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State v. Rubek11/26/2002
d be given notice of the time of hearing at least three days prior thereto; and (5) at the hearing, if the court finds from the evidence submitted that the accused has been convicted prior thereto under the same statute, the court should sentence the accused according to the enhanced penalty applicable to the facts found. 149 Neb. at 95-96, 30 N.W.2d at 469. See, also, Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952).
Finally, of considerable significance to us is the fact that the trial court's position would in most cases be very unfair to a defendant if § 42-924(3)(b) really set forth a separate crime. The State would be required to prove to the judge or jury in the guilt phase of a case that the defendant previously violated the same protection order. This would cause a prejudicial taint from that evidence—to which defendants would vigorously object. See Neb. Rev. Stat. §§ 27-403 (unfair prejudice) and 27-404 (prior bad acts) (Reissue 1995). Although the case at hand was tried before a judge, placing a prior violation of a protection order before the jury in a future trial runs the risk of conviction simply because the jury would perceive the defendant as a bad person or might infer that the first violation of the order portends a second violation.
As Nebraska appellate courts have long recognized, the introduction of evidence of a defendant's prior crimes risks significant prejudice. See Haffke v. State, 149 Neb. at 92, 30 N.W.2d at 467 ("'"jurors' minds should not be diverted from the question of defendant's innocence or guilt by facts concerning defendant's prior convictions of other felonies. It is also fairer to defendant to keep such matters entirely away from the jury"'") (quoting Levell v. Simpson, 142 Kan. 892, 52 P.2d 372 (1935)).
In conclusion, the Legislature intended to set forth a sentencing factor in § 42-924(3)(b) and not a separate criminal offense. Subsection (3)(b) is an enhancement provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. To hold otherwise would be inconsistent with public policy, case law, and the intent of the statute under which Russell was charged. Thus, proof of the prior violation was not part of the State's burden of proof in its case in chief, and Russell was incorrectly acquitted on this basis. This holding makes it unnecessary to consider the assignment that the court should have considered the matter from the standpoint of a lesser-included offense.
EFFECT OF OUR DECISION
As explained above, this is an appeal by a county attorney pursuant to § 29-2315.01. Neb. Rev. Stat. § 29-2316 (Reissue 1995) describes the effect of an appellate court's ruling pursuant to § 29-2315.01: "The judgment of the court in any action taken pursuant to section 29-2315.01 shall not be reversed nor in any manner affected when the defendant in the trial court has been placed legally in jeopardy . . . ."
At oral argument, the State conceded that jeopardy had attached before the trial court dismissed the case; therefore, we need not discuss this matter further. See State v. Bostwick, 222 Neb. 631, 385 N.W.2d 906 (1986). Thus, our opinion is for future guidance of the bench and bar.
Exception sustained.
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