28-932. Confined person; person in legal custody of Department of Correctional Services; dangerous sex offender; assault; penalty; sentence.
(1) Any person (a)(i) who is legally confined in a jail or an adult correctional or penal institution, (ii) who is otherwise in legal custody of the Department of Correctional Services, or (iii) who is committed as a dangerous sex offender under the Sex Offender Commitment Act and (b) who intentionally, knowingly, or recklessly causes bodily injury to another person shall be guilty of a Class IIIA felony, except that if a deadly or dangerous weapon is used to commit such assault, he or she shall be guilty of a Class IIA felony.
(2) Sentences imposed under subsection (1) of this section shall be consecutive to any sentence or sentences imposed for violations committed prior to the violation of subsection (1) of this section and shall not include any credit for time spent in custody prior to sentencing unless the time in custody is solely related to the offense for which the sentence is being imposed under this section.
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Before there can be a violation of this section, a bodily injury must occur to another person that is proximately caused by an intentional, knowing, or reckless overt act of a legally confined person or the legally confined person's accomplice. State v. Auman, 232 Neb. 341, 440 N.W.2d 254 (1989).
This section primarily prohibits a lawfully confined person from injuring another person by intentionally, knowingly, or recklessly committing a battery upon the other person. State v. Auman, 232 Neb. 341, 440 N.W.2d 254 (1989).
The use of a deadly or dangerous weapon in the commission of an assault by a confined person is an element of the offense which must be submitted to the jury and proved beyond a reasonable doubt, because the use of a weapon increases the offense of assault by a confined person from a Class IIIA felony to a Class IIA felony. State v. Jenkins, 28 Neb. App. 931, 950 N.W.2d 124 (2020).
Third degree assault is a lesser-included offense of assault by a confined person, because the elements of the two offenses are identical, except that the greater offense, assault by a confined person, requires the assault to be committed by someone who is legally confined. State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006).
To prove legal confinement under this section, the State is required to prove only that the defendant was technically in the custody of law enforcement, not that the defendant was substantively confined in a lawful manner. State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006).