## Facts

- Mark Schroeder, a 19-year-old inmate, shared a cell with three other prisoners, including Gary Riggs, age 24.
- Riggs had a reputation for sex and violence; Schroeder feared him, and the State conceded Riggs had placed Schroeder in a position of general subservience.
- Schroeder owed Riggs about $3,000 from gambling; Riggs threatened to make Schroeder a “punk” by selling the debt to another prisoner.
- The day before the assault, Schroeder and two other cellmates submitted a written request that Riggs be moved to another cell; he was not moved.
- On the night of the incident, Schroeder and Riggs played cards until about 10 p.m.; Schroeder testified Riggs said he might “collect” money owed that night.
- Around 1 a.m., Schroeder attacked Riggs while Riggs was asleep, stabbing him in the back with a knife fashioned from a table knife.
- When Riggs awoke and tried to pull out the knife, Schroeder struck him several times with a metal ashtray; guards intervened and Riggs was hospitalized.

## Issues

1. Whether the evidence entitled Schroeder to a jury instruction on statutory justification (“choice of evils”) under Neb. Rev. Stat. § 28-834 for a preemptive assault allegedly intended to avoid sexual assault or other violence.
2. Whether § 28-834 may be used to justify a preemptive attack when conventional self-defense requirements (including imminence) are not met and other remedies existed.

## Decision

- The Nebraska Supreme Court affirmed the conviction and 2–3 year sentence for assault with intent to inflict great bodily injury (a lesser-included offense).
- The court held § 28-834 did not apply on these facts and the trial court properly refused the requested justification instruction.
- The court concluded the record did not show an imminent, unavoidable harm making the assault “necessary,” particularly because Riggs was asleep when attacked.

## Legal Principles

- A defendant is entitled to a theory-of-defense instruction only if the evidence, viewed most favorably to the defendant, would allow a reasonable jury to find the defense’s required elements.
- The “choice of evils” justification in § 28-834 is a narrow necessity-type defense: the actor must believe the conduct is necessary to avoid a harm greater than that addressed by the charged offense.
- Necessity requires immediacy; fear of future harm, without an impending attack, is insufficient to justify unlawful violence.
- § 28-834 is unavailable when other statutory defenses or laws address the specific situation, and it cannot be used to bypass limits embedded in more specific defenses such as self-defense.
- A preemptive, surprise assault on a nonthreatening (sleeping) victim generally fails the “necessary” and imminence-related requirements for justification.

## Conclusion

The court affirmed Schroeder’s conviction because the evidence showed a preemptive attack on a sleeping cellmate based on anticipated harm, which did not satisfy § 28-834’s necessity-based limits or warrant a jury instruction on justification.


State v. Schroeder, 261 N.W.2d 759 (Neb. 1978)