State v. Stack , 307 Neb. 773 ( 2020 )


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    01/29/2021 08:08 AM CST
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. STACK
    Cite as 
    307 Neb. 773
    State of Nebraska, appellee, v.
    Alan E. Stack, appellant.
    ___ N.W.2d ___
    Filed November 13, 2020.   No. S-19-833.
    1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard is the
    same: 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. The relevant question for an appellate court
    is whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential ele-
    ments of the crime beyond a reasonable doubt.
    2. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact
    on the issue of insanity will not be disturbed unless there is insufficient
    evidence to support such a finding.
    3. 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.
    4. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
    defendant who moves for dismissal or a directed verdict at the close of
    the evidence in the State’s case in chief in a criminal prosecution and
    who, when the court overrules the dismissal or directed verdict motion,
    proceeds with trial and introduces evidence, waives the appellate right
    to challenge correctness in the trial court’s overruling the motion for
    dismissal or a directed verdict but may still challenge the sufficiency of
    the evidence.
    5. Homicide: Intent. Both second degree murder and voluntary man-
    slaughter involve intentional killing; they are differentiated only by the
    presence or absence of the sudden quarrel provocation.
    6. Homicide: Words and Phrases. A sudden quarrel is a legally recog-
    nized and sufficient provocation which causes a reasonable person to
    lose normal self-control.
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    7. Homicide: Intent. It is not the provocation alone that reduces the
    grade of the crime, but, rather, the sudden happening or occurrence of
    the provocation so as to render the mind incapable of reflection and
    obscure the reason so that the elements necessary to constitute murder
    are absent.
    8. Homicide: Words and Phrases. A sudden quarrel does not neces-
    sarily mean an exchange of angry words or an altercation contem-
    poraneous with an unlawful killing and does not require a physical
    struggle or other combative corporal contact between the defendant
    and the victim.
    9. Insanity: Proof. The insanity defense requires proof that (1) the defend­
    ant had a mental disease or defect at the time of the crime and (2) the
    defendant did not know or understand the nature and consequences of
    his or her actions or that he or she did not know the difference between
    right and wrong.
    10. Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
    must determine whether a sentencing court abused its discretion in con-
    sidering and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.
    11. Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (3) education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and (6) moti-
    vation for the offense, as well as (7) the nature of the offense and (8) the
    amount of violence involved in the commission of the crime.
    12. ____. 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.
    Appeal from the District Court for Sarpy County: Stefanie
    A. Martinez, Judge. Affirmed.
    Gregory A. Pivovar, and, on brief, John P. Hascall, Deputy
    Sarpy County Public Defender, for appellant.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    STATE v. STACK
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    307 Neb. 773
    Papik, J.
    Alan E. Stack appeals his convictions and sentences for
    second degree murder and use of a deadly weapon to commit a
    felony. Circumstantial evidence presented at Stack’s bench trial
    linked him to the murder of a woman with whom he lived. In
    this appeal, Stack challenges the sufficiency of the evidence
    and the district court’s finding that the evidence supported a
    conviction of second degree murder, rather than sudden quar-
    rel manslaughter. He also claims that the district court erred in
    rejecting his insanity defense and imposed excessive sentences.
    Finding no merit to Stack’s contentions, we affirm.
    I. BACKGROUND
    1. Procedural Overview
    On November 16, 2017, family members found Beverley
    Diane Bauermeister dead in her home. Severe head trauma was
    evident. Bauermeister’s elderly mother was in another room,
    alive but immobile. Stack, a heavy drinker, was living with
    Bauermeister and her mother at the time of Bauermeister’s
    death.
    Stack was ultimately charged with second degree murder;
    abuse of a vulnerable or senior adult; and use of a deadly
    weapon, other than a firearm, to commit a felony. Stack filed a
    notice of intent to rely on the insanity defense. He claimed that
    a mental defect impaired his mental capacity so that he did not
    understand the nature and consequences of his actions and that
    he did not have the ability to form the requisite intent.
    At the subsequent bench trial, the State presented circum-
    stantial evidence that tied Stack to the crimes charged. At the
    close of the State’s case, Stack made a motion to dismiss all
    counts, which the district court overruled. Stack proceeded to
    present evidence in his defense, including testimony in support
    of his insanity defense. The State presented additional evidence
    opposing Stack’s defense.
    Once the parties rested, the district court ruled that there
    was insufficient evidence to find that Stack was either insane
    or could not form the specific intent to commit the crimes
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    alleged. It convicted Stack of second degree murder and use
    of a deadly weapon to commit a felony, but it acquitted him of
    the abuse charge. Following a sentencing hearing, the district
    court sentenced Stack to consecutive terms of 80 years’ to life
    imprisonment for second degree murder and 40 to 50 years’
    imprisonment for use of a deadly weapon to commit a felony.
    Stack now appeals.
    2. Circumstantial Evidence at Trial
    (a) Crime Scene and Stack’s Arrest
    Stack and Bauermeister had been living together for more
    than 15 years but were not in a dating relationship at the time
    relevant to this case. By all accounts, Stack was an alcoholic.
    Stack and Bauermeister shared a trailer home with
    Bauermeister’s 90-year-old mother. Bauermeister’s mother was
    wheelchair-bound, was unable to get out of bed on her own,
    and could not take care of her own basic needs.
    Bauermeister’s daughter testified that she and Bauermeister
    communicated daily, but Bauermeister did not respond to her
    daughter’s attempts to reach her after they had a disagree-
    ment on November 8, 2017. On November 16, Bauermeister’s
    daughter and brother discovered Bauermeister deceased on
    her living room floor. They found Bauermeister’s mother in
    a bedroom, lying on her hospital bed in her own urine and
    feces. Bauermeister’s mother was admitted to a hospital due to
    severe dehydration.
    When law enforcement searched the residence, they
    observed that Bauermeister had severe head trauma, blood
    around her hair, yellow brain matter in her hair, and brown
    hair strands in her hand and on the carpet near her. The scene
    was processed for DNA and blood evidence. There was blood
    spatter in the living room area and additional possible blood
    evidence between the living room and Stack’s bedroom. On
    the floor of Stack’s bedroom, officers located a “Crosman 66
    Powermaster BB rifle[/pellet gun],” .177 caliber, with a sight
    near the tip of the gun barrel. A gray or silver pellet was in
    the clip of the gun. A detective who investigated the scene
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    testified that he observed what appeared to be dried blood-
    stains and brain matter on areas of the gun.
    The same day Bauermeister’s body was discovered, law
    enforcement took Stack into custody. They located him parked
    in Bauermeister’s truck, which he sometimes drove. The offi-
    cer who transported Stack to the station testified that he could
    smell the strong odor of an alcoholic beverage coming from
    Stack. At the station, Stack’s clothing was collected. In photo­
    graphs taken shortly after his arrest, Stack appears to have
    brown hair.
    (b) Autopsy
    Dr. Michelle Elieff, a general and forensic pathologist, con-
    ducted an autopsy of Bauermeister’s body on November 17,
    2017. Based on the decomposition of the body, Elieff esti-
    mated that Bauermeister had been deceased for days, perhaps
    up to a week. Elieff identified the cause of death as extensive
    blunt force head injuries and two penetrating wounds to the
    head. The extensive blunt force injuries included multiple skull
    fractures and multiple scalp lacerations. Regarding the pen-
    etrating wounds, Elieff explained they were “what we refer to
    as missile wounds; they are a type of gunshot wound that are
    resulting from small projectiles, pellet-type projectiles.” Elieff
    recovered a missile projectile, consistent with a pellet, from
    behind Bauermeister’s right eye.
    Elieff opined that the right angle or rectangular component
    on the sight of the pellet gun found in Stack’s bedroom could
    be consistent with Bauermeister’s pattern injuries. She also
    opined that the circular tip of the barrel of the gun could have
    caused the injuries.
    (c) Electronic Evidence
    Upon Stack’s arrest, Bauermeister’s cell phone was found
    in her truck and later processed. There were 41 missed calls
    between November 14 and 16, 2017. The last four outgoing
    calls occurred between November 10 and 13. Twenty-seven
    text messages were received between November 9 and 16,
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    but it could not be determined who had viewed the messages.
    The last outgoing text message occurred on November 8. The
    last message from Bauermeister’s social media account was
    also sent on November 8.
    During the search of the crime scene, officers seized a lap-
    top computer from Stack’s bedroom. A “Skype” account on the
    laptop bore the username “Al Stack.” The laptop showed mul-
    tiple internet searches on November 7, 2017, for the make and
    model of pellet gun found in Stack’s bedroom, a “Crosman 66
    Powermaster BB rifle[/pellet gun],” .177 caliber. On November
    8, there were various searches for iterations of whether a
    .177 caliber pellet can penetrate a human skull. The next day,
    there were multiple searches inquiring about various methods
    of suicide, among them were searches for “[i]s it possible
    to kill yourself with a pellet gun” and “kill yourself with a
    pellet gun.” Nearly 2 hours after the last of these searches,
    there were searches for “can a .177 cal. penetrate a human
    skull” and “can a .177 cal. 66 powermaster penetrate a human
    skull.” On November 10, at 9:22 p.m., a search was made
    for “decomposition of a human body timeline.” Searches for
    “what gets supplied for you in jail and prison” and “are socks
    and under[wear] provided in jail or prison” were made on the
    morning of November 12.
    Based upon the history on the cell phone and the laptop,
    along with the crime scene, the detective who processed the
    electronic evidence opined that Bauermeister was killed on or
    about November 10, 2017.
    (d) DNA Evidence
    Forensic DNA analyst Mellissa Helligso tested numerous
    items for the presence of blood and for DNA. She used buccal
    swabs from Stack and Bauermeister for DNA comparison.
    Helligso observed what appeared to be bloodstains on the
    front and back of Stack’s pants, but she only tested a swab
    from one 2-inch long stain. That swab tested positive for
    blood. It generated a DNA mixture from two individuals.
    Bauermeister was not excluded as a major contributor. The
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    probability of an unrelated individual matching the major
    DNA profile, given that Bauermeister expressed the profile,
    was 1 in 1.08 nonillion, which Helligso testified “is 30 zeros.”
    Stack was not excluded as a partial profile contributor. The
    probability of an unrelated individual matching the partial
    profile, given that Stack expressed such a profile, was 1 in
    1.66 billion.
    Also positive for blood were swabs from Stack’s left shoe,
    which had a few areas of visible blood; from various areas
    of the pellet gun; and from Bauermeister’s fingernails and
    her cell phone. DNA testing showed that Bauermeister was
    not excluded as the source. The probability of an unrelated
    individual matching the DNA profile, given that Bauermeister
    expressed such a profile, was 1 in 1.08 nonillion.
    Helligso tested a swab from various textured areas of the
    gun for “touch DNA” contributed by skin cells. The swab gen-
    erated a DNA profile from a mixture of two individuals. Stack
    and Bauermeister were not excluded as contributors. As to
    Stack, the probability of an unrelated individual matching the
    DNA profile, given that Stack expressed such a profile, was 1
    in 36.3 sextillion. Regarding Bauermeister, the probability of
    an unrelated individual matching the DNA profile, given that
    Bauermeister expressed such a profile, was 1 in 17.9 quintil-
    lion. Helligso testified that she cannot know when DNA was
    deposited on an item and that she has found touch DNA on an
    item up to 2 years after it has been handled by a person.
    Helligso attempted to test a brown hair strand found in
    Bauermeister’s hand, but she could not obtain a DNA profile
    from the root area. And she did not have the capability in her
    laboratory to test the remainder of the strand for a different
    form of DNA.
    (e) Jailhouse Recordings
    While incarcerated for the present offenses, Stack spoke
    to his brother. A recording of their conversation was received
    as evidence. In the conversation, Stack told his brother about
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    STATE v. STACK
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    his relationship with Bauermeister and his limited memory of
    the days surrounding her death:
    Stack’s brother: So you just don’t even remember what
    happened . . . ?
    Stack: No, I remember a couple of days before, I mean,
    how irritated I was getting and drunk because that was
    the only thing that would calm me down . . . . [T]here’s
    not much I can say, I mean, I can say how evil and
    mean [Bauermeister] was to me for a long period of time
    because that’s what I remember from before, but I don’t
    remember damn near probably five days. I just don’t.
    Stack’s brother: Well, I would assume you were
    hammered.
    Stack: Yeah I was drinking over a case of beer and I
    went back to booze too. I was drinking booze.
    ....
    Stack: . . . [T]he night they found me in the parking lot.
    They arrested me.
    ....
    Stack’s brother: So what did you do for those days?
    Stack: I don’t remember. I just drunk, drank. I don’t
    remember. I drank and drove around. I didn’t eat any-
    thing. I was, I was upset. I don’t know. I remember,
    I don’t know what I really remember. It seems like I
    remember at one point I knew I was gonna be dead or
    something because I went back home and seen, seen the
    house and I had to just stay drunk.
    ....
    Stack’s brother: . . . I mean, um, I get, I get that you
    blacked out, um, but you said you went, you actually,
    after you had done it there was a point in time when you
    went back there?
    Stack: I’m a, I slightly remember it, yeah, because I
    knew I had to leave, get outta there and I don’t remember
    how long it was that I was driving around in the truck
    before they found me . . . I didn’t have no clue where
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    I was. All I know is I was drinking booze and beer con-
    stantly, not eating and that’s all I can explain.
    Minutes later in the conversation, Stack continued:
    [T]o me, that’s not me. I obviously fucking lost it or
    something. I don’t know. I know I was drinking hard and
    I know I was fed up a long time before that. It got to
    that point. I know that, I remember that much. For me to
    believe everything or what actually happened, I just don’t
    know, and I don’t even really want to talk about it now.
    ....
    Stack’s brother: . . . [I]f you’re hammered and you
    do what apparently it looks like you did, I don’t think it
    makes you any less guilty.
    Stack: No, I don’t think it does either. . . .
    . . . I mean I did want to be alone. That’s what I was
    thinking weeks, weeks before. I started to get real drunk
    again I was and I did want to be alone, I did want to
    be alone. I didn’t want to listen to her mouth anymore.
    I remember thinking things like that but that’s not, that
    hasn’t got anything to do with it. I don’t. But that’s, I
    mean that’s why I was in no hurry to call anybody any-
    way because I didn’t want to sit here and try to explain
    shit to everybody that I don’t even understand myself.
    The district court also received a recording of a telephone
    conversation Stack had with his sister while in jail awaiting
    trial for the present offenses:
    Stack: They pulled some shit off of my computer or
    somethin’ I think is what they’re sayin’. They don’t, they
    don’t know what I was doin’ with it. I don’t even know
    what they . . . . But I know what I looked up on the com-
    puter. I was looking up suicides and I was looking up
    what I could shoot with my BB gun and stuff like that. I
    know that’s what I looked up because that was before I
    went on a drinking rampage[.]
    ....
    Stack’s sister: But you remember searching stuff
    like that?
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    Stack: Mm. . . hm . . . that was before I went off
    the reservation.
    Stack’s sister: Yeah, okay, alright, mm, ok so you do
    remember that so I don’t know do you think maybe you
    did a search on something else that you don’t remember?
    Stack: It’s possible. I mean I don’t know about that. I
    mean I remember what I did do as far as, you know as far
    as suicide I know I did do that because I remember that
    because . . . .
    Stack’s sister: Okay.
    Stack: I was the one who wanted out. I wasn’t going to
    do anything about her.
    3. Testimony Relevant to
    Insanity Defense
    (a) Testimony of Dr. Terry Davis
    In support of his insanity defense, Stack presented the
    testimony of Dr. Terry Davis, a board-certified forensic and
    addiction psychiatrist. Davis interviewed Stack in March 2018
    and performed a mental status examination. He also reviewed
    Stack’s medical record from an emergency room visit on
    November 17, 2017; information from Bauermeister’s fam-
    ily; police reports; and a transcript of a recorded conversation
    between Stack and his brother.
    Davis diagnosed Stack with a mild neurocognitive disorder
    and a severe level of alcohol use disorder. Davis testified that
    in Stack’s evaluation and the records he reviewed, Stack con-
    sistently said that he did not remember killing Bauermeister,
    but he had brief memories from being in “his” truck on
    November 16, 2017, and speaking to an officer.
    Davis testified about other statements Stack made in the
    evaluation that were received for the limited purpose of diag-
    nosis, not the truth of the matter asserted. Stack informed Davis
    that he drank “constantly” before he was arrested and that he
    drank beer daily. He also stated that he drank hard liquor but
    switched to beer primarily after he developed pancreatitis. He
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    said that he did not have much of a memory of 1 or 2 months
    prior to Bauermeister’s death because of his alcohol use.
    Davis testified that severe alcohol use disorder can impair
    one’s cognitive functioning on a permanent basis. Davis
    explained that an individual who drinks a large amount of
    alcohol may experience a blackout, or a period of “anterograde
    amnesia,” and may not form lasting memories of what occurred
    during the blackout period. He testified that immediate and
    short-term memory are impaired during an alcoholic blackout.
    According to Davis, the blood alcohol concentration range
    for a blackout varies from person to person, but the range is
    typically between “.20 and .30 on the milligram percent scale.”
    Davis observed that Stack’s medical record from several hours
    after his arrest showed that his blood alcohol content was .119.
    And Stack reported that he previously experienced blackouts.
    Davis testified that Stack is more at risk for a blackout because
    of his mild neurocognitive disorder, but that the disorder itself
    would not cause a blackout.
    It was Davis’ opinion that, assuming Stack killed
    Bauermeister and did not have a memory of killing her, Stack
    was unable to form the specific intent to kill because he expe-
    rienced an alcoholic blackout resulting from a combination of
    his alcohol ingestion and his alcohol-induced mild neurocogni-
    tive disorder. Again assuming that Stack killed Bauermeister,
    Davis opined that he suffered at that time from a mental dis-
    ease or defect, specifically an alcohol-induced mild neurocog-
    nitive disorder. Further, as a result of that disorder, in combi-
    nation with his consumption of alcohol, Stack experienced an
    alcoholic blackout, which caused him to be unable to know and
    understand the nature and consequences of his actions.
    Davis opined that Stack’s substance-induced mild neuro-
    cognitive disorder alone did not mean that Stack could not
    form the intent to kill Bauermeister, nor did it alone cause
    him not to know the nature and consequences of his actions.
    He explained that Stack’s voluntary ingestion of alcohol was
    necessary to cause the blackout that, in combination with the
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    mild neurocognitive disorder, was the basis of Davis’ opinions
    on intent and insanity.
    (b) Testimony of Klaus Hartmann
    and Mindy Abel
    Dr. Klaus Hartmann, a board-certified forensic psychiatrist,
    evaluated Stack in December 2018 and reviewed the same
    or similar information as Davis, along with Davis’ report.
    Dr. Mindy Abel, a clinical psychologist, was present for
    Hartmann’s interview with Stack and conducted diagnostic
    testing. Hartmann testified that he disagreed with the method
    Davis used to diagnose Stack with mild neurocognitive disor-
    der. Using a different method, Hartmann and Abel concluded
    that Stack did not have a neurocognitive disorder because
    he was able to remember the events leading up to and after
    Bauermeister’s death. Hartmann testified that even people with
    mild neurocognitive disorders should know the consequences
    of their actions and appreciate what they are doing. Hartmann
    and Abel recognized that Stack had a history of blackouts. But
    Hartmann testified that someone who suffers from an alcoholic
    blackout knows and understands the consequences of their
    actions. Hartmann opined that Stack was not insane when
    Bauermeister was killed.
    4. Sentencing
    After rejecting Stack’s insanity defense and finding him
    guilty of second degree murder and use of a deadly weapon
    to commit a felony, the district court ordered a presentence
    investigation report. It then conducted a sentencing hearing
    at which victim impact statements were received and the par-
    ties presented arguments. Considering the customary factors,
    the presentence investigation report, the victim impact state-
    ments, and the parties’ arguments, the district court sentenced
    Stack within statutory limits. It imposed consecutive terms of
    80 years’ to life imprisonment for second degree murder and
    40 to 50 years’ imprisonment for use of a deadly weapon to
    commit a felony.
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    II. ASSIGNMENTS OF ERROR
    Stack assigns that the district court erred in (1) declining
    to direct a verdict and finding the evidence sufficient to sup-
    port the verdicts; (2) determining that the evidence supported
    a finding of second degree murder rather than manslaughter;
    (3) overruling his insanity defense; and (4) imposing exces-
    sive sentences.
    III. STANDARD OF REVIEW
    [1] In reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, or a combination thereof, the standard is the same:
    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. The relevant question
    for an appellate court is whether, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime
    beyond a reasonable doubt. State v. Martinez, 
    306 Neb. 516
    ,
    
    946 N.W.2d 445
     (2020).
    [2] The verdict of the finder of fact on the issue of insan-
    ity will not be disturbed unless there is insufficient evidence
    to support such a finding. State v. France, 
    279 Neb. 49
    , 
    776 N.W.2d 510
     (2009).
    [3] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by
    the trial court. State v. Leahy, 
    301 Neb. 228
    , 
    917 N.W.2d 895
     (2018).
    IV. ANALYSIS
    1. Sufficiency of Evidence
    We begin with Stack’s challenge to the sufficiency of the
    evidence. He argues that he was entitled to a directed verdict;
    that the circumstantial evidence in this case warrants a differ-
    ent standard of review; that the evidence does not support a
    conviction for second degree murder; and that if the district
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    court convicted him of any homicide offense, it should have
    been sudden quarrel manslaughter. As we will explain, these
    claims lack merit.
    (a) Directed Verdict
    [4] Stack asserts that the district court erred by declining to
    grant a directed verdict in response to the motion to dismiss
    he made at the close of the State’s case. But Stack waived
    this argument. The record shows that after Stack’s motion was
    denied, he put on evidence in his defense. A defendant who
    moves for dismissal or a directed verdict at the close of the
    evidence in the State’s case in chief in a criminal prosecution
    and who, when the court overrules the dismissal or directed
    verdict motion, proceeds with trial and introduces evidence,
    waives the appellate right to challenge correctness in the trial
    court’s overruling the motion for dismissal or a directed verdict
    but may still challenge the sufficiency of the evidence. State v.
    Vann, 
    306 Neb. 91
    , 
    944 N.W.2d 503
     (2020). We therefore con-
    sider only Stack’s assertion that the evidence as a whole was
    insufficient to support his convictions.
    (b) Standard of Review
    Because the standard of review defines our view of the
    evidence, we consider it before turning to the facts of this
    case. In arguing that the evidence was insufficient, Stack asks
    us to return to a standard of review that we have long since
    abandoned.
    It is well established that in reviewing a criminal conviction
    for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard
    is the same: 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. The rel-
    evant question for an appellate court is whether, after viewing
    the evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements
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    of the crime beyond a reasonable doubt. State v. Martinez,
    
    306 Neb. 516
    , 
    946 N.W.2d 445
     (2020).
    Stack acknowledges the controlling standard of review, but
    he adds that “there are situations that just require this Court to
    take a different view of circumstantial evidence cases.” Brief
    for appellant at 21. Stack suggests that we apply the “accused’s
    rule,” which provides that when two equal presumptions from
    circumstantial evidence—one in favor of innocence and the
    other in favor of guilt—are presented, a presumption in favor
    of innocence is to be preferred and applied. See State v. Pierce,
    
    248 Neb. 536
    , 
    537 N.W.2d 323
     (1995). For support, he cites
    some federal circuit courts that have applied a similar rule.
    See, e.g., U.S. v. Glenn, 
    312 F.3d 58
     (2d Cir. 2002) (if evidence
    viewed in light most favorable to verdict gives equal or nearly
    equal circumstantial support to theory of guilt and theory
    of innocence of crime charged, appellate court must reverse
    conviction); U.S. v. Flores-Rivera, 
    56 F.3d 319
     (1st Cir. 1995)
    (same). But see, e.g., U.S. v. Vargas-Ocampo, 
    747 F.3d 299
    (5th Cir. 2014) (abandoning rule).
    Based on the evidence here, we have doubts that an appli-
    cation of the accused’s rule would lead to a finding of insuf-
    ficient evidence. But we need not resolve that issue, because
    we decline Stack’s invitation to resurrect a rule that we have
    repeatedly rejected.
    Prior to 1981, this court applied the accused’s rule when
    reviewing circumstantial evidence. See State v. Pierce, 
    supra.
    But observing various reasons why circumstantial evidence
    should be treated the same as direct evidence, we abandoned
    the accused’s rule in State v. Buchanan, 
    210 Neb. 20
    , 
    312 N.W.2d 684
     (1981). In Buchanan, we held that one accused
    of a crime may be convicted on the basis of circumstantial
    evidence if, taken as a whole, the evidence establishes guilt
    beyond a reasonable doubt, and we disclaimed any require-
    ment that the State disprove every hypothesis but that of guilt.
    Over the years, we have briefly veered from this approach,
    only to steer definitively back to it and place circumstantial
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    evidence on equal footing with direct evidence. See, State v.
    Skalberg, 
    247 Neb. 150
    , 
    526 N.W.2d 67
     (1995), overruled,
    State v. Pierce, 
    supra;
     State v. Dawson, 
    240 Neb. 89
    , 
    480 N.W.2d 700
     (1992), abrogated, State v. Pierce, 
    supra;
     State
    v. Trimble, 
    220 Neb. 639
    , 
    371 N.W.2d 302
     (1985), overruled,
    State v. Morley, 
    239 Neb. 141
    , 
    474 N.W.2d 660
     (1991), dis-
    approved on other grounds, Victor v. Nebraska, 
    511 U.S. 1
    ,
    
    114 S. Ct. 1239
    , 
    127 L. Ed. 2d 583
     (1994). Most recently, in
    State v. Olbricht, 
    294 Neb. 974
    , 
    885 N.W.2d 699
     (2016), this
    court thoroughly recounted the demise of the accused’s rule in
    Nebraska and again rejected the suggestion that it should be
    applied. And in light of our jurisprudence on the matter, we see
    no reason to apply the accused’s rule here.
    (c) Circumstantial Evidence Supports
    Stack’s Convictions
    With our well-established standard of review in mind, we
    now determine whether there was sufficient evidence to sup-
    port Stack’s convictions for second degree murder and use
    of a deadly weapon to commit a felony. Stack challenges the
    sufficiency of the evidence on two bases. First, he argues that
    the evidence did not prove that he was the person who killed
    Bauermeister or that his pellet gun, which he does not dispute
    is a deadly weapon other than a firearm, was used to kill her.
    Second, he argues in the alternative that the district court
    should have convicted him of voluntary sudden quarrel man-
    slaughter, rather than second degree murder. But both of these
    arguments fail.
    [5] To prove second degree murder, a felony offense, the
    State was required to show beyond a reasonable doubt that
    Stack caused Bauermeister’s death “intentionally, but with-
    out premeditation.” See 
    Neb. Rev. Stat. § 28-304
     (Reissue
    2016). Voluntary manslaughter, also a felony, is a lesser degree
    offense, not a lesser-included offense, of second degree mur-
    der. See State v. Smith, 
    284 Neb. 636
    , 
    822 N.W.2d 401
     (2012).
    That is, it is possible to commit second degree murder with-
    out committing voluntary manslaughter. See 
    id.
     Both second
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    degree murder and voluntary manslaughter involve intentional
    killing; they are differentiated only by the presence or absence
    of the sudden quarrel provocation. State v. Smith, supra (where
    there is evidence that killing occurred intentionally without
    premeditation and that defendant acted under provocation of
    sudden quarrel, fact finder has option of conviction of second
    degree murder or voluntary manslaughter depending on reso-
    lution regarding sudden quarrel provocation.) See, also, 
    Neb. Rev. Stat. § 28-305
    (1) (Reissue 2016).
    In disputing the theory that he committed second degree
    murder by killing Bauermeister with his pellet gun, Stack
    takes a selective view of the evidence, focuses on other pos-
    sible explanations for Bauermeister’s death, and characterizes
    the investigation as incomplete. In essence, Stack contends
    that the State failed to disprove every hypothesis, other than
    Stack’s guilt, that could be drawn from the circumstantial
    evidence. And according to Stack, even if the evidence did
    show that he killed Bauermeister with his pellet gun intention-
    ally and without premeditation, evidence of multiple blows
    demonstrated that a sudden quarrel occurred and that volun-
    tary manslaughter was the proper conviction. To support this
    position, Stack further cites a lack of evidence about recent
    fighting or animosity between Stack and Bauermeister and
    a lack of evidence conclusively showing when the internet
    searches occurred in relation to Bauermeister’s death. That
    is, Stack suggests that the circumstantial evidence supports
    the presumption that a sudden quarrel occurred to the same
    extent that it supports the opposite conclusion and that we
    should resolve the matter in favor of the less onerous offense.
    However, as explained above, whether arguing that he did
    not kill Bauermeister or that he did so upon a sudden quarrel,
    Stack depends on an improper standard of review. Viewing
    the evidence in the light most favorable to the prosecution,
    as our standard of review requires, a rational trier of fact
    could have found beyond a reasonable doubt that Stack used
    his pellet gun, a deadly weapon other than a firearm, to kill
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    Bauermeister intentionally, but without premeditation and not
    upon a sudden quarrel.
    The State presented circumstantial evidence that Stack,
    without premeditation, intentionally killed Bauermeister with
    his pellet gun. The record shows that over time, Stack had
    become irritated with Bauermeister and wanted to be alone.
    Bauermeister was found on November 16, 2017, in the resi-
    dence she and Stack shared, dead due to blunt force head
    trauma from multiple blows and multiple missile injuries, both
    consistent with a pellet gun Stack owned. Testing showed
    an extremely high probability that blood found on the pellet
    gun was Bauermeister’s and that touch DNA on the weapon
    belonged to Stack. In Bauermeister’s hand and on the floor
    nearby were strands of brown hair, like Stack’s. Stack was
    apprehended with Bauermeister’s cell phone, which had blood
    on it that was most likely Bauermeister’s. Testing of two spots
    among multiple bloodstains revealed an extremely high prob-
    ability that Bauermeister’s blood was on the pants and one of
    the shoes Stack was wearing when he was arrested. Stack’s
    computer reflected that from November 7 through 9, the days
    before Bauermeister’s estimated date of death, there were inter-
    net searches regarding whether a pellet gun could kill someone,
    among searches for suicide methods. In postarrest statements
    to his sister, Stack admitted to conducting internet searches
    related to suicide and what he could shoot with his pellet gun.
    On November 10, there was a search for “decomposition of a
    human body timeline,” followed by searches inquiring what
    items are provided in prison. In a conversation after his arrest,
    Stack did not contradict his brother’s suggestion that Stack had
    killed Bauermeister and confirmed that he was at the crime
    scene after her death.
    [6-8] Furthermore, upon our review of the record, we see
    no evidence of a sudden quarrel. A sudden quarrel is a legally
    recognized and sufficient provocation which causes a reason-
    able person to lose normal self-control. State v. Smith, 
    284 Neb. 636
    , 
    822 N.W.2d 401
     (2012). It is not the provocation
    alone that reduces the grade of the crime, but, rather, the
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    sudden happening or occurrence of the provocation so as to
    render the mind incapable of reflection and obscure the rea-
    son so that the elements necessary to constitute murder are
    absent. 
    Id.
     Although there was evidence that Stack was irri-
    tated with Bauermeister, in the absence of some provocation, a
    defendant’s anger with the victim is not sufficient to establish
    the requisite heat of passion. State v. Smith, 
    282 Neb. 720
    ,
    
    806 N.W.2d 383
     (2011). And the fact that Stack may have
    been intoxicated is not a proper consideration in determining
    whether the killing arose from a sudden quarrel. See State v.
    Smith, 
    284 Neb. 636
    , 
    822 N.W.2d 401
     (2012). Further, contrary
    to Stack’s suggestion, a sudden quarrel does not necessarily
    mean an exchange of angry words or an altercation contempo-
    raneous with an unlawful killing and does not require a physi-
    cal struggle or other combative corporal contact between the
    defendant and the victim. 
    Id.
    In sum, under the proper standard of review, we conclude
    the evidence was sufficient to support Stack’s convictions.
    2. Insanity Defense
    Any person prosecuted for an offense may plead that he or
    she is not responsible by reason of insanity at the time of the
    offense. 
    Neb. Rev. Stat. § 29-2203
    (1) (Reissue 2016). A suc-
    cessful insanity defense would be dispositive in Stack’s favor,
    regardless of the evidence that he killed Bauermeister with
    a deadly weapon. See State v. Bigelow, 
    303 Neb. 729
    , 
    931 N.W.2d 842
     (2019) (successful insanity defense operates as
    complete defense). Therefore, even though the evidence was
    sufficient to prove the elements of second degree murder and
    use of a deadly weapon other than a firearm to commit a fel-
    ony, we must address Stack’s claim that the district court erred
    by finding that he had failed to prove he was legally insane at
    the time he committed those offenses.
    [9] Generally, under Nebraska’s common-law definition,
    the insanity defense requires proof that (1) the defendant
    had a mental disease or defect at the time of the crime and
    (2) the defendant did not know or understand the nature and
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    consequences of his or her actions or that he or she did not
    know the difference between right and wrong. 
    Id.
     The defend­
    ant carries the burden to prove the defense by a preponderance
    of the evidence. See § 29-2203(1). The verdict of the finder of
    fact on the issue of insanity will not be disturbed unless there is
    insufficient evidence to support such a finding. State v. France,
    
    279 Neb. 49
    , 
    776 N.W.2d 510
     (2009).
    To support his insanity defense, Stack relies on the testimony
    of Davis, who opined that Stack had a mild neurocognitive dis-
    order and that as a result of such mental disease or defect in
    combination with his alcohol consumption, Stack experienced
    an alcoholic blackout, which caused him to be unable to know
    and understand the nature and consequences of his actions.
    However, as the State points out, under § 29-2203(4), “insanity
    does not include any temporary condition that was proximately
    caused by the voluntary ingestion . . . of intoxicating liquor.”
    Pursuant to this statute, the State argues, Stack was not legally
    insane under Davis’ opinion because it was based on Stack’s
    experiencing a blackout, a temporary condition caused by
    voluntary alcohol consumption. Stack contends that because
    voluntary intoxication was not the sole basis for Davis’ opinion
    that he was insane, Stack is not precluded from the benefit of
    the insanity defense. Although we have discussed the relation-
    ship between intoxication and insanity, we have not, since
    the adoption of § 29-2203(4), considered whether voluntary
    intoxication in combination with a mental disease or defect
    can be the basis for a successful insanity defense. See, State v.
    Bigelow, 
    supra;
     State v. Hotz, 
    281 Neb. 260
    , 
    795 N.W.2d 645
    (2011). And based on the record in this case, we need not do
    so today.
    Here, even if the State’s argument concerning voluntary
    intoxication is set to the side, there was sufficient evidence
    that Stack did not fulfill a crucial element of legal insanity:
    a mental disease or defect. As mentioned, Stack’s expert,
    Davis, opined that Stack had a mental disease or defect in the
    form of a mild neurocognitive disorder. However, the State’s
    experts, Hartmann and Abel, disagreed. Their diagnostic
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    testing showed that Stack did not suffer from a mild neuro-
    cognitive disorder. Thus, Davis’ opinion on the issue of legal
    insanity was in direct conflict with the evidence presented
    by the State, and it was the province of the district court to
    resolve that conflict. See State v. Martinez, 
    306 Neb. 516
    , 
    946 N.W.2d 445
     (2020) (appellate court does not resolve conflicts
    in evidence, pass on credibility of witnesses, or reweigh evi-
    dence; such matters are for finder of fact). Given the opinions
    of Hartmann and Abel, the record contained sufficient evidence
    for the district court to conclude that Stack was not legally
    insane at the time of Bauermeister’s murder. Stack’s assertion
    to the contrary lacks merit.
    3. Excessive Sentences
    Lastly, Stack contends that his sentences were excessive.
    He does not and cannot dispute that he was sentenced within
    statutory limits. Instead, Stack argues that the sentences do not
    fit the crime or him as an offender. He points out that given
    his age, he will effectively have no opportunity for parole for
    crimes that he characterizes as not especially depraved and
    heinous. He also cites his limited criminal record and his poor
    health as mitigating factors. We are not persuaded.
    [10-12] Where a sentence imposed within the statutory limits
    is alleged on appeal to be excessive, the appellate court must
    determine whether a sentencing court abused its discretion in
    considering and applying the relevant factors as well as any
    applicable legal principles in determining the sentence to be
    imposed. State v. Price, 
    306 Neb. 38
    , 
    944 N.W.2d 279
     (2020).
    In determining a sentence to be imposed, relevant factors cus-
    tomarily considered and applied are the defendant’s (1) age, (2)
    mentality, (3) education and experience, (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 amount of violence involved
    in the commission of the crime. 
    Id.
     The appropriateness of a
    sentence is necessarily a subjective judgment and includes the
    sentencing judge’s observation of the defendant’s demeanor
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    and attitude and all the facts and circumstances ­surrounding
    the defendant’s life. 
    Id.
    According to the record, the district court considered
    the familiar factors above, along with other information in
    the presentence investigation report and evidence received at
    the sentencing hearing. Thus, it took into account the factors
    Stack says justified a lesser penalty along with other factors.
    Those other factors included the particularly violent nature
    of Bauermeister’s murder and the circumstances surrounding
    it. Based on the record in this case and the relevant consid-
    erations, we conclude that the district court did not abuse its
    discretion in sentencing Stack.
    V. CONCLUSION
    Finding no merit to the errors assigned and argued by Stack,
    we affirm.
    Affirmed.