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State v. Mann

Supreme Court of Nebraska

April 5, 2019

State of Nebraska, appellee,
Gary L. Mann, appellant.

         1. Jury Instructions: Appeal and Error. When a party assigns as error the failure to give an unrequested jury instruction, an appellate court will review only for plain error.

         2. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

         3. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         4. Statutes. Statutory interpretation is a question of law. 5. Criminal Law: Trial: Jury Instructions: Proof. In a criminal trial, the court in its instructions must delineate for the jury each material element the State is required to prove beyond a reasonable doubt to convict the defendant of the crime charged.

         6. Trial: Judges: Jury Instructions: Appeal and Error. It is the duty of a trial judge to instruct the jury on the pertinent law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous.

         7. Jury Instructions. Jury instructions are not prejudicial if they, when taken as a whole, correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence.

         8. Criminal Law: Statutes: Legislature. In Nebraska, all crimes are statutory, and no act is criminal unless the Legislature has in express terms declared it to be so.

         [302 Neb. 805] 9. Criminal Law: Statutes. Penal statutes are considered in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.

         10. ___: ___. Effect must be given, if possible, to all parts of a penal statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.

         11. Criminal Law: Due Process: Proof. Due process requires a prosecutor to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

         12. Constitutional Law: Due Process. The due process requirements of Nebraska's Constitution are similar to those of the federal Constitution.

         13. Jury Instructions: Appeal and Error. A jury instruction that omits an element of a criminal offense from the jury's determination is subject to harmless error review.

         14. Criminal Law: Statutes. Courts strictly construe criminal statutes.

         15. Constitutional Law: Criminal Law: Due Process: Presumptions: Proof. Under the Due Process Clause of the 14th Amendment to the U.S. Constitution and under the Nebraska Constitution, in a criminal prosecution, the State must prove every element of an offense beyond a reasonable doubt and may not shift the burden of proof to the defendant by presuming that element upon proof of the other elements of the offense.

         16. Criminal Law: Weapons: Intent. Under Neb. Rev. Stat. § 28-1212.03 (Reissue 2016), the absence of an intent to restore a firearm to the owner is a material element of the crime of possession of a stolen firearm.

         17. Verdicts: Juries: Appeal and Error. Harmless error review ultimately looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

         18. Appeal and Error. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings.

         19. 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.

         20.___:___: ___. 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 [302 Neb. 806] appellant was prejudiced by the court's refusal to give the tendered instruction.

         21. Jury Instructions: Appeal and Error. It is not error for a trial court to refuse to give a party's requested instruction where the substance of the requested instruction was covered in the instructions given.

          Appeal from the District Court for Lancaster County: Lori A. Maret, Judge.

          Joseph D. Nigro, Lancaster County Public Defender. Timothy M. Eppler, and Melissa Figueroa, Senior Certified Law Student, for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.


         Gary L. Mann appeals from a conviction and sentence, pursuant to jury verdict, for possession of a stolen firearm in violation of Neb. Rev. Stat. § 28-1212.03 (Reissue 2016). The primary issue is whether the "intent to restore" clause of § 28-1212.03 is an essential element of the crime, such that the failure to so instruct was plain error. We conclude that it was and that the error was not harmless. We reverse, and remand for a new trial.


         On February 26, 2017, Mann was living with his half brother, James Barnes. On that day, Barnes had asked Mann to move out of the house. In Barnes' bedroom, Barnes kept a .40 caliber pistol stored in a cloth gun case.

         A few hours later, Barnes received the following text message from Mann, "I am not at the house sorry I took your pistol with me you probably won't get it back for a while I love you so much brother pray for my sins to be forgiven so I don't [302 Neb. 807] burn in hell." Concerned that Mann might hurt himself, Barnes notified the Cass County sheriff's office. That office, in turn, requested assistance from the Lincoln Police Department in locating Mann. Two Lincoln police officers responded, and one of them located Mann. After investigating and detaining Mann for several hours, one of the officers obtained a search warrant for Mann's car. Upon searching the car, the officer found the firearm and another officer arrested Mann.

         The State filed an information charging Mann with possession of a stolen firearm. Mann pled not guilty.

         At trial, Mann testified that when he took the firearm, he believed he had permission. He stated that "[a]bout a week prior" to the incident, Barnes had given him permission to use the firearm. Mann testified that he had intended to commit suicide and have the State return the firearm to Barnes. When asked about the firearm by one of the police officers, Mann denied having possession of the firearm, because he "had a bottle of Xanax in the center console directly next to the [firearm] and did not want to get in trouble for it." During cross-examination, Mann admitted that when the police officer questioned him, it would have been the "perfect" opportunity to return the firearm. On redirect examination, he explained that he did not do so because "then [he] would have a narcotics charge."

         At the formal jury instruction conference, Mann made several objections to the instructions. Mann first objected to instruction No. 3 (which included the "elements" instruction) and argued that the jury should be instructed on an affirmative defense. He proposed instructing the jury, '"If you find that [Mann] possessed, received, or disposed of a firearm with the intent to restore to the owner,' . . . that would be a defense." The court overruled Mann's objection and his request for the affirmative defense instruction. Later, Mann objected to the court's definition of "stolen" in instruction No. 4 and argued that the definition should mimic Neb. Rev. Stat. § 28-511(1) (Reissue 2016). Thus, he argued that instruction No. 4 should state that "'stolen' means 'to take or exercise control over [302 Neb. 808] movable property of another with the intent to deprive him or her thereof.'" The court overruled both his objection and his requested change.

         As given by the district court, the elements portion of instruction No. 3 stated:

Regarding the crime of Possession of a Stolen Firearm, the elements of the State's case are:
1. That [Mann] did possess, receive, retain, or dispose of a stolen firearm, knowing that it had been stolen or believing it had been stolen; and
2. That [Mann] did so on or about February 26, 2017, in Lancaster County, Nebraska.

         In the pertinent part of instruction No. 4, the jury was instructed, "'Stolen' means to have been taken without permission or authority, to deprive the owner thereof."

         The jury found Mann guilty. The court sentenced Mann to 2 to 6 years' imprisonment.

         Mann filed a timely appeal, which we moved to our docket.[1] After oral argument, we requested supplemental briefing by the parties to address

whether, in light of the State's submission in [original] briefing that the phrase in ... ยง 28-1212.03 . . . stating 'unless the firearm is possessed, received, retained, or disposed of with intent to restore it to the owner' is a material element of the offense and [Mann's] adoption at oral argument of that submission, the failure to instruct the jury of this material element in Instruction No. 3 ...

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