- Associated Press - Friday, August 14, 2015

OMAHA, Neb. (AP) - Convicting a person under different degrees of assault for a single attack does not constitute double jeopardy, the Nebraska Supreme Court said Friday in a ruling that drew a vigorous dissent from one justice.

It’s the first time the state’s high court has addressed whether prosecutors can convict a defendant of first-degree assault and second-degree assault when the offenses arose out of the same act.

The ruling came in the case of Joshua Ballew, 27, who was convicted of two counts each of first-degree assault and second-degree assault for the stabbing of two men at a Lincoln party in March 2012 following an argument. Ballew was also convicted of two weapons-use counts and sentenced to 10 to 22 years for each of the six convictions.

He appealed, arguing that convicting him of two separate assault counts for each stabbing amounted to double jeopardy, which forbids multiple punishments for the same offense.

The high court rejected that argument, reasoning that its rulings in two previous cases allow a person to be convicted of different degrees of the same offense. Writing for the majority, Justice Lindsey Miller-Lerman also indicated that state law regarding the crime of assault is ambiguous.

“We do not read this statute as showing a clear indication of legislative intent that the crimes … define a single offense merely because one offense is denominated as ‘assault in the first degree’ while the other is denominated as ‘assault in the second degree,’” Miller-Lerman wrote.

Justice William Connolly dissented, saying the law is not ambiguous and even if it were, judicial rules require such ambiguities to be resolved in the defendant’s favor.

“Notably, the majority cites no case in which an appellate court has upheld convictions of two separate degrees of the same crime for the same act,” Connolly wrote.

Connolly also broke with the majority on a separate argument, saying that Lancaster County District Judge Stephanie Stacy was wrong to keep Ballew from presenting evidence that witnesses in the case had given inconsistent statements.

“A witness’ prior inconsistent statements are admissible as impeachment evidence,” Connolly wrote. “I would reverse the judgments of conviction and remand the cause for a new trial.”

Stacy was named to the Nebraska Supreme Court on Friday by Gov. Pete Ricketts.

The Nebraska Attorney General’s Office did not immediately respond Friday to a request for comment.

Several calls to the office of Ballew’s attorney, Jessica Milburn, rang unanswered Friday.

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