that, because modern criminal codes

permit multiple charges to flow from a single discrete act

of criminality, a criminal prosecution can threaten a defen-

dant with the consequences of a serious offense, even

C-16

tough the defendant is not charged with an offense

deemed serious under Duncan or Baldwin. Thus, strictly

applying the serious offense definition may not protect the

defendant from an oppressive prosecution. Potvin ad-

dresses this problem by identifying the “act, transaction or

occurrence” that underlies the criminal charges. In deter-

mining the right to a jury trial, it looks to the aggregate

penalty that could result from the various charges arising

out of a discrete criminal transaction.

The 10th Circuit Court of Appeals is not alone in holding

that a citizen is entitled to a jury trial for multiple petty offenses

arising out of the same act, transaction, or occurrence if threat-

ened at the commencement of trial with an aggregate potential

penalty of greater that 6 months’ imprisonment. Other jurisdic-

tions so holding include U.S. v. Coppins, 953 F.2d 86 (4th Cir.

1991); U.S. v. Musgrave, 695 F. Supp. 231 (W.D. Va. 1988);

U.S. v. Coleman, 664 F. Supp. 548 (D.D.C. 1985); State v.

Owens, 54 N.J. 153, 254 A.2d 97 (1969), cert. denied 396 U.S.

1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1970). See State ex rel.

Barth v. Burke, 24 Wis. 2d 82, 128 N.W.2d 422 (1964). Asa

sidenote, other jurisdictions have resolved this problem by

legislating that whenever two or more crimes wouid result in a

potential maximum aggregate penalty of greater than 6 months,

a jury trial is required. See, La. Code Crim. Proc. Ann. art. 493.1

(West 1991); Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d 121

(1985) (interpreting N.M. Stat. Ann. § 34-8A-5(B) (Michie

1981) to require aggregation of all potential penalties).

To hold that the requirement of a jury trial is determined

by looking at each separate petty offense’s authorized maximum

penalty and to hold that charging a person with multiple petty

offenses does not impact the right to trial by a jury does not

recognize that modern criminal codes, including Nebraska’s,

allow several charges to be filed concerning a single criminal

act and threaten a citizen with the consequences of a serious

C-17

offense, even though the person is not charged with an offense

deemed serious under Duncan. Additionally, this approach may

result in an actual sentence exceeding 6 months, when consecu-

tive terms of incarceration are imposed.

Therefore, I conclude that a person charged with two or

more petty offenses arising out of the same act, transaction, or

occurrence is entitled to a trial by jury when the potential

aggregate penalty on all counts is in excess of 6 months’

imprisonment.

D-1

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

Lincoln, Nebraska 68509

(402) 471-3731

December 29, 1994

Peter C. Bataillon

SODORO DALY LAW FIRM

200 Century Professional Plaza

7000 Spring Street

Omaha, NE 68106

IN CASE OF: A-93-1128, State v. Kenneth Goering

Pet Appellant for Further Review & Brf filed 11/23/94 has

been reviewed by the court and the following order entered:

Petition for further review overruled.

Respectfully,

CLERK OF THE

SUPREME COURT AND

COURT OF APPEALS

D-2

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

Lincoln, Nebraska 68509

(402) 471-3731

December 29, 1994

Peter C. Bataillon

SODORO DALY LAW FIRM

200 Century Professional Plaza

7000 Spring Street

Omaha, NE 68106

IN CASE OF: A-93-1129, State v. Ann M. Bowen

Pet Appellant for Further Review & Brf filed 11/23/94 has

been reviewed by the court and the following order entered:

Petition for further review overruled.

Respectfully,

CLERK OF THE

SUPREME COURT AND

COURT OF APPEALS

D-3

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

Lincoln, Nebraska 68509

(402) 471-3731

December 29, 1994

Peter C. Bataillon

SODORO DALY LAW FIRM

200 Century Professional Plaza

7000 Spring Street

Omaha, NE 68106

IN CASE OF: A-93-1130, State v. Lisa K. Strimple-Padios

Pet Appellant for Further Review & Brf filed 11/23/94 has

been reviewed by the court and the following order entered:

Petition for further review overruled.

Respectfully,

CLERK OF THE

SUPREME COURT AND

COURT OF APPEALS

D-4

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

Lincoln, Nebraska 68509

(402) 471-3731

December 29, 1994

Peter C. Bataillon

SODORO DALY LAW FIRM

200 Century Professional Plaza

7000 Spring Street

Omaha, NE 68106

IN CASE OF: A-93-1133, State v. Emilie J. Volquartsen

Pet Appellant for Further Review & Brf filed 1 1/23/94 has

been reviewed by the court and the following order entered:

Petition for further review overruled.

Respectfully,

CLERK OF THE

SUPREME COURT AND

COURT OF APPEALS