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
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.
Jury Instructions: Appeal and Error. Whether
jury instructions are correct is a question of law, which an
appellate court resolves independently of the lower
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.
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.
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.
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
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.
___: ___. 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.
Criminal Law: Due Process: Proof. Due
process requires a prosecutor to prove beyond a reasonable
doubt every fact necessary to constitute the crime charged.
Constitutional Law: Due Process. The due
process requirements of Nebraska's Constitution are
similar to those of the federal Constitution.
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
Criminal Law: Statutes. Courts strictly
construe criminal statutes.
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
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.
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.
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
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.
___. 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.
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.
from the District Court for Lancaster County: Lori A. Maret,
D. Nigro, Lancaster County Public Defender. Timothy M.
Eppler, and Melissa Figueroa, Senior Certified Law Student,
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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.
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.
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.
State filed an information charging Mann with possession of a
stolen firearm. Mann pled not guilty.
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
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.
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.
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."
jury found Mann guilty. The court sentenced Mann to 2 to 6
filed a timely appeal, which we moved to our
docket. 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 ... § 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 ...