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.

Source

Annotations

1. Bodily injury

2. Constitutionality

3. Generally

4. Lesser-included offense

5. Mutual consent

6. Recklessly

7. Requisite mental state

8. Sentencing

9. Double jeopardy

10. Penalty

1. Bodily injury

Bodily 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. Constitutionality

This 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. Generally

A 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 offense

Third 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).

Third degree assault is a lesser-included offense of assault by a confined person, because the elements of the two offenses are identical, except that the greater offense, assault by a confined person, requires the assault to be committed by someone who is legally confined. State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006).

5. Mutual consent

The 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. Recklessly

The 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 state

The 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. Sentencing

The 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 jeopardy

In 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).

10. Penalty

This section creates one offense of third degree assault, punishable by two different ranges of penalties depending on whether the assault was committed in a fight or scuffle entered into by mutual consent. Whether a fight or scuffle entered into by mutual consent occurred is not an element of the offense of third degree assault. Rather, it is a mitigating factor, the existence of which determines which of the two penalties is to be imposed—whether the defendant will receive a lesser penalty instead of the ordinary penalty. Whether a fight or scuffle was entered into by mutual consent is not a factual issue that must be submitted to a jury. State v. Stahla, 13 Neb. App. 79, 688 N.W.2d 641 (2004).