Conviction overturned on appeal

Tuesday, September 2, 2003

LINCOLN -- The Nebraska Court of Appeals has overturned a conviction by a Hitchcock County district court jury and has ordered a new trial for Renae N. McDaniel, the Palisade mother found guilty in October 2002 of felony child abuse.

Kevin Slimp, an attorney in the Nebraska Attorney General's office, said Friday morning he is filing a petition for further review by the Court of Appeals. Slimp said the appellate court ruled that Judge John Battershell should also have issued instructions to the jury that they could convict McDaniel on a lesser charge of misdemeanor negligent child abuse.

Slimp said an appellate court is not in a position to rule on the guilt or innocence of a defendant, but to assure that the right legal process is followed.

Slimp said if a new trial is granted for McDaniel, she will again be presumed innocent and the state will have to prove again she is guilty in another trial.

Slimp said his office will file its petition for further review within 30 days of the Court of Appeals' ruling on Aug. 5, and then allow time for the defendant to respond.

McDaniel was found guilty of Class III felony child abuse after a 2 1/2-day jury trial in Trenton.

According to records from the Court of Appeals, the allegation was that Renae did "knowingly and intentionally cause or permit a minor child ... to be placed in a situation that endangered said minor child's life or physical or mental health resulting in serious bodily injury."

The records continue that Renae's attorney, Bob Conner, requested a jury instruction for the lesser-included offense of negligent child abuse, a Class I misdemeanor. The appeals court ruled that a court must instruct on a lesser-included offense if the elements of the lesser offense are such that one cannot commit the greater offense without simultaneously committing the lesser offense.

The appeals court records indicate the trial court refused to give the lesser-included offense instruction because it felt the evidence showed that the child abuse was intentional. The trial court -- according to appellate court records -- found that the evidence showed that the child abuse was intentional, stating, " There just is no question there is no evidence of negligent injury that occurred to this child under these circumstances."

McDaniel argues that the trial court should have given the jury instruction on negligent child abuse because child abuse is a Class I misdemeanor if the offense is committed negligently.

The appellate court ruling states, " ... the defendant's state of mind is the only factor that differentiates misdemeanor child abuse from felony child abuse," and that "Renae"s state of mind ... was not uncontrovertibly established by the State."

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