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

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www.nebraska.gov/apps-courts-epub/
12/31/2020 09:09 AM CST
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. STACK
Cite as 307 Neb. 773State 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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STATE v. STACK
Cite as 307 Neb. 7737. 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
Cite as 307 Neb. 773Papik, 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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STATE v. STACK
Cite as 307 Neb. 773alleged. 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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STATE v. STACK
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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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STATE v. STACK
Cite as 307 Neb. 773but 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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STATE v. STACK
Cite as 307 Neb. 773probability 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
Cite as 307 Neb. 773his 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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STATE v. STACK
Cite as 307 Neb. 773I 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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STATE v. STACK
Cite as 307 Neb. 773Stack: 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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STATE v. STACK
Cite as 307 Neb. 773said 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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STATE v. STACK
Cite as 307 Neb. 773mild 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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Cite as 307 Neb. 773II. 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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Cite as 307 Neb. 773court 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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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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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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Cite as 307 Neb. 773degree 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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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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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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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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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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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.