State v. Brennauer ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2023 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BRENNAUER
Cite as 314 Neb. 782State of Nebraska, appellee, v. Christopher
X. Brennauer, appellant.
___ N.W.2d ___
Filed July 28, 2023. No. S-21-642.
1. Appeal and Error. Although an appellate court ordinarily considers
only those errors assigned and discussed in the briefs, the appellate court
may, at its option, notice plain error.
2. ____. Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integ-
rity, reputation, or 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. ____: ____. All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
5. Constitutional Law: Trial: Jury Instructions: Evidence. The Nebraska
Constitution guarantees a fair and impartial trial to every citizen of this
state, and this demands that, in the consideration of the evidence, the
jury must be guided in its deliberations by a correct statement of the law.
6. Jury Instructions: Pleadings: Evidence. Whether requested to do so or
not, a trial court has the duty to instruct the jury on issues presented by
the pleadings and the evidence, and it must, on its own motion, correctly
instruct on the law.
7. Appeal and Error. Where a determination is necessary to a reasonable
and sensible disposition of the issues presented, an appellate court is
required by necessity to notice plain error based on the theory of the
case as tried.
8. Criminal Law: Jury Instructions. As a general rule, when instructing
the jury, it is proper for the court to describe the offense in the language
of the statute.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BRENNAUER
Cite as 314 Neb. 7829. Criminal Law: Insanity: Proof. 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
consequences of his or her actions or that he or she did not know the
difference between right and wrong.
10. Criminal Law: Insanity: Intoxication. Settled insanity produced by
intoxication affects criminal responsibility in the same way as insanity
produced by any other cause.
11. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
12. Statutes: Appeal and Error. An appellate court will not resort to inter-
pretation of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous.
13. Statutes: Legislature: Intent. In construing a statute, the legislative
intention is to be determined from a general consideration of the whole
act with reference to the subject matter to which it applies and the
particular topic under which the language in question is found, and the
intent as deduced from the whole will prevail over that of a particular
part considered separately.
14. ____: ____: ____. In order for a court to inquire into a statute’s legisla-
tive history, that statute in question must be open to construction, and a
statute is open to construction when its terms require interpretation or
may reasonably be considered ambiguous.
15. Insanity: Intoxication. Voluntary intoxication is not a mental disease or
defect for the purpose of the insanity defense.
16. Criminal Law: Proximate Cause. A requirement of proximate cause
serves to preclude criminal responsibility in situations where the causal
link between conduct and result is so attenuated that the consequence is
more aptly described as mere fortuity.
17. Criminal Law: Insanity: Intoxication. Neb. Rev. Stat. § 29-2203(4)
(Reissue 2016) codified Nebraska’s longstanding precedent that a men-
tal disease or defect does not include voluntary intoxication, and a
defendant’s loss of capacity that was immediately produced by intoxi-
cation does not excuse criminal responsibility if the accused became
voluntarily intoxicated.
18. Jury Instructions: Evidence: Appeal and Error. When examining for
harmless error, the court may look at a variety of factors, including the
jury instructions as a whole, the evidence presented at trial, and the clos-
ing arguments.
19. Jury Instructions: Verdicts. The purpose of instructions is to furnish
guidance to the jury in its deliberations and to aid it in arriving at a
proper verdict; and, with this end in view, the jury instructions should
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BRENNAUER
Cite as 314 Neb. 782state clearly and concisely the issues of fact and the principles of law
that are necessary to enable them to accomplish the purpose desired.
20. Jury Instructions: Appeal and Error. A jury instruction that misstates
the issues and has a tendency to confuse the jury is erroneous.
21. Jury Instructions. The language used in jury instructions should be
adapted to the understanding of the jury to which it is directed, and it
should be as clear as possible.
22. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Judgment reversed, convictions and sentences
vacated, and cause remanded for a new trial.
Kristi J. Egger, Lancaster County Public Defender, and
Shawn Elliot for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
Christopher X. Brennauer appeals from his convictions and
sentences on four felony charges after a trial by jury where
he raised a defense of not responsible by reason of insanity.
At trial, Brennauer’s insanity defense presented a question
of law that we have not previously considered: the effect of
Neb. Rev. Stat. § 29-2203(4) (Reissue 2016) on the insanity
defense. We conclude that § 29-2203(4) does not affect our
precedent regarding settled insanity. In light of our interpre-
tation, the jury was not properly instructed, given the man-
ner that the State presented evidence and argued in closing.
Consequently, we notice plain error in the jury instructions
and conclude that reversal is necessitated. Therefore, we
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BRENNAUER
Cite as 314 Neb. 782reverse the district court’s judgment, vacate Brennauer’s con-
victions and sentences, and remand the cause for a new trial.
BACKGROUND
Brennauer’s charges related to a single event that occurred
on December 29, 2018, arising from a 911 emergency dispatch
service call from Brennauer’s girlfriend in which she reported
that Brennauer was mentally ill and threatening self-harm with
a knife. When police attempted to take Brennauer into emer-
gency protective custody, 1 he resisted, resulting in an officer
receiving a stab wound and Brennauer receiving two gunshot
wounds to his back.
Brennauer’s Mental Health History.
Brennauer’s mental health symptoms began when he was
a child, and he was first hospitalized when he was 12 years
old. At that time, Brennauer was not prescribed medication
and received no further treatment. He was again hospitalized
in his early twenties, where he received a series of diagnoses,
including schizophrenia, schizoaffective disorder, and bipolar
disorder. Brennauer’s records suggest that his psychotic symp-
toms worsened following substance use in his teens and early
twenties, and that he was diagnosed with polysubstance use
disorders and substance-induced psychotic disorder.
In 2003, Brennauer was found not responsible by reason of
insanity for a charge of attempted robbery. He was hospitalized
at the Lincoln Regional Center (Regional Center). Brennauer
suffered from psychotic symptoms, including paranoia and
delusions. He believed others could hear his thoughts and that
the Mafia and the Federal Bureau of Investigation were after
him. He experienced auditory hallucinations and would be con-
sumed by negative thoughts. Brennauer’s symptoms improved
with treatment and medication, which led to his discharge
from the Regional Center into CenterPointe’s Dual Diagnosis
Residential Program in 2011.
1
See Neb. Rev. Stat. § 71-919 (Reissue 2018).
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STATE V. BRENNAUER
Cite as 314 Neb. 782In 2013, Brennauer was rehospitalized at the Regional
Center when he violated the conditions of his treatment plan
by failing to take his medications as prescribed and by using
illicit substances. He was again discharged from the Regional
Center and into the residential program in 2017. He com-
pleted and was discharged from the residential program later
that year.
In 2018, Brennauer attempted suicide in April and again in
July. Subsequently, he was committed to intensive outpatient
treatment and was placed on a waiting list for the residential
program. While on the waiting list, Brennauer lived in an
apartment with his girlfriend, but due to his deteriorated mental
health, he was unable to get dressed, work, or even remember
where things were located. In addition to his prescribed oral
antipsychotic and antidepressant medications, Brennauer was
receiving an injectable antipsychotic every 3 months, admin-
istered by medical professionals. Throughout 2018, Brennauer
used methamphetamine, alcohol, and cannabis.
Before trial in this case, the State filed a motion in limine to
preclude any evidence of Brennauer’s prior not responsible by
reason of insanity verdict. The State argued that such evidence
would prejudice the State’s case because the issue was whether
Brennauer was legally insane at the time of the offenses and
not whether Brennauer was insane at any other time. The dis-
trict court granted the State’s motion.
December 29, 2018.
Brennauer was still on the waiting list for the residential
program when he again became suicidal in the early hours of
December 29, 2018. The day before, Brennauer had received
an injection of his slow-acting antipsychotic medication, which
was administered over 2 weeks late. He had last used meth-
amphetamine 2 days prior and ingested two shots of alcohol
earlier that night. Brennauer was at home with his girlfriend
and a neighbor when he began threatening self-harm with a
knife. His girlfriend called 911 when Brennauer began holding
the knife to his own throat.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BRENNAUER
Cite as 314 Neb. 782Three officers arrived on the scene, and Brennauer’s girl-
friend informed them that Brennauer was a paranoid schizo-
phrenic, was “not doing well,” posed a danger to himself, and
had been holding a knife to his neck. She invited the officers
into the apartment, telling them that Brennauer was “not well”
and that Brennauer needed to go to the Lancaster County Crisis
Center for medical care.
When the three officers entered the apartment, Brennauer
became agitated. He said he was “not going nowhere”
and repeatedly requested that the officers leave his home.
Brennauer’s girlfriend pleaded with him to cooperate with the
officers and repeatedly told him they would help him. The
officers proceeded to question Brennauer as to whether he had
a knife and the knife’s location. While questioning Brennauer,
two of the officers had drawn their Tasers, while a third had
drawn his handgun. The officers pointed their weapons at
Brennauer at various times throughout this encounter. During
this time, two additional officers arrived on the scene.
Brennauer’s girlfriend and his neighbor were sequestered
in the apartment’s living room, away from Brennauer, and
were questioned by two of the five officers now in the apart-
ment. Brennauer’s girlfriend confirmed that Brennauer had
earlier had a paring knife against his neck and that her hand
had been cut when she attempted to take the knife away
from him. The neighbor mentioned that Brennauer “flipped,”
while Brennauer’s girlfriend informed officers that Brennauer
had missed his injection of antipsychotic medication and that
“he’s been really out there,” “he’s really really sick,” and
“he’s definitely delusional.” She informed officers that at
times, Brennauer thought vampires were eating him. While
not entirely audible on the police-recorded audio, it seems she
informed the officers that Brennauer was wiping mustard on
his face in an attempt to get his face to shine.
Meanwhile, the other three officers continued question-
ing Brennauer, attempting to discern whether Brennauer still
possessed a knife and where it was located. At this time,
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Nebraska Supreme Court Advance Sheets
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STATE V. BRENNAUER
Cite as 314 Neb. 782Brennauer was located in a small space between the apart-
ment’s living room and kitchen. Brennauer clutched a book
in his hands, which at least one witness testified was a Bible.
Brennauer was primarily communicating with one officer and
began to calm down and cooperate with this officer, who had
put his Taser away. Brennauer asked to shake this officer’s
hand, but the officer declined the handshake and instead gave
Brennauer a “fist bump.”
Based on the information from Brennauer’s girlfriend and
his neighbor, one officer decided that Brennauer would be
taken into emergency protective custody. He signaled the other
officers to take Brennauer into custody. When the officer com-
municating with Brennauer received the signal, he apologized
to Brennauer for not shaking hands earlier because he felt that
he had disrespected Brennauer. The officer offered to shake
Brennauer’s hand. The officer intended to shake Brennauer’s
hand to pull Brennauer forward, out of the small enclosed
space, and into the kitchen where there was more room to
take Brennauer to the ground for the purpose of taking him
into custody.
When the officer attempted to pull Brennauer forward,
Brennauer pulled backward, and their hands separated. The
officer proceeded to move toward Brennauer in an attempt to
regain control. At this time, Brennauer, with the knife now in
his hand, attempted to bring the knife down to stab the officer,
who repeatedly blocked Brennauer’s stabbing motions. One
of the other officers charged Brennauer in an effort to restrain
him and received a stab wound to his upper right chest. Upon
being stabbed, the officer drew his handgun and fired three
times. The first shot struck the leg of the officer who was
communicating with Brennauer, and the second and third
shots struck Brennauer in the back. Two of the three officers
deployed their Tasers into Brennauer. At the end of the fray,
Brennauer was in custody and he and the two injured officers
were being transported for medical assistance.
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STATE V. BRENNAUER
Cite as 314 Neb. 782Brennauer’s Hospital Stay.
Brennauer underwent surgery related to the two gunshot
wounds he had sustained. While recovering in the hospital,
Brennauer had one of his ankles and one of his wrists cuffed
to the hospital bed. The Lincoln Police Department provided
24-hour “scene security,” whereby officers rotated in 2-hour
shifts to watch Brennauer. During his time in the hospital,
Brennauer made statements that were the subject of a pretrial
“Motion to Suppress and Jackson v. Denno hearing.” Brennauer
argued that these statements were inadmissible under the Due
Process Clause because they were involuntarily made, made
in violation of his Miranda rights, or both. The district court
denied Brennauer’s motion.
Three officers testified both at the hearing and at trial.
These officers testified that they were instructed to note any
statements that Brennauer made and, if relevant to the case,
write the statements into additional case information reports.
On three occasions while medical staff was treating or aiding
Brennauer, he made statements that were documented by these
officers. None of the officers’ reports recorded the medical
staff present at the time of the statements. None of the officers
could recall any of the statements made by medical staff, knew
any of the medications Brennauer may have been administered,
or knew what occurred in Brennauer’s hospital room before
they arrived or after they left. All three officers testified that
they did not read Brennauer his Miranda rights and did not
elicit any of the statements from Brennauer.
Officer Erin Spilker testified that she provided scene secu-
rity on the afternoon of January 9, 2019. When medical staff
was placing a catheter and changing Brennauer’s feeding tube,
Brennauer said that he had been shot in the back and that
therefore, the catheter being placed was not going to be pain-
ful for him. Brennauer then said to the room that “he never
should’ve stabbed that cop” and that “he thought they would
tase him and that they wouldn’t shoot him.” Spilker testified
that Brennauer then asked her how long he was going to be
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BRENNAUER
Cite as 314 Neb. 782in prison and that he knew he was going to prison for a long
time, but he “wanted the ability to eat a meal.” Spilker did not
recall whether there was any indication that Brennauer was
confused, but she felt like Brennauer was coherent.
Officer Patrick Sullivan testified that he provided scene
security in the early evening of January 9, 2019. Sullivan
testified that Brennauer was “kind of in and out. Loopy most
of the time.” Brennauer was “sleeping a lot on and off” and
“was a little bit out of it.” Sullivan recounted that Brennauer
woke up and asked to use the restroom. When nurses came to
help Brennauer, he stated, “I stabbed a cop I guess,” and after
a slight pause, “I told her not to call the cops.” Sullivan “was
not sure who he was saying [the statements] to in general. If
he was just saying them out loud or to the nurses,” he did not
know. Sullivan testified that Brennauer spoke with “kind of an
upset tone.”
Officer Alessandra Winterbauer testified that she provided
scene security on January 10, 2019. When Brennauer requested
to go from the hospital bed to a small chair next to it,
Winterbauer removed Brennauer’s restraints from the bed and
re-restrained him to a chair. Winterbauer testified that when
moving Brennauer, he asked, “I didn’t hurt that guy did I?”
Then Brennauer asked if Winterbauer knew how much time
he was going to get. Winterbauer did not remember what
Brennauer’s demeanor was like or his speech, only that he
moved slowly between the bed and the chair and that there was
no indication Brennauer was confused.
At the hearing, but not at trial, Brennauer called an occupa-
tional therapist who worked at the hospital and worked with
Brennauer on January 7, 8, 9, and 10, 2019. On each of these
days, the therapist recorded Brennauer’s cognitive status as
“impaired” as opposed to “within functional limits.” She testi-
fied that on January 7, Brennauer “required additional queu-
ing [sic] to follow commands” and that when asked questions,
Brennauer’s answers would not make sense or would be out
of context. On January 8, Brennauer needed cues “to make
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Cite as 314 Neb. 782sure he was close enough to a seated surface before he sat
down so he wouldn’t fall to the floor.”
The therapist testified that on January 9, 2019, Brennauer
was singing “songs that did not make sense,” which was some-
thing not typically seen in other patients. Brennauer’s speech
was not understandable because his speech was slurred and
because the words did not make sense. Then on January 10,
Brennauer was displaying “socially inappropriate behavior”
and was “not acting in a way that was typically appropriate
in a hospital setting,” and some verbalization that Brennauer
made during the session would not be appropriate for what
they were working on. For example, the therapist could not
understand something Brennauer said, and when she asked
for clarification, Brennauer stated that he was “making slurs
about Italians.” The statements were not in context with what
they were talking about or working on. She never thought
Brennauer’s cognition was within functional limits during this
time period.
Expert Opinions on Insanity.
As to Brennauer’s defense of not responsible by reason of
insanity, experts for both Brennauer and the State agreed that
Brennauer had a mental disease during the events at issue
occurring on December 29, 2018. The experts agreed that
Brennauer suffered from schizoaffective disorder-bipolar type,
various substance use disorders, and an antisocial personal-
ity disorder. They also agreed that at the time of the incident,
Brennauer was psychotic with mood lability and experiencing
delusions and paranoia, and that Brennauer did not remember
the incident. However, the experts disagreed on the cause of
Brennauer’s memory loss and whether Brennauer knew or
understood the nature and consequences of his actions or knew
the difference between right and wrong.
Dr. Robert Arias, Brennauer’s expert, is a neuropsycholo-
gist specializing in the relationship between brain function-
ing and behavior. Arias’ opinion was that on December 29,
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STATE V. BRENNAUER
Cite as 314 Neb. 7822018, Brennauer did not understand the nature and conse-
quences of his actions or that he did not know the difference
between right and wrong. Arias testified that Brennauer was
in a severely decompensated psychiatric state and suffer-
ing from symptoms of psychosis, particularly disorganized
thinking. Arias testified that because Brennauer was late in
receiving his antipsychotic injection, it would be expected that
Brennauer would have emerging psychiatric symptoms. Even
though Brennauer had received the medication the day before
the incident, it was not fast acting and might take weeks to
reach a therapeutic level.
In Arias’ opinion, Brennauer’s memory loss was both a
result and an indication of his psychosis. Arias contended that
the statements Brennauer made in the hospital, when he was in
a calmer state and receiving his proper regime of psychotro-
pic medications, showed that Brennauer was trying to process
the consequences of his actions and indicated that he did not
understand the nature and consequences of his actions or that
he did not know the difference between right and wrong at the
time of the incident.
Dr. Jennifer Cimpl Bohn, the State’s expert, is a licensed
psychologist who primarily conducts court-ordered evalua-
tions. Cimpl Bohn acknowledged that Brennauer has a men-
tal disease and was having specific delusions around the
time of the incident. Those delusions included that Brennauer
“thought that Osama Bin Laden was somehow involved in a
conspiracy that involved people across the United States being
fed gasoline” and that he “thought people were trying to col-
lect oxytocin from his body to benefit the one percenters.”
She also acknowledged that Brennauer’s delusional state and
symptoms were “pretty consistent” for several months before
the incident.
It was Cimpl Bohn’s opinion that Brennauer likely under-
stood the nature and consequences of his actions and knew
the difference between right and wrong at the time of the
incident. Cimpl Bohn pointed to Brennauer’s conversation
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STATE V. BRENNAUER
Cite as 314 Neb. 782with the officers in his home and contended that it showed
Brennauer’s delusions and hallucinations did not interfere
with his ability to communicate. She noted that Brennauer
wanted the officers to leave and did not want to go to jail,
which displayed reality-based concerns. Cimpl Bohn also
pointed to the statements Brennauer made in the hospital and
contended they proved he understood the consequences of
his actions.
Cimpl Bohn believed the most likely explanation for
Brennauer’s memory loss was a repressed memory due to a
traumatic experience because of a lack of history of memory
loss and the specific timeframe that Brennauer could not
remember. In Cimpl Bohn’s opinion, someone could under-
stand the difference between right and wrong and still repress
a memory thereafter.
Expert Opinions on Intoxication.
After each expert testified to their respective opinions
regarding Brennauer’s insanity, the State questioned the wit-
nesses on topics related to § 29-2203(4).
For example, the State acknowledged that, in Arias’ opinion,
Brennauer’s medical records indicated that his mental state
was “going downhill.” The State then engaged in the following
exchange with Arias:
Q Okay. And that . . . was in part because he wasn’t
taking his mental health medication?
A Yes.
Q And in part, because of his substance use?
A That can exacerbate that, yes.
Q Is it your understanding, . . . that Nebraska law
indicates that insanity does not include any temporary
condition that was approximately caused by the voluntary
ingestion, inhalation, or absorption of intoxicating liquor,
any drug or other mentally debilitating substance or any
combination thereof?
A Yes.
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Cite as 314 Neb. 782The State then proceeded to question Arias on Brennauer’s
prior suicide attempts, the two shots of alcohol he consumed
before the police were called to his home, that he used a quar-
ter gram of methamphetamine 2 days prior, and the effects
of methamphetamine.
Arias rejected the State’s suggestion that Brennauer was in
a methamphetamine-induced psychosis. He noted that metham-
phetamine’s effect typically lasts only a number of hours due
to the drug’s half-life and that based on the amount Brennauer
was using, methamphetamine would not be expected to have
caused symptoms of psychosis such as those Brennauer
was experiencing at the time of the incident. The fact that
Brennauer did not remember the incident indicated to Arias
that Brennauer was in an acutely decompensated psychotic
state, particularly where no other cause, such as memory
repression, could explain Brennauer’s irrational conversations
with the officers.
Cimpl Bohn testified that when the incident occurred,
Brennauer would not have been so intoxicated that he would
not have a memory of the incident. When pressed by the
State, she conceded that intoxication could not be “rule[d] out
entirely” as the reason for Brennauer’s memory loss.
Cimpl Bohn expounded on her awareness of Brennauer’s
history of substance use, particularly his methamphetamine
use, and Brennauer’s history of noncompliance with his
psychotropic medications. She discussed methamphetamine
psychosis, as well as methamphetamine withdrawal symp-
toms, and stated that methamphetamine psychosis resolves
when the drug is no longer in a person’s system. Cimpl Bohn
referenced the Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition, which notes that methamphetamine-
induced psychosis can last weeks to months. She pointed
out that Brennauer was listed as psychiatrically stable on
January 16, 2019, when he arrived at the jail, which was after
the methamphetamine cleared from his system. She acknowl-
edged that Brennauer received psychotropic medications from
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Cite as 314 Neb. 782when he was taken into custody to when she evaluated him
weeks later.
Cimpl Bohn testified that she was unable to speak about
how the antipsychotic medications and the timing of their
effectiveness would affect Brennauer specifically, and she
could testify only to the difficulty in parsing out the cause of
symptoms. She stated that she was not an expert on pharma-
cology and that a psychopharmacologist would be needed to
speak on that issue. Cimpl Bohn testified that she could not
speak to the degree that Brennauer’s substance use contributed
to his symptoms in the days leading up to and including the
night of the incident.
However, Cimpl Bohn stated that Brennauer’s medical
records are “pretty clear” that his methamphetamine use exac-
erbated the symptoms of his schizoaffective disorder. She later
suggested that Brennauer’s symptoms of “racing thoughts,
auditory hallucinations, paranoia, delusional ideas, and bizarre
ideas” resulted from his substance use. Cimpl Bohn never
offered an opinion as to whether Brennauer experienced a
temporary condition that was proximately caused by his volun-
tary intoxication.
State’s Closing Argument.
In its closing argument, the State addressed Brennauer’s
insanity defense and his memory “blackout” of the incident.
The State told the jury that it would be instructed that to
prove the insanity defense, Brennauer needed to prove by the
greater weight of the evidence that he had a mental disease that
impaired his mental capacity to such an extent that he either
did not understand the nature and consequences of what he was
doing or did not know the difference between right and wrong.
The State emphasized that insanity does not include any tem-
porary condition that was proximately caused by voluntary
intoxication.
The State pointed out that it was undisputed that Brennauer
had a mental disease and that Brennauer did not remember
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Cite as 314 Neb. 782the incident. The State reviewed Cimpl Bohn’s belief that
Brennauer’s memory loss was due to memory suppression
and argued to the jury that his memory loss was not due to
his diagnosed mental health conditions. The State conceded
that Brennauer’s memory loss was “probably not” caused by
his substance use. Still, it reminded the jury that Cimpl Bohn
stated it could not be ruled out completely. The State empha-
sized, “[a]gain, if that’s the proximate cause then that can’t be
a basis, the substances, if that’s the proximate cause can’t be a
basis for — for a cognitive insanity.”
Jury Instructions.
The jury was charged with determining Brennauer’s criminal
responsibility on four counts. The jury was instructed:
Mr. Brennauer has pled not guilty and raised the
defense of not responsible by reason of insanity to all
counts. He is presumed to be innocent. If the State fails
to prove each element of a crime beyond a reasonable
doubt then you must find the defendant not guilty. If the
State has proven each element of a crime beyond a rea-
sonable doubt[,] then you must consider Mr. Brennauer’s
defense of not responsible by reason of insanity. If Mr.
Brennauer proves by the greater weight of the evidence
that he was not sane at the time the crime was commit-
ted[,] then you must find him not responsible by reason
of insanity.
As to each of the four counts, the jury was instructed:
The burden of proof is always on the State to prove
beyond a reasonable doubt the material elements of the
crime charged and this burden never shifts. . . . If the
State did so prove, then you must go on to consider
Christopher Brennauer’s defense that he was insane at the
time he committed [each crime].
....
The defense of insanity has two elements. These are:
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STATE V. BRENNAUER
Cite as 314 Neb. 782(1) That Christopher Brennauer had a mental disease at
the time of the acts charged; and
(2) That this mental disease impaired his mental capac-
ity to such an extent that either:
(i) he did not understand the nature and consequences
of what he was doing; or
(ii) he did not know the difference between right and
wrong with respect to what he was doing.
The jury was instructed that Brennauer had to “prove both
elements of the insanity defense by the greater weight of the
evidence” and that if the jury decided he did, it “must find him
not responsible by reason of insanity. Otherwise, you must find
him guilty.”
At the request of the State, the jury received instruc-
tion No. 6, which was virtually identical to the language
of § 29-2203(4): “Insanity does not include any temporary
condition that was proximately caused by the voluntary inges-
tion, inhalation, injection, or absorption of intoxicating liquor,
any drug or mentally debilitating substance, or any combina-
tion thereof.”
At the jury instruction conference, Brennauer objected to
instruction No. 6 because “both experts negated that or indi-
cated that, that was not a contributing factor.” Brennauer also
contended that if the court gave instruction No. 6, an instruc-
tion defining proximate cause was needed “because then the
burden is on the State to prove proximate cause.”
In response, the State contended that the burden was on
the defense with respect to the insanity defense and proposed
omitting language from Brennauer’s proposed definition of
proximate cause that would “imply[] that the State has to
establish that proximate cause.” Brennauer countered that the
State was introducing “the concept” that the voluntary inges-
tion of substances caused a temporary condition that would
negate his defense, and thus, the burden of proof should be on
the State.
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Cite as 314 Neb. 782The district court ruled that the jury would be instructed on
proximate cause as proposed by Brennauer and amended by the
State. Accordingly, instruction No. 7 stated:
A proximate cause is one that produces a result in a
natural and continuous sequence and without which the
result would not have occurred. Proximate cause has three
requirements:
(1) Without the action, the result would not have
occurred, commonly known [as] the “but for” rule;
(2) The result was a natural and probable result of the
action; and
(3) There was no efficient intervening cause.
Verdicts and Sentencing.
The jury found Brennauer guilty on all counts. The dis-
trict court sentenced Brennauer to terms at the Department
of Correctional Services of 2 to 4 years’ imprisonment for
possession of a deadly weapon by a prohibited person, a
Class III felony 2; 25 to 35 years’ imprisonment for second
degree assault on an officer, a Class II felony 3; 20 to 25 years’
imprisonment for first degree attempted assault on an officer,
a Class II felony 4; and 10 to 15 years’ imprisonment for use
of a deadly weapon to commit a felony, a Class II felony. 5
All sentences were ordered to run consecutively. In total,
Brennauer was sentenced to not less than 57 nor more than 79
years’ imprisonment.
ASSIGNMENTS OF ERROR
Brennauer assigns the district court erred by (1) overrul-
ing Brennauer’s motion to suppress and admitting statements
2
See Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2022).
3
See Neb. Rev. Stat. § 28-930 (Cum. Supp. 2022).
4
See Neb. Rev. Stat. §§ 28-201 (Reissue 2016) and 28-929 (Cum. Supp.
2022).
5
See Neb. Rev. Stat. § 28-1205 (Reissue 2016).
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Cite as 314 Neb. 782Brennauer made at his home and in the hospital and (2) sus-
taining the State’s motion in limine regarding Brennauer’s
prior not responsible by reason of insanity finding. Further,
Brennauer assigns that (3) the evidence adduced at trial was
insufficient to sustain Brennauer’s convictions and (4) the sen-
tences imposed by the district court are excessive and consti-
tute an abuse of discretion.
STANDARD OF REVIEW
[1,2] Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appellate
court may, at its option, notice plain error. 6 Plain error is error
plainly evident from the record and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. 7
[3,4] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. 8 All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported
by the pleadings and the evidence, there is no prejudicial error
necessitating reversal. 9
ANALYSIS
We begin with Brennauer’s third assignment of error, that
the evidence adduced at trial was insufficient to sustain his
convictions. In support of this assignment, Brennauer argues
that the State presented insufficient evidence to rebut his
showing that he was not responsible by reason of insan-
ity. Both his argument and the State’s response implicate
Brennauer’s history of substance abuse, which requires us to
6
State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).
7
State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
8
State v. Fernandez, 313 Neb. 745, 986 N.W.2d 53 (2023).
9
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STATE V. BRENNAUER
Cite as 314 Neb. 782consider, for the first time, the effect of § 29-2203(4) on the
insanity defense. 10 Because the parties did not specifically
address the effect of § 29-2203(4) in their initial brief-
ing on appeal, we ordered supplemental briefing after oral
argument. The parties filed supplemental briefs, which we
have considered.
Parties’ Arguments.
At trial, the State did not contest that Brennauer was entitled
to a jury instruction on the insanity defense. However, the
State requested an instruction be given mirroring the language
of § 29-2203(4), which the jury received as instruction No.
6: “Insanity does not include any temporary condition that
was proximately caused by the voluntary ingestion, inhala-
tion, injection, or absorption of intoxicating liquor, any drug or
mentally debilitating substance, or any combination thereof.”
Brennauer objected to the giving of instruction No. 6 at trial,
but he does not assign the giving of such instruction as error
on appeal.
[5-7] However, the Nebraska Constitution guarantees a fair
and impartial trial to every citizen of this state, and this
demands that, in the consideration of the evidence, the jury
must be guided in its deliberations by a correct statement of
the law. 11 Accordingly, whether requested to do so or not, a
trial court has the duty to instruct the jury on issues presented
by the pleadings and the evidence, and it must, on its own
motion, correctly instruct on the law. 12 Likewise, where a
10
See, State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020); State v.
Bigelow, 303 Neb. 729, 931 N.W.2d 842 (2019).
11
Kennison v. State, 80 Neb. 688, 115 N.W. 289 (1908). See Neb. Const. art.
I, § 11. See, also, State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).
12
See, Neb. Rev. Stat. § 25-1111 (Reissue 2016); State v. Kipple, 310 Neb.
654, 968 N.W.2d 613 (2022); State v. Weaver, 267 Neb. 826, 677 N.W.2d
502 (2004); State v. Adams, 251 Neb. 461, 558 N.W.2d 298 (1997). See,
also, State v. Prim, 201 Neb. 279, 267 N.W.2d 193 (1978); Metz v. State,
46 Neb. 547, 65 N.W. 190 (1895).
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Cite as 314 Neb. 782determination is necessary to a reasonable and sensible dis-
position of the issues presented, we are required by necessity
to notice plain error based on the theory of the case as tried. 13
Because the effect of § 29-2203(4) was necessary to the dis-
position of the issues presented to the jury, we are required by
necessity to consider its effect and determine whether instruc-
tion No. 6 and Brennauer’s requested instruction No. 7 defin-
ing proximate cause were plain error.
[8] We note that since we have not had the opportunity
before now to address the effect of § 29-2203(4) on the insan-
ity defense, the district court did not have the benefit of our
guidance regarding § 29-2203(4) when it instructed the jury.
As a general rule, when instructing the jury, it is proper for the
court to describe the offense in the language of the statute. 14 In
light of the State’s request for the instruction, the district court
did not err under this general rule.
However, while instruction No. 6 mirrored the language of
§ 29-2203(4) and was a correct statement of law in isolation,
Brennauer argues that reversal is nevertheless necessary. He
asserts that the State “complicated the issue” presented to the
jury by the evidence it adduced from the expert witnesses and
by its closing argument such that the jury was confused. 15 He
points out, for example, that the State suggested to the jury
in its closing argument that the jury could not find Brennauer
was insane if it found that Brennauer’s memory loss of the
incident was due to his intoxication, which could not be ruled
out completely.
13
See, State v. Conover, 270 Neb. 446, 703 N.W.2d 898 (2005); State v.
Goodseal, 186 Neb. 359, 183 N.W.2d 258 (1971); State v. Majors, 85 Neb.
375, 123 N.W. 429 (1909). See, also, State v. Johnson, 269 Neb. 507, 695
N.W.2d 165 (2005); State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974).
14
See, State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016); State v.
Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
15
Supplemental brief for appellant at 18.
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Cite as 314 Neb. 782The State argues that sufficient evidence supports the
jury’s rejection of Brennauer’s insanity defense because “even
though the experts agreed that Brennauer had a mental dis-
ease at the time of the offenses,” they did not agree as to
whether Brennauer suffered a lack of capacity. 16 The State
contends that reversal is unnecessary because the evidence
undisputedly showed that Brennauer’s “mental condition” at
the time of the offense was a temporary condition proximately
caused by his intoxication. 17 As it states, “[T]he trial evidence
was undisputed that over the course of more than a year
leading up to the offenses in this case, Brennauer voluntarily
ingested marijuana, methamphetamine, and alcohol.” 18 The
State continues:
Although Brennauer was not intoxicated at the time of
his crimes, the evidence at trial was that his delusional
psychiatric condition at that time was temporary and
proximately caused by Brennauer’s voluntary ingestion,
inhalation, injection, or absorption of intoxicating liquor,
any drug or other mentally debilitating substance, or any
combination thereof. Indeed, this is the only conclusion
a reasonable jury could reach because it was undisputed
at trial that Brennauer’s voluntary use of substances both
initiated, and exacerbated or worsened, his delusional
psychiatric mental condition upon which he relies for his
insanity defense. Such a condition was also a natural and
probable result of substance use, particularly his chronic
use of methamphetamine, and there was no efficient
intervening cause. Therefore, Brennauer’s use of sub-
stances was a proximate cause of his mental condition.
Moreover, it was a temporary condition because he was
psychiatrically stable in 2017, before he began using
16
Brief for appellee at 49.
17
Supplemental brief for appellee at 11.
18
Supplemental brief for appellee at 9-10.
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Cite as 314 Neb. 782substances, and less than three weeks after the offense,
having been deprived of his use of substances, Brennauer
was no longer in a delusional psychiatric state. 19
However, if taken to its logical conclusion, the essence of
the State’s argument is that the undisputed evidence shows
Brennauer was not entitled to an instruction on the insanity
defense. Based on our review of the record, we cannot agree
with that conclusion.
Intoxication and Settled Insanity.
[9] The insanity defense developed early at common law,
and Nebraska formally adopted the M’Naghten 20 rule of insan-
ity in 1876, which recognizes that “where an individual lacks
the mental capacity to distinguish right from wrong, in refer-
ence to the particular act complained of, the law will not hold
him [or her] responsible.” 21 Accordingly, in Nebraska, 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 conse-
quences of his or her actions or that he or she did not know the
difference between right and wrong. 22 To be found not respon-
sible by reason of insanity, the insanity must be shown to exist
at the time of the offense charged. 23
The State’s argument reads the “temporary condition”
within § 29-2203(4) to affect the second prong of the insan-
ity defense, the defendant’s lack of capacity, rather than the
first, whether the defendant suffered from a mental disease.
19
Supplemental brief for appellee at 11.
20
M’Naghten’s Case, (1843) 8 Eng. Rep. 718, 10 Cl. & Fin. 200.
21
Wright v. The People, 4 Neb. 407, 409 (1876). See State v. Hotz, 281 Neb.
260, 795 N.W.2d 645 (2011).
22
State v. Johnson, 308 Neb. 331, 953 N.W.2d 772 (2021).
23
State v. Carr, 231 Neb. 127, 435 N.W.2d 194 (1989); Bothwell v. State, 71
Neb. 747, 99 N.W. 669 (1904).
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Cite as 314 Neb. 782Under the State’s interpretation of § 29-2203(4), a success-
ful insanity defense is precluded when any voluntary use
of intoxicating substances led to the defendant’s lack of
capacity. But the State’s argument overlooks our longstand-
ing precedent that distinguishes “temporary insanity” from
“settled insanity.”
We have long held that voluntary intoxication is not a
complete defense to a crime, even when it produces psy-
chosis or delirium. 24 A defendant’s loss of capacity that
was immediately produced by intoxication does not excuse
criminal responsibility if the accused became voluntarily
intoxicated. 25 As it has often been termed, such “temporary
insanity” does not entitle a defendant to raise an insanity
defense. 26 Quite simply, intoxication is not a mental disease
or defect. 27
Yet, one may be both intoxicated and insane. 28 In such
a case, the pertinent factual issue becomes the reason for
the defendant’s lack of capacity under the second prong of
M’Naghten in relation to the defendant’s actions. To be found
criminally responsible, the defendant’s lack of capacity at the
24
State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018); State v. Hotz, supra
note 21. See, State v. Bigelow, supra note 10; State v. Dubray, 289 Neb.
208, 854 N.W.2d 584 (2014); Hill v. State, 42 Neb. 503, 60 N.W. 916(1894); Schlencker v. The State, 9 Neb. 241, 1 N.W. 857 (1879), reversed
on rehearing on other grounds 9 Neb. 300, 2 N.W. 710.
25
See, State v. Hotz, supra note 21; Schlencker v. The State, supra note 24.
See, also, State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017). Cf.
Hopt v. People, 104 U.S. 631, 26 L. Ed. 873 (1881); Com. v. Herd, 413
Mass. 834, 604 N.E.2d 1294 (1992); Duke v. State, 61 Tex. Crim. 441, 134
S.W. 705 (1910); Commonwealth v. Hawkins, 69 Mass. 463 (1855).
26
See, State v. Bigelow, supra note 10; State v. Hotz, supra note 21.
27
See State v. Hotz, supra note 21.
28
See, Berry v. State, 969 N.E.2d 35 (Ind. 2012); State v. Silvers, 323 N.C.
646, 374 S.E.2d 858 (1989); Harris v. State, 250 Ga. 889, 302 S.E.2d 104(1983).
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Cite as 314 Neb. 782time of the offense as to the crimes charged must be due to
voluntary intoxication. 29
[10] The law has also long recognized a wide distinc-
tion between those cases where a criminal defendant’s loss
of capacity results from voluntary periodic intoxication and
where the condition of insanity is produced by protracted
overindulgence or abuse. 30 The latter has been referred to as
“settled” or “fixed” insanity. 31 Settled insanity produced by
intoxication affects criminal responsibility in the same way
as insanity produced by any other cause. 32 To be punishable
under such circumstances, the crime must take place and be
the immediate result of a fit of intoxication, and not the result
of insanity occasioned by previous bad habits. 33
29
See, State v. Hotz, supra note 21; Wright v. The People, supra note 21.
30
See, Hill v. State, supra note 24 (citing cases); Regina v. Oxford, (1840)
173 Eng. Rep. 941, 9 Car. & P. 525. See, also, U.S. v. McGlue, 26 F. Cas.
1093 (C.C.D. Mass. 1851); Jones v. State, 648 P.2d 1251 (Okla. Crim.
App. 1982); Johnson v. Commonwealth, 135 Va. 524, 115 S.E. 673 (1923);
People v. Travers, 88 Cal. 233, 26 P. 88 (1891); State v. Hundley, 46 Mo.
414 (1870); People v. Rogers, 18 N.Y. 9 (1858).
31
State v. Hotz, supra note 21. See, Schlencker v. The State, supra note 24;
Wright v. The People, supra note 21. See, also, Parker v. State, 7 Md. App.
167, 179, 254 A.2d 381, 388 (1969) (“the distinction . . . is not so much
between temporary and permanent insanity as it is one between the direct
results of drinking, which are voluntarily sought after”). See, generally,
40 C.J.S. Homicide § 23 at 421 (2014) (“[o]ne who was insane from the
combined effect of the use of intoxicating liquors and some other cause is
not criminally responsible unless the direct, immediate, and primary cause
of the insanity was the use of the intoxicating liquors”).
32
State v. Hotz, supra note 21; Schlencker v. The State, supra note 24. See
State v. Williams, supra note 25. See, also, Com. v. Herd, supra note 25;
Duke v. State, supra note 25.
33
See, State v. Hotz, supra note 21; Schlencker v. The State, supra note
24. See, also, U.S. v. Drew, 25 F. Cas. 913, 913-14 (C.C.D. Mass. 1828)
(“[a]s he was not then intoxicated, . . . he cannot be pronounced guilty of
the offence. The law looks to the immediate, and not to the remote cause;
to the actual state of the party, and not to the causes, which remotely
produced it”).
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STATE V. BRENNAUER
Cite as 314 Neb. 782Effect of 2011 Neb. Laws, L.B. 100.
We begin with discussion of legislation adopted in 2011. 34
It contained three sections: one provided for a new statute, one
amended an existing statute, and the final section repealed the
original of the amended statute.
The first section of the legislative act provided for a new
statute addressing the criminal responsibility of intoxicated
persons. 35 The new statute, codified as Neb. Rev. Stat. § 29-122(Reissue 2016), states: “A person who is intoxicated is crimi-
nally responsible for his or her conduct. Intoxication is not
a defense to any criminal offense and shall not be taken into
consideration in determining the existence of a mental state
that is an element of the criminal offense . . . .”
The second section of the act amended § 29-2203, the
statute addressing the defense of not responsible by reason
of insanity, to add a fourth subsection. 36 Section 29-2203(4)
provides that “[f]or purposes of this section, insanity does not
include any temporary condition that was proximately caused
by the voluntary ingestion, inhalation, injection, or absorption
of intoxicating liquor, any drug or other mentally debilitating
substance, or any combination thereof.” Because L.B. 100, § 2,
amended § 29-2203, the third section of the bill repealed the
original section of § 29-2203. 37
[11-13] To determine the effect of L.B. 100, we start with
its language. Statutory interpretation begins with the text,
and the text is to be given its plain and ordinary meaning. 38
An appellate court will not resort to interpretation of statu-
tory language to ascertain the meaning of words which are
plain, direct, and unambiguous. 39 In construing a statute,
34
See 2011 Neb. Laws, L.B. 100.
35
Id., § 1.
36
See id., § 2.
37
See id., § 3.
38
State v. Dailey, ante p. 325, 990 N.W.2d 523 (2023).
39
State v. Godek, 312 Neb. 1004, 981 N.W.2d 810 (2022).
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Cite as 314 Neb. 782the legislative intention is to be determined from a general
consideration of the whole act with reference to the subject
matter to which it applies and the particular topic under which
the language in question is found, and the intent as deduced
from the whole will prevail over that of a particular part con-
sidered separately. 40
Reading the text of the act as a whole, we cannot definitely
discern that the Legislature did not intend to change the law
regarding settled insanity. While § 29-2203(4), considered in
isolation, can be read consistently with settled insanity jurispru-
dence, we do not believe that §§ 29-122 and 29-2203(4), read
together, compel a conclusion that no change was intended. In
that sense, L.B. 100 was ambiguous.
[14] In order for a court to inquire into a statute’s legislative
history, that statute in question must be open to construction,
and a statute is open to construction when its terms require
interpretation or may reasonably be considered ambiguous. 41
Because we find ambiguity concerning L.B. 100, it is appropri-
ate to consider legislative history.
We do not read the legislation to have effectuated any change
in the insanity defense as it was established in this state. 42 A
proponent’s testimony at the committee hearing that “the goal
of this legislation is to directly prevent those temporary mental
illnesses that are directly or proximately caused by the drugs
themselves and not some permanent, non-self-induced, directly
self-induced mental illness like settled insanity that develops
over time” 43 speaks most directly to that intent.
40
State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).
41
State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
42
Compare State v. Hotz, supra note 21, with Floor Debate, L.B. 100,
Judiciary Committee, 102d Leg., 1st Sess. 9-12 (Mar. 15, 2011), and
Judiciary Committee Hearing, L.B. 100, 102d Leg., 1st Sess. 36-38 (Jan.
21, 2011).
43
Judiciary Committee Hearing, L.B. 100, 102d Leg., 1st Sess. 40 (Jan. 21,
2011).
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Cite as 314 Neb. 782Weeks before the passage of § 29-2203(4), we decided State
v. Hotz, 44 wherein we reaffirmed our longstanding precedent
that temporary insanity caused by voluntary intoxication is
not a complete defense to a crime. We explained that the ori-
gin of voluntary intoxication, no matter the substance, as a
self-induced impairment fundamentally distinguishes it from
a mental disease or defect. “‘Indeed, it is universally recog-
nized that a condition of insanity brought about by an indi-
vidual’s voluntary use of alcohol or drugs will not relieve the
actor of criminal responsibility for his or her acts.’” 45
We note that § 29-2203(4) was specifically designed to
address Joseph D. Hotz’ attempt to raise the insanity defense
at trial. 46 Hotz had consumed psilocybin mushrooms with his
roommate. While intoxicated and under the influence of these
drugs, Hotz murdered his roommate. At trial, Hotz attempted
to raise a not responsible by reason of insanity defense, but the
trial court refused to instruct the jury on the insanity defense.
On appeal, we concluded that Hotz was not entitled to an
insanity instruction because
Hotz voluntarily ingested hallucinogenic mushrooms and
marijuana. He had taken mushrooms in the past and had
experienced anxiety and delusions. Hotz was well aware
of the mind-altering effects the mushrooms might have.
While Hotz may have experienced a state that was “tan-
tamount to insanity,” that state was temporary. Hotz took
the mushrooms around 4 p.m. on December 5, 2008, and
by late that night, he was lucid and able to respond to
44
State v. Hotz, supra note 21.
45
Id. at 277, 795 N.W.2d at 657 (quoting State v. Sexton, 180 Vt. 34, 44, 904
A.2d 1092, 1100 (2006) (holding defendant can be not responsible for his
conduct as result of independently preexisting mental disease or defect),
overruled on other grounds, State v. Congress, 198 Vt. 241, 114 A.3d 1128(2014)).
46
See, Floor Debate, 102d Leg., 1st Sess. 10-11 (Mar. 15, 2011); Judiciary
Committee Hearing, 102d Leg., 1st Sess. 37-38 (Jan. 21, 2011).
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Cite as 314 Neb. 782questions. Hotz had no history of mental illness, and there
is no evidence that he suffered permanent mental prob-
lems from his use of drugs. 47
[15] We interpret § 29-2203(4) as a codification of our
longstanding precedent, which we reaffirmed in Hotz, that as
a matter of law, voluntary intoxication is not a mental disease
or defect for the purpose of the insanity defense. 48 In enact-
ing a statute, the Legislature is presumed to know the general
condition surrounding the subject matter of the legislative
enactment, and it is presumed to know and contemplate the
legal effect that accompanies the language it employs to make
effective the legislation. 49 As our precedent has held that
the insanity defense does not include any temporary insan-
ity caused by voluntary intoxication, § 29-2203(4) states
that insanity does not include any temporary condition that
was proximately caused by the voluntary use of intoxicat-
ing substances.
[16] The State’s argument also overlooks that the require-
ment of proximate cause is more restrictive than a requirement
of factual cause alone. 50 The idea of proximate cause is a flex-
ible concept that generally refers to the basic requirement that
there must be some direct relation between the result and the
alleged conduct. 51 A requirement of proximate cause serves to
preclude criminal responsibility in situations where the causal
link between conduct and result is so attenuated that the
47
State v. Hotz, supra note 21, 281 Neb. at 277, 795 N.W.2d at 657-58.
48
See Judiciary Committee Hearing, 102d Leg., 1st Sess. 38, 40-41 (Jan.
21, 2011) (noting exceptions for involuntary intoxication and prolonged
intoxication, as well as discussing lack of effect on settled insanity). See,
also, Floor Debate, 102d Leg., 1st Sess. 11-12 (Mar. 15, 2011).
49
Bohac v. Benes Service Co., 310 Neb. 722, 969 N.W.2d 103 (2022).
50
Paroline v. United States, 572 U.S. 434, 134 S. Ct. 1710, 188 L. Ed. 2d
714 (2014).
51
See State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016) (citing Paroline
v. United States, supra note 50).
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Cite as 314 Neb. 782consequence is more aptly described as mere fortuity. 52 It
would be the end of the insanity defense if any voluntary use
of intoxicating substances, no matter how attenuated, precluded
a criminal defendant from being legally insane. 53
[17] We decline to adopt the State’s reading of § 29-2203(4).
As we have mentioned, the enactment of § 29-2203(4) merely
codified our longstanding precedent that a mental disease or
defect does not include voluntary intoxication, and a defend­
ant’s loss of capacity that was immediately produced by intoxi-
cation does not excuse criminal responsibility if the accused
became voluntarily intoxicated. We note that in adhering to
our precedent, our conclusion is consistent with the approach
recently taken by other courts. 54
Applied to Brennauer’s Case.
[18] We now turn back to our consideration of whether
instructions Nos. 6 and 7 were plain error and whether the
giving of these instructions was prejudicial or harmless. When
examining for harmless error, the court may look at a vari-
ety of factors, including the jury instructions as a whole,
52
See id.
53
See, also, State v. Hundley, supra note 30.
54
See, Kassa v. State, 137 Nev. 150, 485 P.3d 750 (2021) (recognizing
disease or defect of mind does not include mental state caused solely
by voluntary intoxication); State v. Abion, 148 Haw. 445, 478 P.3d
270 (2020) (holding self-induced intoxication exception only applies to
acts committed while temporarily under influence of voluntarily ingested
substances); Commonwealth v. Dunphe, 485 Mass. 871, 153 N.E.3d 1254(2020) (holding insanity defense not foreclosed where defendant’s long-
term drug use caused or exacerbated mental illness or defect); McNeil
v. U.S., 933 A.2d 354 (D.C. 2007) (holding no evidence was presented
that defendant was suffering from drug-induced mental illness at time of
offense); White v. Com., 272 Va. 619, 636 S.E.2d 353 (2006) (recognizing
distinction of settled insanity adopted long ago); State v. Sexton, supra
note 44 (holding defendant can be not responsible for his conduct as result
of preexisting mental disease or defect). Cf. People v. Voth, 312 P.3d 144(Colo. 2013). But see Bieber v. People, 856 P.2d 811 (Colo. 1993).
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Cite as 314 Neb. 782the evidence presented at trial, and the closing arguments. 55
In doing so, we review the language of the instructions in
light of the State’s theory of the case and our settled insanity
precedent. 56
As we have concluded, Brennauer’s use of substances had
no legal effect on the determination of whether he suffered
from his mental disease. At trial, both experts agreed, as the
record overwhelmingly shows, that Brennauer was suffering
from a mental disease at the time of the charged offenses and
satisfied the first prong of the insanity defense. The State
adduced significant testimony concerning Brennauer’s history
of substance abuse. Both experts agreed that Brennauer was
not intoxicated at the time of his actions. But the State’s expert
testified that intoxication could not be “rule[d] out entirely” as
the cause of Brennauer’s memory loss.
[19-21] We have long recognized that jurors are not law-
yers and that instructions must not be of such a nature as to
be confusing to those not trained in the law. 57 The purpose of
instructions is to furnish guidance to the jury in its delibera-
tions and to aid it in arriving at a proper verdict; and, with
this end in view, the jury instructions should state clearly and
concisely the issues of fact and the principles of law that are
necessary to enable them to accomplish the purpose desired. 58
Accordingly, a jury instruction that misstates the issues and
has a tendency to confuse the jury is erroneous. 59 That is why,
55
State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
56
See, State v. Conover, supra note 13; State v. Goodseal, supra note 13;
State v. Majors, supra note 13.
57
See, Hutchinson v. Western Bridge & Construction Co., 97 Neb. 439,
150 N.W. 193 (1914); Bloom v. State, 95 Neb. 710, 146 N.W. 965 (1914)
(Hamer, J., dissenting); Reed v. McRill, 41 Neb. 206, 59 N.W. 775 (1894).
See, also, State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013).
58
See, Fulmer v. State, 178 Neb. 20, 131 N.W.2d 657 (1964); Lynn v. City of
Omaha, 153 Neb. 193, 43 N.W.2d 527 (1950).
59
State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).
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Cite as 314 Neb. 782on occasion, the language used in jury instructions should
be adapted to the understanding of the jury to which it is
directed. 60 Brennauer’s case presented such an occasion.
Even assuming there was sufficient evidence in the record
of Brennauer’s intoxication to instruct the jury on the effect
of a temporary condition caused by voluntary intoxication,
we find that, given the evidence in the record of Brennauer’s
long-term substance use, the district court should also
have instructed the jury on the concept of settled insanity.
Specifically, the jury should have been instructed about the
difference between a temporary condition caused by volun-
tary intoxication and a settled or fixed condition caused by
intoxicating substances and that a defendant cannot be found
insane based on the former, but could be found insane as a
result of the latter. By giving the jury an instruction on a
temporary condition caused by voluntary intoxication with-
out also instructing on settled insanity, the district court’s
instructions did not adequately account for the full eviden-
tiary picture.
Given the unusual facts of this case, the jury instructions
created a significant danger that the jury erroneously con-
cluded that it was precluded from finding that Brennauer
was not responsible by reason of insanity solely because of
Brennauer’s prior drug use. Such an understanding would have
fundamentally affected what evidence the jury considered,
how the jury weighed the evidence, and, potentially, its ver-
dict. 61 The danger of such a possibility prejudicially affected
60
See Yeoman v. State, 81 Neb. 244, 115 N.W. 784 (1908), modified on
rehearing 81 Neb. 252, 117 N.W. 997. See, also, State v. Abram, 284
Neb. 55, 815 N.W.2d 897 (2012); State v. Adams, supra note 12; Krehnke
v. Farmers Union Co-op. Assn., 199 Neb. 632, 260 N.W.2d 601 (1977);
Hutchinson v. Western Bridge & Construction Co., supra note 57; Jones
v. Bates, 26 Neb. 693, 42 N.W. 751 (1889). Cf. Commonwealth v.
Batchelder, 407 Mass. 752, 555 N.E.2d 876 (1990); Centurion Stone of
Nebraska v. Trombino, 19 Neb. App. 643, 812 N.W.2d 303 (2012).
61
See Davis v. State, 90 Neb. 361, 133 N.W. 406 (1911).
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Cite as 314 Neb. 782Brennauer’s substantial rights. 62 This error is plainly evident
from the record and is of such a nature that leaving it uncor-
rected would damage the integrity, reputation, or fairness of
the judicial process. Accordingly, we notice plain error and
conclude that this error was not harmless and that reversal
is necessitated. Hence, we vacate Brennauer’s convictions
and sentences.
Because our conclusion does not rest on a failure by the
State to make a prima facie showing of Brennauer’s guilt as
sufficient evidence was adduced at trial to sustain guilty ver-
dicts, we remand the cause for a new trial. 63 On remand, the
State is not foreclosed from introducing competent evidence
to support its theory that Brennauer was criminally responsible
due to his voluntary intoxication. If the State does so, the dis-
trict court should craft appropriate instructions in light of the
evidence presented at the new trial.
Further, we note that since the time of Brennauer’s trial,
we have instructed trial courts to discontinue the practice of
separately instructing juries on efficient intervening cause in
favor of the more direct and clear instructions based on the
concept of proximate or concurring cause. 64 A separate instruc-
tion is confusing to lay jurors and distracts them from the ulti-
mate question. 65 When there is an applicable instruction in the
Nebraska Jury Instructions, the court should usually give that
instruction to the jury in a criminal case. 66
62
See, also, Com. v. Berry, 457 Mass. 602, 931 N.E.2d 972 (2010) (holding
when jury could have believed any alcohol that exacerbated defendant’s
mental illness would result in forfeiture of insanity defense, even if
defendant’s mental disease or defect caused defendant’s loss of substantial
capacity, was reversible error).
63
See, State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013); State v.
McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
64
See State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).
65
See id.66
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Cite as 314 Neb. 782[22] In light of our decision, the record may differ sub-
stantially on remand. Accordingly, we decline to address
Brennauer’s assignments of error concerning the pretrial
motions. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and contro-
versy before it. 67
CONCLUSION
On account of our interpretation of § 29-2203(4) and the
particular facts of this case, we notice plain error in the instruc-
tions given to the jury and conclude that such error was not
harmless. We, therefore, reverse the district court’s judgment,
vacate Brennauer’s convictions and sentences, and remand the
cause for a new trial.
Judgment reversed, convictions and
sentences vacated, and cause
remanded for a new trial.
67
State v. Yzeta, 313 Neb. 202, 983 N.W.2d 124 (2023).
Heavican, C.J., concurring.
I agree with and join the opinion of the court. When read
in the context of our jurisprudence, § 29-2203(4) is simply a
codification of our long-settled precedent. And in light of the
theory of the State’s case, the jury instructions as given had
a tendency to confuse and mislead the jury, which amounted
to plain error. I write separately to express my reservation
regarding the absence of a jury instruction regarding the issue
of Brennauer’s potential voluntary intoxication.
In our order for supplemental briefing, the parties were
directed to submit briefs addressing the applicable burden
of proof with respect to the issues of voluntary intoxication
and proximate cause, and whether the failure to instruct the
jury as to which party bore the applicable burden of proof
with respect to the issues of voluntary intoxication, proxi-
mate cause, or both constituted plain error that necessitated
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Cite as 314 Neb. 782reversal. I recognize that in light of the plain error in the jury
instructions regarding settled insanity, a determination is not
necessary to resolve Brennauer’s appeal. Hence, I decline
to opine on whether the State should bear the burden to
prove beyond a reasonable doubt that Brennauer was crimi-
nally responsible due to his voluntary intoxication or whether
Brennauer should bear the burden to disprove his voluntary
intoxication as part of proving his insanity defense by a pre-
ponderance of the evidence.
Nonetheless, in my view, the failure to provide the jury with
any instruction on the burden of proof was misleading and did
not adequately cover the issues such that it was a prejudicial
error that necessitated reversal. If the State contends on remand
that any lack of capacity Brennauer experienced in relation to
his actions, which would otherwise satisfy the second prong of
the insanity defense, was a result of his voluntary intoxication
such that he is criminally responsible, it is my opinion that
the jury should receive instruction on the applicable burden
of proof.
Miller-Lerman, J., joins in this concurrence.