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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16525
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Here is the situation: 18 August 2013: My then boyfriend

Resolved Question:

Here is the situation:
18 August 2013: My then boyfriend assaulted me in a hotel room in Nebraska. I knew he was drunk and later, via text, he admitted to being on meth. But he restrained me and when I fought back, he punched me in the face. Choked me. Tried to rape me. Threatened me with rape and death over a 2 hour period. When he passed out, I left and went to my parents.
19 August: I called the police in the town but I am active duty so I couldn’t get there until that Thursday. The officer asked me to come Friday so she could talk to me. I filed the report, got a case number XXXXX she said they would arrest him that afternoon. They went that night and the next afternoon but no one answered.
22 August: I took him his stuff only to see if he was remorseful about any of it and I thought if I stopped talking to him, he would get suspicious and run. His ex wife had filed a report on him 9 August in South Dakota but I didn’t know until after I brought him to KS and he said nothing happened that he pushed her to get away from her. I’ve known them 11 years and she is unstable but apparently wasn’t lying.
That Saturday he threatened me and I sent the texts to the police. The officer said she would keep me apprised.
28 August: They did finally show up and talk to him and took his statement. Then I was updated by the police that Thursday that county attorney wants more evidence because it’s “he said, she said” due to time lapse, conflicting version of events and no investigation at the scene.
Also on 27 August, his mom told him about an app I put on his phone to track texts, calls and web searches. Even though she told me to call the cops – but I denied it to him but told the police about it. I got it out of the Google play store because I thought he was cheating or about to cheat. He did with his ex wife. We broke up I thought I deactivated it but when he threatened me, I checked out the website and it was still on. I haven’t used anything to harass or against him and I doubt I can use it in court but he did talk about getting weed and meth from some dealers.
I just want to know what my options are in regards XXXXX XXXXX they don’t get enough evidence to file charges. The officer said she was going to the hotel to talk to personnel about the incident, review video and something about a witness and she would let me know.
I feel with the photos of my injuries can I somehow get court mandated anger management or rehab? He hasn’t been charged with assault but he did beat up his best friend (I saw that and his friend called 911 but didn’t pursue it), his ex wife (state patrol was called but no charges filed in Jan 2012) and his brother (nothing filed).
I just don’t want him to hurt or kill someone else and he needs to be responsible. I realize how stupid I was not going to the cops that day but I panicked and I can’t change it.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.

Hi Jacustomer,

You can't get him court mandated anything, unless he is going to be arrested and charged. While many cases are filed contemporaneously with the incident, some are not, especially when there are allegations of sexual abuse. Waiting a day is not important. The statue of limitations for a Nebraska felony can run for 3 years before it gets too stale to be prosecuted.

It would appear however, that he's denied these charges and is convincing, which is the reason the police feel that they need more evidence. Many cases are he said/she said cases, and that doesn't stop them from being litigated and tried.

If you have given the police all that you have against him with regard to what he has done to you -- the photos, the taping -- and the police choose not to make an arrest, about the only thing you can do would be to go over their heads to the prosecutor's office and see if you can make them feel differently and get them to press charges there.

Particularly if you feel you have reason to be afraid of him, you should also ask for a protective order. If the prosecutor is not interested in pressing charges on your behalf there is nothing you're going to be able to do on the criminal front. Prosecutors have complete discretion over what cases they take on and the way in which they prosecute them. They turn many cases down, particularly if they don't feel they can win them, or if they feel that the complainant may have a better chance to win in civil or family court. If turned down, you could take it up the food chain in the prosecutor's office, but from there, if you get no results, that's it. Even the president of the US cannot order a prosecutor to file charges if he does not wish to.

Based on everything you've said, I will expect the evidence to break your way and for you to be able to get him charged. If that's not the case, you could go to civil court and get yourself a domestic violence protective order so that he will have to keep away from you. He won't be punished by the civil court, and he won't be ordered to take anger management classes. But he will be made to stay away from you, so that at least you will be safe.

Customer: replied 1 year ago.

So if the police can't get enough evidence to satisfy the county attorney, I would go to the state attorney or state attorney general?

Expert:  Zoey_ JD replied 1 year ago.
Hi,

I'm not really sure what their problem is. To make an arrest and file charges, the police only need something called prabable cause. Probable cause is just the reasonable belief that a crime may have been committted and that a particular person committed it. Just your words if convincing enough, could be the basis for probable cause and an arrest.

To get a conviction the state needs a lot more evidece. But just about anyone can get anyone else arrested for something if they put their mind to it, that's how little evidece the police need for probable cause.

Here from what you are telling me, the police find conflicting evidence and what you have told them doesn't add up to what you said happened. So the police need to be more sure. But that does't mean that you can't still do to the prosecutor yourself -- the county prosecutor since he's the only one who would have jurisdiction over this case -- and show your pictures and your texts and retell your facts. The police are not lawyers, so frequently the prosecutor is a more sympathetic audience.

Again, if the county attorney won't prosecute, there's no ca appeal except to the top spot in the prosecuto's office. You could go to the state attorney or state AG but they have no power to force the county attorney to take a case he doesn't wish to try. So at that point, you'd have to go to civil court. you could read an overview of your civil options here.
Customer: replied 1 year ago.

The county attorney IS the one who told the police to get more evidence. This is what she said Thursday (the officer):


 


I understand your level of frustration; however, my investigation is on-going. Prior to executing any arrest, I am mandated to collect enough evidence for “probable cause” and to “prove beyond a reasonable doubt”. The preponderance of evidence is placed on the State of Nebraska and they do not file until I have enough evidence meeting that requirement. At the present time, I am dealing with “he said, she said”. I conferred with the Sarpy County Attorney and I was directed to ascertain more evidence. Due to the time lapse and no investigation at the scene and conflicting version of events, we are having to diligently continue the investigation. I am meeting with personnel from Marriott today regarding the incident, video footage and a witness. If I make an arrest or a change in the case status, I will notify you immediately.


But on the day I filed the report, she said she felt they had enough for 3rd deg assault and her sergeant said strangulation could be added, that they would arrest him that day. They couldn't get him that night or the next afternoon - no one was home. Yet in this same county in 2004, charges were filed against a police officer for assault and it was just spilled coffee and a bruise. That was dropped because the wife changed her story.


 


I just don't understand why they can't issue an arrest warrant on JUST the evidence I provided. I had a black eye, bruises, and had evidence of it from that day. I had texts where he admitted to being on meth, he said he was sorry but he can't remember. He threatened me. She even looked him up and saw his arrest history and said that would be able to be used.


He is a very good liar though AND he has his friend and friend's girlfriend probably lying for him. But my parents saw me that day. His sister.


 


So even if the county attorney is the one who needs more evidence, I can email him or contact him and try to plea my case to him?


Expert:  Zoey_ JD replied 1 year ago.
Hi,

The county attorney has probable cause to arrest already. That's why the police were ready to arrest. Based on what the county attorney said, however, he wants more than that. If he doesn't feel he can win it -- which requires proof beyond a reasonable doubt -- he is not interested in taking the case on at all.

Normally especially after only a day's waiting and concrete proof that at least an assault occurred, I would fully expect an arrest under circumstances like this. I cannot say why they doubt you. It may be that your boyfriend is a very fine liar and that now they are confused.

You can continue to call the prosecutor to find out the status of the investigation, but again, if they choose not to go forward, there's unfortunately no appeal process. YOur remedy would be to sue him in civil court for the assault, where the burden of proof would be much more favorable to you. The prosecutor has to prove him guilty beyond a reasonable doubt, which is the highest burden of proof in all law. In order to find him liable for the assault in civil court, you would only need to show that it was more likely than not that he did these things than that he didn't. So your evidence would go much farther.
Customer: replied 1 year ago.

Thank you. I thought about civil court but he has no money and he already owes me thousands that I will never see repaid. It will just cost me more time and money that I won't get back. I guess I'll just have to wait until the investigation is done and see what they do and he will probably walk.

Expert:  Zoey_ JD replied 1 year ago.
Hi,

That's why I have said that you can at least go to civil court and get yourself an order of protection, so he cannot bother you any further. You don't have to sue him to do that, and at least you know that if he's going to hurt anyone in the future, it's not going to be you. Look at the link I gave you for what your options are in those areas.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16525
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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