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State v. Rubek11/26/2002
In a question of first impression, we decide whether in a prosecution for violation of a protection order, second offense, the State's burden of proof includes proof of the first violation of the same order. Russell M. Rubek, Sr., was charged in the district court for Sarpy County with violation of a protection order, second offense, and with being a habitual criminal. See Neb. Rev. Stat. §§ 42-924(3) (Reissue 1998) and 29-2221 (Reissue 1995). After the State presented its case against Russell, the trial court sustained Russell's motion for a directed verdict and dismissed the charges, finding that the State failed to prove in its case in chief Russell's previous conviction for violating the same protection order. We sustained the State's motion to docket an error proceeding. While we sustain the State's exception, jeopardy had attached and terminated at trial, so our ruling does not affect Russell's acquittal, but provides guidance for the future.
FACTUAL BACKGROUND
Because of the nature of this appeal, we use an abbreviated factual statement. Russell and Ginger M. Rubek were husband and wife. On July 28, 2000, the district court for Douglas County granted a domestic abuse protection order pursuant to § 42-924(1) enjoining Russell from contacting, communicating with, restraining, or otherwise threatening Ginger. The protection order was to remain in effect for a period of 1 year from the date of issuance. On December 5, Russell was convicted in the Douglas County District Court of violation of the protection order.
Ginger testified that on February 15, 2001, between 5 and 6 p.m., she left her home to attend a women's advocate group meeting. She was stopped at a red traffic light when Russell pulled up beside her vehicle in his pickup truck. Ginger testified that she had her passenger window down slightly and that Russell rolled down his window and said, "You bitch, you're going to see what this is all about if I go to jail." Ginger testified that she then immediately drove through the red light, driving on as far as she had to in order to feel she was safe. She stated that she stopped at a Texaco gas station and proceeded to contact the 911 emergency dispatch service from a pay telephone. Ginger testified that Officer Robert Bailey of the Bellevue Police Department arrived within minutes.
Officer Bailey testified that when he met Ginger, she appeared emotionally distraught, holding onto the pay telephone's handset and crying hysterically. Ginger gave Officer Bailey both a verbal and a written statement concerning the alleged altercation. Later that day, Officer Bailey arrested Russell and transported him to the Sarpy County Law Enforcement Center.
PROCEDURAL BACKGROUND
While the State had previously filed a complaint and an amended complaint, we deal with the information filed on May 3, 2001. The information alleged that Russell committed the offense of violation of a protection order, second offense, pursuant to § 42-924(3) and that he was a habitual criminal pursuant to § 29-2221. On December 20, trial was had in the district court for Sarpy County on the information. Proof of Russell's previous conviction on December 5, 2000, for violation of the same protection order was not presented in the State's case in chief, and after the State rested, Russell moved to dismiss.
Addressing Russell's motion, the trial court stated that it was "going to take [Russell's] motion to dismiss under advisement and proceed with the trial" due to certain concerns it had with the motion. The State then made a motion to reopen its case in chief, which motion the trial court denied, stating, " would be grossly prejudicial to [Russell]. I have
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