# Petition for Writ of Certiorari — Goering v. Nebraska

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1110

## Text

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

a -

& 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

C- 13

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1472%3A1. Public record. Not legal advice.