State v. Esch ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/01/2023 09:08 AM CST
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. ESCH
Cite as 315 Neb. 482State of Nebraska, appellee, v.
Trenton R. Esch, appellant.
___ N.W.2d ___
Filed December 1, 2023. No. S-22-855.
1. 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.
2. ____: ____. 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 evi-
dence, there is no prejudicial error necessitating reversal.
3. ____: ____. Failure to object to a jury instruction after it has been sub-
mitted to counsel for review precludes raising an objection on appeal
absent plain error indicative of a probable miscarriage of justice.
4. Effectiveness of Counsel: Appeal and Error. An appellate court
resolves claims of ineffective assistance of counsel on direct appeal
only where the record is sufficient to conclusively determine whether
trial counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient
performance as matters of law.
5. ____: ____. An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires an evidentiary hearing.
6. Effectiveness of Counsel: Proof: Appeal and Error. When reviewing
an ineffective assistance of counsel claim on direct appeal, the ques-
tion is whether the record affirmatively shows that the defendant’s trial
counsel’s performance was deficient and that the deficient performance
actually prejudiced the defendant’s defense.
7. Effectiveness of Counsel: Proof. A court may examine performance
and prejudice in any order and need not examine both prongs if a
defendant fails to demonstrate either.
8. Criminal Law: Jury Instructions. When there is an applicable instruc-
tion in the Nebraska Jury Instructions, the court should usually give
that instruction to the jury in a criminal case.
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STATE V. ESCH
Cite as 315 Neb. 4829. Constitutional Law: Jury Instructions: Proof. So long as the court
instructs the jury on the necessity that the defendant’s guilt be proved
beyond a reasonable doubt, the U.S. Constitution does not require that
any particular form of words be used in advising the jury of the govern-
ment’s burden of proof. Rather, taken as a whole, the instructions must
correctly convey the concept of reasonable doubt to the jury.
10. Jury Instructions: Presumptions. It is presumed that a jury followed
the instructions given in arriving at its verdict, and unless it affirma-
tively appears to the contrary, it cannot be said that such instructions
were disregarded.
11. Criminal Law: Intoxication: Proof. Neb. Rev. Stat. § 29‑122 (Reissue
2016) redefined the mental state elements of all subjective criminal
offenses in Nebraska to provide for an objective inquiry: whether the
State proved circumstances surrounding the offense that would other-
wise establish the requisite mental state “but for” the defendant’s vol-
untary intoxication.
12. Criminal Law: Rules of Evidence: Other Acts. In a criminal case,
Neb. Rev. Stat. § 27‑404(1) (Cum. Supp. 2022) operates as a broad
exclusionary rule of relevant evidence that speaks to a criminal defend­
ant’s propensity to have committed the crime or crimes charged.
13. Rules of Evidence: Other Acts. Neb. Rev. Stat. § 27‑404(2) (Cum.
Supp. 2022) operates as an inclusionary rule of evidence that provides
that evidence that raises a propensity inference is admissible for other
proper purposes, including proof of motive, intent, preparation, or
absence of mistake or accident.
14. Criminal Law: Rules of Evidence: Other Acts: Trial: Proof. While
evidence is not an “other act” under Neb. Rev. Stat. § 27‑404(2) (Cum.
Supp. 2022) when it only tends to logically prove an element of the
crime charged, proof of another distinct substantive act is admissible
in a criminal prosecution when there is some legal connection between
the two upon which it can be said that one tends to establish the other
or some essential fact in issue.
15. Rules of Evidence: Records. Under Neb. Rev. Stat. § 27‑404(3) (Cum.
Supp. 2022), a proponent of evidence offered pursuant to § 27‑404(2),
upon objection to its admissibility, is required to state on the record the
specific purpose or purposes for which the evidence is being offered,
and the trial court must similarly state, on the record, the purpose or
purposes for which such evidence is received.
16. Criminal Law: Rules of Evidence: Other Acts: Proof: Jury
Instructions. Neb. Rev. Stat. § 27‑404(3) (Cum. Supp. 2022) pro-
vides that in criminal cases, before the admission of evidence under
§ 27‑404(2), the prosecution must prove to the court, outside the pres-
ence of any jury, by clear and convincing evidence that the accused
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Nebraska Supreme Court Advance Sheets
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STATE V. ESCH
Cite as 315 Neb. 482committed the crime, wrong, or act. When admissible, upon a party’s
request, the trial court must instruct the jury as to the specific purposes
for which the evidence was received.
17. Homicide: Words and Phrases. For a killing to occur upon a sudden
quarrel, the defendant must have actually lost self‑control and in condi-
tions that would cause a reasonable person to lose normal self‑control.
18. Motions for Mistrial: Motions to Strike: Appeal and Error. Error
cannot ordinarily be predicated on the failure to grant a mistrial if an
objection or motion to strike the improper material is sustained and the
jury is admonished to disregard such material.
Appeal from the District Court for Custer County: Karin L.
Noakes, Judge. Affirmed.
Mark E. Rappl, of Naylor & Rappl Law Office, for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Pirtle, Chief Judge.
Heavican, C.J.
I. INTRODUCTION
Trenton R. Esch appeals from his convictions and sentences
after a trial by jury for first degree murder, 1 use of a deadly
weapon to commit a felony, 2 and possession of a deadly
weapon by a prohibited person. 3 Esch received a life sentence
for his conviction of first degree murder and consecutive
sentences of 45 to 50 years’ imprisonment for his use and
possession of a deadly weapon. 4 Because of the life sentence
imposed by the district court, this appeal was directly filed
with this court. 5
1
Neb. Rev. Stat. § 28‑303 (Reissue 2016).
2
Neb. Rev. Stat. § 28‑1205 (Reissue 2016).
3
Neb. Rev. Stat. § 28‑1206 (Cum. Supp. 2022).
4
See Neb. Rev. Stat. § 28‑105 (Cum. Supp. 2022).
5
See Neb. Rev. Stat. § 24‑1106(1) (Cum. Supp. 2022).
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STATE V. ESCH
Cite as 315 Neb. 482II. BACKGROUND
Esch’s charges arose from the death of Esch’s stepmother
after Esch discharged a firearm at her on July 11, 2020. Esch
was 44 years old.
It was undisputed at trial that Esch’s stepmother was shot
multiple times when Esch emptied the magazine of a .22‑caliber
target pistol at her. The sole issue at trial was the grade of
homicide Esch committed: whether Esch shot his stepmother
purposely and with deliberate and premeditated malice (first
degree murder) 6; intentionally, but without premeditation (sec-
ond degree murder) 7; or without malice upon a sudden quarrel
(manslaughter). 8 We recount the evidence presented to the jury
of events particularly relevant to this issue.
Shortly after Esch was born, his parents divorced, which
the record suggests was related to his father’s alcoholism. His
father later remarried and became sober. Esch’s father lived
and farmed in Broken Bow, Nebraska. As a child, Esch spent
every other weekend with his father and his paternal grandpar-
ents on his grandparents’ neighboring farm. His relationship
with his stepmother was strained, and Esch felt that she did
not like him and bullied him and his father.
After Esch graduated from high school, he forewent attend-
ing college and assisted his aging grandfather in running his
grandparents’ farm for a decade until his grandfather died in
2004. Esch then took over the farming operation and cared
for his grandmother. Esch’s grandmother, his father, and Esch
discussed the farm’s future on a couple of occasions. After
these discussions, Esch’s grandmother deeded the farm to
Esch’s father, and there was at least some consideration that
6
See § 28‑303.
7
See Neb. Rev. Stat. § 28‑304 (Reissue 2016).
8
See Neb. Rev. Stat. § 28‑305 (Reissue 2016). See, also, State v. Smith, 282
Neb. 720, 806 N.W.2d 383 (2011), overruling State v. Jones, 245 Neb.
821, 515 N.W.2d 654 (1994); State v. Pettit, 233 Neb. 436, 445 N.W.2d
890 (1989).
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STATE V. ESCH
Cite as 315 Neb. 482Esch would later inherit the farm. Esch’s stepmother was
present for one of those discussions.
In 2007, Esch’s grandmother broke her hip and was moved
into a nursing home. Esch moved into his grandparents’ house
and continued running the farming operation. Shortly there-
after, Esch’s father deeded some of the farmland to him. His
grandmother passed away in 2011.
In 2012, Esch was convicted of felony criminal mischief 9
and sentenced to 20 to 36 months’ incarceration. 10 While Esch
was incarcerated, his father committed suicide, for which
Esch blamed his stepmother’s bullying. After his father’s
death, Esch learned that his father had disinherited him in a
2010 will, and his stepmother became the owner of his grand-
parents’ house and farm. Esch believed his stepmother bullied
his father into removing Esch from the will.
Esch completed his sentence in 2015 and resumed farming
the land his father deeded him. But Esch’s stepmother did not
let him return to his grandparents’ home and deeded some of
the property to Esch’s half sisters. Thereafter, Esch filed a civil
suit alleging that his grandmother established a constructive
trust and that Esch’s father held the property for his benefit.
That suit was ultimately unsuccessful.
While the civil suit was pending, Esch’s stepmother and
half sisters sought harassment protection orders, alleging that
Esch was harassing them with phone calls and text messages.
The harassment protection orders were granted, and Esch was
ordered to have no contact with them.
Esch later violated the harassment protection orders when
he texted one of his half sisters, “hope your husband shows
up at the fair this year to help with the calves,” because at
the fair the year before the son’s calf “drug him all over the
fairgrounds,” as well as when Esch later called his stepmother
about an upcoming suicide walk. Esch was convicted of the
9
Neb. Rev. Stat. § 28‑519 (Reissue 2016).
10
See State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015).
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STATE V. ESCH
Cite as 315 Neb. 482violations and sentenced to county jail for a total of 180 days.
He completed serving the sentences in March 2020.
On the evening of July 11, 2020, Esch stopped at a gas sta-
tion. A witness who knew Esch testified that Esch was “prob-
ably pretty intoxicated” because he observed Esch stumble
when pumping gas and Esch’s speech was slurred when con-
versing. The witness testified that after the two exchanged
pleasantries, Esch stated, “I’m thinking about fuckin’ some-
body up.” However, a police report reflects that the witness
told law enforcement that Esch asked him, “Have you ever
felt like kicking somebody’s ass?” The witness testified that he
was caught off guard by the comment, but then remembered
an incident at work 2 days prior, where a customer “kind of
ticked me off,” so the witness responded, “[Y]es, I feel like
that sometimes.”
In his defense, Esch testified that his question was in refer-
ence to a driver who had almost caused a collision with Esch’s
vehicle. Esch further testified that he then went to visit his
stepmother to offer to purchase his grandparents’ farm in dis-
regard of the harassment protection orders. When he arrived
at his stepmother’s home, he knocked on the front door and
proceeded to enter. His stepmother “got up and started yelling
and ran towards [him].” Esch attempted to calm her down but
was unsuccessful. When she said, “[Y]ou’re acting—or you
are crazy like your dad,” Esch said that “turned the switch”
and he snapped.
Two of Esch’s stepmother’s grandchildren were in the home.
Her grandson testified that “[Esch] came in and he said, I’ve
had enough. My grandma said, get out, and then he went up
to her and shot her.” He was 9 years old at the time. Video
evidence showed that Esch was in the home for approximately
30 seconds.
The jury found Esch guilty of first degree murder, as well
as of use of a deadly weapon to commit a felony and pos-
session of a deadly weapon by a prohibited person, both of
which Esch admitted to the jury at trial that he was guilty of
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STATE V. ESCH
Cite as 315 Neb. 482committing. Additional trial facts are set forth below as spe-
cifically relevant to Esch’s assignments of error.
III. ASSIGNMENTS OF ERROR
Esch assigns, restated, that the district court erred in its
instructions to the jury on (1) the State’s burden of proof and
(2) intoxication and that (3) his trial counsel was ineffective for
failing to object to those instructions. In addition, Esch assigns
that his trial counsel was ineffective for failing to (4) object to
improperly admitted evidence under Neb. Rev. Stat. § 27‑404
(Cum. Supp. 2022) of Esch’s prior conviction and evidence
related to the harassment protection orders and move for
a mistrial when that evidence was admitted, (5) adequately
argue that he acted under the provocation of a sudden quarrel,
(6) move for a mistrial based on improper witness testimony,
(7) retain an expert to conduct a psychological evaluation of
him, and (8) adequately discuss trial strategy with him.
IV. STANDARD OF REVIEW
[1‑3] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. 11 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. 12 Failure to object to a jury instruction
after it has been submitted to counsel for review precludes
raising an objection on appeal absent plain error indicative of
a probable miscarriage of justice. 13
[4,5] An appellate court resolves claims of ineffective assist­
ance of counsel on direct appeal only where the record is
11
State v. Brennauer, 314 Neb. 782, 993 N.W.2d 305 (2023).
12
Id.13
State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015). See State v.
Lee, 304 Neb. 252, 934 N.W.2d 145 (2019). Cf. Burgo v. State, 26 Neb.
639, 42 N.W. 701 (1889).
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STATE V. ESCH
Cite as 315 Neb. 482sufficient to conclusively determine whether trial counsel did
or did not provide effective assistance and whether the defend­
ant was or was not prejudiced by counsel’s alleged deficient
performance as matters of law. 14 An ineffective assistance
of counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. 15
[6,7] When reviewing an ineffective assistance of counsel
claim on direct appeal, the question is whether the record affirm­
atively shows that the defendant’s trial counsel’s performance
was deficient and that the deficient performance actually preju-
diced the defendant’s defense. 16 A court may examine perform-
ance and prejudice in any order and need not examine both
prongs if a defendant fails to demonstrate either. 17
To show deficient performance, the defendant must show
that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. 18 To show preju-
dice, the defendant must demonstrate a reasonable probability
that, but for counsel’s deficient performance, the result of the
proceeding would have been different. 19 A reasonable proba-
bility is a probability sufficient to undermine confidence in the
outcome. 20 Ultimately, “‘the Constitution guarantees criminal
defendants only a fair trial and a competent attorney.’” 21
14
See, State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023); State v.
Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022). See, also, Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
15
Id.16
See State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023). See, also,
Strickland v. Washington, supra note 14.
17
State v. Mabior, supra note 14.
18
See State v. Wheeler, supra note 16. See, also, Strickland v. Washington,
supra note 14.
19
Id.20
Id.21
State v. Sanders, 289 Neb. 335, 342, 855 N.W.2d 350, 356 (2014) (quoting
Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982)).
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STATE V. ESCH
Cite as 315 Neb. 482V. ANALYSIS
1. Jury Instructions
Esch first assigns that the district court erred in its instruc-
tions to the jury on the State’s burden of proof and intoxica-
tion. Relatedly, Esch also assigns that his trial counsel was
ineffective for failing to object to these two instructions.
We conclude that these assignments fail because there is no
plain error indicative of a probable miscarriage of justice and
that his counsel was not ineffective in failing to object.
(a) Reasonable Doubt Instruction
Esch contends that the district court’s step instruction on
first degree murder, second degree murder, and manslaughter
resulted in plain error indicative of a probable miscarriage
of justice because the court failed to properly instruct that
the burden was on the State to prove beyond a reasonable
doubt all the requisite elements of an offense in order to
find him guilty. In addition, Esch assigns that his counsel
provided ineffective assistance by failing to object to the
step instruction.
The district court’s step instruction stated that “[d]epend-
ing on the evidence, you may return one of several possible
verdicts,” which included guilty of murder in the first degree,
guilty of murder in the second degree, guilty of manslaugh-
ter, or not guilty. The separate sections of the instruction for
both first degree murder and second degree murder began by
stating: “The elements which the State must prove beyond a
reasonable doubt in order to convict [Esch of murder] are,”
followed by the elements of each offense. After instructing
the jury on the elements of each degree of homicide, the step
instruction stated the following:
You must separately consider in the following order
the crimes of Murder in the First Degree, Murder in the
Second Degree, and Manslaughter. For Murder in the First
Degree, you must decide whether the State proved each
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STATE V. ESCH
Cite as 315 Neb. 482element beyond a reasonable doubt. If the State did so
prove each element, then you must find [Esch] guilty of
Murder in the First Degree and stop. If you find that the
State did not so prove, then you must proceed to consider
the next crime in the list, Murder in the Second Degree.
You must proceed in this fashion to consider each of the
crimes in sequence until you find [Esch] guilty of one of
the crimes or find him not guilty of all of them.
[8] We note that the step instruction is in accordance with the
pattern instruction contained in the Nebraska Jury Instructions. 22
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. 23
However, Esch points us to the following language included
in the instructions for the two weapons offenses but not
included in the step instruction: “The burden of proof is
always on the State to prove beyond a reasonable doubt all
of the material elements of the crime charged, and this bur-
den never shifts.” Esch asserts that because this language was
included in the weapons offense instructions, when the instruc-
tions are read as a whole, the exclusion of this language from
the step instruction “gives the impression” that the burden of
proof did shift to Esch and “mis[led] the jury into believing
that [Esch] ha[d] a burden to disprove the elements outlined in
[the step instruction].” 24
[9] We disagree that the instruction caused any confusion for
the jury. We have recognized:
“[S]o long as the court instructs the jury on the necessity
that the defendant’s guilt be proved beyond a reasonable
doubt, . . . the [U.S.] Constitution does not require that
any particular form of words be used in advising the jury
22
See NJI2d Crim. 3.5A.
23
State v. Brennauer, supra note 11.
24
Brief for appellant at 21.
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STATE V. ESCH
Cite as 315 Neb. 482of the government’s burden of proof. . . . Rather, ‘taken
as a whole, the instructions [must] correctly conve[y] the
concept of reasonable doubt to the jury.’” 25
In reading the jury instructions as a whole, the instructions
correctly conveyed the concept of reasonable doubt to the
jury. In addition to the step instruction’s unambiguous state-
ment that “the State must prove beyond a reasonable doubt”
that Esch killed his stepmother “purposely” and “with delib-
erate and premeditated malice,” the jury received a separate
instruction on the presumption of innocence, which stated:
“[Esch] has pleaded not guilty. He is presumed to be innocent.
That means you must find him not guilty unless and until you
decide that the [S]tate has proved him guilty beyond a reason-
able doubt.”
[10] It is presumed that a jury followed the instructions
given in arriving at its verdict, and unless it affirmatively
appears to the contrary, it cannot be said that such instruc-
tions were disregarded. 26 In finding Esch guilty of first degree
murder, we presume that the jury followed the instructions and
found that the State proved beyond a reasonable doubt that
Esch killed his stepmother purposely and with deliberate and
premeditated malice. 27
Moreover, in his closing argument, Esch’s trial counsel
unequivocally established that “the issue in this case is that
[the State must] prove that my client[,] beyond a reasonable
doubt[,] is guilty because he premeditated this murder.” We
observe that counsel reiterated this point numerous times in a
variety of ways. We find no merit to Esch’s assertion that the
jury instruction misled the jury into believing that Esch bore
25
State v. Hinrichsen, 292 Neb. 611, 630, 877 N.W.2d 211, 225 (2016)
(quoting Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d
583 (1994)) (emphasis omitted).
26
Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N.W. 744 (1900), overruled on
other grounds, Callahan v. Prewitt, 143 Neb. 787, 13 N.W.2d 660 (1944).
27
Cf. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
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Cite as 315 Neb. 482the burden to disprove the elements of first degree murder. We
conclude that there was no plain error indicative of a probable
miscarriage of justice.
For the same reasons, we determine that the record is suf-
ficient to conclusively determine that Esch was not prejudiced
by his counsel’s failure to object to the instructions regarding
the State’s burden of proof.
(b) Intoxication Instruction
Esch also assigns that the district court erred in its instruc-
tion on intoxication, asserting the instruction resulted in plain
error indicative of a probable miscarriage of justice, and that
his counsel provided ineffective assistance by failing to object
to the instruction. Before addressing Esch’s assignments of
error, we first set forth some additional background related to
the intoxication instruction.
(i) Additional Background
At trial, in addition to the witness’ testimony of Esch’s
intoxication at the gas station set forth above, the State intro-
duced testimony from law enforcement officers that Esch was
intoxicated when he was apprehended, photographs of Esch’s
residence containing innumerable empty liquor bottles, and
testimony of Esch’s family members as to his habitual drunk-
enness. Esch also testified as to his history of alcohol abuse
and his alcohol consumption on the date of the offense.
The State’s central theory of the case was that “perceived
injustices” led Esch to kill his stepmother, “something that’s
been brewing for years and years, truly a lifelong hatred.”
However, an additional component of the State’s theory of the
case was that Esch’s intoxication decreased his inhibitions and
gave him “liquid courage” or “beer muscles”; thus, his intoxi-
cation “amplified” his intent to kill his stepmother.
In contrast, part of Esch’s defense theory was that his
intoxication impaired his reasoning, which was relevant in two
respects. First, Esch argued that many of his “stupid” behaviors
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Cite as 315 Neb. 482and decisions were explained by and due to his drunkenness.
For example, Esch testified that had he been sober, he doubted
whether he would have gone to his stepmother’s house to pro-
pose buying the farmland from her, but because he was intoxi-
cated, doing so seemed reasonable to him at the time. Second,
Esch argued that the evidence showed that his intoxication
caused him to act impulsively, and because he was intoxicated
on the date of the offense, Esch was acting impulsively and
did not consider the probable consequences of shooting his
stepmother; thus, he did not kill his stepmother with deliberate
and premeditated malice.
In light of the substantial evidence adduced of Esch’s intoxi-
cation and in accordance with its affirmative duty, 28 the district
court instructed the jury on intoxication. The instruction was
given to the jury as set out below:
There has been evidence that [Esch] was intoxicated
at the time that the Murder with which he is charged was
committed.
Intoxication is a defense only when a person’s mental
abilities were so far overcome by the use of (alcohol,
drugs) that (he, she) could not have had the required
intent. You may consider evidence of (alcohol, drug) use
along with all the other evidence in deciding whether
[Esch] had the required intent.
This instruction mirrors the pattern intoxication instruction
found in the Nebraska Jury Instructions. 29
Even though, on appeal, the parties agree that the giving of
the intoxication instruction was in error, neither party objected
to the instruction at trial. Instead, after being provided with
the instruction in advance, both parties affirmatively stated
during a jury instruction conference that they had no objec-
tion to it.
28
See State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983).
29
See NJI2d Crim. 8.0. But see NJI2d Crim. 8.0, comment.
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Cite as 315 Neb. 482The parties also affirmatively stated that they had no objec-
tions to the court’s “[d]efinitions” instruction, which defined
the various terms related to the mental states of the offenses
and, in particular, included a reference to intoxication in the
definition of “sudden quarrel.” It stated in pertinent part:
“Purposely” means intentionally.
“Intentionally” means willfully or purposely, and not
accidentally or involuntarily.
“Deliberate” means not suddenly or rashly, but doing
an act after first considering the probable consequences.
An act is not deliberate if it is the result of sudden quarrel
provocation.
“Premeditation” means forming the intent to act before
acting. The time needed for premeditation may be so
short as to be instantaneous provided that the intent to
act is formed before the act and not simultaneously with
the act.
“Malice” means intentionally doing a wrongful act
without just cause or excuse.[ 30]
....
“Sudden quarrel” means sufficient provocation which
causes a reasonable person to lose normal self‑control. .
. . The question is whether there existed reasonable and
adequate provocation . . . . The test is an objective one.
Qualities peculiar to the Defendant which render him
or her particularly excitable, such as intoxication, are
not considered.
During his closing argument, Esch’s counsel addressed these
instructions in relation to the intoxication instruction:
One of the instructions that you’re going to get is on
intoxication. Intoxication, incidentally, is not a defense.
We’re not saying [Esch is] not guilty at all because he
was drunk. Everybody in the world would get away
with crimes if that was a legitimate defense. But what
30
See NJI2d Crim. 4.0.
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Cite as 315 Neb. 482the instruction is, it says that there’s been evidence that
[Esch] was intoxicated at the time that the murder with
which he’s charged was committed. Intoxication is a
defense only when a person’s mental abilities were so far
overcome by the alcohol, by the use of alcohol or drug,
that he or she could not have had the required intent. You
may consider evidence of the alcohol or drug use along
with all the other evidence in deciding whether [Esch]
had the required intent. And you know what screws up
more people than alcohol in terms of their intent and their
purpose in terms of what they’re going to do. Alcohol,
you know, and first of all we know . . . that [Esch’s]
father was an alcoholic. You know, it’s — and it’s a
genetic disease. [His stepmother] and family said that
[Esch is] an alcoholic. You heard the calls, you saw all
the bottles, you saw the dozens of bourbon bottles and
vodka bottles and lemonade bottles. There’s no question.
The State can’t say anything to deter the fact that [Esch]
drank to excess, particularly before this happened.
You know, again, alcohol is not a defense, but it’s
relevant. Why? Because it was part and parcel of this
story because it relates to premeditation. What does
alcohol do? It impairs somebody’s ability to walk, or to
talk, or to think. It removes somebody[‘s] inhibitions.
It removes borders and boundaries. It clouds your judg-
ment and impairs your ability to think clearly, to make
good decisions, it fogs the brain. Doesn’t that go back
to premeditation, to cogitate, to deliberate, to consider,
and ponder attentively? [Esch] was screwed up. . . . You
can’t ignore that, because you took an oath to follow
the instructions. Was there premeditation? Was it — Did
he deliberate? And what effect did that alcohol or drugs
play on his ability to premeditate [in] this case? To medi-
tate? Meditate takes a long time. Premeditation to think
about it beforehand, and so how can you ignore the fact
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Cite as 315 Neb. 482that he’s on drugs? Again, that’s not getting him off scot-
free. Please don’t think that. We’re just saying punish
him — find him guilty for what he did do, and not for
what he didn’t do.
You know, alcohol, again, is not an offense [sic], but it
does fog that brain. You know that the evidence is pretty
unequivocal. [Counsel further reviews related evidence.]
And all of that, the alcohol as well as the drugs, is rel-
evant to premeditation.
This is a one issue case. [Has the State] proved beyond
a reasonable doubt? Have they removed all the doubt
about what I’m talking about now? They’re relying on
this motive. When you talk about, again, premeditation,
deliberate, consider it to ponder, it’s like I say, they don’t
just relate to murder, [but] what [do] they mean[. T]hey
relate to what you jurors are going to have to do. How
could a jury ponder and deliberate carefully, you know,
if a juror is intoxicated? How is that any different? Now,
you know if he [was] intoxicated or on drugs, you got
your job to do. You’ve got to be clearheaded. If any of
you were intoxicated or whatever when this case went
to you, you [would] have a duty to re[c]use yourself, or
we’d be excusing you, and you’ve violated your oath. It’s
deliberate. Deliberate, and it’s in the language of the stat-
utes. And that’s — Don’t be confused about this idea, the
exception where, you know, you can form it in a second.
We went through the list of what a truly first-degree mur-
der case is. This is not one of them.
But in this case, use your examples with respect to[,]
first of all, the term, deliberate, with respect to my cli-
ent. And you know when — And when — Not just in
terms of jurors being able to not, you have to have full
senses to be able to deliberate, but you know, if my
client was drunk and he came into court here to plead
guilty, when somebody pleads guilty to a crime, they
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Cite as 315 Neb. 482have to do it knowingly, intentionally, and voluntarily. .
. . But if my client comes in and is going to plead to
the judge, [plead] guilty, and he’s drunk, they’re not
going to accept the plea. Why? Because it’s not know-
ing, intelligent, voluntary. It’s not intentional. He’s not
able to understand what’s going on. His faculties are
impaired, so he can’t even enter [a] plea. You know, if
he’s going to sign a contract and somebody knows that
you’re — he’s intoxicated, you can’t do that, you know,
and so that’s the effect [intoxication has] on people in
terms of this.
(ii) Error in Instruction
On appeal, Esch contends that the district court’s intoxica-
tion instruction is an “obvious error” 31 and that “[t]here is no
doubt” 32 that the instruction is an incorrect statement of law
because it is not in accordance with Neb. Rev. Stat. § 29-122(Reissue 2016). The State takes a similar position and con-
tends that Esch was “not entitled to an intoxication instruc-
tion since he did not satisfy the [involuntary intoxication]
requirements of § 29-122.” 33
Section 29-122 provides:
A person who is intoxicated is criminally 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 unless the [intoxication
was involuntary].
Although the comment to the pattern instruction in the
Nebraska Jury Instructions makes mention of § 29-122, it
does not provide guidance on the statute’s effect. 34 Indeed, it
31
Brief for appellant at 15.
32
Id. at 14.
33
Brief for appellee at 11.
34
See NJI2d Crim. 8.0, comment.
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Cite as 315 Neb. 482was not until after the most recent revision to the pattern jury
instructions that we first addressed the statute. 35
In Nebraska, it has long been recognized that “intoxica-
tion is not a justification or excuse for crime.” 36 In that way,
intoxication has never been a defense to a criminal offense,
and intoxication has never alleviated criminal responsibility.
To the extent the pattern instruction suggests otherwise, it
does not comport with our longstanding precedent and is an
incorrect statement of law. However, it was long held that
evidence of intoxication was relevant to a jury’s determina-
tion of whether a defendant had a specific intent such that
a crime had been committed, or, where a crime consisting
of degrees had been committed, to the jury’s determination
of the degree of the crime. 37 In these situations, the defend-
ant’s mental state at the time of the offense was a subjective
inquiry, and evidence of intoxication was relevant to whether
the State met its burden to prove an essential element of
an offense. 38 The pattern instruction is also an incorrect
statement of law to the extent that it fails to comport with
this precedent.
[11] But in State v. Abejide, we held that Ҥ 29-122 is
a ‘legislative judgment regarding the circumstances under
which individuals may be held criminally responsible for
35
See State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).
36
O’Grady v. State, 36 Neb. 320, 321, 54 N.W. 556, 556 (1893). See, State v.
Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011); Tvrz v. State, 154 Neb. 641,
48 N.W.2d 761 (1951); Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894);
Carr v. State, 23 Neb. 749, 37 N.W. 630 (1888); Johnson v. Phifer, 6 Neb.
401 (1877). See, also, State v. Brennauer, supra note 11; 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.
37
See id.38
See Smith v. The State, 4 Neb. 277 (1876). See, also, Kennison v. State, 80
Neb. 688, 115 N.W. 289 (1908).
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Cite as 315 Neb. 482their actions.’” 39 Thus, we interpreted § 29-122 as having
redefined the mental state elements of all subjective crimi-
nal offenses in Nebraska to provide for an objective inquiry:
whether the State proved circumstances surrounding the
offense that would otherwise establish the requisite mental
state “but for” the defendant’s voluntary intoxication. 40
Because the pattern instruction in the Nebraska Jury
Instructions does not comport with our precedent and our
interpretation of § 29-122, we expressly disapprove of its use.
Yet, in Esch’s case, we conclude there is no indication of a
probable miscarriage of justice caused by the instruction.
Esch asserts that although, “[a]t first glance,” the court’s
instruction
had the potential to benefit, rather than prejudice, [Esch],
after considering the jury instructions as a whole, the
evidence presented at trial, and the arguments of [Esch’s]
counsel at trial, [it] undoubtedly confused the jury and
muddied the sole issue [it] needed to decide: [Esch’s]
state of mind. 41
Conversely, the State argues that the instruction was indeed
“beneficial” to Esch. 42 We agree that the court’s instruction
was beneficial to Esch insofar as it allowed the jury to con-
sider Esch’s intoxication in its determination of whether Esch
subjectively killed his stepmother with deliberate and premedi-
tated malice.
Esch’s argument of confusion regarding the court’s intoxica-
tion instruction is twofold. First, Esch argues his trial counsel
created ambiguity and confusion with his closing argument.
39
State v. Abejide, supra note 35, 293 Neb. at 700, 879 N.W.2d at 695
(2016) (quoting Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013, 135
L. Ed. 2d 361 (1996) (Ginsburg, J., concurring in judgment)). Cf. State
v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018), modified on denial of
rehearing 302 Neb. 51, 921 N.W.2d 584 (2019).
40
See id.41
Brief for appellant at 15-16.
42
Brief for appellee at 14.
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Cite as 315 Neb. 482But we decline to attribute any error to the district court solely
because of the actions of Esch’s trial counsel.
Esch also maintains that the jury was confused because
of the reference to intoxication in the instruction defining
“sudden quarrel.” Undisputedly, the definition of “sudden
quarrel” given to the jury is a correct statement of law. 43
Whether a defendant committed manslaughter by sudden quar-
rel has always been an objective inquiry in Nebraska that
requires reasonable and adequate provocation, 44 and intoxica-
tion has long been recognized as inadequate provocation as
a matter of law. 45 We cannot conclude that the jury was con-
fused by the court’s instructions that were consistent with our
prior precedent.
Esch also contends that his trial counsel was deficient in
failing to object to the district court’s intoxication instruc-
tion because the jury was confused when it was “bombarded
with contradictory instructions and arguments regarding the
requisite intent.” 46 Even assuming that Esch’s counsel’s clos-
ing argument is relevant to the inquiry of his counsel’s defi-
ciency in failing to object to the court’s instruction, when that
closing argument is reviewed in its entirety and the context
of the evidence presented at trial, we find nothing causing
jury confusion.
Despite some semantic differences, Esch’s closing argu-
ment was given in accordance with the court’s instruction.
When viewing the entirety of the proceedings and recognizing
that the points made in Esch’s closing argument were given
in response to the evidence presented at trial and the State’s
43
See, State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014); State v.
Smith, 284 Neb. 636, 822 N.W.2d 401 (2012); State v. Cave, 240 Neb.
783, 484 N.W.2d 458 (1992).
44
See, State v. Pettit, supra note 8; Braunie v. State, 105 Neb. 355, 180 N.W.
567 (1920); Savary v. State, 62 Neb. 166, 87 N.W. 34 (1901). See, also,
Lowe v. State, 110 Neb. 325, 193 N.W. 707 (1923).
45
See Carr v. State, supra note 36.
46
Brief for appellant at 23.
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Cite as 315 Neb. 482closing argument, Esch’s trial counsel’s argument was clear
and tracked the instruction given to the jury: That despite
Esch’s intoxication, the evidence showed beyond a reasonable
doubt that Esch was guilty of manslaughter by sudden quar-
rel, and in light of his intoxication, the State did not prove
beyond a reasonable doubt that Esch killed his stepmother
with deliberate and premeditated malice. As the State suc-
cinctly states in its brief:
[T]he record reflects that Esch’s trial counsel did compe-
tently focus on Esch’s intoxication level at the time of the
offense, [and] while not a defense in and of itself, was
relevant to whether he had the state of mind to be guilty
of first degree murder, i.e., whether the offense was delib-
erate and premeditated. 47
We conclude that the record shows Esch’s trial counsel
conclusively was not deficient in his failure to object to the
instruction regarding intoxication.
2. Remaining Claims of Ineffective
Assistance of Counsel
We now turn to Esch’s remaining claims of ineffective assist-
ance of counsel.
(a) § 27-404 Evidence
[12-14] Esch assigns that his trial counsel was ineffective
for failing to object to evidence he asserts was improperly
admitted under § 27-404 and that his counsel was ineffec-
tive for failing to move for a mistrial when this evidence was
introduced at trial. In a criminal case, § 27-404(1) operates as
a broad exclusionary rule of relevant evidence that speaks to a
criminal defendant’s propensity to have committed the crime
or crimes charged. 48 Meanwhile, § 27-404(2) operates as an
inclusionary rule of evidence that provides that evidence that
47
Brief for appellee at 15.
48
State v. Wheeler, supra note 16.
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Cite as 315 Neb. 482raises a propensity inference is admissible for other proper
purposes, including proof of motive, intent, preparation, or
absence of mistake or accident. 49 While evidence is not an
“other act” under § 27-404(2) when it only tends to logically
prove an element of the crime charged, proof of another dis-
tinct substantive act is admissible in a criminal prosecution
when there is some legal connection between the two upon
which it can be said that one tends to establish the other or
some essential fact in issue. 50
[15,16] Under § 27-404(3), a proponent of evidence offered
pursuant to § 27-404(2), upon objection to its admissibil-
ity, is required to state on the record the specific purpose or
purposes for which the evidence is being offered, and the
trial court must similarly state, on the record, the purpose or
purposes for which such evidence is received. 51 In criminal
cases, before the admission of such evidence, the prosecution
must prove to the court, outside the presence of any jury, “‘by
clear and convincing evidence that the accused committed
the crime, wrong, or act.’” 52 When admissible, upon a party’s
request, the trial court must instruct the jury as to the specific
purposes for which the evidence was received. 53
Before trial, the State filed a motion to conduct a hearing
pursuant to § 27-404(3). The State sought a preliminary deter-
mination regarding the admissibility of evidence of Esch’s
incarceration for criminal mischief from 2012 to 2015, con-
versations he had with family members while incarcerated,
and his 180-day incarceration for the violations of the harass-
ment protection orders. The State asserted that it was going
49
See State v. Wheeler, supra note 16.
50
See State v. Wheeler, supra note 16.
51
Id. Compare Neb. Rev. Stat. § 27-414 (Reissue 2016).
52
State v. Wheeler, supra note 16, 314 Neb. at 292, 989 N.W.2d at 737
(quoting § 27-404(3)). See, also, 1993 Neb. Laws, L.B. 598.
53
State v. Wheeler, supra note 16. See Neb. Rev. Stat. § 27-105 (Reissue
2016).
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Cite as 315 Neb. 482to offer this evidence at trial to prove Esch’s motivation for
the murder and that the murder was premeditated. The dis-
trict court ruled that the evidence was admissible for those
purposes. Although the court failed to specifically find on the
record that the State proved by clear and convincing evidence
that Esch committed the other acts, there is no dispute on
appeal that he did so, as Esch admitted to their commission
at trial.
Instead, on appeal, Esch takes issue with the fact that his
counsel seemingly “was confused as to the exact nature and
purpose of the [§ 27-404(3)] hearing” 54 and that he did not
object to the admission of evidence of these prior bad acts at
the preliminary hearing or trial. Esch contends that this evi-
dence was not relevant to the issue of whether he killed his
stepmother with deliberate and premeditated malice and that
the lack of a limiting instruction “compound[ed] the prejudicial
effect” of this evidence. 55 Accordingly, he asserts that “[t]he
jury was left with the impression that [Esch] is a habitual law-
breaker, has a bad character, and therefore, must have gone to
[his stepmother’s] home with the intent of killing her.” 56 Esch
avers that “[t]he culmination of the admission of prejudicial
evidence was prolific” and warranted a mistrial. 57
We find no merit in Esch’s assignments that his coun-
sel was ineffective for failing to object to the admission
of this evidence and move for a mistrial after the evidence
was admitted. Despite Esch’s contention on appeal that this
evidence was not relevant to his trial, the primary factual
questions before the jury were whether Esch went to his step-
mother’s home with the intent to kill her or whether he devel-
oped such intent after he arrived and whether it was upon a
54
Brief for appellant at 24.
55
Id. at 26.
56
Id. at 26-27.
57
Id. at 27.
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Cite as 315 Neb. 482sudden quarrel. The evidence was highly probative to that
issue and was admissible under § 27-404. Further, although
Esch now asserts on appeal that he was prejudiced by this
evidence, most, if not all, evidence is intended to be prejudi-
cial; it is only that evidence which is unduly prejudicial that
is inadmissible. 58 There is nothing in the record that suggests
the evidence was unduly prejudicial.
Moreover, the evidence was integral to his defense theory
at trial. Esch’s primary argument that he presented to the
jury was that the other acts showed that he was not a per-
son who resorted to violent behaviors and his stepmother’s
death was a result of a sudden quarrel due to Esch’s reac-
tion to his stepmother’s treatment of his father’s suicide and
their tempestuous relationship in light of the prior acts. The
record affirmatively shows that his trial counsel utilized the
evidence sufficiently and competently in presenting Esch’s
case to the jury and was not ineffective for failing to object to
its admission.
Even though his counsel did not request a limiting instruc-
tion, we cannot conclude that Esch’s trial counsel’s perform-
ance was deficient in this regard. Based on the defense’s the-
ory of the case, it is reflective of a reasonable trial strategy.
Nothing in the record suggests Esch’s right to a fair trial was
compromised.
We conclude that the record is sufficient to conclusively
determine that Esch’s trial counsel’s performance was neither
deficient by failing to raise a § 27-404 objection to this evi-
dence, nor deficient by failing to move for a mistrial when the
evidence was presented to the jury.
(b) Sudden Quarrel
Esch argues that his trial counsel was ineffective by inad-
equately arguing that he acted under the provocation of a
58
State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
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Cite as 315 Neb. 482sudden quarrel. Esch asserts that his trial counsel “fail[ed]
to present a coherent and legally cognizable theory of the
defense.” 59 His primary issue is trial counsel’s focus on what
he classifies as dictionary definitions of “sudden” and “quarrel”
rather than the legal definition of “sudden quarrel” provided in
the jury instructions. But Esch fails to show or explain how
the defense was incoherent or not legally cognizable. Although
Esch’s appellate counsel suggests that the case should have
been argued differently and that trial counsel should have
focused more on the reasonableness of the provocation, trial
counsel’s argument displays a reasonable trial strategy.
[17] Moreover, the jury found Esch guilty of first degree
murder, which required the jury to determine beyond a rea-
sonable doubt that Esch killed his stepmother with deliberate
and premeditated malice. For a killing to occur upon a sudden
quarrel, the defendant must have actually lost self-control in
conditions that would cause a reasonable person to lose normal
self-control. 60 Deliberate and premeditated malice is incom-
patible with a finding that Esch lost self-control. 61 By prov-
ing that Esch killed with deliberate and premeditated malice,
the State implicitly proved the absence of a sudden quarrel. 62
Accordingly, the record is sufficient to conclusively determine
that Esch was not prejudiced by his trial counsel’s “sudden
quarrel” argument.
(c) Mistrial
Esch contends that his counsel was ineffective for not mov-
ing for a mistrial after the following questioning of one of
Esch’s half sisters by the State:
59
Brief for appellant at 30.
60
See, State v. Dubray, supra note 43; State v. Smith, supra note 43; State v.
Cave, supra note 43.
61
See id.62
See State v. Hinrichsen, supra note 25.
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Cite as 315 Neb. 482Q So when [Esch] moved into the home place — or
I’m sorry, the property that — you call it the Charlotte
property —
A Yeah.
Q — when [Esch’s grandmother] moved to town, he
was not the owner of the property?
A No.
Q And he wasn’t deeded the property?
A No.
Q Did he continue to live in that property from then
until today?
A No.
Q Okay. When did — When did he stop living in that
property?
A In, what was it, March, April of 2012 when he was
arrested for shooting up the —
[Defense Counsel:] Objection.
A Until —
THE COURT: All right. Would you approach?
(Sidebar held off the record.)
THE COURT: All right. The objection is sustained.
The last answer by the witness is stricken from the record
and the jury is instructed to disregard that statement.
Q (By [the State]) Ma’am, Mr. Esch went to jail in
2012, is that right, in the springtime?
A Yes.
Q Okay. And is that the reason he stopped living at that
property?
A Yes.
A mistrial is properly granted in a criminal case where an
event occurs during the course of a trial that is of such a nature
that its damaging effect cannot be removed by proper admoni-
tion or instruction to the jury and thus prevents a fair trial. 63
63
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021); State v. Schmaltz,
304 Neb. 74, 933 N.W.2d 435 (2019); State v. Kibbee, 284 Neb. 72, 815
N.W.2d 872 (2012).
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Cite as 315 Neb. 482Decisions regarding motions for mistrial are directed to the
discretion of the trial court. 64 When attempting to prove error
predicated on the failure to grant a mistrial, the defendant
must prove the alleged error actually prejudiced him or her,
rather than creating only the possibility of prejudice. 65
[18] Although the testimony that Esch’s criminal mischief
offense involved a “shooting” may have been prejudicial
to the defense, his counsel effectively objected to it, it was
stricken, and the jury was immediately instructed to disregard
the testimony. Error cannot ordinarily be predicated on the
failure to grant a mistrial if an objection or motion to strike
the improper material is sustained and the jury is admonished
to disregard such material. 66 It is presumed that a jury fol-
lowed the instructions given in arriving at its verdict, and
unless it affirmatively appears to the contrary, it cannot be
said that such instructions were disregarded. 67 Accordingly,
even if his counsel was deficient for failing to move for a mis-
trial, Esch was not prejudiced to the level that compromises
his right to a fair trial.
(d) Unaddressed Claims Due to
Insufficient Record
There is no record to conclusively determine whether
Esch’s counsel was deficient for failing to retain an expert
to conduct a psychological evaluation on him or adequately
discuss trial strategy with him, or assuming that counsel was
deficient, whether Esch was or was not prejudiced by that
deficiency. Therefore, we cannot address these assignments
on direct appeal.
64
State v. Schmaltz, supra note 63.
65
See State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
66
State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
67
See Missouri P. R. Co. v. Fox, supra note 26.
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Cite as 315 Neb. 482VI. CONCLUSION
Upon our review of the record, we conclude that the
jury instructions do not constitute plain error indicative of a
probable miscarriage of justice and that, apart from the two
assignments of error that our record is insufficient to resolve,
Esch’s trial counsel did not provide ineffective assistance. We
therefore affirm.
Affirmed.
Freudenberg, J., not participating.
Miller-Lerman, J., concurring.
Although not demanded by the evidence and the appellate
assignments of error, in an appropriate case, I believe the due
process implications of the step instruction in a first degree
murder case warrant revisiting, as elucidated in the dissent
in State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016)
(Connolly, J., dissenting; Miller-Lerman, J., joins).