28-309 Assault in the second degree; penalty. - Nebraska Statutes

28-309. Assault in thesecond degree; penalty.(1) A person commits theoffense of assault in the second degree if he or she:(a) Intentionally or knowingly causes bodily injury to anotherperson with a dangerous instrument;(b) Recklessly causes serious bodily injury to another personwith a dangerous instrument; or(c)Unlawfully strikes or wounds another (i) while legally confined in a jailor an adult correctional or penal institution, (ii) while otherwise inlegal custody of the Department of Correctional Services, or (iii) while committed as a dangeroussex offender under the Sex Offender Commitment Act.(2) Assault in the second degree shall be a Class III felony. SourceLaws 1977, LB 38, § 24; Laws 1982, LB 347, § 7; Laws 1997, LB 364, § 4; Laws 2009, LB63, § 5; Laws 2010, LB771, § 3.Effective Date: July 15, 2010 Cross ReferencesSex Offender Commitment Act, see section 71-1201. Annotations1. Dangerous instrument2. Lesser-included offense3. Recklessly4. Requisite mental state5. Sentencing6. Constitutionality1. Dangerous instrumentFor the purposes of subsection (1)(a) of this section, a "dangerous instrument" is any object which, because of its nature and the manner and intention of its use, is capable of inflicting bodily injury. The intent required by this subsection is not an intent to cause bodily injury, but rather an intent to use the dangerous instrument in the manner in which it was in fact used. State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991).A piece of curbing can be a "dangerous instrument" when thrown at others. State v. Sianouthai, 225 Neb. 62, 402 N.W.2d 316 (1987).Under this section, a dangerous instrument is any object which, because of its nature and the manner and intention of its use, is capable of inflicting bodily injury. Under this section, teeth are not to be considered a dangerous instrument. State v. Bachelor, 6 Neb. App. 426, 575 N.W.2d 625 (1998).2. Lesser-included offenseAssault in the second degree is not a lesser-included offense of attempted second degree murder. State v. Sanders, 235 Neb. 183, 455 N.W.2d 108 (1990).Use of a firearm or other deadly weapon in the commission of a felony is not a lesser-included offense of assault in the second degree. State v. Jackson, 217 Neb. 332, 348 N.W.2d 866 (1984).Whether a particular offense is a lesser-included offense is determined by examining the allegations in the information and the evidence offered in support of the charge, and it is clear that some of the elements of second degree assault, without the addition of any element irrelevant to second degree assault, may also constitute third degree assault. State v. Britt, 1 Neb. App. 245, 493 N.W.2d 631 (1992).3. Recklessly"Recklessly," as used in subsection (1)(b) of this section, defined. For purposes of a second degree assault contrary to subsection (1)(b), the requisite reckless act or conduct involves the actor's conscious choice in a course of action involving a dangerous instrument, which constitutes disregard of a substantial and unjustifiable risk to another, and does not require the actor's intent to cause serious bodily injury to another. Under subsection (1)(b), concerning a second degree assault based on a reckless act or conduct, an intent to inflict or cause bodily injury is not an element; rather, the reckless act or conduct, causing serious bodily injury, is the gravamen. State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987).4. Requisite mental stateThe intent required under subsection (1) of this section relates to the assault, not to the injury which results. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).Assault with a dangerous instrument, like simple assault, is a general intent crime. State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981).5. SentencingThe sentencing court did not abuse its discretion by sentencing defendant to a six-month term for a third degree assault and a four-month term for a second degree assault arising out of the same incident. Both sentences were within the statutory limits set for Class III felonies and Class II misdemeanors, respectively. The third degree assault involved an aggravating factor. State v. Hatwan, 208 Neb. 450, 303 N.W.2d 779 (1981).6. ConstitutionalityThis section is not unconstitutional solely because it does not allow a defense of consent. State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004).