28-310 Assault in the third degree; penalty. - Nebraska Statutes

28-310. Assault in the third degree; penalty.(1) A person commits the offense of assault in the third degree if he:(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or(b) Threatens another in a menacing manner.(2) Assault in the third degree shall be a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor. SourceLaws 1977, LB 38, § 25.Annotations1. Bodily injury2. Constitutionality3. Generally4. Lesser-included offense5. Mutual consent6. Recklessly7. Requisite mental state8. Sentencing9. Double jeopardy1. Bodily injuryBodily injury may be inferred from evidence that defendant intentionally struck the victim, even though the victim testified that blow did not cause physical pain. State v. Waltrip, 240 Neb. 888, 484 N.W.2d 831 (1992).This section does not require proof of serious bodily injury. Proof of facts from which bodily injury may be inferred is sufficient. State v. Goodon, 219 Neb. 186, 361 N.W.2d 537 (1985).2. ConstitutionalityThis is a serious offense for which a jury trial is constitutionally required, unless expressly and intelligently waived by the defendant. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987).Statute neither unconstitutionally vague nor overbroad. In re Interest of Siebert, 223 Neb. 454, 390 N.W.2d 522 (1986).3. GenerallyA violation of subsection (1)(b) of this section requires an intentional act, and it is error to give an instruction using the lesser standards of culpability in subsection (1)(a), "knowingly" and "recklessly". State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).Adult bodybuilder who dunked 9-year-old boy's head into urinal could be convicted of third degree assault under this section. State v. Gray, 239 Neb. 1024, 479 N.W.2d 796 (1992).Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).4. Lesser-included offenseThird degree assault under subsection (1)(b) of this section is not a lesser-included offense of terroristic threats under subsection (1)(a) of section 28-311.01. State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004).Assuming that third degree assault under this section may, under certain circumstances, be a lesser-included offense of third degree assault on a peace officer under section 28-931, it is not prejudicial error to fail to instruct upon a lesser-included offense when the evidence entirely fails to show an offense of a lesser degree than that charged in the information. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).One of the forms of third degree assault, intentionally or knowingly causing bodily injury to another person, is a lesser-included offense of first degree assault. State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986).5. Mutual consentThe language of subsection (2) of this section requires mutual consent for a fight or scuffle in order to render an assault a Class II misdemeanor. State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984).When there is a factual question concerning a charge of third degree assault by mutual consent, the state of mind of the "victim" is an issue, and testimony regarding state of mind is then relevant. State v. Farr, 1 Neb. App. 272, 493 N.W.2d 638 (1992).6. RecklesslyThe pointing of a gun at another is a reckless act within the contemplation of subsection (1)(a) of this section. State v. Bachkora, 229 Neb. 421, 427 N.W.2d 71 (1988).7. 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).When there is a factual question concerning a charge of third degree assault by mutual consent, the state of mind of the "victim" is an issue, and testimony regarding state of mind is then relevant. State v. Farr, 1 Neb. App. 272, 493 N.W.2d 638 (1992).8. 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).9. Double jeopardyIn applying Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932), to separately codified criminal statutes which may be violated in alternative ways, only the elements charged in the case at hand should be compared in determining whether the offenses under consideration are separate or the same for purposes of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).Third degree assault and the making of terroristic threats are separate offenses for the purpose of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).