State v. Mueller , 301 Neb. 778 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
12/14/2018 01:10 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. MUELLER
Cite as 301 Neb. 778
State of Nebraska, appellee, v.
Zachary A. Mueller, appellant.
___ N.W.2d ___
Filed December 7, 2018. No. S-17-387.
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. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
3. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
4. ____: ____. Whether a defendant is entitled to credit for time served
and in what amount are questions of law, subject to appellate review
independent of the lower court.
5. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant. All the jury
instructions must be read together, and if, taken as a whole, they cor-
rectly 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.
6. ____: ____: ____. To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to show that
(1) the tendered instruction is a correct statement of the law, (2) the
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STATE v. MUELLER
Cite as 301 Neb. 778
tendered instruction is warranted by the evidence, and (3) the appellant
was prejudiced by the court’s refusal to give the tendered instruction.
7. Criminal Law: Venue: Proof: Waiver. Proof of venue is essential in
a criminal prosecution, and in the absence of a defendant’s waiver by
requesting a change of venue, the State has the burden to prove proper
venue beyond a reasonable doubt.
8. Criminal Law: Statutes: Time. Statutes governing substantive matters
in effect at the time of a crime govern, and not later enacted statutes.
In contrast, procedural statutes in effect on the date of a hearing or pro-
ceeding govern, and not those in effect when the violation took place.
9. ____: ____: ____. A statute defining the elements of a crime is substan-
tive, and the statute in effect at the time of the offense governs.
10. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
11. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
12. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
13. ____. Because of the mandatory “shall” language used in Neb. Rev.
Stat. § 83-1,106 (Reissue 2014), the statute mandates that credit for
time served must be given for time spent in custody on a charge when a
prison sentence is imposed for a conviction of such charge.
14. ____. Neb. Rev. Stat. § 83-1,106(4) (Reissue 2014) requires that credit
for time served shall be given which has not otherwise been applied, and
the import of this subsection is that all credit available due to presen-
tence incarceration shall be applied, but only once.
15. ____. What matters in the credit for time served analysis is not whether
the defendant was detained in Nebraska and awaiting trial and sentenc-
ing on Nebraska charges, but, rather, whether the defendant was forced
to be in custody because of those charges.
Appeal from the District Court for Morrill County: Leo P.
Dobrovolny, Judge. Affirmed as modified.
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STATE v. MUELLER
Cite as 301 Neb. 778
Sarah P. Newell, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Miller-Lerman, J.
NATURE OF CASE
Zachary A. Mueller appeals his convictions and sentences
in the district court for Morrill County for first degree murder,
use of a deadly weapon to commit a felony, and possession of
a deadly weapon by a prohibited person. With respect to his
convictions, Mueller assigns various errors related to instruc-
tions that the court gave or refused to give and also contends
that there was not sufficient evidence to support his conviction
for first degree murder. With respect to his sentences, Mueller
claims that the court imposed excessive sentences and failed to
give him adequate credit for time served. We affirm Mueller’s
convictions and his sentences, but we modify the sentencing
order to reflect additional credit for time served.
STATEMENT OF FACTS
Mueller was charged with first degree murder and use of
a deadly weapon to commit a felony in connection with the
shooting death of Pedro Adrian Dominguez. Mueller was also
charged with possession of a deadly weapon by a prohibited
person based on his previous felony conviction.
The investigation that resulted in the charges against Mueller
began on December 4, 2015, when the body of an unidenti-
fied male was discovered inside a barrel in rural Morrill
County, Nebraska. The barrel containing the body was found
in a creek underneath a bridge on County Road 104, east of
Bayard, Nebraska, and northwest of Bridgeport, Nebraska.
On December 8, the body was identified as being that of
Dominguez based on fingerprints that had been taken from the
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body during an autopsy. The autopsy revealed that Dominguez
had died as the result of a single gunshot to the left side of the
head. The entrance wound was located on the back left side of
the head, and a bullet was recovered from the right temporal
bone, just above the right ear inside the skull. The trajectory of
the bullet was determined to be left to right, back to front, and
downward. The doctor performing the autopsy could not deter-
mine whether the gunshot wound was immediately fatal or
whether Dominguez had lived for a period of time after being
shot. Toxicology reports indicated that Dominguez’ blood con-
tained controlled substances, including methamphetamine and
the active ingredient of marijuana.
On December 5, 2015, after the body had been discovered
but before it had been identified, law enforcement officials
issued a press release stating that an unidentified body had
been found in a barrel on County Road 104. On December 7,
officers responded to a report that a burned vehicle had been
found near County Road 104 north of Bridgeport. The vehicle
was a Volkswagen that had been completely burned. The pas-
senger seat was missing from the vehicle. Because of the
burned condition of the vehicle, officers were unable to find a
vehicle identification number.
The investigation regarding the body in the barrel began to
focus on Mueller after an acquaintance of Mueller’s reported
to law enforcement on December 5, 2015, that in November,
he had been visiting Mueller when Mueller asked him to help
get the “locking ring” sealed on the top of a barrel. The wit-
ness stated that he had asked Mueller what was inside the bar-
rel and that Mueller replied that he did not want to know. On
December 7, investigators began talking with various witnesses
connected with Mueller. Investigators obtained a search warrant
for Mueller’s residence, which was located near Bridgeport. On
December 8, they executed the search warrant. Items seized in
the search of Mueller’s residence included a car seat and two
Colorado license plates that appeared to have been burned.
Investigators retrieved other burned items, including, inter alia,
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clothing, a cell phone, and a pair of glasses. Testimony at trial
indicated that Dominguez wore glasses but that no glasses had
been found with the body in the barrel.
Dallas Schnell, one of the witnesses interviewed in the
investigation, testified at trial that on or around December
4, 2015, she had loaned her vehicle to Mueller and that in
exchange, Mueller had left her a blue Volkswagen. Schnell
used the Volkswagen while Mueller had her vehicle, and she
noticed that the front passenger seat of the Volkswagen was
missing. After hearing reports of the body found in the barrel,
Schnell had conversations with Mueller, and afterward, she
decided that in order to get her vehicle back from Mueller,
she needed to get rid of the Volkswagen. On the evening of
December 5, Schnell and a friend obtained gasoline and drove
the Volkswagen to a country road outside of Bridgeport where
they set the Volkswagen on fire. Schnell got her vehicle back
a “[c]ouple weeks later” when the vehicle was impounded in
Cheyenne, Wyoming, after Mueller had been arrested there.
The investigation led officers to believe that Felicia Talley
had knowledge regarding Dominguez’ death. Talley had previ-
ously been in a relationship with Mueller, and the two had a
daughter together who was born in 2008. The daughter had been
adopted and was being raised by Mueller’s mother, Michelle
Litke. Talley’s testimony at trial was generally as follows.
In November 2015, Talley was living in Greeley, Colorado,
and she was in a relationship with Dominguez. Talley informed
Mueller that she was coming to Bridgeport the weekend before
Thanksgiving, and the two planned that they would visit their
daughter. Dominguez accompanied Talley on the trip, and they
drove his blue Volkswagen. Talley and Dominguez went to
Mueller’s house, and there the three of them smoked metham-
phetamine that Talley and Dominguez had brought with them.
Talley and Mueller later went to visit their daughter while
Dominguez stayed at Mueller’s house. At that time, the daugh-
ter was at the home of Schnell, who lived near Litke. After that
visit, Talley and Mueller returned to Mueller’s home.
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STATE v. MUELLER
Cite as 301 Neb. 778
Later, Talley went to visit her daughter at Litke’s home.
Mueller did not accompany her on this visit. Dominguez went
with her but stayed outside in his car. During the visit, Talley
and Dominguez went to a sandwich shop to get lunch for her
daughter and for Litke. When Talley returned to Litke’s home,
Litke told her that Mueller was “freaking out” and “trying to
kill himself.” Litke thought that Talley might be able to calm
him down, so Talley and Dominguez returned to Mueller’s
house. Talley spoke with Mueller, and she did not think that he
appeared to be “really going crazy.” Talley told Mueller that
she and Dominguez were going to go away for a couple days
and that if Mueller wanted to go with them, he could. Mueller
eventually decided to go with them.
The three left Mueller’s house in the blue Volkswagen, with
Talley driving, Dominguez in the passenger seat, and Mueller
in the back seat. They drove through Bridgeport and headed
in the direction of Kimball, Nebraska. Their ultimate destina-
tion was Evanston, Wyoming, where Talley’s best friend lived.
Talley testified that she had been driving “probably about
15 minutes” and that she was having a conversation with
Dominguez when:
[A]ll of a sudden, “Boom!” And, I was like, what the
hell? And, I looked over and there was [Dominguez] with
a bullet in his head. And, he had blood coming out of the
back of his head. And, [Mueller] is like, points the gun at
me and says, give me a reason why I shouldn’t kill you,
too, Bitch. And, I was like, I don’t know, maybe because
we had a kid together, I don’t know. That’s what hap-
pened and then we got to Kimball.
Talley testified that during this time, Mueller kept calling her
“Dallas.”
When Talley and Mueller reached Kimball, they stopped and
bought gas at a station. They then kept driving to Cheyenne,
Wyoming. Talley testified that Dominguez remained in the
passenger seat the entire time that she was driving. She did not
see any signs that he was alive after he had been shot. When
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STATE v. MUELLER
Cite as 301 Neb. 778
they reached Cheyenne, Talley was “driving aimlessly around”
because she “didn’t know what to do.” Mueller became angry
that she was driving aimlessly, and he told her to let him
drive, so she did. Mueller drove around Cheyenne for some
time, but Talley told him he needed to stop because he had
difficulty driving a manual transmission and she thought he
might get pulled over. Mueller told Talley that he wanted her
to kill him, and he handed his gun to Talley, who was then
in the back seat. Talley took out the clip and put the gun in
her pocket and told Mueller he needed to pull over. When he
pulled over and opened the back seat for her, Talley got out of
the vehicle and ran to a truckstop. She spent some time inside
the truckstop before she saw Mueller drive away. She then
asked a truckdriver for a ride so she could get away from her
“crazy ex.” When the truckdriver got close to Evanston, he
dropped her off at a truckstop where she contacted her friend
to pick her up.
Talley spent a few days in Evanston with her friend before
returning to Greeley. Talley testified that she had the gun
Mueller had given her for some time but that she eventually
sold it for money and drugs. Talley was arrested and put in
jail in Greeley on charges unrelated to this case. She was still
incarcerated when law enforcement officers from Nebraska
contacted her regarding the investigation into Dominguez’
death. Talley initially did not cooperate with investigators. She
testified that she did not report Mueller’s shooting Dominguez
to police because she was “raised not to be a snitch.” She
stated that when she was 12 years old, she had witnessed her
mother commit a murder and that her mother was convicted
based in part on her testimony. She testified that her mother’s
family blamed her for her mother’s conviction and that they
disowned her and “always started problems with [her].”
On cross-examination, Mueller’s counsel questioned Talley
regarding communications she had with acquaintances when
she returned to Greeley after Dominguez had died. The gen-
eral sense of the communications was that Talley told the
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STATE v. MUELLER
Cite as 301 Neb. 778
acquaintances that she and Dominguez were moving away but
that she was back in Greeley and had methamphetamine she
could sell.
During the defense presented by Mueller, the court received
into evidence an agreement between Talley and the State to the
effect that any statements made by Talley in connection with
the investigation of Mueller or at Mueller’s trial would not
be used against her in any criminal prosecution except for a
prosecution for perjury or giving a false statement. The agree-
ment was described as an agreement for use immunity, and it
additionally provided that Talley would not be charged with
disposing of the firearm used to kill Dominguez.
As further evidence in his defense, Mueller presented the
testimony of Alexandria Montoya, who was imprisoned with
Talley in the Morrill County jail while Talley was being held
as a witness in this case. Montoya testified that she observed
Talley giving herself a tattoo on her face using a staple that
she had found. Montoya asked Talley what she was doing, and
Talley said that she was giving herself a tattoo of a teardrop.
Montoya testified that she understood the significance of a
teardrop tattoo to mean that the person with the tattoo had
killed someone. Montoya testified that Talley told her that
she “had killed somebody . . . she had finished off that guy,
Pedro.” Talley told Montoya that she “covered his face, his
nose, and his mouth with her hand and so he stopped breath-
ing.” Talley told Montoya she did it because she did not want
to “let anything suffer and that if they were suffering, she
should take them out.” Talley further told Montoya that the
person to whom she had done this “was her boyfriend at the
time” and that “they were having problems, something about
that he owed money and she didn’t — he didn’t want to give
her money and something in regards to her daughter.” Montoya
testified that Talley told her that before she put her hand over
the person’s mouth, someone else had shot him. She also testi-
fied that Talley told her that when this had happened, “they
were out in the country, something like a farmhouse.” On
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cross-examination by the State, Montoya testified that Talley
told her that it was Mueller who had shot her boyfriend in the
back of the head.
At the jury instruction conference in Mueller’s trial, Mueller
requested an instruction regarding intoxication; the district
court refused the instruction “based upon the evidence.”
Mueller objected to the court’s proposed instruction defining
premeditation for the reason that it included language that
was not part of the statutory definition; the court overruled
Mueller’s objection.
The court proposed an instruction regarding venue that was
based in part on Neb. Rev. Stat. § 29-1301.02 (Reissue 2016),
regarding crimes committed on moving means of transpor-
tation. Mueller initially stated that he had “no objection in
regards to the definition of venue,” but he then suggested that
Neb. Rev. Stat. § 29-1306 (Reissue 2016), regarding a “mortal
blow” given in one county and the person stricken dying in
another county or state, was the more appropriate venue statute
under the facts of this case. He also noted that the court’s pro-
posed instruction left out language from § 29-1301.02 referring
to “an offense is committed in this state,” and argued that in
this case, the offense was arguably not committed in this state.
The court rejected Mueller’s argument and determined that it
would give its proposed instruction, stating that the instruction
was a correct statement of law and “to give any more is not
necessary and . . . may be confusing.”
Mueller did not object to other instructions, including an
instruction setting forth the elements of the offense of posses-
sion of a deadly weapon by a prohibited person. The case was
submitted to the jury, and the jury found Mueller guilty of first
degree murder, use of a deadly weapon to commit a felony, and
possession of a deadly weapon by a prohibited person.
At the sentencing hearing, Mueller raised an issue regard-
ing the amount of time he had served that should be cred-
ited against his sentence. Mueller presented evidence that
an arrest warrant against him with regard to this case was
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issued December 7, 2015, and that at that time he was being
held in a jail in Wyoming based on local charges. Nebraska
law enforcement officers placed a hold on Mueller, and on
March 7, 2016, they were advised that Mueller was ready to
be returned to Nebraska. At trial, the State argued that Mueller
should be given credit for the 371 days he had served in prison
in Nebraska after being returned from Wyoming. Mueller asked
that he also be given credit for the additional 91 days that
he had spent in jail in Wyoming after the arrest warrant was
issued on December 7, 2015. As discussed below in our analy-
sis, when Mueller was returned to Nebraska, there was no
Wyoming sentence against which to credit the 91 days.
The district court sentenced Mueller to consecutive sen-
tences of life imprisonment for first degree murder and of 20 to
40 years’ imprisonment for each of the other two convictions.
The court ordered that time served of 371 days be credited
against his sentence for possession of a deadly weapon by a
prohibited person. The court stated that it determined the cor-
rect credit to be the 371 days Mueller had spent in prison in
Nebraska because “he was picked up and returned to Nebraska
on the first possible day that he could be here while there was
[sic] not charges pending and unresolved apparently in the
State of Wyoming.”
Mueller appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Mueller claims that the district court erred when it (1) gave
an erroneous instruction regarding venue and refused to give a
more appropriate instruction, (2) overruled his objection to the
instruction defining premeditation, (3) refused his proposed
instruction regarding intoxication, and (4) gave an instruction
regarding the elements of possession of a deadly weapon by
a prohibited person that did not reflect a statutory amend-
ment defining the offense enacted after the trial. Mueller also
claims that there was insufficient evidence to support his
conviction for first degree murder. He further claims that the
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STATE v. MUELLER
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district court imposed excessive sentences and that it erred
when it failed to give him credit for the 91 days that he spent
in custody in Wyoming.
STANDARDS OF REVIEW
[1] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. State v. Swindle, 300 Neb. 734, 915 N.W.2d
795 (2018).
[2] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. McCurdy, ante p. 343, 918
N.W.2d 292 (2018).
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Leahy, ante p. 228, 917 N.W.2d 895 (2018).
[4] Whether a defendant is entitled to credit for time served
and in what amount are questions of law, subject to appellate
review independent of the lower court. Id.
ANALYSIS
Standards Relating to Appellate
Review of Jury Instructions.
In his first four assignments of error, Mueller claims that
the court erred when it gave an erroneous jury instruction or
refused to give a requested instruction. The following standards
relate to our review of assignments of error regarding jury
instructions given or refused.
[5] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
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questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Swindle,
supra. All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating
reversal. Id.
[6] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. Id.
Venue Instruction.
Mueller first claims that the district court erred when it
gave an instruction regarding venue that was not appropri-
ate based on the facts of the case and refused to give a more
appropriate instruction. We conclude that although the instruc-
tion given by the district court did not fully state the appli-
cable law, given the evidence in this case, the instruction was
not prejudicial.
[7] Under Neb. Rev. Stat. § 29-1301 (Reissue 2016), unless
certain exceptions apply, all criminal cases are to be tried in
the county where the offense was committed. We have stated
that proof of venue is essential in a criminal prosecution
and that, in the absence of a defendant’s waiver by request-
ing a change of venue, the State has the burden to prove
proper venue beyond a reasonable doubt. State v. Dodson,
250 Neb. 584, 550 N.W.2d 347 (1996), overruled on other
grounds, State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).
Statutes related to § 29-1301, including §§ 29-1301.02 and
29-1306, provide for how venue is determined in certain spe-
cific circumstances.
At trial, Mueller argued that the venue instruction proposed
by the court was not appropriate under the circumstances of
this case and he suggested that a different venue instruction
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should be given. The instruction proposed by the court was
generally based on § 29-1301.02, which provides:
When an offense is committed in this state, on board
a vessel navigating a river, bay, slough, lake, or canal,
or lying therein, in the prosecution of its voyage, or on
a railroad train, or car, motor vehicle, common carrier
transporting passengers, or on an aircraft prosecuting its
trip, the accused may be tried in any county through, on,
or over which the vessel, train, car, motor vehicle, com-
mon carrier, or aircraft passes in the course of its voy-
age or trip, or in the county in which the voyage or trip
terminates.
The court’s proposed instruction regarding venue read as
follows:
Venue for the crimes charged is Morrill County,
Nebraska if the acts constituting the crime(s) occurred in
Morrill County, Nebraska or, if the offense(s) was/were
committed in a vehicle or motor vehicle and the vehicle or
motor vehicle passed through, on, or over Morrill County,
or the trip terminated in Morrill County, Nebraska.
(Emphasis supplied.)
Mueller argued that instead of the proposed venue instruc-
tion based on § 29-1301.02, the court should give an instruc-
tion based on § 29-1306, which provides:
If any person shall give any mortal blow or administer
any poison to another, in any county within this state,
with intent to kill, and the party so stricken or poisoned
thereof shall die in any other county or state, the person
giving such mortal blow or administering such poison
may be tried and convicted of murder or manslaughter, as
the case may be, in the county where such mortal blow
was given or poison administered.
Mueller argued that § 29-1306 was better suited to the circum-
stances of this case than § 29-1301.02, because § 29-1306 is
specific to homicide cases. Mueller also noted that the portion
of the court’s venue instruction related to an offense committed
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during a motor vehicle trip omitted the opening phrase of
§ 29-1301.02, which requires that the offense was committed
in this state.
We note that although Mueller argued that the court should
have given a venue instruction based on § 29-1306, he did
not actually tender such an instruction, and that therefore, to
the extent Mueller asserts on appeal that the court erred when
it refused a requested instruction, under the applicable stan-
dards set forth above, we cannot review whether the “tendered
instruction” was a correct statement of the law or whether it
was warranted by the evidence. See State v. Swindle, 300 Neb.
734, 915 N.W.2d 795 (2018). However, we can review whether
the venue instruction the court actually gave was proper under
the circumstances; a consideration of whether the instruction
should have included the content of § 29-1306 is an incidental
part of that analysis.
In this appeal, Mueller has the burden to show that the
venue instruction given by the court was prejudicial or oth-
erwise adversely affected his substantial right, and in making
this determination, we read all the jury instructions together
and consider whether, taken as a whole, they correctly state the
law, are not misleading, and adequately cover the issues sup-
ported by the pleadings and the evidence. See State v. Swindle,
supra. Based on these standards, we conclude that the venue
instruction given by the court did not constitute prejudicial
error requiring reversal.
The instruction generally stated venue in Morrill County
was proper if either (1) the acts constituting the offense
occurred in Morrill County or (2) the offense occurred dur-
ing a motor vehicle trip that passed through or terminated in
Morrill County. The part of the instruction regarding an offense
occurring during a motor vehicle trip was an accurate, if not
a complete, recitation of the statute. Although the instruction
identified venue as “Morrill County, Nebraska,” as Mueller
notes, the instruction did not fully recite the statute, because
it left off the part of § 29-1301.02 that said the offense had to
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have been “committed in this state.” But we do not think that
this omission constituted prejudicial error in this case.
Talley’s testimony was the main direct evidence regard-
ing whether Mueller shot Dominguez and the location where
the shooting occurred. Talley testified that the shooting in the
motor vehicle occurred about 15 minutes after she, Mueller, and
Dominguez left Bridgeport and were headed toward Kimball.
The State had earlier presented testimony by the chief deputy
of the Morrill County sheriff’s office, regarding Highway 88,
which ran south from Bridgeport in the direction of Kimball.
The deputy testified that approximately 25 miles of Highway
88 along that route were in Morrill County before the route
crossed into an adjacent county which was still in Nebraska.
Based on this testimony, the inference regarding where the
shooting occurred would be that it occurred in Morrill County
or possibly in the adjacent Nebraska county.
Although Talley’s testimony may have been uncertain as to
the specific county in which the shooting occurred, her testi-
mony was clear that the shooting happened en route between
Bridgeport and Kimball. Therefore, although there may have
been different reasonable inferences regarding the specific
county in which the shooting occurred, the only reasonable
inference from Talley’s testimony to the effect that the shoot-
ing occurred after they left Bridgeport but before they reached
Kimball was that the shooting occurred in Nebraska. There
was no other evidence from which one could reasonably find
that Mueller shot Dominguez in Wyoming or anywhere outside
Nebraska. Because a state location issue was not presented
by the evidence, the trial court’s omission of the portion of
§ 29-1306 to the effect that the offense occurred in Nebraska
did not constitute prejudicial error requiring reversal.
Mueller’s argument that an instruction based on § 29-1306
would have been more appropriate is also not availing. Under
§ 29-1306, venue is established in the county in which the
person is shot, and § 29-1306 addresses a situation in which a
person is shot in one county but dies in a different county or a
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different state. In the present case, in order to establish venue
in Morrill County under § 29-1306, it would need to be shown
that Dominguez was shot in Morrill County. The instruction
given by the court did instruct that venue was in Morrill county
if, inter alia, “the acts constituting the crime(s) occurred in
Morrill County.” We do not read § 29-1306 as adding a new
requirement that venue is established in the county in which
the victim is shot; instead, we read it as clarifying that the act
constituting the crime is the shooting and that venue remains
in the county where the shooting occurred whether the victim
died in that county or in another county or state. By including
the word “if” before the remaining substance of its instruction,
the court effectively gave the jury the opportunity to decide if
the State had carried its burden of establishing venue in Morrill
County. Adding the content of § 29-1306 was unnecessary and
would have confused the jury. Mueller was not prejudiced by
the omission of the substance of § 29-1306.
We conclude that the court’s venue instruction, based in part
on § 29-1301.02, reflected the correct law, was not misleading,
and adequately covered the issues supported by the pleadings
and the evidence in this case. We conclude that the venue
instruction given by the court did not constitute prejudicial
error requiring reversal.
Premeditation Instruction.
Mueller next claims that the district court erred when it
gave an instruction that he asserts incorrectly defined premedi-
tation. We conclude that the instruction was consistent with
our prior case law and was not erroneous.
The court’s instruction regarding premeditation stated,
“Premeditation means to form a design to do something
before it is done. 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 it.” When
this instruction was proposed, Mueller did not oppose the first
sentence, which was based on the definition of premeditation
in Neb. Rev. Stat. § 28-302(3) (Reissue 2016). Instead, he
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specifically objected to the second sentence on the basis that
it was not part of the statutory definition of “premeditation.”
The second sentence of the instruction given in this case is
based on NJI2d Crim. 4.0. In State v. Custer, 292 Neb. 88, 871
N.W.2d 243 (2015), and State v. Taylor, 282 Neb. 297, 803
N.W.2d 746 (2011), we rejected a challenge comparable to that
which Mueller raises in this case. Mueller acknowledges this
precedent but asks us to overrule it. He argues the language
of the second sentence comes from case law that preceded the
statutory definition adopted by the Legislature in § 28-302(3)
and that by approving the instruction, this court violates “the
separation of powers clause and basic principles of statutory
interpretation.” Brief for appellant at 22.
We addressed these arguments in Custer, wherein we rea-
soned that “a court’s proper role is to interpret statutes and
clarify their meaning” and that the premeditation instruction
given in that case “interprets and clarifies the statutory defini-
tion; it does not change or contradict the statutory definition.”
292 Neb. at 105, 871 N.W.2d at 257. Our reasoning in Custer
applies to the instant case, and we continue to believe it is a
prudent approach to statutory interpretation. We see no rea-
son to overrule our precedent, and we therefore conclude that
the district court did not err when it gave the premeditation
instruction in this case.
Intoxication Instruction.
Mueller also claims that the district court erred when it
refused his proposed instruction regarding intoxication. We
reject this assignment of error.
Mueller requested the following instruction regarding
intoxication:
There has been evidence that [Mueller] was intoxicated
or under the influence of drugs at the time of 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 and/
or drugs that he could not have had the required intent of
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deliberation and/ or premeditation. You may consider evi-
dence of alcohol and/ or drug use with all other evidence
in deciding whether [Mueller] had the required intent.
The district court refused the instruction “based upon the
evidence.”
Mueller acknowledges the existence of Neb. Rev. Stat.
§ 29-122 (Reissue 2016), which 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 consid-
eration in determining the existence of a mental state that
is an element of the criminal offense unless the defendant
proves, by clear and convincing evidence, that he or she
did not (1) know that it was an intoxicating substance
when he or she ingested, inhaled, injected, or absorbed the
substance causing the intoxication or (2) ingest, inhale,
inject, or absorb the intoxicating substance voluntarily.
In the present case, there was no evidence that Mueller did not
know that what he had ingested was an intoxicating substance
or that Mueller’s ingestion of an intoxicating substance was
not voluntary. However, Mueller argues that the application of
§ 29-122 in this case violated his constitutional rights, because
it relieved the State of its burden to prove the requisite mental
state beyond a reasonable doubt. We do not agree.
We note first that Mueller did not raise a constitutional chal-
lenge to § 29-122 below. But in any event, we further note
that we rejected the same challenge that Mueller argues in
this appeal in State v. Abejide, 293 Neb. 687, 879 N.W.2d 684
(2016). In Abejide, we determined that “[b]y removing volun-
tary intoxication from consideration of whether the defendant
had the required mental state, § 29-122 redefines the circum-
stances under which the requisite mental state may be found
but it does not relieve the State of its burden to prove the
requisite mental state.” 293 Neb. at 700, 879 N.W.2d at 695. In
reaching this determination, we relied on Montana v. Egelhoff,
518 U.S. 37, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996).
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Mueller acknowledges Abejide, but asserts that we misread
Egelhoff and urges us to overrule Abejide. We decline to do so.
Mueller contends that § 29-122 limits the admissibility of oth-
erwise relevant evidence and that such limitation would not be
acceptable under Egelhoff. Contrary to Mueller’s assertion, upon
reexamination, we believe that we correctly reasoned in Abejide
that “similar to the statute at issue in Egelhoff, supra, § 29-122
is a ‘legislative judgment regarding the circumstances under
which individuals may be held criminally responsible for their
actions.’” 293 Neb. at 700, 879 N.W.2d at 695. As such, it does
not limit the admissibility of otherwise relevant evidence. And,
in fact, in this case, evidence was admitted regarding Mueller’s
being under the influence of methamphetamine at the time of
the shooting.
Mueller’s proposed instruction did not correctly state the
law under § 29-122, and there was no evidence that would
warrant an instruction regarding involuntary intoxication under
§ 29-122. Here, as in Abejide, because the defendant presented
no evidence that his intoxication was involuntary, we need not
consider whether § 29-122 may constitutionally require “clear
and convincing evidence” that intoxication was involuntary or
whether § 29-122 may constitutionality require the defendant
to bear the burden of persuasion on the issue of involuntary
intoxication.
In this case, the only issue involving intoxication is whether
the district court erred when it refused to give Mueller’s
requested instruction. As discussed above, Mueller’s requested
instruction on intoxication did not correctly state the law under
§ 29-122. For this and other reasons, Mueller has not shown
that the district court’s refusal to give his proposed instruction
was reversible error.
Possession of a Deadly Weapon by a
Prohibited Person Instruction.
Although he did not object to the instruction at trial, Mueller
claims on appeal that the district court erred when it gave an
instruction setting forth the elements of possession of a deadly
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weapon by a prohibited person. We find Mueller’s challenge to
be without merit.
Mueller recognizes that the instruction given by the district
court was consistent with the statutory definition of possession
of a deadly weapon by a prohibited person set forth in Neb.
Rev. Stat. § 28-1206 (Reissue 2016), which was in effect in
2015, the time the offense charged in this case was commit-
ted. However, he notes that the Legislature made amendments
to § 28-1206 that went into effect on May 10, 2017, after
Mueller’s trial and sentencing in this case. Mueller argues that
the amendments changed the elements of the crime with which
he was charged and that he should have been given the benefit
of those amendments.
[8] We have stated that statutes governing substantive mat-
ters in effect at the time of a crime govern, and not later
enacted statutes. State v. Galindo, 278 Neb. 599, 774 N.W.2d
190 (2009). We have further stated that, in contrast, procedural
statutes in effect on the date of a hearing or proceeding govern,
and not those in effect when the violation took place. Id. We
have elucidated the distinction between substantive and proce-
dural statutes as follows:
A change in law will be deemed to affect matters of
substance where it increases the punishment or changes
the ingredients of the offense or the ultimate facts neces-
sary to establish guilt. In other words, a rule is substantive
if it alters the range of conduct or the class of persons
that the law punishes. In contrast, rules that regulate only
the manner of determining a defendant’s culpability are
procedural.
State v. Galindo, 278 Neb. at 614-15, 774 N.W.2d at 210
(emphasis in original).
[9] Based on this reasoning, a statute defining the elements
of a crime is substantive and the statute in effect at the time
of the offense governs. Therefore, in the present case, the ver-
sion of § 28-1206 that was in effect on the date of the charged
offense governs and amendments to the statute pertaining to
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possession of a deadly weapon by a prohibited person that
were enacted after Mueller’s trial do not apply. We conclude
that the district court did not err when it instructed the jury
using the elements set forth in the statute that was in effect at
the time the charged offense was committed.
Sufficiency of Evidence to Support
Conviction for First Degree Murder.
Mueller claims that there was not sufficient evidence to
support his conviction for first degree murder. He specifi-
cally argues that there was significant evidence that pointed to
Talley, rather than Mueller, as being the murderer and that even
if the jury could find that Mueller killed Dominguez, there was
not sufficient evidence to prove that he had done so purposely
and with deliberate and premeditated malice. We conclude that
there was sufficient evidence to support the conviction.
With regard to his argument that there was significant evi-
dence that Talley killed Dominguez, Mueller refers to evidence
of allegedly inculpatory statements Talley made in text mes-
sages and social media communications to friends as well as
the statements she made to Montoya in the Morrill County
jail. Mueller generally argues that such evidence indicates that
Talley and Dominguez had relationship problems when they
were in Bridgeport and that after Dominguez was killed, Talley
was concerned that she would be in trouble in connection with
his death. Mueller also emphasizes Montoya’s testimony to the
effect that Talley said she had killed her boyfriend by putting
her hand over his mouth to stop his breathing and end his suf-
fering after he had been shot.
The jury was able to consider the evidence that Mueller con-
tends implicated Talley as being Dominguez’ killer and could
reasonably have determined that such competing evidence
did not diminish its view that the State had proved Mueller
guilty beyond a reasonable doubt. The evidence highlighted by
Mueller could show that Talley was concerned she would be in
trouble as an accomplice to the murder, which does not negate
Mueller’s involvement in the death of Dominguez. To the extent
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Montoya testified that Talley said she had killed Dominguez by
stopping his breathing, Montoya further testified that Talley
had said that she had done so after Mueller shot Dominguez
and that her actions were intended to stop Dominguez’ suffer-
ing. The autopsy evidence indicated that Dominguez died as a
result of the gunshot wound, and therefore, the jury could find
that Mueller caused Dominguez’ death even if it believed that
Talley’s actions may have hastened his death.
Mueller further contends that even if the jury found that
he had shot Dominguez, it could not have found that he did
so purposely and with deliberate and premeditated malice. He
argues that a finding of premeditation is not consistent with
Talley’s testimony that Mueller shot Dominguez “very sud-
denly and seemingly out-of-the-blue.” Brief for appellant at
41. Mueller also argues that there was evidence that he was
showing signs of paranoia as a result of being under the influ-
ence of methamphetamine and that such condition prevented
him from forming the requisite intent.
We have reviewed the record and determine that the jury
could have found the requisite intent despite the evidence to
which Mueller directs our attention. Talley’s testimony that
the shooting was “sudden” could reasonably be understood
as happening suddenly from her perspective, because she was
not aware of what Mueller may have been thinking or delib-
erating prior to shooting Dominguez. Talley did not testify
regarding any sudden quarrel or other event that could have
caused Mueller to shoot without deliberation or premeditation.
Instead, she testified that immediately prior to the shooting,
she was having a conversation with Dominguez while Mueller
was in the back seat. Talley further testified that after shoot-
ing Dominguez, Mueller pointed the gun at her and asked
her to give a reason he should not shoot her also. Based on
Talley’s description, the jury could reasonably have found
that Mueller was acting purposely and deliberately and had
premeditated the murder, even if only for a short time before
taking such action.
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The jury could also reasonably have found that Mueller
had the requisite intent despite evidence that he was under the
influence of methamphetamine and showing what lay people
described as signs of paranoia. As discussed above in con-
nection with Mueller’s requested instruction on intoxication,
under § 29-122, voluntary intoxication is not to be taken into
consideration in determining the existence of a mental state
that is an element of the criminal offense. Furthermore, there
was evidence of Mueller’s actions and statements at the time of
the shooting and thereafter that indicated that he was not act-
ing entirely without reason and that he could have formed the
requisite intent to kill.
We conclude that there was sufficient evidence to support
Mueller’s conviction for first degree murder.
Excessive Sentences.
Mueller claims that the district court imposed excessive
sentences. Mueller acknowledges that his conviction for first
degree murder required a mandatory life sentence and that
his sentence for use of a deadly weapon to commit a felony
was statutorily required to be served consecutively to his life
sentence. He therefore focuses his arguments on the length of
his sentence for use and the consecutive sentence for posses-
sion of a deadly weapon by a prohibited person. We conclude
that the district court did not abuse its discretion when it sen-
tenced Mueller.
Use of a deadly weapon to commit a felony is a Class IC
felony under Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016),
and possession of a deadly weapon by a prohibited person is a
Class ID felony under § 28-1206(3)(b). Under Neb. Rev. Stat.
§ 28-105 (Reissue 2016), a Class IC felony is subject to a sen-
tence of imprisonment for a mandatory minimum of 5 years
and a maximum of 50 years, and a Class ID felony is subject
to a sentence of imprisonment for a mandatory minimum of 3
years and a maximum of 50 years. Therefore, Mueller’s sen-
tences were within statutory limits and we review his sentenc-
ing for an abuse of discretion by the district court.
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[10-12] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion in
considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed. State v. Leahy, ante p. 228, 917 N.W.2d 895 (2018).
In determining a sentence to be imposed, relevant factors cus-
tomarily considered and applied are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the amount of violence involved
in the commission of the crime. Id. The appropriateness of a
sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the
defendant’s life. Id.
Mueller generally argues that because he was already sub-
ject to a mandatory life sentence for first degree murder and a
mandatorily consecutive sentence for the use conviction, it was
excessive to add another consecutive and lengthy sentence of
imprisonment for the possession of a deadly weapon convic-
tion. He argues that the court did not give adequate weight
to his individual circumstances, particularly his history of
substance abuse which resulted from the influence of an uncle
who was heavily involved in drugs and the lack of a relation-
ship with his father. He also argues that his substance abuse
mitigates the present offenses, as well as the previous offenses
in his criminal history, because substance abuse caused him to
act impulsively.
At the sentencing, the court stated that it had reviewed
Mueller’s presentence report and had considered all the required
factors for sentencing. The record does not indicate that the
court considered any improper factors. The State notes that
Mueller’s criminal record indicates a history of violence and
that testing showed him to be at a very high risk to reoffend.
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Mueller’s argument that his substance abuse caused him to act
impulsively carries less weight considering that, as discussed
above, the evidence in this case supported the finding that his
actions were deliberate and premeditated. Furthermore, the
sentences at issue relate to his use and possession convictions
and the evidence does not indicate that he acted impulsively
in using or possessing the firearm in this case. We further note
that Mueller’s minimum sentence of 20 years for each con-
viction is in the middle of the statutory range and that it was
within the court’s discretion to order the sentence for posses-
sion to be served consecutively. See State v. Leahy, supra.
We conclude that the district court did not abuse its discre-
tion in imposing consecutive sentences of imprisonment for 20
to 40 years for the use and possession convictions.
Credit for Time Served in Wyoming.
Finally, Mueller claims that the district court erred when it
failed to give him credit against his sentences for time he served
in Wyoming. The State concedes, and we agree, that Mueller
should have been given credit for an additional 91 days.
The evidence presented at the sentencing hearing was that
an arrest warrant had been issued against Mueller with regard
to this case on December 7, 2015. At that time, he was being
held in a jail in Wyoming based on charges that arose in
Wyoming. Nebraska law enforcement officers placed a hold on
Mueller, and on March 7, 2016, they were advised that Mueller
was available to be returned to Nebraska.
In the district court, Mueller asked that he be given credit
for the additional 91 days that he had spent in jail in Wyoming
after the arrest warrant was issued on December 7, 2015, in
addition to the 371 days he had served in prison in Nebraska
after being returned from Wyoming. The court ordered that
time served of 371 days be credited against Mueller’s sentence
for possession of a deadly weapon by a prohibited person. But
the court did not give credit for the 91 days in the Wyoming
jail, stating that Mueller had been “picked up and returned to
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Nebraska on the first possible day that he could be here while
there was [sic] not charges pending and unresolved apparently
in the State of Wyoming.”
Neb. Rev. Stat. § 83-1,106 (Reissue 2014) provides in rel-
evant part:
(1) Credit against the maximum term and any mini-
mum term shall be given to an offender for time spent
in custody as a result of the criminal charge for which a
prison sentence is imposed or as a result of the conduct
on which such a charge is based. This shall specifically
include, but shall not be limited to, time spent in custody
prior to trial, during trial, pending sentence, pending
the resolution of an appeal, and prior to delivery of the
offender to the custody of the Department of Correctional
Services, the county board of corrections, or, in counties
which do not have a county board of corrections, the
county sheriff.
....
(4) If the offender is arrested on one charge and pros-
ecuted on another charge growing out of conduct which
occurred prior to his or her arrest, credit against the
maximum term and any minimum term of any sentence
resulting from such prosecution shall be given for all time
spent in custody under the former charge which has not
been credited against another sentence.
[13-15] We have stated that because of the mandatory
“shall” language used in § 83-1,106, the statute mandates that
credit for time served must be given for time spent in custody
on a charge when a prison sentence is imposed for a convic-
tion of such charge. State v. Banes, 268 Neb. 805, 688 N.W.2d
594 (2004). We further stated in Banes that § 83-1,106(4)
was to be read “as requiring that such credit shall be given
which has not otherwise been applied, and the import of
this subsection is that all credit available due to presentence
incarceration shall be applied, but only once.” 268 Neb. at
811, 688 N.W.2d at 599. We also recently stated that “what
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matters in the credit for time served analysis is not whether
[the defendant] was detained in Nebraska and awaiting trial
and sentencing on Nebraska charges, but, rather, whether
[the defendant] was forced to be in custody because of those
charges.” State v. Leahy, ante p. 228, 235, 917 N.W.2d 895,
900-01 (2018) (emphasis in original). Given the existence of
the arrest warrant and the hold placed on Mueller, we deter-
mine that he was forced to be in custody because of those
charges. See id.
Mueller states in his brief on appeal that the Wyoming
charges were dismissed without his time spent in custody being
credited against any sentence in Wyoming. The State does
not dispute this and notes that although the record on appeal
does not explicitly reflect that the Wyoming charges were
dismissed, the presentence report contains a court order from
Wyoming stating that Mueller was being released on his own
recognizance in order to “return to Nebraska to resolve pend-
ing charges there.”
Contrary to its position at trial, the State now asserts that
because the 91 days Mueller spent in custody in Wyoming had
not been credited against any sentence imposed in Wyoming at
the time Mueller was sentenced on the present convictions in
Nebraska, the district court should have applied credit for the
91 days against one of his sentences in this case. We agree with
the State’s concession.
After Nebraska law enforcement officers placed a hold
on Mueller on December 7, 2015, he was held in custody in
Wyoming for 91 days. Section 83-1,106(4) required that he
be given credit for that time, but only once. If Mueller had
been given credit for that time against a sentence imposed
in Wyoming, it would not be available for credit against his
Nebraska sentences. But the Wyoming order noted by the State
indicated that at the time he was returned to Nebraska, he had
not been sentenced in Wyoming, and that therefore, there was
no Wyoming sentence against which the time served could
be credited.
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In view of the above, the district court should have cred-
ited the 91 days Mueller spent in jail in Wyoming against one
of Mueller’s Nebraska sentences. Because the court credited
the 371 days Mueller spent in prison in Nebraska against his
sentence for possession of a deadly weapon by a prohibited
person, it is clear that the district court intended that credit be
given against that charge. We therefore conclude that the sen-
tencing order should be modified to state that Mueller’s sen-
tence for possession of a deadly weapon by a prohibited person
should be credited for time served in the amount of 462 days
rather than the 371 days ordered by the district court.
CONCLUSION
Having rejected Mueller’s assignments of error related to
jury instructions and sufficiency of the evidence, we affirm his
convictions for first degree murder, use of a deadly weapon
to commit a felony, and possession of a deadly weapon by
a prohibited person. We reject Mueller’s claim that his sen-
tences were excessive, but we agree that the district court
erred when it did not give him credit for 91 days of time
served in Wyoming. We therefore affirm Mueller’s sentences,
but the sentencing order shall be modified to state that he be
given credit for time served in the amount of 462 days against
his sentence for possession of a deadly weapon by a prohib-
ited person.
A ffirmed as modified.
Freudenberg, J., not participating.