State v. Mann

302 Neb. 804

925 N.W.2d 324

STATE of Nebraska, Appellee,

v.Gary L. MANN, Appellant.

No. S-18-333.

Supreme Court of Nebraska.

Filed April 5, 2019.

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, Lincoln, for appellee.

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

Cassel, J.

I. INTRODUCTION

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.

II. BACKGROUND

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 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 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 ... § 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 constituted plain error, and the reasoning flowing from that answer to a proper disposition of this appeal.

The parties filed supplemental briefs, which we have considered.

III. ASSIGNMENTS OF ERROR

Mann assigns, restated and reordered, that (1) the jury instructions were prejudicial, (2) he received ineffective assistance of trial counsel, (3) the district court erred in admitting or precluding evidence that resulted in prejudice, and (4) the district court abused its discretion by imposing an excessive sentence.

IV. STANDARD OF REVIEW

When a party assigns as error the failure to give an unrequested jury instruction, an appellate court will review only for plain error.² 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

Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court’s decision.⁴ Statutory interpretation is also a question of law.⁵

V. ANALYSIS

We begin by reciting the text of § 28-1212.03, because it is central to our decision. It states:

Any person who possesses, receives, retains, or disposes of a stolen firearm knowing that it has been or believing that it has been stolen shall be guilty of a Class IIA felony unless the firearm is possessed, received, retained, or disposed of with intent to restore it to the owner .⁶

We will refer to the emphasized wording as the "intent to restore clause."

We have not previously identified the essential elements of this statute. Consequently, in crafting the instructions here, the district court did not have the benefit of our guidance.

In asserting that the jury instructions were prejudicially erroneous, Mann presents three arguments. First, the instructions omitted an essential element of § 28-1212.03 by failing to instruct on the intent to restore clause. Second, the court refused his requested instruction on the statutory definition of "deprive." Third, Mann contends that the court erroneously overruled his objection for the instruction of the statutory definition of "stolen."

1. ELEMENTS OF § 28-1212.03

(a) General Principles

We recall several familiar principles governing the duty to instruct a jury in a criminal case. 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.⁷ 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.⁸ 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.⁹

To determine the elements of a crime, we look to the text of the statute. In Nebraska, all crimes are statutory, and no act is criminal unless the Legislature has in express terms declared it to be so.¹⁰ 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.¹¹ 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.¹²

The omission of an essential element from the jury raises due process concerns. Due process requires a prosecutor to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.¹³ The due process requirements of Nebraska’s Constitution are similar to those of the federal Constitution.¹⁴ The U.S. Supreme Court has held that the "Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged."¹⁵

Yet, a jury instruction that omits an element of the offense from the jury’s determination is subject to harmless error review.¹⁶ With these principles in mind, we turn to the parties’ arguments.

(b) Arguments of Parties

In the district court, both parties took the position that the intent to restore clause was an affirmative defense. Thus, in Mann’s initial brief on appeal, he argued that the trial court should have instructed the jury regarding his affirmative defense.

In its responsive brief, the State "submit[ted] that [the intent to restore clause] appears to be an element of the offense rather than an affirmative defense."¹⁷ Noting the similarity of § 28-1212.03 to Neb. Rev. Stat. § 28-517 (Reissue 2016) and our decision in State v. Hubbard¹⁸ determining that similar language was an element of the offense and not an affirmative defense, the State argued that it could "conceive...