State v. Custer ( 2015 )

- 88 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
State of Nebraska, appellee, v.
Jason William Custer, appellant.
___ N.W.2d ___
Filed November 13, 2015. No. S-14-332.
1. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
3. Convictions: Evidence: Appeal and Error. In reviewing a claim
that the evidence was insufficient to support a criminal conviction,
an appellate court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact, and a conviction will be affirmed, in the
absence of prejudicial error, if the evidence admitted at trial, viewed
and construed most favorably to the State, is sufficient to support the
conviction.
4. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant
has not preserved a claim of prosecutorial misconduct for direct appeal,
an appellate court will review the record only for plain error.
5. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
6. Sentences. Whether a defendant is entitled to credit for time served and
in what amount are questions of law.
7. Records: Appeal and Error. It is incumbent upon an appellant to sup-
ply a record which supports his or her appeal.
- 89 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
8. Self-Defense. The choice of evils defense provided by Neb. Rev. Stat.
§ 28-1407 (Reissue 2008) requires that a defendant (1) acts to avoid
a greater harm; (2) reasonably believes that the particular action is
necessary to avoid a specific and immediate harm; and (3) reasonably
believes that the selected action is the least harmful alternative to avoid
the harm, either actual or reasonably believed by the defendant to be
certain to occur.
9. Homicide: Intent: Time. No particular length of time for premedita-
tion is required, provided that the intent to kill is formed before the act
is committed and not simultaneously with the act that caused the death.
The duration of time required to establish premeditation may be so
short that it is instantaneous.
10. Trial: Motions for Mistrial. When a party has knowledge during trial
of irregularity or misconduct, the party must timely assert his or her
right to a mistrial.
11. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and
Error. A party who fails to make a timely motion for mistrial based
on prosecutorial misconduct waives the right to assert on appeal that
the court erred in not declaring a mistrial due to such prosecuto-
rial misconduct.
12. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, reputation, and
fairness of the judicial process.
13. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
conduct encompasses conduct that violates legal or ethical standards for
various contexts because the conduct will or may undermine a defend­
ant’s right to a fair trial.
14. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial
misconduct in closing arguments, a court first determines whether the
prosecutor’s remarks were improper. It is then necessary to determine
the extent to which the improper remarks had a prejudicial effect on the
defendant’s right to a fair trial.
15. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the
duty to conduct criminal trials in such a manner that the accused may
have a fair and impartial trial, and prosecutors are not to inflame the
prejudices or excite the passions of the jury against the accused.
16. ____: ____: ____. A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.
17. Trial: Confessions: Miranda Rights: Impeachment. The State may
not seek to impeach a defendant’s exculpatory story, told for the first
- 90 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
time at trial, by cross-examining the defendant about his or her failure to
have told the story after receiving Miranda warnings at the time of the
defendant’s arrest.
18. Sentences: Probation and Parole. A sentence of life imprisonment
“without the possibility of parole” is erroneous, but not void.
19. Sentences: Time. A sentence validly imposed takes effect from the time
it is pronounced.
20. Sentences. When a valid sentence has been put into execution, the
trial court cannot modify, amend, or revise it in any way, either dur-
ing or after the term or session of court at which the sentence was
imposed.
21. Courts: Sentences. Where a portion of a sentence is valid and a por-
tion is invalid or erroneous, the court has authority to modify or revise
the sentence by removing the invalid or erroneous portion of the sen-
tence if the remaining portion of the sentence constitutes a complete
valid sentence.
22. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the violence involved in the
commission of the crime.
23. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
24. Homicide: Sentences. When a defendant is sentenced to life impris-
onment for first degree murder, the defendant is not entitled to credit
for time served in custodial detention pending trial and sentence;
however, when the defendant receives a sentence consecutive to the
life sentence that has maximum and minimum terms, the defendant
is entitled to receive credit for time served against the consecutive
sentence.
25. Sentences. A sentencing judge must separately determine, state, and
grant the amount of credit on the defendant’s sentence to which the
defendant is entitled.
26. ____. When consecutive sentences are imposed for two or more offenses,
periods of presentence incarceration may be credited only against the
aggregate of all terms imposed.
Appeal from the District Court for Cheyenne County: Derek
C. Weimer, Judge. Affirmed as modified.
- 91 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
James R. Mowbray and Sarah P. Newell, of Nebraska
Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jason William Custer appeals his convictions and sen-
tences for first degree murder, use of a firearm to commit
a felony, and being a felon in possession of a firearm. We
affirm Custer’s convictions, and we affirm his sentences as
modified.
STATEMENT OF FACTS
The charges against Custer arose from an incident in which
he shot and killed Adam McCormick outside a residence in
Sidney, Nebraska, on November 3, 2012. In the information
filed in the district court for Cheyenne County, Custer was
originally charged with second degree murder and use of a
firearm to commit a felony. The information was amended to
upgrade the murder charge to first degree and to add a charge
of being a felon in possession of a firearm. Custer was alleged
to be a habitual criminal, but the State ultimately chose not to
pursue the habitual criminal enhancement.
Custer grew up in Chico, California, where he met and
became friends with Billy Fields. In 2012, Custer decided to
move to Humboldt, Nebraska, where his son and his son’s
mother lived. Fields was then living in Sidney with his girl-
friend, Amber Davis. Fields invited Custer to stay with him
and Davis for a time while he was in the process of moving
to Humboldt. Custer arrived in Sidney on October 5. While
in Sidney, Custer met various friends of Davis, including
McCormick and Syrus Leal.
- 92 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
After Davis told Custer and Fields they needed to move out
of her house, Fields arranged for the two to stay at another
friend’s apartment. At around this time, in mid-­ October,
McCormick gave Custer $150. Although Custer testified that
the money was a loan to help Custer pay his share of rent
and utilities at the new apartment, Fields and Leal testified
that McCormick gave Custer the money to purchase drugs
and that after Custer failed to deliver the drugs, McCormick
wanted his money back. Custer testified that he intended to
pay McCormick back after he received an unemployment
check on October 16, 2012, but that he ended up using the
money from the check to pay other expenses. On or around
October 20, McCormick came to the apartment where Custer
and Fields were staying to collect the money. After Custer told
McCormick he would pay him from his next check, Fields,
who was upset that McCormick had come to confront Custer,
told McCormick that he would pay McCormick by the end
of the week. In the following days, McCormick exchanged
threatening text messages and telephone calls with Custer
and Fields.
On or about October 26, 2012, Custer and Fields attended
Halloween parties at some local bars. While they were walk-
ing between bars, McCormick confronted them, demanding
his money. Fields testified that when McCormick approached
them, it looked like McCormick was reaching into his pocket
for something, and that Fields thought it was a knife that he
knew McCormick carried. Custer and Fields told McCormick
they could not repay the $150 at that time, but in order to calm
McCormick, Fields paid him $40 for another debt he owed.
Fields testified that he later met up with Leal, who told him
that the money McCormick gave Custer was actually Leal’s
and that the money should be repaid to him rather than to
McCormick. Custer thought the matter had been resolved by
agreeing to pay Leal, but McCormick later sent text mes-
sages to Custer and Fields suggesting that the matter could be
resolved if they both left town.
- 93 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
A few days later, on November 1, 2012, McCormick sent
Fields text messages threatening physical violence if the debt
was not repaid soon. The text messages prompted Custer to
arrange with McCormick to meet in a park for a fight. Custer
and Fields went to the park at the arranged time. McCormick
did not show up, but he continued to exchange confrontational
text messages and telephone calls with Custer and Fields.
Custer and Fields went to Davis’ house that night and
told her about the ongoing conflict with McCormick. Other
friends of Davis were at her house and heard about the con-
flict. Evidence at trial showed that the gun that was later used
to shoot McCormick belonged to one of Davis’ friends, but
there was a conflict in the evidence as to how the gun came
into Custer’s possession. Fields testified that at Davis’ house
on November 1, 2012, Custer had talked to this friend about
obtaining a gun and that after the shooting, Custer told Fields
that prior to the shooting, he had kept the gun stashed in a
culvert behind the apartment building where they were staying.
In contrast, as will be discussed further below, Custer testified
that he found the gun in Fields’ truck immediately before the
shooting and that he had not known before that time that the
gun was in the truck.
The next night, November 2, 2012, Davis hosted a gath-
ering at her house. A conflict arose when Davis saw that
McCormick had come to her house with Leal. Davis insisted
that McCormick leave. Davis sent text messages to Custer and
Fields, who were not at Davis’ house, letting them know about
her confrontation with McCormick. She also let them know that
the gathering was relocating to Leal’s house, that McCormick
would be there, and that although Custer and Fields should not
fight McCormick there, they could “be waiting and watching
for him.” The conflict between Davis and McCormick contin-
ued at Leal’s home. Throughout the evening, Davis updated
Custer and Fields through text messages and telephone calls
regarding McCormick’s activities and whereabouts. Around
11:20 p.m., Custer responded to one of Davis’ updates with a
- 94 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
text message stating that he and Fields were coming over to
handle matters with McCormick.
Custer testified that throughout the night of November 2,
2012, he had also been exchanging text messages and tele-
phone calls with McCormick and that although Custer tried
to explain to McCormick that Fields was going to repay the
money, McCormick continued to threaten him. Around 11:35
p.m., Custer asked McCormick whether they could “FINISH
THIS RIGHT NOW ONE ON ONE.” McCormick responded in
the affirmative about 15 minutes later. In the same timeframe,
Custer was exchanging texts with Davis to see whether anyone
at Leal’s home would have a problem if Custer came there to
resolve things with McCormick. Custer testified that in light of
mixed messages he received from both Davis and McCormick,
he determined it would be better to wait until McCormick
left and then come to resolve things with Leal instead of
with McCormick.
Shortly after midnight on November 3, 2012, Davis texted
Custer saying that McCormick was leaving the gathering at
Leal’s house. Custer borrowed Fields’ truck to drive to Leal’s
house. Fields did not accompany Custer. When Custer arrived
at Leal’s house, he saw that McCormick, Leal, and Joshua
Wright were standing outside on the lawn. Thereafter, an
incident ensued in which Custer shot McCormick twice. The
testimony at trial presented differing stories regarding the
incident; therefore, Custer’s testimony regarding the inci-
dent will be presented herein after discussion of Leal’s and
Wright’s testimony.
Leal testified that after midnight on November 3, 2012, he,
McCormick, and Wright were leaving the house; Wright was
going to walk home, and Leal was going to give McCormick
a ride home. As they were leaving, a truck pulled up to the
house. When Leal saw the truck arrive, he thought it was
Fields until he heard Custer call McCormick’s name. Custer
left the truck idling with the lights on while he got out of the
truck and headed straight toward McCormick. Leal did not see
- 95 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
a gun but as soon as McCormick responded to Custer’s calling
his name, Leal heard a shot and saw McCormick buckle over.
Leal heard another shot 1 or 2 seconds after the first shot. Leal
went to attend to McCormick; he tried to catch McCormick’s
fall, but McCormick was already on the ground. Leal looked
up and saw that Custer was almost back to the truck. Leal
ran toward the truck and punched at Custer through the open
window. Leal saw a gun on the seat next to Custer as Custer
drove away in the truck. Leal then turned to see McCormick
trying to walk around Leal’s Jeep, which was parked in the
driveway. By the time Leal reached McCormick, he was on the
ground again.
Wright testified that he, Leal, and McCormick were stand-
ing in front of Leal’s house smoking after midnight on
November 3, 2012, when a truck pulled up and stopped in
the street. Wright did not recognize the truck, but one of
the other men said it belonged to Fields. Wright started to
walk toward the truck because he knew about the tension
between McCormick and Fields and he wanted to tell Fields
to “chill out.” The truck was still running with its lights on.
A man got out of the truck, and Wright realized that it was
not Fields and that, instead, it was Custer. Custer walked
toward the front door of the house. At first Wright did not
see anything in Custer’s hands, but when Custer picked up
his hands, Wright saw that he had a black assault rifle. Custer
raised the rifle to his shoulder, and Wright moved to escape.
Wright heard Custer call for McCormick, and then he heard
a shot. Wright did not see where the shot had been fired
because he was trying to escape. Wright heard another shot 1
or 2 seconds later, and then he saw Custer return to the truck.
Wright saw Leal run to the truck and punch Custer before
the truck left quickly. After he saw the truck leave, Wright
started to run home, but when he heard Leal yell for him, he
ran to the driveway where he saw McCormick on the ground.
McCormick was unresponsive and bleeding, so Wright called
for emergency assistance.
- 96 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
Other evidence presented by the State indicated that the
bullet from the second shot entered McCormick’s body under
the left arm, continued in a downward trajectory, nicking a
rib and perforating McCormick’s lower left lung, esopha-
gus, and liver, and exited his right side. McCormick died as
a result of the gunshot wounds. In addition, an officer who
arrived at the scene shortly after the shooting testified that he
searched McCormick’s pockets and that he found a pocket-
knife inside McCormick’s front left pants pocket. The officer
testified that when he found the pocketknife, it was closed up
and clasped and was all the way inside the pocket. The offi-
cer further testified that he did not find any other weapon in
McCormick’s proximity.
Custer testified in his own defense at trial. He testified
that when he arrived at Leal’s house, he was confused that
McCormick was still there and that he became concerned he
was being set up. Custer therefore retrieved a gun that was in
the back seat of the truck. Custer testified that he did not know
that the gun was there until after he became concerned about a
setup and started looking through the truck to find something
to protect himself. Custer concealed the gun under his coat as
he got out of the truck. As he walked up the driveway, he told
McCormick that he was there “to talk so we can settle this.”
Custer testified that McCormick replied, “yeah, I’m going to
settle it,” and that then McCormick pulled out a knife and
rushed at Custer. Custer testified that he backed up but ran into
a Jeep that was parked in the driveway and could not retreat
farther. He therefore pulled the gun out and fired a shot aimed
at McCormick’s knee as McCormick ran at him with the knife
raised. McCormick continued toward Custer, despite having
been shot in the thigh. As McCormick lunged at Custer with
the knife, Custer jumped out of the way, raised the gun, and
fired a shot as he twisted.
Custer testified that Leal began to scream at him and chase
him; so he got back to the truck and returned to the apartment
where he had been staying. He called Fields to tell him that
- 97 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
he had shot at McCormick, and Fields made arrangements
for Davis to pick up Custer and get him out of town. Custer
stayed at a motel in Big Springs, Nebraska, until some hours
later when police came to arrest him based on a tip from
Fields and Davis.
During the State’s cross-examination of Custer, it asked
questions which pointed out that shortly after the shooting,
Leal and Wright gave statements to police consistent with
their testimony at trial, while Custer “had 15 months” and
“the opportunity to sit through all of the trial and listen to all
of the testimony” before he testified to his version of events.
The State also asked questions which pointed out that after
the shooting, Custer had made no attempt to report to the
police the shooting or McCormick’s alleged aggressive actions.
Custer did not object to any of these questions.
Argument at the jury instruction conference shows that
Custer requested a “choice of evils” instruction with respect
to the charge of being a felon in possession of a firearm. He
argued that the instruction was appropriate because of his testi-
mony that he grabbed the gun he found in the back seat of the
truck only because he was concerned that he was being set up
when he arrived at Leal’s house and that he needed to protect
himself. The court refused such an instruction after determin-
ing that such an instruction was not appropriate under the facts
of this case. Custer also objected to an instruction defining
premeditation because the instruction included a statement
to the effect that the “time needed for premeditation may be
so short as to be instantaneous,” which statement was not
included in the statutory definition of premeditation. The court
overruled Custer’s objection and gave the instruction. The
court also gave a self-defense instruction.
During closing arguments, the State pointed out that Custer
had not reported to police McCormick’s alleged aggressive
actions with the knife. The State also suggested that Custer
had 15 months and knowledge of the testimony and evi-
dence against him before he gave his testimony regarding the
- 98 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
shooting. Custer did not object to the statements in the State’s
closing arguments, and he did not move for a mistrial based on
the statements.
The jury found Custer guilty of first degree murder, use of a
firearm to commit a felony, and being a felon in possession of
a firearm. The court sentenced Custer to imprisonment for life
for first degree murder, for 20 to 50 years for use of a firearm
to commit a felony, and for 10 to 20 years for being a felon in
possession of a firearm. The court ordered that the sentences be
served consecutively to one another.
When imposing the sentence for first degree murder, the
court orally stated at the sentencing hearing that the sentence
was “a sentence of not less than a period of your natural life
without the possibility of parole.” However, the written sen-
tencing order omitted the language regarding the possibility
of parole.
In addition, at the sentencing hearing, the court orally stated
in connection with both the sentence for use of a firearm to
commit a felony and the sentence for being a felon in posses-
sion of a firearm that Custer would be given credit for 503
days he had previously served. The written order stated, in a
paragraph separate from the paragraphs setting forth the sen-
tences, that Custer “shall receive credit for five hundred three
(503) days for time already served.”
Custer appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Custer claims that the district court erred when it refused
a choice of evils instruction and when it gave an instruc-
tion defining premeditation that did not follow the statu-
tory definition. He also claims that there was not sufficient
evidence to sustain a conviction for first degree murder. He
further claims that the State committed prosecutorial mis-
conduct when it made certain remarks in closing arguments.
Finally, with regard to sentencing, Custer claims that the dis-
trict court erred when it orally pronounced sentence on the
- 99 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
murder conviction as life imprisonment “without the possibil-
ity of parole” and that the court imposed excessive sentences
for the two other convictions.
In the State’s brief, it asserts that the district court com-
mitted plain error in the manner it ordered the credit for time
served to be applied.
STANDARDS OF REVIEW
[1] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. Planck, 289
Neb. 510, 856 N.W.2d 112 (2014).
[2] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. State v. Stricklin, 290 Neb. 542, 861 N.W.2d
367 (2015).
[3] In reviewing a claim that the evidence was insufficient
to support a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact, and a conviction will be affirmed, in the absence
of prejudicial error, if the evidence admitted at trial, viewed
and construed most favorably to the State, is sufficient to sup-
port the conviction. State v. Davis, 290 Neb. 826, 862 N.W.2d
731 (2015).
[4] When a defendant has not preserved a claim of pros-
ecutorial misconduct for direct appeal, we will review the
record only for plain error. State v. Dubray, 289 Neb. 208, 854
N.W.2d 584 (2014).
[5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Hunnel, 290 Neb. 1039, 863 N.W.2d
442 (2015).
- 100 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
[6] Whether a defendant is entitled to credit for time served
and in what amount are questions of law. Id. An appellate
court reviews questions of law independently of the lower
court. Id.
ANALYSIS
Discussion of Proposed Choice
of Evils Instruction.
Custer first claims that the district court erred when it
refused to instruct the jury regarding a choice of evils defense
to the charge of being a felon in possession of a firearm. Custer
failed to include his proposed instruction in the record on
appeal, and we are not able to review the instruction on appeal.
However, even if we favor Custer with various assumptions, a
choice of evils instruction was not warranted by the evidence
and we reject this assignment of error.
The record of the jury instruction conference shows that
Custer objected to the court’s proposed instruction setting forth
the elements of being a felon in possession of a firearm and
that his objection was based on the failure to include language
regarding a choice of evils defense. The parties argued their
respective positions regarding whether such language should
be included, and the court determined that an instruction
regarding choice of evils was not appropriate under the facts
of this case.
[7] Although the court indicated at the jury instruction con-
ference that a proposed instruction was on file, Custer did not
include a proposed choice of evils instruction in the record on
appeal. Custer needed to show that his tendered instruction
was a correct statement of law and that it was warranted by the
evidence. See Planck, supra. In order to do so, he needed to
include his proposed instruction in the record on appeal. It is
incumbent upon an appellant to supply a record which supports
his or her appeal. State v. Robinson, 287 Neb. 799, 844 N.W.2d
312 (2014). Because Custer did not include the proposed
instruction in the record on appeal, “we have no instruction
- 101 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
to review in order to determine whether it ought to have been
given.” See id. at 805, 844 N.W.2d at 318.
[8] Custer argues that although the proposed instruction is
not included in the record, it is clear from the arguments of
counsel at the jury instruction conference that Custer requested
an instruction that followed the language of Neb. Rev. Stat.
§ 28-1407 (Reissue 2008). He asserts that the same language
was proposed by the defendant in State v. Mowell, 267 Neb. 83,
672 N.W.2d 389 (2003). In Mowell, we stated that the defend­
ant had presented an instruction which set forth the choice of
evils defense provided by § 28-1407 and that the choice of
evils defense
requires that a defendant (1) acts to avoid a greater
harm; (2) reasonably believes that the particular action
is necessary to avoid a specific and immediate harm;
and (3) reasonably believes that the selected action is the
least harmful alternative to avoid the harm, either actual
or reasonably believed by the defendant to be certain
to occur.
267 Neb. at 94, 672 N.W.2d at 399. We did not decide in
Mowell whether the instruction proposed by the defendant was
a correct statement of law, and we further questioned whether
a choice of evils justification was available as a defense to a
charge of being a felon in possession of a firearm. Without
deciding either issue, we assumed for the sake of argument
that the proposed instruction was a correct statement of law
and that the defense was generally available against a charge
of being a felon in possession of a firearm. Having made such
assumptions, we nevertheless concluded that under the facts of
the case at hand, the defendant in Mowell was not entitled to an
instruction on the choice of evils defense. If we were to make
the same assumptions in this case, and if we were to assume
that Custer’s proposed instruction was based on the language
of § 28-1407, similar to Mowell, we would again conclude that
the evidence in this case did not entitle the defendant, Custer,
to a choice of evils instruction.
- 102 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
In Mowell, we emphasized that the choice of evils defense
requires that the defendant’s actions are “‘necessary to avoid
a specific and immediately imminent harm’” and that “gen-
eralized and nonimmediate fears are inadequate grounds upon
which to justify a violation of law.” 267 Neb. at 96, 672
N.W.2d at 400. After reviewing the evidence in Mowell, we
noted that “even if [the defendant] felt threatened and harassed
by [the victim] to a point where he feared for his safety, [the
defendant] had ample opportunity” to avoid the danger. 267
Neb. at 97, 672 N.W.2d at 401.
Custer argues that the facts of the present case are different
from those in Mowell, because the threat in Mowell was vague
and the defendant in Mowell possessed the firearm for a longer
period of time. He contends that in this case, McCormick’s
threats against him “were far more repeated, direct, and unam-
biguous,” brief for appellant at 23, and that he did not possess
the firearm until he was faced with a specific and immedi-
ate harm.
Although the facts of this case differ from those in Mowell,
the evidence in this case does not show that at the time Custer
took possession of the firearm he faced a specific and imme-
diately imminent harm. The evidence most favorable to Custer
was his own testimony that when he arrived at Leal’s house,
he saw that McCormick was still there and that, fearing that
he was being set up, he retrieved the gun from the back seat
of the truck. At the time he retrieved the gun, Custer was still
inside the truck and he had the opportunity to drive away;
instead, he grabbed the gun, got out of the truck, and walked
toward McCormick. Under Custer’s version of events, he
did not face a specific and immediately imminent harm until
McCormick rushed at him with a knife, which did not occur
until after Custer had already grabbed the gun, gotten out of
the truck, and approached McCormick. That is, Custer pos-
sessed the firearm—the crime of which he was convicted—
not to avoid a specific and immediate harm, but instead,
before the harm developed. Therefore, even if we were to
- 103 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
assume Custer tendered a proposed instruction that followed
the language of § 28-1407, and the defense was available to
a charge of being a felon in possession of a firearm, we con-
clude that the district court did not err when it determined
that a choice of evils instruction was not warranted by the
evidence in this case.
Jury Instruction Defining Premeditation
Was Not Improper.
Custer next claims that the district court erred when it gave
an instruction defining premeditation which included language
that was not included in the statutory definition of premedita-
tion. We conclude as a matter of law that the district court did
not err when it gave the instruction.
The district court gave jury instruction No. 7 which
instructed the jury on definitions of various terms relevant to
the charges against Custer. The instruction included a defini-
tion of premeditation based on NJI2d Crim. 4.0. The court
instructed: “Premeditation means to form the intent to do
something before it is done. The time needed for premedita-
tion may be so short as to be instantaneous provided that the
intent to act is formed before the act and not simultaneously
with the act.” Custer objected to the second sentence of the
definition for premeditation because it did not conform to the
statutory definition of premeditation under Neb. Rev. Stat.
§ 28-302 (Reissue 2008). The definition of premeditation in
jury instruction No. 7 is nearly identical to the definition pro-
vided in NJI2d Crim. 4.0. In comparison to instruction No. 7,
§ 28-302(3) provides one sentence, i.e.: “Premeditation shall
mean a design formed to do something before it is done,” but
does not contain a second sentence regarding the time needed
for premeditation.
[9] The argument made by Custer regarding the variance
between the statutory definition in § 28-302(3) and instruc-
tion No. 7 was rejected by this court in State v. Taylor, 282
Neb. 297, 803 N.W.2d 746 (2011). In Taylor, we noted that
- 104 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
the second sentence of NJI2d Crim. 4.0 had “apparently been
added to further specify the meaning of ‘before’ as it was
used in § 28-302(3).” 282 Neb. at 310, 803 N.W.2d at 758.
We reviewed our precedent to the effect that no particular
length of time for premeditation is required, provided that the
intent to kill is formed before the act is committed and not
simultaneously with the act that caused the death, as well as
other precedent to the effect that the duration of time required
to establish premeditation may be so short that it is instanta-
neous. Id.
Custer argues that the instruction was erroneous because
“these two words [‘instantaneous’ and ‘simultaneous’] are syn-
onyms that mean something occurring in the same moment.”
Brief for appellant at 30. He contends that instructing the jury
that premeditation may be “instantaneous” violates the statu-
tory requirement that intent must be formed before the act is
done. We disagree.
“Instantaneous” is defined as “done, occurring, or acting
without any perceptible duration of time,” Webster’s Third New
International Dictionary of the English Language, Unabridged
1171 (1993), whereas “simultaneous” is defined as “existing
or occurring at the same time,” id. at 2122. The two words are
not synonymous; “instantaneous” refers to the passage of time
during which something occurs, while “simultaneous” refers
to the point in time at which two or more things occur. Thus,
premeditation may occur instantaneously, or in an amount of
time of imperceptible duration, but without occurring simul-
taneously with, or at the same point in time as, the act. The
instruction makes it clear that although premeditation may be
instantaneous, it must nevertheless occur before the act and
not simultaneous with it. The instruction therefore does not
contradict the statutory requirement that premeditation must
occur before the act. The instruction instead explains that,
while premeditation must occur before the act and not simul-
taneous with it, premeditation need not occur for any minimal
duration of time and may occur in an instant, that is, may be
- 105 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
instantaneous. Custer also argues that the instruction is a viola-
tion of the separation of powers because it adds to the defini-
tion of premeditation provided by the Legislature. However,
a court’s proper role is to interpret statutes and clarify their
meaning. See Taylor, supra. The instruction given in this case
interprets and clarifies the statutory definition; it does not
change or contradict the statutory definition.
Similar to our discussion in Taylor, supra, we conclude that
jury instruction No. 7 in this case conformed to our interpreta-
tion of premeditation as it is used in § 28-302(3). Accordingly,
as a matter of law, the district court did not err when it gave the
definition of premeditation in instruction No. 7, and we reject
this assignment of error.
The Evidence Was Sufficient to Support Custer’s
Conviction for First Degree Murder.
Custer claims that there was not sufficient evidence to
sustain a conviction for first degree murder because the evi-
dence did not show that he killed McCormick with deliberate
and premeditated malice. The theory of Custer’s defense was
essentially that he killed McCormick in self-defense. The State
contends that its evidence established that Custer committed
first degree murder, that there was no sudden quarrel, and that
Custer did not kill McCormick in self-defense. We conclude
that there was sufficient evidence from which the jury could
have found that Custer committed first degree murder.
As an initial matter, we note that Custer’s claim of insuf-
ficient evidence of deliberate and premeditated malice relies in
part on his argument, which we rejected above, that premedita-
tion cannot be “instantaneous” because instantaneous premedi-
tation is synonymous with intent formed simultaneously with
the act. To the extent Custer’s argument is that there was not
sufficient evidence of premeditation because the State proved
only instantaneous premeditation, we reject such argument,
because instantaneous premeditation is sufficient.
Custer’s main argument is that there was insufficient evi-
dence of first degree murder, because there was evidence that
- 106 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
he did not come to Leal’s house planning to kill McCormick,
that he instead came to settle the dispute over the money he
owed to McCormick, that he grabbed the gun from the back
seat of the truck only after he became concerned that he
was being set up, and that he did not shoot McCormick until
McCormick lunged at him with a knife. Custer contends that
this evidence shows that the killing was not done with deliber-
ate and premeditated malice and that instead, it was done upon
a sudden quarrel and in self-defense.
Although there was evidence in support of the version of
events as urged by Custer, the State presented evidence which
contradicted Custer’s version of how the incident occurred
and from which the jury could have found that Custer killed
McCormick with deliberate and premeditated malice and that
the killing did not result from a sudden quarrel and was not
justified as self-defense. The State’s evidence included the
testimony by Leal and by Wright which indicated that Custer
got out of the truck armed with a gun, left the engine running,
walked toward McCormick, and shot him twice within sec-
onds—all before a sudden quarrel developed or self-defense
was justified.
The main evidence supporting Custer’s version of events
was his testimony in his own defense. But he also directs our
attention to physical evidence, including evidence regarding
the trajectory of the gunshots, which he asserts supports his
version of events over the version of events recounted by other
witnesses. Thus, in this trial, there was conflicting testimony
regarding the events surrounding the shooting, and there was
other evidence which the jury may have found relevant to its
determination of the accuracy or credibility of the witnesses’
testimony. As the finder of fact, the jury resolved the tension
and conflicts in the evidence.
In reviewing a claim that the evidence was insufficient to
support a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
- 107 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
finder of fact, and a conviction will be affirmed, in the absence
of prejudicial error, if the evidence admitted at trial, viewed
and construed most favorably to the State, is sufficient to sup-
port the conviction. State v. Davis, 290 Neb. 826, 862 N.W.2d
731 (2015).
Viewing the evidence in the light most favorable to the
State, we conclude that the evidence was sufficient to support
Custer’s conviction for first degree murder. We therefore reject
this assignment of error.
Prosecutor’s Comments During Closing
Arguments Were Not Improper.
Custer next claims that the State committed prosecuto-
rial misconduct when it made certain statements during clos-
ing arguments. Custer takes issue with the State’s comments
regarding the amount of time he had to prepare his testimony
for trial and the State’s comments highlighting his failure
to report the shooting and McCormick’s alleged aggressive
actions to the police. He contends that the statements were
improper comments on the exercise of his right to remain
silent. We conclude that the State’s comments during closing
arguments were not improper and did not constitute prosecuto-
rial misconduct.
[10,11] We note that Custer did not object when the State
questioned him about these issues on cross-examination or
when the State remarked on these issues during closing argu-
ments; the claim on appeal is limited to the prosecutor’s
comments made during closing arguments. When a party has
knowledge during trial of irregularity or misconduct, the party
must timely assert his or her right to a mistrial. State v.
Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015). A party who
fails to make a timely motion for mistrial based on prosecuto-
rial misconduct waives the right to assert on appeal that the
court erred in not declaring a mistrial due to such prosecutorial
misconduct. Id.
Although Custer acknowledges that he failed to object to
the alleged prosecutorial misconduct at trial, he argues that
- 108 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
we should note the alleged misconduct as plain error. When a
defendant has not preserved a claim of prosecutorial miscon-
duct for direct appeal, we will review the record only for plain
error. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
We apply the plain error exception to the contemporaneous-
objection rule sparingly. State v. Alarcon-Chavez, 284 Neb.
322, 821 N.W.2d 359 (2012). Therefore, in this case, we will
review the record for plain error with regard to Custer’s allega-
tions of prosecutorial misconduct.
[12] An appellate court may find plain error on appeal when
an error unasserted or uncomplained of at trial, but plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. Id.
Generally, we will find plain error only when a miscarriage of
justice would otherwise occur. Id.
[13,14] Prosecutorial misconduct encompasses conduct that
violates legal or ethical standards for various contexts because
the conduct will or may undermine a defendant’s right to a
fair trial. Dubray, supra. In assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines
whether the prosecutor’s remarks were improper. It is then nec-
essary to determine the extent to which the improper remarks
had a prejudicial effect on the defendant’s right to a fair trial.
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013). The first
step in our analysis, then, is to determine whether the State’s
comments to the jury regarding the amount of time Custer had
to consider his testimony and Custer’s failure to report the inci-
dent were improper.
[15,16] With regard to whether remarks made during clos-
ing arguments are improper, we have stated that prosecutors
are charged with the duty to conduct criminal trials in such a
manner that the accused may have a fair and impartial trial,
and prosecutors are not to inflame the prejudices or excite the
passions of the jury against the accused. Id. A prosecutor’s con-
duct that does not mislead and unduly influence the jury does
not constitute misconduct. Id.
- 109 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
Custer asserts that it was improper for the State to note that
Custer did not report to police his allegations that McCormick
had threatened him with a knife, which allegations form the
basis for his claim of self-defense. The State further noted that
Custer had 15 months and the advantage of hearing other wit-
nesses’ testimony in order to prepare his testimony in his own
defense. The State contrasted this with the trial testimony of
Leal and Wright, which was consistent with statements they
gave to police within hours after the incident.
[17] Custer argues that these comments by the prosecutor
violated a line of cases beginning with Doyle v. Ohio, 426 U.S.
610, 611, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), in which
the U.S. Supreme Court held that the State may not “seek to
impeach a defendant’s exculpatory story, told for the first time
at trial, by cross-examining the defendant about his failure to
have told the story after receiving Miranda warnings at the
time of his arrest.” In Fletcher v. Weir, 455 U.S. 603, 607, 102
S. Ct. 1309, 71 L. Ed. 2d 490 (1982), the U.S. Supreme Court
clarified that the Doyle rule did not necessarily apply to a pros-
ecutor’s remarks about a postarrest silence occurring before
Miranda warnings and stated:
In the absence of the sort of affirmative assurances
embodied in the Miranda warnings [to the effect that his
silence will not be used against him or her], we do not
believe that it violates due process of law for a State to
permit cross-examination as to [pre-Miranda] postarrest
silence when a defendant chooses to take the stand.
Similar to Fletcher, supra, in Nebraska, we have stated that “it
is not a violation of fundamental fairness for the State to use a
defendant’s pre-Miranda silence as impeachment or as substan-
tive evidence of sanity.” State v. Harms, 263 Neb. 814, 824-25,
643 N.W.2d 359, 371 (2002). We have explicitly extended the
protection of Doyle to a prosecutor’s comments on the defend­
ant’s silence made in closing argument. See State v. Lopez,
274 Neb. 756, 743 N.W.2d 351 (2008). The Doyle challenge
in the instant case is to the prosecutor’s remarks during clos-
ing argument.
- 110 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
Custer directs our attention to State v. Lofquest, 227 Neb.
567, 418 N.W.2d 595 (1988). In Lofquest, we noted that the
State’s remarks, some of which were made during the pros-
ecutor’s closing, referred to the defendant’s failure to tell
his story to police at any time prior to the trial. We stated in
Lofquest that the dispositive factor with respect to a prosecu-
tor’s remarks regarding a defendant’s silence is the period of
silence to which the prosecutor referred—that is, whether it
is the period before or the period after the defendant received
Miranda warnings. We determined that the prosecutor’s “gen-
eralized questions and comments [made] it nearly impos-
sible to discern, for purposes of a Doyle inquiry, what period
of silence the prosecution was referring to, pre-Miranda or
post-Miranda” and that “the prosecutor’s remarks could be
construed as referring to [the defendant’s] silence from the
first police contact through the moment before [the defendant]
told his story at trial.” 227 Neb. at 570, 418 N.W.2d at 597.
We concluded that the prosecutor’s remarks in Lofquest were
improper because “[w]e cannot allow prosecutors to sidestep
the Doyle protections by skirting the edge of the law with
vague and imprecise references to a defendant’s silence.” 227
Neb. at 570, 418 N.W.2d at 597.
Custer argues that, similar to Lofquest, the State’s remarks
made during closing argument in this case encompassed the
entire period until he testified at trial and that the remarks
were therefore improper. However, we note that the remarks
in which the State referred specifically to Custer’s silence
clearly pertained to a time before his arrest and before
Miranda warnings were given. During closing arguments, the
State discussed Custer’s actions immediately after the shoot-
ing and stated that he did not call police. The State remarked,
“He even sees the police car drive by and never bothers to
tell anybody that he was just in this life and death struggle.
Never tells the police about that.” These remarks clearly refer
to Custer’s silence at a time before he was arrested and given
Miranda warnings. They were unlike the remarks we found
improper in Lofquest, supra, in which the State imprecisely
- 111 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
referred to the defendant’s silence prior to trial, which period
might have included times after the defendant received post-
Miranda warnings.
Custer argues that in addition to the remarks discussed
above specifically referring to Custer’s failure to report the
incident to police, the State’s remarks regarding the amount
of time he had to prepare his testimony prior to trial were
effectively improper comments on his silence. He argues that
the time period before trial necessarily includes some time
after his arrest and after he invoked his rights. He notes that
in closing arguments, the State remarked that “Custer wrapped
his story around the forensics after having 15 months to look
at it by hearing the testimony about seeing—here’s the angle
here and know that [McCormick] go [sic] wounded right
here,” and later repeated that “Custer forms his story around
the forensics.”
We do not read these remarks as commenting on Custer’s
silence after his arrest and after invocation of his right to
remain silent. Instead, the remarks are similar to those in State
v. Jacob, 253 Neb. 950, 974, 574 N.W.2d 117, 137 (1998),
abrogated on other grounds, State v. Nolan, 283 Neb. 50,
574 N.W.2d 117 (2012), in which the prosecutor stated dur-
ing closing arguments that before the defendant testified at
trial, he “‘had five years to think of his answers, five years
to run through all of this. Five years to prepare’” and that he
had “‘sat through this trial and heard every witness and every
question.’” We characterized the State’s remarks in Jacob as
commenting on the defendant’s credibility and as implying that
“in evaluating the credibility of [the defendant’s] testimony, the
jury should consider that [the defendant] had the benefit of first
hearing all the witnesses’ testimony and had 5 years to prepare
his testimony.” Id. at 975-76, 574 N.W.2d at 138. We stated
that we found “nothing in the argument that can be construed
as a comment on [the defendant’s] silence.” Id. at 976, 574
N.W.2d at 138. Similar to the remarks in Jacob, the remarks
by the State in closing argument in this case were directed to
- 112 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
the credibility of Custer’s testimony rather than remarks on
Custer’s silence.
We conclude that the State’s remarks during closing argu-
ments were not improper, and we therefore need not consider
whether the comments prejudiced Custer’s right to a fair trial.
Because there was no prosecutorial misconduct and no plain
error, we reject Custer’s assignment of error.
District Court Properly Modified Custer’s
Sentence of Life Imprisonment by Removing
Erroneous Language Regarding Parole
in the Valid Written Order.
Custer claims that the district court erred when, at the sen-
tencing hearing, it orally sentenced him on the first degree
murder conviction to life imprisonment “without the possi-
bility of parole.” Because we conclude that the district court
properly modified the invalid oral sentence by entering a valid
written order that removed the erroneous language of “without
the possibility of parole,” there is no merit to this assignment
of error.
When imposing the sentence for first degree murder, the
court stated at the sentencing hearing that the sentence was “a
sentence of not less than a period of your natural life without
the possibility of parole.” However, the subsequent written
sentencing order omitted the language regarding the possibility
of parole.
[18] Custer was convicted of first degree murder, a Class IA
felony. Under Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014), a
Class IA felony is punishable by life imprisonment, but the
statute does not authorize a sentence of life imprisonment
without the possibility of parole. Therefore, a sentence of life
imprisonment “without the possibility of parole” is erroneous,
but not void. See State v. Conover, 270 Neb. 446, 703 N.W.2d
898 (2005). Custer urges us to remand the cause for resentenc-
ing. Although the State does not dispute that a sentence of
life imprisonment without the possibility of parole is errone-
ous, it argues that in this case, the written sentencing order,
- 113 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
which does not contain the “without the possibility of parole”
language, is controlling over the earlier sentence orally pro-
nounced and that there is no need to remand the cause for
resentencing. We agree with the State.
[19,20] We have held that a sentence validly imposed takes
effect from the time it is pronounced. State v. Clark, 278 Neb.
557, 772 N.W.2d 559 (2009). And when a valid sentence has
been put into execution, the trial court cannot modify, amend,
or revise it in any way, either during or after the term or session
of court at which the sentence was imposed. Id. As a result,
we have held that when there is a conflict between the record
of a judgment and the verbatim record of the proceedings in
open court, the verbatim record of the earlier proceedings in
open court prevails. See State v. Salyers, 239 Neb. 1002, 480
N.W.2d 173 (1992). These holdings presume an initial sentence
was validly imposed.
[21] In this case, the sentence pronounced at the sentenc-
ing hearing was erroneous to the extent the court stated that
imprisonment would be without the possibility of parole. See
Conover, supra. We have held that where a portion of a sen-
tence is valid and a portion is invalid or erroneous, the court
has authority to modify or revise the sentence by removing the
invalid or erroneous portion of the sentence if the remaining
portion of the sentence constitutes a complete valid sentence.
State v. McDermott, 200 Neb. 337, 263 N.W.2d 482 (1978).
We therefore determine that the district court had authority to
modify the sentence to remove the erroneous language, and
the relief sought in this assignment of error has been accorded
to Custer.
Sentences Imposed by District Court for Custer’s
Convictions for Use of a Firearm to Commit a
Felony and Being a Felon in Possession of a
Firearm Were Not an Abuse of Discretion.
Custer further claims that the district court imposed exces-
sive sentences on the convictions for use of a firearm to com-
mit a felony and being a felon in possession of a firearm.
- 114 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
We find no abuse of discretion in the sentences imposed for
these convictions.
In addition to the sentence of life imprisonment it imposed
for first degree murder, the district court sentenced Custer to
imprisonment for 20 to 50 years for use of a firearm to commit
a felony and for 10 to 20 years for being a felon in posses-
sion of a firearm. The court ordered all sentences to be served
consecutively. Life imprisonment was the only sentence avail-
able for the first degree murder conviction; therefore, Custer’s
excessive sentence arguments focus on the sentences for use of
a firearm to commit a felony and being a felon in possession
of a firearm.
Custer’s conviction for being a felon in possession of a fire-
arm, first offense, is a Class ID felony under Neb. Rev. Stat.
§ 28-1206(3)(b) (Cum. Supp. 2014). A Class ID felony is pun-
ishable by imprisonment for a mandatory minimum of 3 years
and a maximum of 50 years under § 28-105. Use of a firearm
to commit a felony is a Class IC felony under Neb. Rev. Stat.
§ 28-1205(1)(c) (Cum. Supp. 2014). A Class IC felony is pun-
ishable by imprisonment for a mandatory minimum of 5 years
and a maximum of 50 years under § 28-105. And the sentence
for use of a firearm to commit a felony must be consecu-
tive to any other sentence imposed under § 28-1205(3). The
sentences imposed by the district court were therefore within
statutory limits.
[22,23] An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of discre-
tion by the trial court. State v. Hunnel, 290 Neb. 1039, 863
N.W.2d 442 (2015). When imposing a sentence, a sentencing
judge should consider the defendant’s (1) age, (2) mentality,
(3) education and experience, (4) social and cultural back-
ground, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the violence involved in the com-
mission of the crime. Id. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
- 115 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defendant’s
life. Id.
Custer notes that although § 28-1205(3) requires that the
sentence for use of a firearm to commit a felony must be
consecutive to any other sentence imposed, there is no similar
requirement with respect to the sentence for being a felon in
possession of a firearm under § 28-1206. He therefore urges
that the sentence for being a felon in possession of a firearm
should have been ordered to be served concurrently to the
sentence for first degree murder. He also contends that a lesser
term of years was appropriate for the sentence for use of a
firearm to commit a felony. He asserts that mitigating factors
include the lack of a significant history of violent crime, the
role his addiction to methamphetamine played in contributing
to this and his prior offenses, his remorse for this offense, and
his subjective belief that he acted in self-defense.
With regard to Custer’s criminal history, although it may not
include numerous violent offenses, it dates back to 1999 and
includes several serious offenses, including burglary, theft, and
assault. Custer also showed a history of substance abuse and a
high risk to reoffend.
The record of the sentencing hearing shows that the court
considered the appropriate factors in determining Custer’s
sentences, and the record does not show that the court consid-
ered improper factors. With regard to Custer’s argument that
he acted in self-defense, the district court noted that “[t]here
were any number of points in the time that this lead [sic] to
the event of the night that . . . McCormick was killed where
any number of people, including yourself could have stopped
it, any of you could have stopped it and you didn’t.” The court
particularly questioned why Custer got out of the truck after he
suspected he may have been set up.
Having reviewed the record, we cannot say that the sen-
tences imposed by the district court were an abuse of discre-
tion. We reject this assignment of error.
- 116 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
Sentencing Order Is Modified to Reflect
Proper Credit for Time Served.
Finally, the State contends that the court committed plain
error in the manner in which it ordered time served to be
credited. The State asserts that the court ordered the time to
be credited against all three of Custer’s sentences. We agree
that there was plain error in the crediting of time served, and
we therefore modify the sentencing order to reflect the proper
crediting of time served.
At Custer’s sentencing hearing, the district court stated in
connection with both the sentence for use of a firearm to com-
mit a felony and the sentence for being a felon in possession
of a firearm that Custer would be given credit for 503 days he
had previously served. The written order stated in a paragraph
separate from the paragraphs imposing sentences that Custer
“shall receive credit for five hundred three (503) days for time
already served.” The State argues that the sentencing order
indicates that time is to be credited against all the sentences,
including the sentence for first degree murder.
[24,25] When a defendant is sentenced to life imprison-
ment for first degree murder, the defendant is not entitled
to credit for time served in custodial detention pending trial
and sentence; however, when the defendant receives a sen-
tence consecutive to the life sentence that has maximum and
minimum terms, the defendant is entitled to receive credit
for time served against the consecutive sentence. State v. Ely,
287 Neb. 147, 841 N.W.2d 216 (2014). A sentencing judge
must separately determine, state, and grant the amount of
credit on the defend­ant’s sentence to which the defendant is
entitled. Id.
[26] Although under Neb. Rev. Stat. § 83-1,106 (Reissue
2014), an offender shall be given credit for time served as
a result of the charges that led to the sentences, presentence
credit is applied only once. Therefore, when consecutive sen-
tences are imposed for two or more offenses, periods of
presentence incarceration may be credited only against the
- 117 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CUSTER
Cite as 292 Neb. 88
aggregate of all terms imposed. State v. Williams, 282 Neb.
182, 802 N.W.2d 421 (2011).
In this case, the court’s oral pronouncement of sentence
appeared to apply the full credit to each of the sentences for
use of a firearm to commit a felony and for being a felon
in possession of a firearm; the written sentencing order was
unclear with regard to how the credit should be applied. We
therefore modify the sentencing order to state that Custer is
entitled to credit for time served in the amount of 503 days for
time already served against the aggregate of the minimum and
the aggregate of the maximum sentences of imprisonment for
use of a firearm to commit a felony and for being a felon in
possession of a firearm. See Williams, supra.
CONCLUSION
Having rejected Custer’s assignments of error, we affirm
Custer’s convictions. We affirm Custer’s sentences as modi-
fied to correct plain error in the application of the credit for
time served. The sentencing order shall be modified to state
that Custer is entitled to credit for time served in the amount
of 503 days for time already served against the aggregate of
the minimum and the aggregate of the maximum sentences of
imprisonment for use of a firearm to commit a felony and for
being a felon in possession of a firearm.
A ffirmed as modified.