28-323. Domestic assault; penalties.
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/ne/chapter-28/28-323A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)A person commits the offense of domestic assault in the third degree if he or she:
(a)Intentionally, knowingly, or recklessly causes bodily injury to his or her intimate partner; or
(b)Threatens an intimate partner with imminent bodily injury.
(2)A person commits the offense of domestic assault in the second degree if he or she:
(a)Intentionally and knowingly causes bodily injury to his or her intimate partner with a dangerous instrument; or
(b)Recklessly causes serious bodily injury to his or her intimate partner with a dangerous instrument.
(3)A person commits the offense of domestic assault in the first degree if he or she intentionally and knowingly causes serious bodily injury to his or her intimate partner.
(4)A violation of subsection
(1)of this section is a Class I misdemeanor, except that such violation shall be punished as a:
(a)Class IIIA felony if the person has one previous conviction for a violation of subsection (1), (2), or
(3)of this section or a substantially equivalent offense; or
(b)Class IIA felony if the person has previously been convicted two or more times for any violation of subsection (1), (2), or
(3)of this section or any substantially equivalent offense.
(5)A violation of subsection
(2)of this section is a Class IIA felony, except that such violation shall be punished as a Class II felony if such person has one or more previous convictions for a violation of subsection
(2)or
(3)of this section or a substantially equivalent offense.
(6)A violation of subsection
(3)of this section is a Class ID felony, except that such violation shall be punished as a Class IB felony with a mandatory minimum sentence of fifteen years' imprisonment if such person has one or more previous convictions for a violation of subsection
(3)of this section or a substantially equivalent offense.
(7)For purposes of this section:
(a)Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context;
(b)Intimate partner means a spouse; a former spouse; persons who have a child in common whether or not they have been married or lived together at any time; and persons who are or were involved in a dating relationship; and
(c)Substantially equivalent offense means a violation of law that:
(i)Is a criminal offense under federal law or the law of another state; and
(ii)Has essentially the same elements as the violation of this section to which it is being compared.
Multiple counts of third degree domestic assault under this section are not the "same offense" for double jeopardy purposes if a break occurred between the alleged assaults that allowed the defendant to form anew the required criminal intent. State v. Kleckner, 291 Neb. 539, 867 N.W.2d 273 (2015).
The defendant, who was charged with third degree domestic assault, testified that his girlfriend pushed him against a door and prevented him from leaving the residence. He then pushed the girlfriend off of him, causing her to fall and suffer an injury. The defendant was entitled to self-defense instruction, and any conflicting evidence was for the jury to decide. State v. Bedford, 31 Neb. App. 339, 980 N.W.2d 451 (2022).
Pursuant to this section, the defendant and the victim were in a dating relationship and the victim was the defendant's "intimate partner," where their relationship began as casual or social, but progressed into a more serious relationship, their families considered them to be dating and each other's girlfriend or boyfriend, and the altercation was precipitated by the victim's concerns that the defendant was cheating on her by dating other girls. State v. Gay, 18 Neb. App. 163, 778 N.W.2d 494 (2009).