State v. Mann ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/28/2019 12:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. MANN
Cite as 302 Neb. 804
State of Nebraska, appellee, v.
Gary L. M ann, appellant.
___ N.W.2d ___
Filed April 5, 2019. No. S-18-333.
1. Jury Instructions: Appeal and Error. When a party assigns as error
the failure to give an unrequested jury instruction, an appellate court
will review only for plain error.
2. Appeal and Error. Plain error may be found 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 uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
3. 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.
4. Statutes. Statutory interpretation is a question of law.
5. Criminal Law: Trial: Jury Instructions: Proof. In a criminal trial, the
court in its instructions must delineate for the jury each material element
the State is required to prove beyond a reasonable doubt to convict the
defendant of the crime charged.
6. Trial: Judges: Jury Instructions: Appeal and Error. It is the duty of
a trial judge to instruct the jury on the pertinent law of the case, whether
requested to do so or not, and an instruction or instructions which by
the omission of certain elements have the effect of withdrawing from
the jury an essential issue or element in the case are prejudicially
erroneous.
7. Jury Instructions. Jury instructions are not prejudicial if they, when
taken as a whole, correctly state the law, are not misleading, and ade-
quately cover the issues supported by the pleadings and the evidence.
8. Criminal Law: Statutes: Legislature. In Nebraska, all crimes are statu-
tory, and no act is criminal unless the Legislature has in express terms
declared it to be so.
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STATE v. MANN
Cite as 302 Neb. 804
9. Criminal Law: Statutes. Penal statutes are considered in the context of
the object sought to be accomplished, the evils and mischiefs sought to
be remedied, and the purpose sought to be served.
10. ____: ____. Effect must be given, if possible, to all parts of a penal
statute; no sentence, clause, or word should be rejected as meaningless
or superfluous if it can be avoided.
11. Criminal Law: Due Process: Proof. Due process requires a prosecutor
to prove beyond a reasonable doubt every fact necessary to constitute
the crime charged.
12. Constitutional Law: Due Process. The due process requirements of
Nebraska’s Constitution are similar to those of the federal Constitution.
13. Jury Instructions: Appeal and Error. A jury instruction that omits an
element of a criminal offense from the jury’s determination is subject to
harmless error review.
14. Criminal Law: Statutes. Courts strictly construe criminal statutes.
15. Constitutional Law: Criminal Law: Due Process: Presumptions:
Proof. Under the Due Process Clause of the 14th Amendment to the
U.S. Constitution and under the Nebraska Constitution, in a criminal
prosecution, the State must prove every element of an offense beyond a
reasonable doubt and may not shift the burden of proof to the defend­
ant by presuming that element upon proof of the other elements of
the offense.
16. Criminal Law: Weapons: Intent. Under Neb. Rev. Stat. § 28-1212.03
(Reissue 2016), the absence of an intent to restore a firearm to the owner
is a material element of the crime of possession of a stolen firearm.
17. Verdicts: Juries: Appeal and Error. Harmless error review ultimately
looks to the basis on which the trier of fact actually rested its verdict;
the inquiry is not whether in a trial that occurred without the error a
guilty verdict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely unattrib-
utable to the error.
18. Appeal and Error. An appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are
likely to recur during further proceedings.
19. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
20. ____: ____: ____. 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
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. MANN
Cite as 302 Neb. 804
appellant was prejudiced by the court’s refusal to give the tendered
instruction.
21. Jury Instructions: Appeal and Error. It is not error for a trial court to
refuse to give a party’s requested instruction where the substance of the
requested instruction was covered in the instructions given.
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Reversed and remanded for a new trial.
Joseph D. Nigro, Lancaster County Public Defender,
Timothy M. Eppler, and Melissa Figueroa, Senior Certified
Law Student, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Gary L. Mann appeals from a conviction and sentence,
pursuant to jury verdict, for possession of a stolen firearm
in violation of Neb. Rev. Stat. § 28-1212.03 (Reissue 2016).
The primary issue is whether the “intent to restore” clause of
§ 28-1212.03 is an essential element of the crime, such that the
failure to so instruct was plain error. We conclude that it was
and that the error was not harmless. We reverse, and remand
for a new trial.
II. BACKGROUND
On February 26, 2017, Mann was living with his half
brother, James Barnes. On that day, Barnes had asked Mann to
move out of the house. In Barnes’ bedroom, Barnes kept a .40
caliber pistol stored in a cloth gun case.
A few hours later, Barnes received the following text mes-
sage from Mann, “I am not at the house sorry I took your pistol
with me you probably won’t get it back for a while I love you
so much brother pray for my sins to be forgiven so I don’t
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STATE v. MANN
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burn in hell.” Concerned that Mann might hurt himself, Barnes
notified the Cass County sheriff’s office. That office, in turn,
requested assistance from the Lincoln Police Department in
locating Mann. Two Lincoln police officers responded, and one
of them located Mann. After investigating and detaining Mann
for several hours, one of the officers obtained a search warrant
for Mann’s car. Upon searching the car, the officer found the
firearm and another officer arrested Mann.
The State filed an information charging Mann with posses-
sion of a stolen firearm. Mann pled not guilty.
At trial, Mann testified that when he took the firearm, he
believed he had permission. He stated that “[a]bout a week
prior” to the incident, Barnes had given him permission to
use the firearm. Mann testified that he had intended to com-
mit suicide and have the State return the firearm to Barnes.
When asked about the firearm by one of the police officers,
Mann denied having possession of the firearm, because he
“had a bottle of Xanax in the center console directly next to
the [firearm] and did not want to get in trouble for it.” During
cross-examination, Mann admitted that when the police officer
questioned him, it would have been the “perfect” opportunity
to return the firearm. On redirect examination, he explained
that he did not do so because “then [he] would have a nar-
cotics charge.”
At the formal jury instruction conference, Mann made sev-
eral objections to the instructions. Mann first objected to
instruction No. 3 (which included the “elements” instruction)
and argued that the jury should be instructed on an affirmative
defense. He proposed instructing the jury, “‘If you find that
[Mann] possessed, received, or disposed of a firearm with the
intent to restore to the owner,’ . . . that would be a defense.”
The court overruled Mann’s objection and his request for the
affirmative defense instruction. Later, Mann objected to the
court’s definition of “stolen” in instruction No. 4 and argued
that the definition should mimic Neb. Rev. Stat. § 28-511(1)
(Reissue 2016). Thus, he argued that instruction No. 4 should
state that “‘stolen’ means ‘to take or exercise control over
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STATE v. MANN
Cite as 302 Neb. 804
movable property of another with the intent to deprive him or
her thereof.’” The court overruled both his objection and his
requested change.
As given by the district court, the elements portion of
instruction No. 3 stated:
Regarding the crime of Possession of a Stolen Firearm,
the elements of the State’s case are:
1. That [Mann] did possess, receive, retain, or dispose
of a stolen firearm, knowing that it had been stolen or
believing it had been stolen; and
2. That [Mann] did so on or about February 26, 2017,
in Lancaster County, Nebraska.
In the pertinent part of instruction No. 4, the jury was instructed,
“‘Stolen’ means to have been taken without permission or
authority, to deprive the owner thereof.”
The jury found Mann guilty. The court sentenced Mann to 2
to 6 years’ imprisonment.
Mann filed a timely appeal, which we moved to our docket.1
After oral argument, we requested supplemental briefing by
the parties to address
whether, in light of the State’s submission in [original]
briefing that the phrase in . . . § 28-1212.03 . . . stating
‘unless the firearm is possessed, received, retained, or
disposed of with intent to restore it to the owner’ is a
material element of the offense and [Mann’s] adoption at
oral argument of that submission, the failure to instruct
the jury of this material element in Instruction No. 3 con-
stituted plain error, and the reasoning flowing from that
answer to a proper disposition of this appeal.
The parties filed supplemental briefs, which we have considered.
III. ASSIGNMENTS OF ERROR
Mann assigns, restated and reordered, that (1) the jury
instructions were prejudicial, (2) he received ineffective assist­
ance of trial counsel, (3) the district court erred in admitting
1
Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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or precluding evidence that resulted in prejudice, and (4) the
district court abused its discretion by imposing an exces-
sive sentence.
IV. STANDARD OF REVIEW
[1,2] When a party assigns as error the failure to give an
unrequested jury instruction, an appellate court will review
only for plain error.2 Plain error may be found 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.3
[3,4] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision.4 Statutory interpretation is also a ques-
tion of law.5
V. ANALYSIS
We begin by reciting the text of § 28-1212.03, because it is
central to our decision. It states:
Any person who possesses, receives, retains, or dis-
poses of a stolen firearm knowing that it has been or
believing that it has been stolen shall be guilty of a Class
IIA felony unless the firearm is possessed, received,
retained, or disposed of with intent to restore it to
the owner.6
We will refer to the emphasized wording as the “intent to
restore clause.”
We have not previously identified the essential elements of
this statute. Consequently, in crafting the instructions here, the
district court did not have the benefit of our guidance.
2
State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016).
3
State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).
4
State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
5
See State v. Wal, ante p. 308, 923 N.W.2d 367 (2019).
6
§ 28-1212.03 (emphasis supplied).
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STATE v. MANN
Cite as 302 Neb. 804
In asserting that the jury instructions were prejudicially
erroneous, Mann presents three arguments. First, the instruc-
tions omitted an essential element of § 28-1212.03 by failing
to instruct on the intent to restore clause. Second, the court
refused his requested instruction on the statutory definition of
“deprive.” Third, Mann contends that the court erroneously
overruled his objection for the instruction of the statutory
definition of “stolen.”
1. Elements of § 28-1212.03
(a) General Principles
[5-7] We recall several familiar principles governing the
duty to instruct a jury in a criminal case. In a criminal trial,
the court in its instructions must delineate for the jury each
material element the State is required to prove beyond a rea-
sonable doubt to convict the defendant of the crime charged.7
It is the duty of a trial judge to instruct the jury on the perti-
nent law of the case, whether requested to do so or not, and
an instruction or instructions which by the omission of certain
elements have the effect of withdrawing from the jury an
essential issue or element in the case are prejudicially errone-
ous.8 Jury instructions are not prejudicial if they, when taken
as a whole, correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and
the evidence.9
[8-10] To determine the elements of a crime, we look to
the text of the statute. In Nebraska, all crimes are statutory,
and no act is criminal unless the Legislature has in express
terms declared it to be so.10 Penal statutes are considered in
the context of the object sought to be accomplished, the evils
and mischiefs sought to be remedied, and the purpose sought
7
State v. Tucker, 257 Neb. 496, 598 N.W.2d 742 (1999).
8
State v. Rask, 294 Neb. 612, 883 N.W.2d 688 (2016).
9
State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).
10
State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
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STATE v. MANN
Cite as 302 Neb. 804
to be served.11 Effect must be given, if possible, to all parts of
a penal statute; no sentence, clause, or word should be rejected
as meaningless or superfluous if it can be avoided.12
[11,12] The omission of an essential element from the jury
raises due process concerns. Due process requires a prosecutor
to prove beyond a reasonable doubt every fact necessary to
constitute the crime charged.13 The due process requirements
of Nebraska’s Constitution are similar to those of the federal
Constitution.14 The U.S. Supreme Court has held that the “Due
Process Clause requires the prosecution to prove beyond a rea-
sonable doubt all of the elements included in the definition of
the offense of which the defendant is charged.”15
[13] Yet, a jury instruction that omits an element of the
offense from the jury’s determination is subject to harmless
error review.16 With these principles in mind, we turn to the
parties’ arguments.
(b) Arguments of Parties
In the district court, both parties took the position that
the intent to restore clause was an affirmative defense. Thus,
in Mann’s initial brief on appeal, he argued that the trial
court should have instructed the jury regarding his affirma-
tive defense.
In its responsive brief, the State “submit[ted] that [the intent
to restore clause] appears to be an element of the offense
rather than an affirmative defense.”17 Noting the similarity of
11
Nebraska Account. & Disclosure Comm. v. Skinner, 288 Neb. 804, 853
N.W.2d 1 (2014).
12
Id.
13
Hinrichsen, supra note 2.
14
Id.
15
Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d
281 (1977).
16
State v. Merchant, 288 Neb. 440, 848 N.W.2d 630 (2014).
17
Brief for appellee at 16.
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§ 28-1212.03 to Neb. Rev. Stat. § 28-517 (Reissue 2016) and
our decision in State v. Hubbard 18 determining that similar
language was an element of the offense and not an affirmative
defense, the State argued that it could “conceive of no reason
to construe the [intent to restore clause] in § 28-1212.03 dif-
ferently than the language in § 28-517.”19 This was particularly
so, the State argued, because other statutes in the same chapter
expressly provided for affirmative defenses. The State argued
that instructions Nos. 3 and 4, when read together, properly
instructed the jury on the elements of the offense.
At oral argument, the State maintained its position that the
intent to restore clause was a material element of the offense.
And during the argument, Mann adopted the State’s view.
After argument, as noted above, we requested supplemental
briefing.
Mann’s supplemental brief adhered to the State’s original
position: The intent to restore clause was a material element
of the offense. He argued the district court committed plain
error when it failed to instruct on that element. Mann noted
that although trial counsel incorrectly characterized the element
as an affirmative defense, he clearly objected to the failure to
include missing language in the jury instructions. Mann con-
tended that by failing to include the element, the court shifted
the burden of proof of a material element to him and made
it impossible for him to meet that burden. Additionally, he
reminded us that it was undisputed at oral argument that intent
to restore is an element.
The State’s supplemental brief “adhere[d] to its initial
position.”20 However, it offered an “alternative interpretation”21
suggesting that the placement of the intent to restore clause
after the penalty language could mean that it was “fairly
18
State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004).
19
Brief for appellee at 17.
20
Supplemental brief for appellee at 1.
21
Id.
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characterized as an affirmative defense.”22 But the State then
argued that assuming that intent to restore was an essential
element, the failure to include it in instruction No. 3 was not
plain error. The State reasoned that the instructions, read as a
whole, adequately covered the element. And even if they did
not, the State next argued, the omission was harmless beyond
a reasonable doubt, because the evidence would not support a
finding that Mann intended to restore the firearm to Barnes.
This followed, according to the State, because Mann intended
to use the firearm to commit suicide and merely assumed that
the State would return it to Barnes. The State reasoned that
here, an intent to restore required the intent to “control the
[firearm’s] disposition.”23
(c) Material Element
As stated above, in Nebraska all crimes are statutory, and we
look to the text to define the elements. As the U.S. Supreme
Court said in another context, “All that counts . . . are ‘the ele-
ments of the statute of conviction.’”24
[14] Courts strictly construe criminal statutes.25 We con-
cluded in State v. Hubbard that the identical intent to restore
clause in § 28-517 was an element of the offense.26 We rea-
soned that because the statute was identical to the Model Penal
Code27 and because the commentaries therein intended the
clause to be an element, it was an element.
In the State’s supplemental brief, it argued that intent to
restore could be characterized as an affirmative defense. The
22
Id. at 2.
23
Id. at 3.
24
Mathis v. U.S., ___ U.S. ___, 136 S. Ct. 2243, 2251, 195 L. Ed. 2d 604
(2016).
25
State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
26
See Hubbard, supra note 18.
27
A.L.I., Model Penal Code and Commentaries § 223.6, comment 4(a)
(1980).
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State cited a proposition from State v. Minor 28: “‘In a criminal
prosecution, if a negative is an essential element of the crime,
and is “peculiarly within the knowledge of the defendant,”
it devolves upon him to produce the evidence, and upon his
failure to do so, the jury may properly infer that such evidence
cannot be produced.’”
But two problems are obvious. First, the proposition itself
characterizes the “‘negative’” as an “‘essential element.’”29 If,
as Minor says, the negative is an essential element, it cannot
simultaneously be an affirmative defense. It is either one or the
other. Here, the intent to restore clause is the “negative”; under
Minor, it must be an essential element. Second, the State’s
argument ignores a robust constitutional imperative.
[15] Under the Due Process Clause of the 14th Amendment
to the U.S. Constitution and under the Nebraska Constitution,
in a criminal prosecution, the State must prove every element
of an offense beyond a reasonable doubt and may not shift the
burden of proof to the defendant by presuming that element
upon proof of the other elements of the offense.30 In In re
Winship,31 the U.S. Supreme Court pronounced that “the Due
Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.” Later, in
Mullaney v. Wilbur,32 the Court concluded that under Maine’s
homicide law, the burden of proving that a killing occurred in
the heat of passion in sudden provocation could not constitu-
tionally be placed on the defendant. The Court reasoned that
proving lack of heat of passion was similar to proving any
other intent. “And although intent is typically considered a fact
28
State v. Minor, 188 Neb. 23, 26, 195 N.W.2d 155, 156-57 (1972).
29
Id. at 26, 195 N.W.2d at 156.
30
State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
31
In re Winship, 397 U.S 358, 364, 90 S. Ct. 1068, 25 L. Ed 2d 368 (1970).
32
Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508
(1975).
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peculiarly within the knowledge of the defendant, this does
not, as the Court has long recognized, justify shifting the bur-
den to him.”33 This conclusion, we think, rules out the State’s
argument premised on the quotation from Minor.
[16] We are not persuaded by the State’s interpretation.
According to the State, if a defendant possesses, receives,
maintains, or disposes of a firearm, knowing or believing it
has been stolen, then it is presumed the defendant did not have
an intent to restore. But this is contrary to the plain language.
We hold, as the State anticipated, that under § 28-1212.03,
the absence of an intent to restore a firearm to the owner
is a material element of the crime of possession of a stolen
firearm.
(d) Adequately Covered
En route to its harmless error argument, the State submits
that read together, instructions Nos. 3 and 4 properly instructed
the jury regarding the elements of the offense. We disagree. We
have quoted them above. We simply cannot discern the intent
to restore element from the instructions given, and we do not
read Hubbard 34 to dictate otherwise.
The State relies on our statement in Hubbard that “[t]he use
of the term ‘deprive’ encompassed a lack of intent to restore
the property to the owners.”35 Because the definition of stolen
in instruction No. 4 included the word “deprive,” the State
argues, the instructions were sufficient to convey the lack of
intent to restore.
But in Hubbard, we addressed a claim that the information
was deficient. There, we applied the rule that an informa-
tion or complaint is sufficient unless it is so defective that
by no construction can it be said to charge the offense of
which the accused was convicted. Only in that context did
33
Id., 421 U.S. at 702.
34
Hubbard, supra note 18.
35
Id. at 323, 673 N.W.2d at 575.
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we characterize the term “deprive” as encompassing a lack of
intent to restore the property to the owners. Here, we review
jury instructions. The use of the word “deprive” in the defini-
tion of “stolen” did not instruct the jury that the absence of
an intent to restore the property was a material element of
the crime.
(e) Harmless Error
Because the intent to restore clause was an element of
the crime, the court should have instructed the jury on the
element.36 It did not. The jury instructions omitted an essen-
tial element.
[17] Nonetheless, we must determine whether the omission
was harmless error. Harmless error review ultimately looks to
the basis on which the trier of fact actually rested its verdict;
the inquiry is not whether in a trial that occurred without the
error a guilty verdict would surely have been rendered, but,
rather, whether the actual guilty verdict rendered in the ques-
tioned trial was surely unattributable to the error.37
We cannot characterize this instructional error as harmless.
That is, we cannot say beyond a reasonable doubt that the
jury would still have found Mann guilty had it been required
to find whether he possessed the firearm with the intent to
restore it to the owner. As we concluded in State v. White,38
“where the jury has not been instructed as to a material ele-
ment of a crime, there is no verdict within the meaning of
Neb. Const. art. I, § 11.” Consequently, there must be an
actual jury finding of guilt and not appellate speculation of
hypothetical jury actions. Mann presented evidence tending to
show that, in the language of § 28-1212.03, he possessed the
firearm “with intent to restore it” to Barnes, and we cannot
36
See Tucker, supra note 7.
37
State v. Smith, ante p. 154, 922 N.W.2d 444 (2019).
38
State v. White, 249 Neb. 381, 389, 543 N.W.2d 725, 731 (1996), overruled
on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998)).
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conclude beyond a reasonable doubt that the jury would have
disregarded this evidence if they had been instructed on all
the material elements. We cannot conclude beyond a reason-
able doubt that the jury would have found he lacked the intent
to restore.
And here, even though Mann did not object on the precise
ground, the error prejudicially affected his substantial right and
leaving it uncorrected would result in damage to the integrity,
reputation, and fairness of the judicial process. Because the
omission of the intent to restore clause was plainly erroneous
and cannot be characterized as harmless, we must reverse the
judgment and remand the cause for a new trial.
Thus, typically, the elements of possession of a stolen
firearm would consist of the following: (1) that the defendant
did possess, receive, retain, or dispose of a stolen firearm; (2)
that he did so knowing or believing the firearm was stolen;
(3) that he did so on or about (date) in (county), Nebraska;
and (4) that he did not possess, receive, retain, or dispose
of the firearm with the intent to restore it to the owner. Of
course, depending on the facts, it may be appropriate to alter
the wording.
[18] For the most part, we need not address Mann’s other
assignments of error. But an appellate court may, at its discre-
tion, discuss issues unnecessary to the disposition of an appeal
where those issues are likely to recur during further proceed-
ings.39 We briefly address two matters that, at least to some
extent, may be likely to recur.
2. Definition of Deprive
Mann contends that the court erred in failing to define
“deprive” in the jury instructions. As stated above, the dis-
trict court included that word in its definition of “stolen.”
Because the court failed to instruct the jury on the definition
of “deprive” under Neb. Rev. Stat. § 28-509(1) (Reissue 2016),
39
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).
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Mann argues the instructions allowed the jury to embrace a
broad definition that unduly prejudiced him. He argues that the
term “deprive” alone is not sufficient to encompass the intent
to restore element and ignores the substantial prejudice that
occurred at trial.
But we have already rejected the State’s argument that
the use of the word “deprive” in the definition of “stolen”
was sufficient to adequately instruct the jury on the missing
material element from § 28-1212.03: the absence of an intent
to restore the firearm to its owner. We anticipate that upon
remand, the district court will instruct the jury regarding that
element. In that sense, the question seems unlikely to recur
on remand.
Mann complains about a failure to define a word that appears
nowhere in the operative statute. He relies upon the definition
of “deprive” in § 28-509(1). But § 28-509 defines that term
only “[a]s used in sections 28-509 to 28-518.” And this is
not a prosecution for theft by receiving stolen property under
§ 28-517 (which would be within that range); rather, it arises
under § 28-1212.03 for possession of a stolen firearm. Mann
does not direct us to any case law holding that in a prosecution
under § 28-1212.03, the trial court must instruct the jury on
the definition of “deprive” under § 28-509(1). And because the
language of § 28-1212.03 does not employ the word anywhere,
the argument seems somewhat odd. Under these circumstances,
we find no error.
3. Definition of Stolen
Mann argues that the court erred in overruling his objection
to the definition of “stolen.” While on appeal he also com-
plains that the court’s instruction should have reflected the
language in § 28-509(8), he did not submit a proposed instruc-
tion to that effect. At the district court’s instruction conference,
Mann contended only that the definition of “stolen” should
have mimicked the statutory language under § 28-511(1).
Specifically, he requested that the jury be instructed that
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“‘stolen’ means ‘to take or exercise control over movable
property of another with the intent to deprive him or her
thereof.’”40 On appeal, he argues that the district court erred
in refusing that instruction.
[19,20] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.41 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 ten-
dered instruction.42
We are not persuaded that in the context of § 28-1212.03,
Mann’s requested instruction was a correct statement of the
law or was warranted by the evidence. “When employing a
definition, whether alone, with the term defined, or as a sepa-
rate definition, a judge should provide only that portion of the
definition relevant to the facts of the particular case.”43 His
instruction proposed the phrase “movable property of another,”
but in this prosecution under § 28-1212.03, the only property
involved was a firearm. Mann’s proposed instruction would
have introduced language that easily could have confused
the jury.
[21] Moreover, we see no prejudice from the definition of
“stolen” in instruction No. 4 or the refusal of Mann’s requested
alternative. As given, instruction No. 4 defined “stolen” to
“mean[] to have been taken without permission or author-
ity, to deprive the owner thereof.” It is not error for a trial
court to refuse to give a party’s requested instruction where
40
See § 28-511(1).
41
Mueller, supra note 4.
42
Id.
43
NJI2d Crim., ch. 4, comment.
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the substance of the requested instruction was covered in the
instructions given.44 Mann does not explain how the difference
between the instruction given and the one he requested actu-
ally prejudiced him. And we can discern no obvious prejudice.
In the absence of any showing of prejudice, it appears to us
that the instruction of “stolen” given by the court adequately
covered the substance of the requested statutory instruction.
Therefore, we find no error.
VI. CONCLUSION
We conclude that the district court plainly erred in failing to
instruct the jury on an essential element of the crime and that
the error was not harmless and warrants reversal. Therefore,
we reverse the judgment of the district court and remand the
cause for a new trial.
R eversed and remanded for a new trial.
44
State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009).