State v. Banks

We therefore modify the recommendation of the Commission
accordingly.
CONCLUSION
Judge Marcuzzo’s conduct was in violation of the Code. As
discipline, we impose a 120-day suspension from office with-
out pay, effective on the issuance of the mandate in this case.
Judgment of suspension without pay.
heavican, C.J., not participating.
state of nebraska , appellee , v.
antonio banks , appellant.
771 N.W.2d 75
Filed August 21, 2009. 	No. S-07-670.
1. Trial: Juries: Appeal and Error. The retention or rejection of a venireperson as
a juror is a matter of discretion with the trial court and is subject to reversal only
when clearly wrong.
2. Venue: Appeal and Error. A motion for change of venue is addressed to the
discretion of the trial judge, whose ruling will not be disturbed absent an abuse
of discretion.
3. Jury Instructions: Proof: Appeal and Error. 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.
4. Constitutional Law: Appeal and Error. An appellate court reviews de novo a
trial court’s determination of the protections afforded by the Confrontation Clause
and reviews the underlying factual determinations for clear error.
5. Pleadings. The decision to grant or deny an amendment to a pleading rests in the
discretion of the court.
6. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction.
7. Jurors: Appeal and Error. The erroneous overruling of a challenge for cause
will not warrant reversal unless it is shown on appeal that an objectionable juror
342 	278 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

was forced upon the challenging party and sat upon the jury after the party
exhausted his or her peremptory challenges.
8. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct
on a lesser-included offense if (1) the elements of the lesser offense for which an
instruction is requested are such that one cannot commit the greater offense with-
out simultaneously committing the lesser offense and (2) the evidence produces
a rational basis for acquitting the defendant of the greater offense and convicting
the defendant of the lesser offense.
9. Constitutional Law: Trial: Juries: Witnesses. An accused’s constitutional
right of confrontation is violated when either (1) he or she is absolutely pro-
hibited from engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of a witness, or (2) a reasonable
jury would have received a significantly different impression of the witness’
credibility had counsel been permitted to pursue his or her proposed line of
cross-examination.
10. Constitutional Law: Trial: Witnesses. Although the main and essential purpose
of confrontation is the opportunity of cross-examination, trial judges retain wide
latitude insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based upon concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interroga-
tion that is repetitive or only marginally relevant.
11. Trial: Witnesses. A witness’ credibility and weight to be given to testimony are
matters for determination and evaluation by a fact finder.
12. 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 instruc-
tion was covered in the instructions given.
13. Indictments and Informations. A trial court, in its discretion, may permit a
criminal information to be amended at any time before verdict or findings if no
additional or different offense is charged and the substantial rights of the defend-
ant are not prejudiced.
14. Witnesses: Juries: Appeal and Error. The credibility and weight of witness
testimony are for the jury to determine, and witness credibility is not to be
reassessed on appellate review.
Appeal from the District Court for Lancaster County: Jeffre
cheuvront, Judge. Affirmed.
Dennis R. keefe, Lancaster County public Defender, and
Shawn elliott for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
wright, connolly, gerrard, stephan, mccormack, and
miller-lerman, JJ., and inbody, Chief Judge.
STATe v. bANkS 	343
Cite as 278 Neb. 342

miller-lerman, J.
NATURe OF CASe
Antonio banks was convicted of first degree murder and use
of a firearm to commit a felony in connection with the August
30, 2005, shooting death of Robert Herndon. The district court
for Lancaster County sentenced banks to life imprisonment on
the first degree murder conviction and to a consecutive sentence
of imprisonment for 20 to 30 years on the firearm conviction.
banks appeals. We affirm banks’ convictions and sentences.
STATeMeNT OF FACTS
banks was charged in connection with the death of Herndon,
who died as the result of gunshot wounds to the chest in the
early hours of August 30, 2005, in Lincoln, Nebraska. Various
witnesses at banks’ trial testified regarding the events of the
evening of August 29 and the early hours of August 30.
Amanda Herman was Herndon’s girlfriend. Herman testified
that she spent the evening of August 29, 2005, at Herndon’s
house 	watching 	a 	movie 	with 	Herndon 	and 	a 	friend 	of
Herndon’s. At the end of the evening, Herndon gave his friend
a ride home and Herman remained at Herndon’s house. Shortly
after Herndon and his friend left, Herman heard a knock at the
door. She opened the door and saw a man later identified as
Victor Young. Young told her that his car had broken down,
and he asked whether he could have a jug of water. A second
man whom Herman had not seen at first pushed past Young and
came into the house. He was wearing a shirt or mask over his
face and carrying a shotgun. Although Herman was unable to
identify the second man, Young’s testimony identified banks as
the second man. banks pointed the gun at Herman’s chest and
told her to get into a bathroom that was near the front door.
Herman went into the bathroom, and someone closed the door
behind her.
While she was in the bathroom, Herman heard the men going
through the house searching cupboards and drawers and knock-
ing things around. Young asked her where Herndon was, and
she told him he had gone to take a friend home. banks asked
Herman “more than a couple” of times “where the money was
at, where is the weed at.” At one point, Herman responded that
344 	278 NebRASkA RepORTS

he should look in the closet. One of the men came and took
her out of the bathroom so that she could show them the closet.
She then returned to the bathroom. Shortly thereafter, she heard
banks say “jack pot.”
Herman then heard keys in the front door and heard Herndon
enter the house and call for her. She did not respond, but she
heard a sound of scuffling and heard Herndon say “you cracked
me in the head.” One of the men asked Herndon where the
money and marijuana were, and Herndon responded, “I don’t
have anything, here’s my wallet.” Herman heard banks say
“let’s bring [Herman] out here and kill her in front of him
and then maybe he’ll talk, maybe he’ll tell us.” Herman then
heard what sounded like someone falling down the stairs, and
she heard banks say “stay downstairs or I’m going to kill
you, don’t call the cops.” Thereafter, she heard what sounded
like someone trying to come up the stairs and banks saying
“don’t keep coming back up here, stay down there.” She heard
Herndon more than once say, “Get out . . . of my house.” She
also heard two loud bangs that she thought sounded like some-
one hitting something.
After several minutes, things quieted down and Herman
thought the men had gone, so she came out of the bathroom.
She called out for Herndon but got no response, so she went to
the basement and through the house and the backyard looking
for him. As she went through the house, she saw that it had
been “ransacked,” with drawers pulled out and things strewn on
the floor. When she could not find Herndon, she grabbed her
keys and went to her car, which was parked in the driveway. As
she backed out of the driveway, she saw Herndon lying in the
street by the curb. She got out of the car and ran to Herndon
and discovered that he was bleeding and was lying on top of
his shotgun. A neighbor told her that they had heard gunshots
and that the police were on their way.
The first police officer who arrived at the scene testified
at trial that he heard the dispatcher’s report of the shooting
at 12:26 a.m. on August 30, 2005, and that he arrived on the
scene at 12:31 a.m. The officer saw Herndon’s body lying in
the street along the curb with a shotgun partially visible under
his body. The officer saw no signs of life.
STATe v. bANkS 	345
Cite as 278 Neb. 342

Herman was not able to identify banks as one of the men;
however, she testified that she had met banks approximately
1 month before Herndon’s shooting. She met him through
ella Durham, a friend of hers who was banks’ girlfriend, and
she had seen him a few times that month. Herman testified
that on one occasion, banks and Durham came to Herndon’s
house to retrieve from Herman a purse that Durham had left in
Herman’s car. Herman testified, however, that she did not think
banks and Herndon had ever met.
Durham testified that she had previously spent the night
of August 26, 2005, at Herndon’s house with Herman and
Herndon. The next morning, Durham saw a friend of Herndon’s
grab a bag of marijuana from a closet in Herndon’s house.
Herman told Durham that she had seen seven or eight bags of
marijuana in the closet. That afternoon, Durham told banks
that Herndon had “seven or eight pounds” of marijuana in his
house. banks responded by wondering “how much they were
selling it for.”
Herman was able to identify Young from a photograph as
being the first man at the door on the night Herndon was killed.
Young testified at trial that on the evening of August 29, 2005,
he was driving around Lincoln. At approximately 10 p.m., he
received a call from banks, whom Young had known since
they played football together in their teens. banks asked Young
to pick him up at the corner of eighth and C Streets. When
Young picked up banks, banks told Young that he wanted to
get some money to get out of town because he had a court
case pending. banks told Young he had an idea that he could
“get fronted” an amount of marijuana from someone and that
instead of paying that person back, he would take whatever
money he could get for the marijuana and leave town. After
Young and banks drove around for a time, Young received a
call from John Montgomery, a person to whom Young sold
crack cocaine. Young drove to Montgomery’s location and sold
him drugs. Montgomery asked if he could ride with Young and
hang out, and Young agreed. banks was in the passenger seat,
and Montgomery got into the back seat behind banks.
Shortly thereafter, banks asked Young to drive to the place
where they could pick up the marijuana. banks directed Young
346 	278 NebRASkA RepORTS

to Herndon’s house. When they reached the house, banks
asked Young whether he had a shotgun that banks knew Young
wanted to sell with him. banks said that he might be able to
sell the gun to the man in the house. Young told banks the gun
was in the trunk. banks told Montgomery to stay in the car
and that they would not be long. Young and banks went to the
trunk, and banks grabbed the shotgun and a towel in which the
shotgun was wrapped. The two went to the door of Herndon’s
house, and banks told Young that he should go ahead to the
door and ring the doorbell. After Young rang the doorbell, he
saw banks come from around the side of the house with the
towel wrapped around his head and holding the shotgun in
front of him. Young testified that when a woman answered
the door, banks directed him to tell her that his car had died.
banks then pointed the shotgun at the woman and entered
the house.
Young testified that he did not know what banks had
planned to do and that he was in shock and simply followed
along as banks entered the house, guided the woman into the
bathroom, and started going through the house. Young testified
that banks told him to ask the woman where the marijuana
was located. Young stayed in the front hallway as banks went
through the rooms of the house. Young eventually heard some
music from outside and heard banks say “jackpot.” banks
came back toward the front door and pushed Young into an
adjoining room. Young heard Herndon come into the house
calling for Herman. Young then heard, but did not see, banks
jump Herndon. Young heard banks repeatedly asking Herndon
where the marijuana was and telling Herndon to “[s]top com-
ing up the stairs.” Young also heard banks say that “maybe if
we pulled [Herman] out of the bathroom, she’ll tell us — or
you’ll tell us then where [it] is at.” Young heard Herndon
responding that he did not have anything and that banks
should just go.
Young eventually left the adjoining room and went into the
front hallway and saw banks standing at the door to the base-
ment. Young ran out of the house after he saw banks holding
a handgun and kicking the door to the basement. Young ran
to the car and saw banks run out of the house. As banks was
STATe v. bANkS 	347
Cite as 278 Neb. 342

getting into the passenger seat of the car, Herndon came out
of the house carrying a shotgun pointed at the car and saying
things like “come rob, come rob me.” Young saw that Herndon
had blood on his face. banks got out of the car and pointed his
handgun at Herndon and told him to “put the gun down or I’ll
shoot.” Herndon kept coming toward banks with the shotgun
pointed down, and banks shot Herndon twice with his hand-
gun. banks and Young both got back into the car. Young saw
Herndon continue coming toward banks after he had been shot,
but Herndon fell down as Young drove the car away.
Montgomery testified at trial that he was waiting in the car
outside Herndon’s house and saw Young sprint out of the house
to the car acting “[f]rantic, nervous, scared.” Montgomery then
saw banks jog out of the house to the passenger side of the car.
banks stopped getting into the car when Herndon ran out of the
house carrying a shotgun and bleeding from the head. Herndon
came up to banks at the side of the car, and the two yelled at
each other and went into the street. Montgomery did not see
Herndon point the shotgun at banks; instead, Herndon held the
shotgun “military style” across his chest. Montgomery heard
banks tell Herndon twice to put the gun down, and then he saw
banks shoot Herndon twice with a chrome 9-mm handgun.
Young testified that after leaving Herndon’s house, he drove
banks and Montgomery to Young’s apartment complex. During
the ride, Young asked banks why he shot Herndon, and banks
denied that he had shot him. Upon arriving at the apartment
complex, Young told banks he needed “to go, get away from
me, you know, get out of here.” banks got out of the car and
made some telephone calls. eventually, Young saw a car drive
up to banks. Young identified the driver of the car as Charles
bowling. Young knew bowling because Young had played on
a basketball team with his son. banks got into the car with
bowling, and they drove into the parking lot of a grocery store
near Young’s apartment complex. Young saw the two get out of
the car, and they appeared to argue. Young yelled to them that
they needed to leave.
bowling testified at trial that he knew banks because banks
and his family attended his church and banks had gone to
school with his sons. banks had called bowling in the early
348 	278 NebRASkA RepORTS

hours of August 30, 2005, and asked him to come pick him
up at a grocery store parking lot. bowling initially resisted,
but banks persisted in calling and was “very stressed and
very agitated,” so bowling went to pick him up. bowling
reached the parking lot between 1:45 and 2 a.m. banks got
into bowling’s car “very hastily and very agitated” and told
bowling he needed to get away quickly. bowling took banks
to bowling’s apartment. banks told bowling that he had done
“something bad” and needed to leave town. banks stayed at the
apartment for a half hour to an hour before he called someone
and left. banks later returned and took a shower. banks asked
bowling for some clothes, and bowling gave him a new shirt.
bowling testified that 2 or 3 days later, he threw away the
shirt that banks had originally been wearing. banks stayed at
bowling’s apartment for 2 to 3 hours after he returned. banks
requested money, and bowling gave him between $35 and
$45. banks left the apartment when a young woman driving
a van came to pick him up. Three or four days later, bowling
learned from a newspaper article that banks had been involved
in a homicide.
parrish Casebier testified that he first met banks on the
morning of August 31, 2005. Casebier knew of banks through
Casebier’s girlfriend and banks’ stepbrother. banks came to
Casebier’s house to show him a 9-mm handgun, because banks
knew that Casebier had a friend in kansas City interested in
buying guns. Casebier and banks discussed a trip that Casebier
was planning to take to Houston, Texas, and Casebier and
banks agreed that banks would go along. That afternoon,
banks, Casebier, and two women left for Houston in a van that
belonged to one of the women.
On the return trip from Houston, they stopped in kansas
City on September 2, 2005. Casebier testified that he had been
receiving calls from the husband of the woman who owned the
van wanting to know where the van was. While in kansas City,
Casebier told banks to return the van to Lincoln. banks told
Casebier that he did not want to go back to Lincoln because he
had “hurt somebody really bad” and he did not know “whether
he was dead or alive.” Casebier testified that he did not see
banks again after that night.
STATe v. bANkS 	349
Cite as 278 Neb. 342

banks was arrested in Lincoln on September 3, 2005. The
State filed an information charging banks with first degree
murder and use of a weapon to commit a felony. In charging
first degree murder, the information stated that banks killed
Herndon “purposely and with deliberate and premeditated mal-
ice” or that he killed Herndon “in the perpetration of or attempt
to perpetrate any robbery, or kidnapping.” prior to trial, the
court granted the State’s motion to strike the reference to kid-
napping from the first degree murder charge. In the weapon
charge, the original information stated that banks “did use
a knife or any other deadly weapon to commit” first degree
murder. During jury selection, the State moved for leave to
amend the weapon count to allege that banks used a firearm to
commit a felony, rather than that he used “a knife or any other
deadly weapon.” banks objected to the amendment. The court
overruled the objection but told the State the appropriate time
to amend would be at the close of evidence. After the State
rested its case, and over banks’ objection, the court gave the
State leave to amend the information.
prior to trial, banks filed a motion to change venue assert-
ing that he could not obtain a fair and impartial trial because
of pretrial publicity. In support of the motion, banks offered
16 newspaper articles about his involvement in the present case
and two additional cases. One case involved a fatal car accident
in February 2005; in connection with the accident, banks had
pled no contest to manslaughter. The other case was a home
invasion robbery carried out by banks and Young that occurred
August 21, approximately 1 week before the incident in the
present case. As part of a plea agreement, Young pled guilty to
robbery in the August 21 incident and pled guilty to a reduced
charge of manslaughter in connection with Herndon’s death.
The oldest of the 16 newspaper articles was dated February 17,
2005, and the most recent was dated February 21, 2007, less
than 1 week before jury selection began in this case. The court
took the motion to change venue under advisement, pending
jury selection. At the end of voir dire but prior to the exercise
of peremptory challenges, and again at the conclusion of the
alternate juror selection, banks renewed his motion to change
venue. The court overruled the motion both times.
350 	278 NebRASkA RepORTS

Jury selection began on the morning of February 26, 2007.
During voir dire, banks moved to strike four potential jurors
for cause. In a questionnaire sent to potential jurors, each of
the four had circled “Yes” to the question whether they had
formed or expressed an opinion on the guilt or innocence
of banks. The court questioned each of the potential jurors,
and during such questioning, each of the four expressed that
he or she could set aside any previously formed opinion and
could decide the case based on the evidence at trial. The court
overruled banks’ motions to strike the four potential jurors
for cause.
banks also moved to strike a potential alternate juror for
cause because during individual voir dire, she recalled reading
about banks’ involvement in the fatal car accident. The court
overruled banks’ motion to strike the potential alternate juror
and noted that she stated that all she remembered was that an
accident had occurred and that she did not remember anything
else, such as the fact that banks had been prosecuted and sen-
tenced in connection with the accident. None of the potential
jurors or alternate jurors of whom banks complained ultimately
sat on the jury. Although the record is not clear on this point,
banks asserts that he used his peremptory strikes on the chal-
lenged potential jurors and potential alternate juror.
Trial included the testimony of the witnesses described
above. Additional evidence included testimony by several other
witnesses, including a pathologist who testified that the cause
of Herndon’s death was two gunshot wounds to the chest.
physical evidence included a shotgun recovered from Young’s
car and which Young identified as the shotgun that banks car-
ried into the house. Analysis of blood found on the end of the
shotgun revealed the presence of Herndon’s DNA. The hand-
gun used to shoot Herndon was not found, but two shell cas-
ings were found at the scene and were identified as being from
a 9-mm handgun.
During his testimony at trial, bowling stated that he was
testifying under a use immunity order issued pursuant to Neb.
Rev. Stat. § 29-2011.02 (Reissue 2008). prior to bowling’s tes-
timony, banks made an offer of proof that Young would testify
that banks had once told him that bowling “smoked crack.”
STATe v. bANkS 	351
Cite as 278 Neb. 342

The court sustained the State’s objection to the offer of proof
on the basis of foundation and hearsay.
During bowling’s testimony, banks made another offer of
proof in the form of a deposition in which bowling stated
that he had undergone drug counseling and treatment in 2006
because he had “struggled with” the drug crack for 1 year prior
to treatment. bowling denied buying drugs from or using drugs
with banks. banks argued that he should be allowed to cross-
examine bowling regarding his drug use in order to support a
theory that Young and bowling were involved in drug transac-
tions and that such involvement gave both witnesses motive to
give false testimony. The court sustained the State’s objections
to banks’ offer of proof on the basis of foundation, relevance,
and speculation.
At the close of the State’s evidence, banks moved the court
to dismiss the charges against him on the basis that the testimo-
nies of Young, Montgomery, Casebier, and bowling were unre-
liable. The court overruled the motion. In his defense, banks
called three members of the police department and questioned
them about the investigation. The court instructed the jury that
the purpose of such testimony was to impeach the testimonies
of Montgomery and Young. banks did not testify. At the close
of all evidence, banks moved for dismissal or directed ver-
dict, again arguing unreliable testimony. The court overruled
the motion.
At the jury instruction conference, the State requested that
the court instruct on both premeditated murder and felony mur-
der theories of first degree murder. banks also requested that
the court instruct on both theories and further requested that
the court instruct on second degree murder and manslaughter
as lesser-included offenses. The court, however, determined
that the evidence supported only an instruction on felony mur-
der. The court therefore refused instructions on premeditated
murder, second degree murder, and manslaughter. When the
court stated that it would instruct only on felony murder, banks
requested an instruction on robbery and attempted robbery as
lesser-included offenses of felony murder. The court refused
the instruction.
352 	278 NebRASkA RepORTS

banks also requested a self-defense instruction. The court
refused on the basis that self-defense is not a defense to felony
murder. banks argued that whether or not he actually presented
or argued a theory of self-defense, an instruction was supported
by the evidence, particularly testimony by Montgomery and
Young to the effect that Herndon was advancing on banks with
a shotgun when banks shot him.
The court refused other instructions proposed by banks.
banks requested, but the court refused to give, an instruction on
abandonment as an affirmative defense. The court also refused
an instruction regarding bowling’s testimony. The requested
instruction noted that bowling had been given immunity and
would have instructed that the jury “should consider that testi-
mony with greater caution than that of other witnesses.”
The court gave an instruction regarding accomplice tes-
timony that referred to Montgomery and Young as claimed
accomplices of banks. banks had requested an accomplice tes-
timony instruction that also referred to Casebier and bowling.
The State objected to the inclusion of Casebier and bowling,
arguing that although they might be accessories after the fact,
they were not accomplices. The court agreed and refused to
include Casebier and bowling in the accomplice instruction.
Following deliberations, the jury returned unanimous ver-
dicts finding banks guilty of first degree murder and of use
of a firearm to commit a felony. The court sentenced banks
to life imprisonment for first degree murder and a consecu-
tive sentence of imprisonment for 20 to 30 years on the fire-
arm conviction.
banks appeals.
ASSIGNMeNTS OF eRROR
banks asserts that the district court erred when it (1) over-
ruled his motions to strike for cause the four potential jurors
and the potential alternate juror challenged by banks; (2) over-
ruled his motion to change venue; (3) refused to instruct the
jury on premeditated murder and the lesser-included offenses
of second degree murder and manslaughter; (4) refused to
instruct on robbery and attempted robbery as lesser-included
offenses of felony murder; (5) refused his proposed instruction
STATe v. bANkS 	353
Cite as 278 Neb. 342

on the affirmative defense of abandonment; (6) refused his
proposed instruction on self-defense; (7) prohibited him from
cross-examining bowling regarding drug use, in violation of
the Confrontation Clause; (8) refused to include Casebier and
bowling in the accomplice testimony instruction; (9) refused
to give his proposed immunity instruction regarding bowling’s
testimony; (10) allowed the State to amend the weapon charge
in the information to specify that a firearm had been used; and
(11) overruled his motion to dismiss.
STANDARDS OF ReVIeW
[1] The retention or rejection of a venireperson as a juror
is a matter of discretion with the trial court and is subject to
reversal only when clearly wrong. State v. Hessler, 274 Neb.
478, 741 N.W.2d 406 (2007).
[2] A motion for change of venue is addressed to the dis-
cretion of the trial judge, whose ruling will not be disturbed
absent an abuse of discretion. Id.
[3] 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.
[4] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause and reviews the underlying factual determinations for
clear error. State v. Jacobson, 273 Neb. 289, 728 N.W.2d
613 (2007).
[5] The decision to grant or deny an amendment to a plead-
ing rests in the discretion of the court. State v. Molina, 271
Neb. 488, 713 N.W.2d 412 (2006).
[6] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
354 	278 NebRASkA RepORTS

are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. McGhee, 274 Neb.
660, 742 N.W.2d 497 (2007).
ANALYSIS
The District Court Did Not Commit Reversible Error When
It Overruled Banks’ Motions to Strike Jurors for Cause.
banks asserts that the district court erred when it overruled
his motions to strike four potential jurors and one potential
alternate juror for cause. We conclude that because none
of the challenged potential jurors became part of the jury,
the court did not commit reversible error when it overruled
banks’ motions.
banks argues that four potential jurors should have been
struck because they circled “Yes” to a question on the juror
questionnaire regarding whether they had formed an opinion on
banks’ guilt or innocence. He argues that the potential alternate
juror should have been struck because during voir dire, she
admitted she had heard that banks had been involved in a fatal
car accident in March 2005. banks asserts that because the
court did not sustain his motions, he had to use his peremptory
strikes on the challenged persons.
[7] We have stated that “‘the erroneous overruling of a chal-
lenge for cause will not warrant reversal unless it is shown on
appeal that an objectionable juror was forced upon the chal-
lenging party and sat upon the jury after the party exhausted
his or her peremptory challenges.’” State v. Hessler, 274
Neb. 478, 496, 741 N.W.2d 406, 421 (2007) (quoting State
v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001)). None of
the potential jurors challenged by banks in this case actually
sat on the jury. Under Hessler and Quintana, there can be no
reversal based on a challenge to a potential juror if that person
was not ultimately included on the jury, even if the defendant
was required to use a peremptory challenge to remove the
person. No biased juror sat on banks’ case, and in terms of
due process and the constitutional right to a jury trial, banks
received what the law provides. Our decision is consistent with
STATe v. bANkS 	355
Cite as 278 Neb. 342

Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173 L. ed.
2d 320 (2009).
We conclude that reversal is not warranted in this case
based on the court’s overruling of banks’ motions challenging
potential jurors where such potential jurors did not ultimately
become members of the jury.
The District Court Did Not Err When It Overruled Banks’
Motion for a Change of Venue Because Banks
Did Not Establish That a Change of Venue
Was Necessary for a Fair Trial.
banks next asserts that the district court erred when it over-
ruled his motion for a change of venue. banks argues that a
change of venue was required because of pretrial publicity. We
conclude that banks has not established that a change of venue
was necessary and that the court did not abuse its discretion by
denying the motion.
The only evidence banks offered in support of his motion
for a change of venue consisted of 16 newspaper articles that
appeared in the Lincoln Journal Star between February 2005
and February 2007. The articles reported on banks’ alleged
involvement in this case and in two other cases—one involving
a fatal car accident, and one involving a home invasion robbery
that occurred 1 week before the incident in this case.
In support of his argument that pretrial publicity required
a change of venue, banks notes that during voir dire, seven
potential jurors were struck for cause. However, it does not
appear from the record that the strikes were related to bias
resulting from pretrial publicity.
banks directs our attention to the five potential jurors he
challenged for cause as discussed in connection with his first
assignment of error. He argues that the voir dire of each of
these potential jurors indicated that they were influenced by
pretrial publicity. Although each of these potential jurors stated
that he or she had seen newspaper articles about banks, each
also stated that he or she could be impartial despite what he
or she had read. The court apparently accepted these state-
ments and believed these persons could be impartial despite the
newspaper articles when it overruled banks’ challenges to such
356 	278 NebRASkA RepORTS

potential jurors. Furthermore, as noted above, none of these
potential jurors actually sat on the jury.
In State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007),
and in State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001),
we noted that the record in each case showed that although
potential jurors had heard publicity about the case, such poten-
tial jurors agreed that they could make decisions based solely
on what they heard in court rather than what they had previ-
ously heard about the case. We further noted in both Hessler
and Quintana that an impartial jury had ultimately been cho-
sen, and we concluded that the defendant in each case had not
shown that he could not receive a fair trial in the county at
issue and that the court did not abuse its discretion in denying
the defendant’s motion to change venue.
Similar to Hessler and Quintana, we determine that banks
has not shown that a change of venue was necessary. The
potential jurors who admitted reading the newspaper articles
did not become members of the jury. banks did not show that
the jury actually selected was biased by pretrial publicity, and
because an impartial jury was selected, banks did not show
that it was impossible to seat an impartial jury or that he could
not receive a fair trial in Lancaster County.
We therefore conclude that the court did not abuse its discre-
tion when it overruled banks’ motion for a change of venue.
The District Court Did Not Err and Did Not Violate Banks’
Right of Due Process When It Refused to Instruct on
Premeditated Murder and Its Lesser-Included Offenses;
Banks Was Not Prejudiced by the Refusal to Instruct
on Premeditated Murder, and the Evidence Did Not
Produce a Rational Basis to Acquit Banks of
Felony Murder and Convict Him of Second
Degree Murder or Manslaughter.
banks asserts that the district court erred when it refused
to instruct on the premeditated murder theory of first degree
murder and on the associated lesser-included offenses of sec-
ond degree murder and manslaughter. We conclude that the
district court did not err when it refused the instructions,
because banks was not prejudiced by the refusal to instruct
STATe v. bANkS 	357
Cite as 278 Neb. 342

on premeditated murder, and the evidence did not produce a
rational basis to acquit banks of first degree murder under a
felony murder theory and convict him of second degree murder
or manslaughter.
At the jury instruction conference, the State requested that
the court instruct on both premeditated murder and felony
murder as alternate theories of first degree murder. banks also
requested that the court instruct on both theories, and he fur-
ther requested that the court instruct on second degree murder
and manslaughter as lesser-included offenses of first degree
premeditated murder. The court, however, determined that the
evidence supported an instruction on only the felony murder
theory of first degree murder. The court therefore refused
instructions on premeditated murder and the lesser-included
offenses of second degree murder and manslaughter.
banks makes a two-step argument as to why the court erred
in refusing to instruct on premeditated murder: First, he claims
that the court should have instructed on premeditated murder
because the instruction was supported by the evidence, and
second, he claims that his due process rights were violated
because the jury was not allowed to consider lesser-included
homicide offenses and was forced to choose between either
convicting him of first degree murder or acquitting him.
We first consider the court’s refusal to instruct on premedi-
tated murder. 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. State v. Hessler, 274
Neb. 478, 741 N.W.2d 406 (2007). With respect to the require-
ment that the appellant must show that he or she was prejudiced
by the court’s refusal to give an instruction, we note that pre-
meditated murder and felony murder are not separate offenses
but are alternate theories of first degree murder. See, State v.
Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003) (crime of
first degree murder constitutes one offense even though there
may be alternative theories by which criminal liability for
first degree murder may be charged and prosecuted); State v.
358 	278 NebRASkA RepORTS

Nesbitt, 264 Neb. 612, 633, 650 N.W.2d 766, 785 (2002) (“pre-
meditated murder and felony murder are simply alternate meth-
ods of committing first degree murder”). Without regard to
whether an instruction on premeditated murder was supported
by the evidence, banks cannot show that he was prejudiced
by the court’s refusal to give an instruction on the theory of
premeditated murder, because such an instruction would only
have provided the jury with an additional route to convict him
of first degree murder. To the extent that the court’s refusal to
give the premeditated murder instruction minimized the ways
by which the jury could find banks guilty of first degree mur-
der, such refusal did not prejudice banks.
Although 	he 	acknowledges 	that 	a 	premeditated 	murder
instruction would have increased the theories under which the
jury could have found him guilty of first degree murder, banks
nevertheless argues that he was prejudiced by the refusal to
give the premeditated murder instruction, because it deprived
him of the jury’s potential consideration of the offenses of sec-
ond degree murder and manslaughter which are lesser-included
offenses of premeditated murder. We note that while sec-
ond degree murder and manslaughter may be lesser-included
offenses of first degree murder under a premeditated murder
theory, they are not lesser-included offenses of first degree
murder when it is charged and tried under a felony murder
theory. See State v. Bjorklund, 258 Neb. 432, 447, 604 N.W.2d
169, 192 (2000) (“[w]e have repeatedly held that Nebraska
law provides no lesser-included homicide offenses to felony
murder”). because the court determined that the evidence war-
ranted an instruction on only the felony murder theory of first
degree murder, it would not and did not instruct on the lesser
homicide offenses because they are not lesser-included offenses
to felony murder.
[8] With respect to lesser-included offenses, we have held
that a court must instruct on a lesser-included offense if (1)
the elements of the lesser offense for which an instruction is
requested are such that one cannot commit the greater offense
without simultaneously committing the lesser offense and (2)
the evidence produces a rational basis for acquitting the defend-
ant of the greater offense and convicting the defendant of the
STATe v. bANkS 	359
Cite as 278 Neb. 342

lesser offense. State v. Sinica, 277 Neb. 629, 764 N.W.2d 111
(2009). In the present case, the “greater offense” is first degree
murder whether under a premeditated murder theory or a felony
murder theory. The district court refused the lesser-included
offense instruction on second degree murder and manslaughter
because the court determined that the evidence supported a
conviction for only first degree murder under a felony murder
theory. Considering the evidence, the court in effect determined
that the evidence could support a finding of guilty of first
degree murder under a felony murder theory, but the evidence
could not support a rational basis for acquitting banks of first
degree murder under a felony murder theory and instead con-
victing him of second degree murder or manslaughter.
banks argues that the court’s refusal to instruct on the lesser-
included offenses was contrary to Beck v. Alabama, 447 U.S.
625, 100 S. Ct. 2382, 65 L. ed. 2d 392 (1980), in which the
U.S. Supreme Court held that it is a violation of a defendant’s
due process rights if a jury is not given an option to convict a
defendant of any lesser-included offense that is supported by
the evidence rather than being given an “all or nothing” option
either to convict the defendant of a capital offense or to find
the defendant not guilty. In State v. Bjorklund, supra, we noted
that Beck was predicated on the rule that a defendant is entitled
to a lesser-included offense instruction if the evidence would
permit a jury rationally to acquit the defendant of the greater
offense and find the defendant guilty of the lesser offense. In
Bjorklund, we concluded that because the evidence did not so
permit, it was not a due process violation under Beck when the
court refused a lesser-included offense instruction.
Similarly, in the present case, we conclude that whether
or not the court instructed on first degree murder under a
premeditated murder theory, the evidence did not produce a
rational basis for acquitting banks of first degree murder under
a felony murder theory and instead convicting him of second
degree murder or manslaughter. If the court had instructed on
both theories of first degree murder, the jury would have to
have acquitted banks under both theories before it could reach
and convict him of second degree murder or manslaughter.
Therefore, although second degree murder and manslaughter
360 	278 NebRASkA RepORTS

are not lesser-included offenses of felony murder, it is appro-
priate for us to consider for completeness of our analysis
whether there was a rational basis to have acquitted banks of
felony murder and otherwise convicted him of either of the
lesser offenses.
The evidence presented by the State supported a finding
of felony murder. The evidence in this case included the tes-
timonies of Young, Herman, and Montgomery regarding the
events connected to the attempted robbery and the shooting of
Herndon. Taken together, such evidence indicates that banks
took part in a robbery or attempted robbery of Herndon’s house
and that in the perpetration of that crime, Herndon was shot
and killed by banks. The jury could have either accepted or
rejected the testimony indicating that banks was part of the
entire incident. If the jury believed Young’s and Montgomery’s
identification of banks as the person who forced his way into
Herndon’s house and later shot Herndon, then the jury would
find banks guilty of felony murder. If the jury believed the two
witnesses were mistaken or lying about banks’ involvement in
the robbery or attempted robbery, the jury would find him not
guilty of felony murder.
There is no evidence that would give the jury a rational
basis to find that banks was guilty of second degree murder
or manslaughter but acquit him of felony murder. In order to
convict banks of second degree murder or manslaughter, the
jury would have to find that banks killed Herndon. In order
to convict banks of second degree murder or manslaughter
but acquit him of first degree murder under a felony murder
theory, the jury would have to find that banks killed Herndon
but that he did not do so in the perpetration of or the attempt
to perpetrate a robbery. There was no evidence in this case
to support a finding that banks killed Herndon but that the
killing was not in the perpetration of the robbery or the
attempted robbery.
banks argues that the robbery or attempted robbery ended as
soon as he reached the car and that a new incident started when
Herndon came at him with the shotgun and he got back out
of the car to confront Herndon. He asserts that the jury could
have found that at the time banks shot Herndon, the robbery
STATe v. bANkS 	361
Cite as 278 Neb. 342

or attempted robbery had been completed, and that therefore,
Herndon was not killed in the perpetration of or the attempt
to perpetrate a robbery but instead he was killed in a separate
confrontation that occurred after the course of the robbery or
attempted robbery was completed. banks’ suggestion is not
consistent with the evidence.
The evidence indicated that Herndon was killed as banks
and Young were getting away. The getting away was an integral
part of the unfolding perpetration of the robbery or attempted
robbery. There is no evidence of a separation in time or dis-
tance from the perpetration or attempted perpetration of a rob-
bery such that the jury could find that Herndon’s killing was
not part of the perpetration or attempted perpetration.
We conclude that banks has not established reversible error
from the court’s refusal to instruct on premeditated murder
and the lesser-included offenses of second degree murder and
manslaughter. In this case, banks was convicted of first degree
murder based on sufficient evidence. banks has shown no
prejudice from the refusal to instruct on premeditated murder,
because such instruction would have simply given the jury an
additional theory under which to convict banks of first degree
murder. banks also has not shown that he was prejudiced by
the failure to instruct on premeditated murder with its cor-
responding lesser-included offenses, because the evidence did
not produce a rational basis to acquit him of first degree mur-
der under a felony murder theory but convict him of second
degree murder or manslaughter. The district court therefore
did not violate banks’ right to due process and did not other-
wise prejudicially err when it refused to give the instructions
requested by banks.
The District Court Did Not Err When It Refused a
Lesser-Included Offense Instruction on Robbery
and Attempted Robbery Because the Evidence
Did Not Produce a Rational Basis to Acquit
Banks of Felony Murder and Convict Him
of Robbery or Attempted Robbery.
banks asserts that the district court erred when it refused to
give an instruction on robbery and attempted robbery as lesser-
included offenses of felony murder. We conclude that the court
362 	278 NebRASkA RepORTS

did not err when it refused to give the lesser-included offense
instruction because the evidence in this case did not produce a
rational basis to acquit banks of felony murder and convict him
of robbery or attempted robbery.
With respect to whether robbery and attempted robbery are
lesser-included offenses of felony murder, we note that in both
State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006), and State
v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), although
we stated that a predicate felony is a lesser-included offense
of felony murder for sentencing purposes, we did not directly
confront the question of whether a defendant in a felony mur-
der case may be entitled to a lesser-included offense instruction
on the underlying felony.
In both Mason and Bjorklund, we determined that it was not
necessary to decide the issue, because even if the predicate fel-
ony were a lesser-included offense, the evidence in each case
did not produce a rational basis for acquitting the defendant of
felony murder and convicting him of the predicate felonies, and
therefore, the court was not required to instruct on the underly-
ing felonies even if they were lesser-included offenses.
Similar to Mason and Bjorklund, in the present case, we
need not decide whether robbery and attempted robbery are
lesser-included offenses of felony murder, because the evidence
in this case does not produce a rational basis for acquitting
banks of felony murder and convicting him of only robbery or
attempted robbery. The evidence presented by the State sup-
ported a finding of felony murder. Such evidence included the
testimonies of Young, Herman, and Montgomery regarding the
events connected to the attempted robbery and the shooting of
Herndon. Taken together, such evidence indicates that banks
took part in a robbery or attempted robbery of Herndon’s house
and that in the perpetration of that crime, Herndon was shot
and killed.
The jury could have accepted or rejected the testimony indi-
cating that banks took part in the robbery. If the jury believed
Young’s and Montgomery’s identification of banks as the per-
son who forced his way into Herndon’s house and later shot
Herndon, then the jury would rationally find banks guilty of
felony murder. If the jury believed that the two witnesses were
STATe v. bANkS 	363
Cite as 278 Neb. 342

lying or mistaken about banks’ involvement in the robbery or
attempted robbery, the jury would find banks was not involved
in the robbery and find him not guilty of felony murder. Under
the evidence presented, which showed that Herndon’s death
was an incident of the robbery, there was no rational basis
upon which the jury could find that banks was guilty of the
robbery or attempted robbery but was not guilty of felony
murder. based on the evidence, the jury had to find either that
banks was guilty of felony murder or that he was not guilty of
any crime.
Similar to his argument above with regard to the lesser-
included homicide offenses, banks also argues that the court’s
failure to instruct on robbery and attempted robbery as lesser-
included offenses of felony murder violated his due process
rights, contrary to the holding in Beck v. Alabama, 447 U.S.
625, 100 S. Ct. 2382, 65 L. ed. 2d 392 (1980). For the same
reason we rejected the argument in connection with the lesser-
included homicide offenses, we reject the argument here. In
this case, as in Bjorklund, banks’ arguments regarding Beck
and due process are unavailing, because the evidence does not
support a finding to acquit banks of felony murder but convict
him solely of robbery or attempted robbery.
because the evidence does not produce a rational basis for
acquitting banks of felony murder and convicting him of rob-
bery or attempted robbery, we conclude that the court did not
err when it refused to give the lesser-included offense instruc-
tion requested by banks.
The District Court Did Not Err When It Refused to Give
Banks’ Proposed Instruction on the Affirmative Defense
of Abandonment Because the Evidence
Did Not Support the Defense.
banks asserts that the district court erred when it refused
his requested instruction regarding the affirmative defense of
abandonment. We conclude the court did not err, because the
evidence did not support the instruction.
banks requested an instruction on abandonment as an affirm-
ative defense that read:
In regard to the offense of first degree murder, sec-
ond degree murder, and manslaughter, abandonment of a
364 	278 NebRASkA RepORTS

criminal enterprise is a defense to said charge if you find
that . . . banks abandoned or withdrew from the robbery or
attempted robbery of . . . Herndon, and that an appreciable
interval of time elapsed prior to killing . . . Herndon.
The court refused the instruction.
banks argues that he abandoned the robbery and was leaving
the house when Herndon came out of the house and confronted
him. He cites to, inter alia, State v. Wilson, 192 Neb. 435, 222
N.W.2d 128 (1974), to support his argument that an abandon-
ment defense instruction was appropriate in this case.
We conclude that the facts of this case do not support an
abandonment defense. In Wilson, this court stated:
To be effective as a defense, there must be an appre-
ciable interval between the alleged abandonment of the
criminal enterprise and the act for which responsibility
is sought to be avoided. The coconspirator must have a
reasonable opportunity to follow the example and refrain
from further action before the act in question is commit-
ted. A conspirator cannot escape responsibility for an act
which is the natural result of a criminal scheme he has
helped to devise and carry forward by running away at the
instant when the act in question is about to be committed
and the transaction which immediately begets it has actu-
ally been commenced.
192 Neb. at 437, 222 N.W.2d at 130. In Wilson, the defend-
ant argued that he had abandoned a planned robbery before
coconspirators threw the victim into the river, resulting in the
victim’s drowning death.
In the present case, there is no evidence to support a finding
that banks abandoned the robbery or attempted robbery before
the crime was committed. Instead, the evidence indicates that
the robbery was ongoing and not completed before banks left
the premises. Although banks argues it is possible that the rob-
bery was aborted because banks and Young did not find the
items for which they were looking, the evidence shows that the
robbery was not abandoned and was still in progress at the time
of the shooting. The evidence in this case was that banks shot
Herndon while banks was escaping. Such evidence does not
support an abandonment defense.
STATe v. bANkS 	365
Cite as 278 Neb. 342

We conclude that the district court did not err when it
refused to give banks’ proposed instruction on the affirmative
defense of abandonment because the evidence did not support
the instruction.
The District Court Did Not Err When It Refused Banks’
Self-Defense Instruction Because Banks Did Not Offer
Evidence to Support a Self-Defense Theory.
banks asserts that the district court erred when it refused his
self-defense instruction. We note that the district court rejected
the instruction on the basis that self-defense is not a defense to
felony murder. Without commenting on whether such basis was
proper, and notwithstanding our conclusion above that this case
forms the basis for felony murder, for completeness, we con-
sider banks’ self-defense assignment of error and conclude that
the court did not err when it refused the instruction, because
self-defense was not banks’ theory of the case and he did not
meet the initial burden of proving self-defense.
In State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), dis-
approved on other grounds, State v. McCulloch, 274 Neb. 636,
742 N.W.2d 727 (2007), we concluded that the trial court erred
when it gave a self-defense instruction that was inconsistent
with the defendant’s theory of the case. We stated:
[W]hen the defendant makes no effort to meet the ini-
tial burden of proof to prove self-defense and when
self-defense is not the defendant’s theory of the case,
a self-defense instruction is not warranted. A theory of
self-defense necessarily involves an inference or admis-
sion that the defendant harmed the victim, but that the
defendant’s acts were justified. by giving a self-defense
instruction when the defendant’s theory of the case is that
he or she did not commit the crime, the court risks con-
fusing or misleading the jury.
State v. Faust, 265 Neb. at 879, 660 N.W.2d at 874.
In the present case, the only evidence to which banks points
to support a theory of self-defense is evidence presented by the
State. He notes that Montgomery’s and Young’s testimonies
indicated that Herndon was coming at banks with a shotgun
when he shot Herndon, and he argues that such evidence
366 	278 NebRASkA RepORTS

supports a self-defense instruction. However, banks offered
no evidence in his defense to support a theory of self-defense.
Instead, banks’ defense strategy was to attack the credibility of
the witnesses against him and to infer that the witnesses con-
spired to frame him for a crime he did not commit. There is no
indication that banks inferred or admitted that he had harmed
Herndon but that his acts were justified as self-defense.
In Faust, the issue was whether the court erred in giving a
self-defense instruction and whether trial counsel was ineffec-
tive for failing to object to such instruction. We concluded in
Faust that it was error to give the instruction and that it was
deficient and prejudicial for counsel to fail to object, because
the instruction confused and misled the jury as to the defend-
ant’s theory of defense.
The present case differs from Faust because banks requested
the instruction and the court refused to give it. However,
the rationale for the holding in Faust is also applicable in
this case.
Self-defense is a statutorily defined affirmative defense in
Nebraska. State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263
(2006). Neb. Rev. Stat. § 28-1409 (Reissue 2008) provides in
pertinent part:
(1) . . . [T]he use of force upon or toward another per-
son is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other
person on the present occasion.
. . . .
(4) The use of deadly force shall not be justifiable
under this section unless the actor believes that such force
is necessary to protect himself against death, serious
bodily harm, kidnapping or sexual intercourse compelled
by force or threat, nor is it justifiable if:
(a) The actor, with the purpose of causing death or
serious bodily harm, provoked the use of force against
himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by
surrendering possession of a thing to a person asserting a
STATe v. bANkS 	367
Cite as 278 Neb. 342

right thereto or by complying with a demand that he abstain
from any action which he has no duty to take . . . .
To successfully assert the claim of self-defense, one must have
a reasonable and good faith belief in the necessity of using
force, and the force used in defense must be immediately nec-
essary and must be justified under the circumstances. State v.
Iromuanya, supra.
We recognize that there was evidence that Herndon was
walking toward banks with a shotgun before Herndon was
shot. banks’ theory of defense was essentially that he did not
shoot Herndon, and therefore, banks presented no evidence to
support a finding that he had a reasonable and good faith belief
that he needed to use force or that the force he did use in his
defense was immediately necessary and was justified under
the circumstances. banks did not testify, as was his right. As
a result, he did not admit that he shot Herndon and he did not
present evidence that he reasonably believed that such use of
force was necessary for him to defend himself. Instead, the
manner of the presentation of his defense indicates that banks’
theory of defense was that he did not shoot Herndon and that
the witnesses against him were not credible.
because there was not evidence to support a claim of self-
defense in this case and because a self-defense instruction
would have misled or confused the jury, the district court did
not err when it refused to give the requested instruction.
The District Court Did Not Violate Banks’ Constitutional
Right to Confrontation When It Sustained the State’s
Objections to Banks’ Proposed Cross-Examination
of Bowling Regarding Drug Use.
banks next asserts that the district court erred when it
refused to permit him to cross-examine bowling regarding his
drug use, because limiting the cross-examination violated his
rights under the Confrontation Clause. We conclude that the
court did not err in sustaining the State’s objections to such
cross-examination and that the limiting of cross-examination
did not violate banks’ constitutional right to confrontation.
During Young’s testimony, which occurred prior to bowling’s
testimony, banks made an offer of proof that Young would
368 	278 NebRASkA RepORTS

testify that he had seen bowling a few times in 2005 and that
banks had once told Young that bowling “smoked crack.” The
court sustained the State’s objection to the offer of proof on the
basis of foundation and hearsay. During bowling’s testimony,
banks made another offer of proof in the form of bowling’s
deposition in which bowling stated, inter alia, that he had
undergone drug counseling and treatment in 2006 because he
had “struggled with” the drug crack cocaine for 1 year prior
to treatment. banks argued that he should be allowed to cross-
examine bowling regarding his drug use in order to support
a theory that Young and bowling were connected through the
drug trade and that such connection gave both witnesses motive
to lie in their testimonies. banks also argued that Young’s
testimony that he had seen bowling a few times in 2005 con-
tradicted bowling’s testimony that he had not seen Young for
several years before he saw him on August 30, 2005, and that
such inconsistency would have led the jury to believe that
bowling was lying. The court sustained the State’s objections
to banks’ offer of proof on the basis of foundation, relevance,
and speculation. The court stated that the fact Young sold crack
cocaine to others did not prove he sold it to bowling and that
Young’s testimony that he saw bowling a few times in 2005
did not mean the two talked or that bowling saw Young on
those occasions.
[9,10] banks asserts on appeal that the court’s refusal to
allow cross-examination of bowling regarding his drug use
violated banks’ right to confront witnesses. An accused’s con-
stitutional right of confrontation is violated when either (1)
he or she is absolutely prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical
form of bias on the part of a witness, or (2) a reasonable jury
would have received a significantly different impression of the
witness’ credibility had counsel been permitted to pursue his
or her proposed line of cross-examination. State v. Schmidt,
276 Neb. 723, 757 N.W.2d 291 (2008). Although the main and
essential purpose of confrontation is the opportunity of cross-
examination, trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based upon concerns about, among
STATe v. bANkS 	369
Cite as 278 Neb. 342

other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only mar-
ginally relevant. State v. Schmidt, supra.
banks asserts that cross-examination of bowling regarding
his drug use would have shown his bias and would have given
the jury a significantly different impression of his credibility.
He argues that the jury could have inferred that Young was
bowling’s crack dealer and that the jury could have inferred
that Young, Montgomery, Casebier, and bowling were all
connected through the drug trade and that such connection
motivated each of them to protect the person who actu-
ally killed Herndon by supporting the story that banks shot
and killed Herndon.
We conclude that banks’ right of confrontation was not
violated in either of the ways set forth above. The first type of
violation refers to a court’s prohibiting “otherwise appropriate
cross-examination” designed to show bias. The court in this
case sustained the State’s objections to the proposed cross-
examination based on foundation, hearsay, and relevance. If
such objections were valid, then the cross-examination was
not “otherwise appropriate.” banks makes no argument that
the objections were without merit other than his argument that
limiting cross-examination violated his right to confrontation.
We find no error in the court’s sustaining the objections. The
proposed cross-examination was not “otherwise appropriate,”
and banks’ confrontation rights were not violated when his
cross-examination was limited based on such objections.
The proposed cross-examination also would not have given
the jury “a significantly different impression of the witness’
credibility.” There was no evidence in banks’ offers of proof
that Young was bowling’s dealer or that bowling was con-
nected with Young or any of the other witnesses through the
drug trade. Although there was evidence that Young sold drugs,
neither Young nor bowling testified that Young sold drugs to
bowling. Young also testified that he had seen bowling a few
times recently, but Young did not testify that bowling saw him
or that he sold crack to bowling on those occasions. banks’
argument that the addition of evidence of bowling’s drug use
would have altered the jury’s assessment of his credibility
370 	278 NebRASkA RepORTS

depended on significant speculation that bowling was con-
nected to Young, Montgomery, and Casebier through the drug
trade. The district court observed that such inferences seemed
“pretty farfetched.” We cannot say that the district court’s
assessment was in error. We conclude that cross-examination
regarding bowling’s drug use and Young’s having seen bowling
a few times in 2005 would not have given the jury a signifi-
cantly different impression of bowling’s credibility.
We conclude that the district court did not err when it sustained
the State’s objections to banks’ proposed cross-examination of
bowling and that limiting such cross-examination did not vio-
late banks’ constitutional right of confrontation.
The District Court Did Not Err When It Refused to Include
Casebier and Bowling in the Accomplice Testimony
Instruction Because the Evidence Did Not Show
That They Were Accomplices and the General
Witness Credibility Instruction Adequately
Covered Their Testimonies.
banks asserts that the district court erred when it refused
to include Casebier and bowling in the accomplice testimony
instruction. We conclude that the court did not err because the
evidence did not indicate Casebier and bowling were accom-
plices in the commission of the crime and they were adequately
covered by the general witness credibility instruction.
In State v. Mason, 271 Neb. 16, 29, 709 N.W.2d 638, 650-51
(2006), we noted that an accomplice
“‘“must take some part in the crime, perform some act,
or owe some duty to the person in danger that makes it
incumbent on him to prevent the commission of the crime.
Mere presence, acquiescence, or silence, in the absence of
a duty to act, is not enough, however reprehensible it may
be, to constitute one an accomplice. The knowledge that a
crime is being or is about to be committed cannot be said
to constitute one an accomplice . . . .”’”
In Mason, we noted that while certain witnesses might be con-
sidered accessories after the fact because there was evidence
that they tried to cover up the crime, such witnesses were not
“accomplices” and that therefore, an instruction identifying
STATe v. bANkS 	371
Cite as 278 Neb. 342

such witnesses as “accomplices” was not necessary. General
instructions to the effect that the jury should “closely examine
the witnesses’ testimony for motive to testify falsely and to
convict only if there is evidence beyond a reasonable doubt”
were given in Mason, 271 Neb. at 31, 709 N.W.2d at 651, and
we conclude that such instructions were sufficient.
Similarly in the present case, the evidence indicates that
Casebier and bowling may have been accessories after the fact
but there was no evidence that they were “accomplices” as
described above. There was no evidence that either person took
part in the commission of the robbery that led to Herndon’s
death. banks’ argument that the two were accomplices is based
on a complicated theory that because Casebier and bowling
were each, to some extent, allegedly involved in the drug trade,
it was possible that they were associates of Montgomery and
Young and that some combination of Young, Montgomery,
Casebier, and bowling actually committed the robbery and
shooting and then conspired to frame banks for the shooting.
banks’ theory requires considerable speculation based on tenu-
ous connections, and the evidence does not support an impli-
cation that either Casebier or bowling was an accomplice to
the robbery.
Also, the court in this case gave a reasonable doubt instruc-
tion and a general instruction regarding the credibility of wit-
nesses. In Mason, we considered it important that although the
witnesses at issue were not identified as “accomplices,” the jury
was instructed to “closely examine the witnesses’ testimony for
motive to testify falsely and to convict only if there is evidence
beyond a reasonable doubt.” 271 Neb. at 31, 709 N.W.2d at
651 (citing State v. Quintana, 261 Neb. 38, 621 N.W.2d 121
(2001)). In the present case, the jury was instructed to con-
vict only if there was evidence beyond a reasonable doubt.
The witness credibility instruction in the present case did not
specifically instruct the jury to consider “motive to testify
falsely,” but it did instruct the jury to consider “interest or lack
of interest of the witness in the result of this case,” “apparent
fairness or bias of the witness, or the witness’ relationship to
the parties,” and any “other evidence that affects the credibility
of the witness.”
372 	278 NebRASkA RepORTS

Given the limited extent of Casebier’s and bowling’s involve-
ment in the events at issue, the court did not err when it did
not include them in the accomplice instruction; the general
witness credibility instruction was sufficient to instruct the jury
on its duty to assess their testimonies. We find no merit to this
assignment of error.
The District Court Did Not Err When It Refused Banks’
Proposed Instruction Regarding the Immunity Given to
Bowling Because the Instruction Was Not a Correct
Statement of Law and Banks Has Not Shown
That He Was Prejudiced by the Refusal.
banks asserts that the district court erred when it refused his
proposed instruction regarding the immunity given to bowling
and the effect of such immunity on bowling’s credibility. We
conclude that the court did not err when it refused the instruc-
tion, because banks’ proposed instruction was not a com-
pletely correct statement of the law and the substance of the
instruction was adequately covered by the witness credibility
instruction given by the court.
At the beginning of his testimony, bowling stated that he
was testifying under a use immunity order issued pursuant
to § 29-2011.02. bowling later testified he understood that
because of the immunity, his testimony in this trial could not
be used against him. At the jury instruction conference, banks
requested an instruction that read as follows:
You have heard testimony from . . . bowling who has
received immunity. That testimony was given in exchange
for a promise by the State of Nebraska that his testimony
will not be used against him in any future prosecution.
In evaluating . . . bowling’s testimony, you should con-
sider whether that testimony may have been influenced by
the State’s promise of immunity given in exchange for it,
and you should consider that testimony with greater cau-
tion than that of other witnesses.
The court refused the instruction.
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,
STATe v. bANkS 	373
Cite as 278 Neb. 342

(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. State v. Hessler, 274 Neb. 478, 741
N.W.2d 406 (2007). Although banks’ proposed instruction may
have been warranted by the evidence in this case, we conclude
that the instruction was in part not a correct statement of the
law and that banks has not shown that he was prejudiced by
the court’s refusal to give the instruction.
[11] We note first that the proposed instruction is not a cor-
rect statement of law in that it instructs the jury that it “should
consider [bowling’s] testimony with greater caution than that
of other witnesses.” A witness’ credibility and weight to be
given to testimony are matters for determination and evaluation
by a fact finder. State v. Schreiner, 276 Neb. 393, 754 N.W.2d
742 (2008). It was the jury’s duty in this case to determine
bowling’s credibility and the weight to be given his testimony,
and therefore, it would have been improper for the court to
instruct that his testimony should be considered “with greater
caution than that of other witnesses.”
In this respect, the proposed instruction went beyond the
general witness credibility instruction, NJI2d Crim. 5.2, which
highlights certain factors that the jury “may consider” in
assessing credibility but which stresses that the jury is “the
sole judge” of credibility and the weight to be given testi-
mony. Similarly, the accomplice testimony instruction, NJI2d
Crim. 5.6, instructs that the jury “should closely examine [an
accomplice’s] testimony for any possible motive . . . to testify
falsely.” However, while these instructions highlight matters
for the jury to consider in its evaluation of a witness’ cred-
ibility, they do not instruct the jury to consider a particular
witness’ testimony “with greater caution than that of other wit-
nesses.” This phrase could signal to the jury that the witness
is less credible than the other witnesses and that the witness’
testimony should be given less weight than that given to the
testimony of other witnesses.
[12] Furthermore, even if the instruction were a correct state-
ment of law to the extent it merely highlighted a matter for the
jury to consider in assessing witness credibility, banks has not
shown that he was prejudiced by the court’s refusal to give the
374 	278 NebRASkA RepORTS

proposed instruction, because the court gave a general instruc-
tion regarding witness credibility which adequately covered the
matter. The court gave an instruction which followed the pat-
tern instruction NJI2d Crim. 5.2, “evaluation of Testimony—
Credibility of Witnesses.” The court instructed:
You are the sole judges of the credibility of the wit-
nesses and the weight to be given to their testimony. In
determining the weight which the testimony of the wit-
nesses is entitled to receive, you should consider:
. . . .
8. Any other evidence that affects the credibility of the
witness or that tends to support or contradict the testi-
mony of the witness.
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. State v.
Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
At trial, the court refused banks’ request to the effect that
if his proposed immunity instruction was not given, the gen-
eral witness credibility instruction include, as one of the fac-
tors to consider, “the fact that a witness is granted immunity.”
However, the immunity issue was adequately covered in the
general instruction, because the jury was instructed to consider,
inter alia, “[a]ny other evidence that affects the credibility of
the witness.” In this regard, we note that in the comment to
NJI2d Crim. 5.2, the Nebraska Supreme Court Committee on
pattern Jury Instructions stated that the “other evidence” under
numbered paragraph 8 includes evidence of “other specific
instances of possible bias (such as a grant of immunity to a tes-
tifying witness).” The committee further stated in the comment
that the reference to “other evidence” in paragraph 8 should be
“sufficient as instruction to the jury and that a focus on particu-
lar instances regarding the possibility of bias more properly is
left for highlighting by argument by counsel.”
In this case, we believe that the reference in paragraph 8 to
“other evidence” affecting credibility was sufficient to instruct
the jury that it might consider evidence regarding immunity
given to bowling as a matter affecting his credibility and that
the possibility of bias arising from such matter was better left
STATe v. bANkS 	375
Cite as 278 Neb. 342

for argument by counsel. The record shows that in closing
arguments, banks’ counsel referred to bowling’s immunity and
argued that bowling “testified because the [S]tate promised
that whatever he said on that witness stand[, the State] would
not use to prosecute him.”
We further note that the possibility of bias arising from a
grant of immunity is a matter that is particularly better left for
argument by counsel because it is arguable whether immunity
makes testimony less credible or more credible. One could
argue that a grant of immunity would seem to bolster a wit-
ness’ credibility, because he or she can tell the truth without
being concerned that his or her testimony will be used against
him or her in a subsequent prosecution except that the wit-
ness could be prosecuted for perjury if he or she gave false
testimony. Therefore, it is better that immunity be considered
one of the types of “other evidence” affecting credibility that
a jury is instructed it may consider rather than that the jury
be instructed, as banks requested in this case, that immunity
means that the witness’ testimony should be considered “with
greater caution than that of other witnesses.” Instead, the jury
should be allowed, as it was in this case, to consider the fact
of immunity and make its own determination whether such fact
makes the witness’ testimony more or less credible than the
testimony of other witnesses.
banks’ proposed instruction regarding the immunity given
to bowling was not a completely correct statement of the
law, and banks has not shown that he was prejudiced by the
district court’s refusal to give the instruction. We therefore
conclude that the court did not err in refusing to give the pro-
posed instruction.
The District Court Did Not Err When It Allowed the State to
Amend the Information With Regard to the Weapons Charge
Because the Amendment Did Not State an Additional or
Different Offense and Banks’ Substantial Rights
Were Not Prejudiced.
banks next asserts that the district court erred when it
allowed the State to amend the information to change the
charge of using a weapon to commit a felony to specify that
376 	278 NebRASkA RepORTS

banks used a firearm. We conclude that the court did not err in
allowing the amendment, because the amendment did not state
an additional or different offense and banks was not prejudiced
by the amendment.
The original information filed by the State alleged that
banks used “a knife or any other deadly weapon” to commit
a felony. The caption of the information indicated that banks
was being charged with use of a weapon to commit a felony
pursuant to Neb. Rev. Stat. § 28-1205 (Reissue 2008) and
that the charge was a Class III felony. The information was
amended to state that banks used “a firearm” to commit a
felony, and the caption was amended to indicate that the charge
was a Class II felony.
[13] A trial court, in its discretion, may permit a criminal
information to be amended at any time before verdict or find-
ings if no additional or different offense is charged and the
substantial rights of the defendant are not prejudiced. See,
State v. Aldrich, 226 Neb. 645, 413 N.W.2d 639 (1987) (citing
State v. Gascoigen, 191 Neb. 15, 213 N.W.2d 452 (1973)). In
the present case, the State moved to amend the information
during jury selection and the court allowed the State to make
the amendment at the close of the State’s evidence and prior to
submission of the case to the jury. The court therefore had dis-
cretion to allow the amendment, provided that (1) no additional
or different offense was charged and (2) banks’ substantial
rights were not prejudiced.
banks notes that under § 28-1205, use of a weapon other
than a firearm is a Class III felony, whereas use of a firearm is
a Class II felony. He argues that because the classification of
the offense and the potential penalties are different depending
on whether the weapon is a firearm, amending the information
to specify that the weapon is “a firearm” rather than “a knife or
any other deadly weapon” is an amendment in which a differ-
ent offense is charged.
We note that § 28-1205(1) provides as follows:
Any person who uses a firearm, a knife, brass or iron
knuckles, or any other deadly weapon to commit any
felony which may be prosecuted in a court of this state or
who unlawfully possesses a firearm, a knife, brass or iron
STATe v. bANkS 	377
Cite as 278 Neb. 342

knuckles, or any other deadly weapon during the commis-
sion of any felony which may be prosecuted in a court of
this state commits the offense of using a deadly weapon
to commit a felony.
A distinction between firearms and other weapons is made in
§ 28-1205(2), wherein the statute provides that use of a deadly
weapon other than a firearm is a Class III felony and that use of
a deadly weapon which is a firearm is a Class II felony. Section
28-1205 defines a single offense of “using a deadly weapon to
commit a felony” but classifies the offense differently depend-
ing on the type of weapon used. Therefore the amendment to
the information in this case did not charge a different offense;
the offense with which banks was charged was still the offense
of “using a deadly weapon to commit a felony.” The amend-
ment specified that the weapon was a firearm and therefore
changed the classification of the offense, but it did not state an
additional or different offense.
because the amendment did not state an additional or dif-
ferent offense, the court had discretion to allow the amend-
ment so long as banks’ substantial rights were not prejudiced.
We conclude that there was no prejudice to banks because
it was clear throughout pretrial proceedings that the weapon
used in the incident was a firearm. There was no evidence
that a knife was used to kill Herndon, and there were several
references not repeated here to firearms at pretrial proceed-
ings. The original information made banks aware that he was
being charged with the offense of using a deadly weapon to
commit a felony under § 28-1205, and the evidence was clear
that the deadly weapon that was used was a firearm. banks
has not shown that his substantial rights were prejudiced by
the amendment.
We conclude that the district court did not err when it
allowed the State to amend the information.
The District Court Did Not Err When It Overruled
Banks’ Motion to Dismiss.
banks finally asserts that the district court erred when it
overruled his motion to dismiss. banks’ sole argument in favor
of dismissal was that the evidence was insufficient because
378 	278 NebRASkA RepORTS

certain testimony presented by the State was not reliable. We
conclude that the credibility of witnesses was for the jury to
decide and that therefore, the court did not err when it over-
ruled banks’ motion to dismiss.
banks moved the court to dismiss the charges against him
at the close of the State’s evidence; he renewed the motion at
the close of all the evidence. The court overruled both motions.
banks argued that the charges should be dismissed, because
the testimonies of Young, Montgomery, Casebier, and bowling
were not reliable and therefore, there was not sufficient evi-
dence to support a conviction. banks makes the same argument
on appeal.
[14] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insuf-
ficiency of the evidence, or failure to prove a prima facie
case, the standard is the same: In reviewing a criminal con-
viction, 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, and a con-
viction will be affirmed, in the absence of prejudicial error,
if the evidence admitted at trial, viewed and construed most
favorably to the State, is sufficient to support the conviction.
State v. McGhee, 274 Neb. 660, 742 N.W.2d 497 (2007).
Furthermore, we have stated that the credibility and weight
of witness testimony are for the jury to determine, and wit-
ness credibility is not to be reassessed on appellate review.
State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007). The
credibility of the witnesses in this case was thus for the jury
to decide, and it would not have been proper for the court to
grant a dismissal based on its own determination of whether
their testimony was reliable. The record shows that if the jury
believed the testimonies of Young, Montgomery, Casebier,
and bowling, such evidence supported the charges against
banks. Although banks presented evidence which might have
called each witness’ credibility into question, the credibility
assessment was a matter for the jury to decide. We conclude
that the district court did not err when it overruled banks’
motion to dismiss.
STATe v. bANkS 	379
Cite as 278 Neb. 342

CONCLUSION
Having rejected banks’ assignments of error, we affirm
banks’ convictions and sentences for first degree murder and
use of a firearm to commit a felony.
affirmed.
heavican, C.J., not participating.
state of nebraska ex rel . counsel for discipline of
the nebraska supreme court, relator , v.
william paul bouda ii, respondent.
770 N.W.2d 648
Filed August 21, 2009. 	No. S-08-1204.
Original action. Judgment of suspension.
heavican, c.J., wright, connolly, gerrard, mccormack,
and miller-lerman, JJ.
per curiam.
INTRODUCTION
On November 18, 2008, formal charges containing one count
were filed by the office of the Counsel for Discipline of the
Nebraska Supreme Court, relator, against respondent, William
paul bouda II. Respondent filed an answer to the charges on
February 17, 2009. A referee was appointed on February 25.
On April 1, the referee’s hearing was held on the charges.
Respondent, who was represented by counsel, appeared and
testified. exhibits were admitted into evidence.
The referee filed a report on May 5, 2009. With respect to
the charges, the referee concluded that respondent’s conduct
had breached the following provisions of the Nebraska Rules
of professional Conduct: Neb. Ct. R. of prof. Cond. § 3-501.1
(competence), § 3-501.2 (scope of representation and alloca-
tion of authority between client and lawyer), § 3-501.3 (dili-
gence), § 3-501.4 (communications), § 3-503.3 (candor toward
tribunal), and § 3-508.4 (misconduct). The referee further
found that respondent had violated his oath of office as an
attorney licensed to practice law in the State of Nebraska. See
380 	278 NebRASkA RepORTS