## Facts

- A Platte County deputy tried to stop Terry L. Hemmer for speeding, but Hemmer refused to stop and a high-speed chase followed across multiple counties.
- The pursuit involved roughly 8 to 10 officers from several law-enforcement agencies.
- Officers set up two roadblocks during the chase, and Hemmer drove through both.
- In Osmond, a sheriff positioned a vehicle in the roadway and tried to flag Hemmer down as Hemmer approached.
- Hemmer did not stop; the sheriff avoided being struck by moving off the roadway into a snowbank.
- Hemmer was eventually arrested after his vehicle ran out of gas.
- The State charged Hemmer in Pierce County with multiple offenses, including attempted second degree assault on a peace officer under Neb. Rev. Stat. § 28-930(1)(b), which defines the completed assault as “intentionally, knowingly, or recklessly” causing bodily injury to a peace officer with a dangerous instrument.
- Hemmer moved to quash the attempted-assault count, arguing it was legally impossible to “attempt” to act recklessly.
- The trial court overruled the motion. Under a plea agreement, Hemmer entered a plea (no contest) to a reduced theory framed as attempting to recklessly cause bodily injury.
- The district court accepted the plea, entered judgment, and sentenced Hemmer to 9 months’ imprisonment on that count.
- Hemmer appealed to the Nebraska Court of Appeals, challenging whether the information charged a crime and also arguing the sentence was excessive.

## Issues

1. Does Nebraska law recognize the crime of attempted reckless assault on a peace officer in the second degree?
2. If “attempted reckless” assault is not a recognized offense, does a conviction based on a plea to that charge require reversal because the information failed to charge a crime?

## Decision

- The Nebraska Court of Appeals held that Nebraska does not recognize the offense of attempted reckless assault on a peace officer in the second degree.
- Because the information (and resulting conviction) rested on a nonexistent crime, the court reversed the conviction.
- The case was remanded with directions to dismiss the attempted reckless assault charge.
- Because the conviction was reversed on that ground, the court did not reach Hemmer’s claim that the 9-month sentence was excessive.

## Legal Principles

- Criminal attempt under Neb. Rev. Stat. § 28-201 requires conduct undertaken with the intent to commit the target offense (or, as the statute provides for result offenses, with knowledge that one’s conduct will produce the prohibited result) plus a substantial step toward completion.
- Recklessness—conscious disregard of a substantial and unjustifiable risk—does not match the state of mind required for attempt, which is directed toward bringing about the prohibited result intentionally or knowingly.
- When the completed offense can be committed recklessly, that does not mean the law also creates an “attempt” version based on recklessness; absent statutory authorization, “attempting to be reckless” is not a cognizable crime.
- A criminal information must charge an offense that exists under Nebraska law; if it charges a nonexistent offense, the defect is jurisdictional and cannot be cured by a plea.
- Appellate courts may address the existence of the charged offense as a matter of law even when the defendant entered a plea in the trial court.

## Conclusion

State v. Hemmer holds that Nebraska’s attempt statute requires intent or knowledge aimed at producing the prohibited result, so a charge and conviction for “attempting to recklessly” cause bodily injury to a peace officer is legally impossible; the Court of Appeals therefore reversed Hemmer’s conviction and remanded with directions to dismiss that charge.


State v. Hemmer, 3 Neb.App. 769, 531 N.W.2d 559 (1995)