- Associated Press - Wednesday, April 16, 2014

GERING, Neb. (AP) - Scotts Bluff County’s top prosecutor says he hasn’t decided yet whether to keep appealing the dismissal of a hate crime case.

District Court Judge Leo Dobrovolny on Monday upheld the dismissal by County Court Judge James Worden. In February, Worden ended a trial and dismissed the case against 18-year-old Alysha Schwartzkopf of Gering. Schwartzkopf was accused of scrawling a racial epithet in October on the car windows of a Gering High School senior who is biracial. She was charged with unauthorized application of graffiti, with a felony enhancement of committing a hate crime.

Worden agreed with the defense that state graffiti statutes don’t apply to vehicles. Dobrovolny agreed with Worden’s ruling.

Scotts Bluff County Attorney Doug Warner said Tuesday that he still thinks a car qualifies as a structure as cited in the statute. But, he told Scottsbluff radio station KNEB, “If I’m wrong, I’m wrong.”

Even if the county were to take the case to the state Appeals Court and wins, Schwartzkopf can’t be retried, because doing so would amount to double jeopardy. The ruling on the appeal will be an advisory one, setting precedent to be considered in future cases regarding the state’s graffiti law.

In a statement Tuesday, defense attorney Todd Morten said that he and Schwartzkopf’s family were pleased with Dobrovolny’s decision.

“Graffiti might mean different things to different people, but under the law in Nebraska it is quite specific, and judges should not rewrite statutes,” Morten said.

At trial Morten said Schwartzkopf did not have racist intent in writing a racial slur on the classmate’s vehicle. He said she’d done so because of a bet.

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