State v. Lebeau

CONCLUSION
On remand, the liquidator cured the defects in its evidence
identified in Gilbane I and established by its expert admissible
evidence in support of its motion for summary judgment that
Amwest was insolvent as of the date of the January 2001 trans-
fer. Gilbane failed to rebut this showing; therefore, the district
court’s determination that Amwest was insolvent on January 5,
2001, was supported by the record and the grant of summary
judgment in favor of the liquidator was not error. The district
court did not err in denying Gilbane’s motion for summary
judgment based on Gilbane’s defense pursuant to § 44-4828(9),
because that issue was previously considered and rejected by
this court and that decision is the law of the case. Finally, the
district court did not err when it denied Gilbane’s request to
deem its January 22, 2009, order a nonfinal order. Finding no
merit to Gilbane’s assignments of error, we affirm.
A ffirmed.
Wright, J., not participating.
StAte of NebrASkA, Appellee , v.
lAurA lebeAu, AppellANt.
784 N.W.2d 921
Filed July 16, 2010. 	No. S-09-890.
1. Statutes. The meaning of a statute is a question of law.
2. Judgments: Appeal and Error. When reviewing a question of law, an appel-
late court resolves the question independently of the conclusion reached by the
trial court.
3. Speedy Trial: Indictments and Informations: Pleadings. Although Nebraska’s
speedy trial act, Neb. Rev. Stat. § 29-1201 et seq. (Reissue 2008), expressly refers
to indictments and informations, the act also applies to prosecutions on complaint
in the county court.
4. Speedy Trial. To calculate the time for speedy trial purposes, a court must
exclude the day the complaint was filed, count forward 6 months, back up 1 day,
and then add any time excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue
2008) to determine the last day the defendant can be tried.
5. ____. Under Neb. Rev. Stat. § 29-1208 (Reissue 2008), if a defendant is
not brought to trial before the running of the time for trial, as extended by
excludable periods, he or she shall be entitled to absolute discharge from the
offense charged.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

6. ____. Ordinarily, in cases commenced and tried in county court, the 6-month
period within which an accused must be brought to trial begins to run on the date
the complaint is filed.
7. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
8. Statutes. A statute is ambiguous when the language used cannot be adequately
understood either from the plain meaning of the statute or when considered in
pari materia with any related statutes.
9. Statutes: Legislature: Intent. When a statutory term is reasonably considered
ambiguous, a court may examine the pertinent legislative history of the act in
question to ascertain the intent of the Legislature.
10. ____: ____: ____. The principal objective of construing a statute is to determine
and give effect to the legislative intent of the enactment.
11. Speedy Trial: Misdemeanors: Words and Phrases. “[M]isdemeanor offense
involving intimate partners,” within the meaning of Neb. Rev. Stat. § 29-1207(2)
(Reissue 2008), does not encompass any and all misdemeanors in which intimate
partners may be engaged. Rather, the exception applies only to those misde-
meanor offenses in which the involvement of an “intimate partner” is an element
of the offense.
12. Courts: Actions. Under Neb. Rev. Stat. § 25-2701(1) (Reissue 2008), all pro-
visions of the criminal and civil procedure code govern all actions in the
county court.
13. Speedy Trial: Ordinances. The speedy trial provisions of Neb. Rev. Stat.
§ 29-1207 (Reissue 2008) apply to the prosecution of city ordinances.
Appeal from the District Court for Douglas County, gAry
b. rANdAll, Judge, on appeal thereto from the County Court
for 	Douglas 	County, 	lyN v. 	White, 	Judge. 	Judgment 	of
District Court reversed, and cause remanded with directions to
dismiss.
Thomas C. Riley, Douglas County public Defender, and
Sean M. Conway for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
heAvicAN, 	c.J., 	Wright, 	coNNolly, 	gerrArd, 	StephAN,
mccormAck, and miller-lermAN, JJ.
gerrArd, J.
Laura Lebeau was charged with violating an Omaha city
ordinance prohibiting telephone harassment. Lebeau filed two
STATe v. LebeAU 	239
Cite as 280 Neb. 238

motions to discharge on statutory speedy trial grounds. The
county court denied both motions to discharge, and the district
court affirmed. The primary issue in this case is whether the
“intimate partner” exception of Neb. Rev. Stat. § 29-1207(2)
(Reissue 2008) applies and, if so, whether the statute is con-
stitutional. We conclude that the exception does not apply;
therefore, we reverse the judgment of the district court and
remand the cause with directions to dismiss the complaint
against Lebeau.
bACkGROUND
Lebeau was charged by complaint on September 17, 2008,
with violating Omaha Mun. Code, ch. 20, art. IV, § 20-62
(1996), prohibiting “[t]elephone harassment” of another per-
son. Among other things, § 20-62 makes it unlawful for any
person, by means of telephonic communication, to purpose-
fully or knowingly threaten to inflict injury to any person or his
or her property or to use indecent or obscene language against
such person. And specifically, it was alleged that Lebeau left
harassing messages on her ex-husband’s answering machine.
Lebeau, however, was not arraigned until March 3, 2009. The
record before the district court indicates that her appearance on
March 3 resulted from her arrest on March 2.
On March 20, 2009, relying on September 17, 2008, as
the starting date for the 6-month speedy trial period, Lebeau
filed a motion to discharge alleging that her case had not been
brought to trial within 6 months of the filing of the complaint,
as required by § 29-1207 and Neb. Rev. Stat. § 29-1208
(Reissue 2008). On March 23, 2009, Lebeau filed a second
motion to discharge, which added a constitutional challenge.
Section 29-1207(2) provides that the time for bringing a
defendant to trial runs from the date the indictment is returned
or the complaint is filed, “unless the offense is a misdemeanor
offense involving intimate partners . . . in which case the
six-month period shall commence from the date the defend-
ant is arrested on a complaint filed as part of a warrant for
arrest.” Lebeau argued that the intimate partner exception of
§ 29-1207(2) did not apply and that even if it did, the excep-
tion was unconstitutional.
240 	280 NebRASkA RepORTS

Following a hearing, the county court denied both motions,
and on appeal, the district court affirmed. Lebeau appeals.
ASSIGNMeNT OF eRROR
Lebeau assigns, consolidated and restated, that the district
court erred in affirming the county court order which had
denied her motions to discharge.
STANDARD OF ReVIeW
[1,2] The meaning of a statute is a question of law.1 When
reviewing a question of law, an appellate court resolves the
question 	independently 	of 	the 	conclusion 	reached 	by 	the
trial court.2
ANALYSIS
[3-5] Nebraska’s speedy trial statutes3 provide in part that
“[e]very person indicted or informed against for any offense
shall be brought to trial within six months, and such time shall
be computed as provided in [§ 29-1207].”4 Although the speedy
trial act expressly refers to indictments and informations, it is
well settled that the act also applies to prosecutions on com-
plaint in the county court.5 To calculate the time for speedy
trial purposes, a court must exclude the day the complaint was
filed, count forward 6 months, back up 1 day, and then add any
time excluded under § 29-1207(4) to determine the last day the
defendant can be tried.6 And, under § 29-1208, if a defendant
is not brought to trial before the running of the time for trial,
as extended by excludable periods, he or she shall be entitled to
absolute discharge from the offense charged.7
1 Harvey v. Nebraska Life & Health Ins. Guar. Assn., 277 Neb. 757, 765
N.W.2d 206 (2009).
2 Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
3 Neb. Rev. Stat. § 29-1201 et seq. (Reissue 2008).
4 § 29-1207(1).
5 See State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).
6 See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
7 See id.
STATe v. LebeAU 	241
Cite as 280 Neb. 238

[6] In this case, there are no excludable periods under
§ 29-1207(4); the only issue is when the 6-month speedy
trial period began. Ordinarily, in cases commenced and tried
in county court, the 6-month period within which an accused
must be brought to trial begins to run on the date the complaint
is filed.8 However, the recently amended § 29-1207(2)9 essen-
tially creates an intimate partner exception to the traditional
speedy trial calculations, providing that the 6-month statutory
speedy trial period
shall commence to run from the date the indictment is
returned or the information filed, unless the offense is a
misdemeanor offense involving intimate partners, as that
term is defined in section 28-323, in which case the six-
month period shall commence from the date the defendant
is arrested on a complaint filed as part of a warrant
for arrest.
(emphasis supplied.) And Neb. Rev. Stat. § 28-323 (Reissue
2008), the domestic assault statute, defines intimate partner as
“a spouse; a former spouse; persons who have a child in com-
mon whether or not they have been married or lived together
at any time; and persons who are or were involved in a dating
relationship.” We note that §§ 29-1207 and 29-1208 have been
amended again, effective July 15, 2010,10 but those changes are
not relevant to our analysis.
In this case, the alleged victim was Lebeau’s former spouse.
And as a result, there is no question that the alleged victim and
Lebeau are intimate partners for the purposes of our analysis.
but Lebeau argues that she is entitled to absolute discharge of
her case because the intimate partner exception of § 29-1207(2)
does not toll the speedy trial clock. Specifically, Lebeau asserts
that because § 29-1207(2) refers to the definition of “intimate
partner” contained in § 28-323, the intimate partner exception
must be narrowly construed to refer only to those offenses of
which “intimate partner” is an element. And, Lebeau argues,
8 See id.
9 See 2008 Neb. Laws, L.b. 623.
10 See, 2010 Neb. Laws, L.b. 712; Neb. Const. art. III, § 27.
242 	280 NebRASkA RepORTS

because the involvement of an intimate partner is not an ele-
ment of telephone harassment under the Omaha Municipal
Code, the intimate partner exception does not apply.
[7,8] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.11 but a statute is ambiguous when the
language used cannot be adequately understood either from the
plain meaning of the statute or when considered in pari materia
with any related statutes.12 Here, the language of § 29-1207(2)
is ambiguous because the phrase “misdemeanor offense involv-
ing intimate partners” could be read to refer only to offenses of
which the involvement of an intimate partner is a statutory ele-
ment or, more broadly, to any misdemeanor offense so long as
intimate partners were involved in its commission. As a result,
the exception could potentially apply to any misdemeanor
offense that just happened to be committed by, or on, an inti-
mate partner.
[9] When a statutory term is reasonably considered ambig-
uous, we often find it helpful to examine the pertinent legisla-
tive history of the act in question to ascertain the intent of the
Legislature.13 The legislative record establishes that the inti-
mate partner exception sought “to discourage perpetrators from
evading prosecution by starting the six month period from the
point in time a perpetrator is arrested on a warrant rather than
from the point in time a prosecutor files a complaint.”14 The
Introducer’s Statement of Intent describes the apparently com-
mon situation which L.b. 623 sought to address:
Often, police arrive at the scene of a misdemeanor
domestic violence crime only to learn that the perpetrator
has fled. Unable to find and arrest the perpetrator at the
time, law enforcement must resort to the issuance of an
arrest warrant in order to have legal cause for the arrest.
11 State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).
12 Id.
13 See Scofield v. State, 276 Neb. 215, 753 N.W.2d 345 (2008).
14 Introducer’s Statement of Intent, L.b. 623, Judiciary Committee, 100th
Leg., 1st Sess. (Mar. 7, 2007).
STATe v. LebeAU 	243
Cite as 280 Neb. 238

A criminal complaint is then filed by the prosecutor in
support of the arrest warrant. Not surprisingly, perpetra-
tors frequently take measures to avoid being located and
arrested. If a perpetrator is able to avoid arrest for six
months, he or she is rewarded because the charges must
be permanently dismissed.15
And the testimony before the Judiciary Committee, and
statements during the floor debate, certainly made clear that
the intimate partner exception was necessary for domestic
violence incidents, which, it was explained, were uniquely dif-
ferent from other misdemeanors.16 And it was explained that
L.b. 623 would “simply start” the 6-month speedy trial clock
“at the point in time where the defendant is actually arrested
for the domestic violence incident and not at the time that
the law enforcement officer has the prosecutor file the com-
plaint, at a point in time when the abuser has not been arrested
or located.”17
[10,11] The principal objective of construing a statute is to
determine and give effect to the legislative intent of the enact-
ment.18 And the legislative history of § 29-1207(2) clearly
establishes that the Legislature’s intent was to delay the start
of the 6-month speedy trial clock when a “defendant is actu-
ally arrested for [a] domestic violence incident,” and not for
any misdemeanor that simply happened to involve intimate
partners.19 based on the legislative history and, more important,
on the fact that the statute refers specifically to the definition
of intimate partners in the domestic assault statute, we hold
that “misdemeanor offense involving intimate partners,” within
the meaning of § 29-1207(2), does not encompass any and all
misdemeanors in which intimate partners may be engaged.
Rather, 	the 	exception 	applies 	only 	to 	those 	misdemeanor
15 Id.
16 See, Judiciary Committee Hearing, L.b. 623, 100th Leg., 1st Sess. (Mar. 7,
2007); Floor Debate, L.b. 623, 100th Leg., 2d Sess. (Feb. 6, 2008).
17 Floor Debate, supra note 16 at 47.
18 Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103
(2009).
19 Floor Debate, supra note 16 at 47 (emphasis supplied).
244 	280 NebRASkA RepORTS

offenses in which the involvement of an “intimate partner” is
an element of the offense. To hold otherwise would expand
the scope of the intimate partner exception well beyond the
Legislature’s intent.
And in this case, “intimate partner” is not an element of tele-
phone harassment under § 20-62 of the Omaha Municipal Code.
As briefly noted earlier, the elements of telephone harassment
under § 20-62 are that a person:
(a) Threaten to inflict injury to any person or to the
property of any person;
(b) 	Use 	indecent, 	lewd, 	lascivious, 	or 	obscene
language;
(c) Intentionally fail to disengage the connection;
(d) Initiate a connection with the communication sys-
tem of any recipient after expressed notice that the recipi-
ent excluded communication from that person; or
(e) Annoy by anonymous engagement of a line fol-
lowed by disengagement after answer.20
because telephone harassment neither involves nor includes
“intimate partner” as an element, the exception of § 29-1207(2)
does not apply to toll the speedy trial clock. Lebeau was
charged by complaint on September 17, 2008, and filed her
motions for discharge on March 20 and 23, 2009. because
the intimate partner exception of § 29-1207(2) does not apply
and there were no excludable periods under § 29-1207(4),
the 6-month statutory speedy trial clock expired on March
17, 2009. We conclude that the State did not bring Lebeau to
trial within the required time and that she is entitled to abso-
lute discharge.
[12,13] We note briefly the State’s argument that the speedy
trial statute does not apply to the prosecution of city ordi-
nances. The State contends that the statute does not apply to a
city ordinance because § 29-1207 references only “offense[s],”
which are defined by Neb. Rev. Stat. § 28-104 (Reissue 2008)
as violations of statutes. Although the speedy trial act expressly
refers to indictments and informations, it is well settled that
the act also applies to prosecutions on complaint in the county
20 § 20-62.
STATe v. LebeAU 	245
Cite as 280 Neb. 238

court.21 And Neb. Rev. Stat. § 25-2701 (Reissue 2008) extends
the rules of criminal and civil procedure to the county court. As
§ 25-2701 makes clear, all provisions of the criminal and civil
procedure code govern all actions in the county court. And,
if it were not already clear from the occasions in which we
considered § 29-1207 in the context of municipal ordinances,22
we conclude today that § 29-1207 applies to the prosecution of
city ordinances. The State’s argument is without merit.
Our 	conclusion 	that 	the 	intimate 	partner 	exception 	of
§ 29-1207(2) does not apply is dispositive of this appeal. We
need not, and do not, address Lebeau’s argument regarding the
constitutionality of § 29-1207(2).23
CONCLUSION
We conclude that the State did not bring Lebeau to trial
within the required time and that the county court and dis-
trict court erred in finding otherwise. We reverse the lower
courts’ orders denying Lebeau’s motion for absolute discharge
and remand the matter to the district court with directions to
reverse the judgment of the county court and remand the cause
with directions to dismiss the complaint against Lebeau.
reverSed ANd remANded With
directioNS to diSmiSS.
21 Karch, supra note 5.
22 State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980); State v. Schneider,
10 Neb. App. 789, 638 N.W.2d 536 (2002).
23 See State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002).
246 	280 NebRASkA RepORTS