State of Nebraska v. Denise R. Welch, 275 Neb. 517

Summary

The Supreme Court of Nebraska considered whether the evidence supported a jury instruction imposing a heightened duty on a driver who observed an obviously confused or incapacitated pedestrian. The court held that the evidence did not support that instruction, that the error was prejudicial, and that the conviction for misdemeanor motor vehicle homicide must be reversed. The court remanded for a new trial on permissible alternative bases, while holding that double jeopardy barred retrial on the unsupported theory.

Holdings

1. An instruction imposing the heightened duty of exercising proper precaution toward an obviously confused or incapacitated person under Neb. Rev. Stat. § 60-6,109 requires evidence that the person was actually confused or incapacitated and that the condition was objectively obvious to a reasonable driver. The evidence here did not satisfy that requirement.
2. Giving the instruction on failure to exercise proper precaution toward an obviously confused or incapacitated person was prejudicial error requiring reversal because the jury could convict without unanimously agreeing on the particular unlawful act and could have relied on the unsupported theory.
3. Double jeopardy barred the State from retrying Welch for motor vehicle homicide on the unsupported theory that she failed to exercise proper precaution toward an obviously confused or incapacitated person, but it did not bar retrial on the remaining theories supported by the evidence or not challenged on appeal.

Questions Presented

1. Whether the county court erred by instructing the jury that Welch could be guilty based on failure to exercise proper precaution toward an obviously confused or incapacitated person when the evidence did not support that theory.
2. Whether the erroneous instruction was prejudicial and required reversal when the jury was not required to unanimously agree on which alternative unlawful act supported the motor vehicle homicide conviction.
3. Whether double jeopardy barred a retrial on the remaining alternative unlawful-act theories after reversal.

Disposition

reversed_and_remanded