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State v. Van11/12/2004
contention that third degree assault was a lesser-included offense of second degree assault, such that conviction of both offenses arising out of the same conduct would constitute double jeopardy. Van was charged with and convicted of first and second degree assault, which we have held are separate offenses for double jeopardy purposes. See State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981). Bachelor does not support Van's argument that an information alleging multiple counts must allege specific evidentiary facts relevant to each count.
[7-10] The function of an information is twofold: With reasonable certainty, an information must inform the accused of the crime charged so that the accused may prepare a defense to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense. State v. Brunzo, 262 Neb. 598, 634 N.W.2d 767 (2001). Generally, to charge a defendant with the commission of a criminal offense, the information or complaint must allege each statutorily essential element of the crime charged, expressed in the words of the statute which prohibits the conduct charged as a crime, or in language equivalent to the statutory terms defining the crime charged. Id. Where an information alleges the commission of a crime using language of the statute defining that crime or terms equivalent to such statutory definition, the charge is sufficient. Id. However, when the charging of a crime in the language of the statute leaves the information insufficient to reasonably inform the defendant as to the nature of the crime charged, additional averments must be included to meet the requirements of due process. Id. Nonetheless, an information is deemed sufficient unless it is so defective that by no construction can it be said to charge the offense of which the accused was convicted. Id.
Here, the information charges that five crimes were committed in Wayne County during a 10-day timeframe and describes the statutorily essential elements of each crime in the words of the statute that defines each charged offense, or language equivalent thereto. We conclude that the information was legally sufficient to accomplish its dual purpose as articulated in State v. Brunzo, supra.
3. Motion for Mistrial
(a) Assignment of Error
In his fourth assignment of error, Van assigns, restated, that the district court erred in denying his motion for a mistrial following certain testimony by Marshall which the court ordered stricken.
(b) Standard of Review
The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003); State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003).
(c) Disposition
During trial, the district court conducted a hearing out of the presence of the jury to determine whether evidence relating to Van's prior sexual conduct with Marshall and others was admissible under Neb. Evid. R. 404, Neb. Rev. Stat. ยง 27-404 (Reissue 1995). The court concluded that evidence relating to Van's relationship with Marshall was not subject to rule 404, as it occurred during the time of the conduct involving J.G.C. and Marshall was essentially a co-defendant. The court specifically found, however, that evidence of Van's conduct with other individuals was inadmissible under rule 404.
During direct examination by the State, Marshall testified about a conversation he had had with Van about J.G.C. on Thursday, December 13, 2001. Marshall testified that they discussed the events
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