State v. Moore

state v. moore 	27
Cite as 16 Neb. app. 27
a guaranty provision. We further conclude that there is no gen
uine issue of material fact in dispute regarding the Defendants’
breach of the agreement. as such, we affirm.
A ffirmed .
S tAte of N ebrASkA, Appellee , v . J oNAthoN moore , AppellANt .
740 N.W.2d 52
Filed october 16, 2007. 	No. a 06 1001.
1. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
2. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
3. ____: ____: ____. to establish reversible error from a court’s refusal to give a
requested jury 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 war
ranted by the evidence, and (3) the appellant was prejudiced by the court’s refusal
to give the tendered instruction.
4. Assault: Intent. a person commits the offense of assault in the first degree if he
intentionally or knowingly causes serious bodily injury to another person.
5. ____: ____. the requisite intent for first degree assault relates to the prohibited
act, i.e., the assault, and not to the result achieved, i.e., the injury.
6. ____: ____. First degree assault is a general intent, not a specific intent, crime.
7. Verdicts: Appeal and Error. on a claim of insufficiency of the evidence, an
appellate court will not set aside a guilty verdict in a criminal case where such
verdict is supported by relevant evidence. only where evidence lacks sufficient
probative value as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
8. Criminal Law: Convictions: Evidence: Appeal and Error. 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 properly admitted evidence, viewed and construed most favorably to
the state, is sufficient to support the conviction.
9. ____: ____: ____: ____. When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the prosecu
tion, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

appeal from the District Court for Douglas County: J ruSSell
derr, Judge. reversed and remanded for a new trial.
Joseph L. Howard, of Gallup & schaefer, for appellant.
Jon Bruning, attorney General, and George r. Love for
appellee.
irwiN, S ieverS, and CASSel, Judges.
irwiN, Judge.
I. INtroDUCtIoN
Jonathon moore appeals his convictions and sentences for
first degree assault and use of a deadly weapon in the com
mission of a felony. among moore’s assertions on appeal are
that the district court erred in the jury instructions, that there
was insufficient evidence to support the convictions, and that
the sentences imposed were excessive. We find reversible error
concerning the jury instructions, and reverse, and remand for a
new trial.
II. BaCKGroUND
on or about april 3, 2005, a group of people were “hang
ing out” near the “spencer projects” in omaha, Nebraska.
moore was present and was witnessed to possess a gun, which
he placed in the trunk of his girlfriend’s car. at some point,
moore’s half brother Karnell Burton drove past the gathering.
at least one witness observed moore spit at Karnell’s vehicle
as it drove past. somebody inside Karnell’s vehicle then fired
multiple shots into the air.
after shots were fired by somebody inside Karnell’s vehicle,
moore and a friend, Deandre Primes, got into moore’s girl
friend’s vehicle and drove to the residence where Karnell lived
with his mother and his sister, Kenesha Burton. according to
Primes, moore was “[u]pset” and Primes attempted to “[t]alk
him down, trying to calm him down.” according to Primes,
a vehicle similar to Karnell’s was at the house and moore
commented that the car “look[ed] like [Karnell’s] car.” moore
stopped his vehicle in front of the house, pulled out his gun,
which he had earlier been witnessed retrieving from the vehicle’s
trunk, and fired a single shot in the direction of the house.
28 	16 NeBrasKa aPPeLLate rePorts

Kenesha and Karnell’s mother testified that at the time moore
shot at the house, she, Kenesha, and Kenesha’s friend were
watching a movie. moore’s shot passed through the wall of the
house and struck Kenesha in the back. Kenesha suffered injuries
to both of her lungs, her liver, and her spinal cord and spent 7
weeks in a hospital. she is permanently paralyzed and confined
to a wheelchair as a result of the shooting.
on June 7, 2005, the state filed an information charging
moore with first degree assault and use of a deadly weapon in
the commission of a felony. trial was held in June 2006. the
jury returned verdicts of guilty on both charges. on august 15,
the court sentenced moore.
at the jury instruction conference near the end of trial, moore
had objected to certain proposed jury instructions, including
instruction No. 10. Instruction No. 10 provided as follows: “If
you find that [moore] intended to do wrong, but as a result of
his actions an unintended wrong occurred as a natural and prob
able consequence, you must find that [moore] is guilty even
though the achieved wrong was unintended.” moore objected
that the instruction was confusing and would mislead the jury.
the state had requested a virtually identical instruction in its
proposed jury instructions. In addition, moore requested an
instruction on the definition of “‘recklessly,’” which the court
refused to give.
III. assIGNmeNts oF error
moore has assigned five errors on appeal. First, moore asserts
that the district court erred in giving jury instruction No. 10.
second, moore asserts that the court erred in refusing to give
moore’s 	requested 	instruction 	defining 	“recklessly.” 	third,
moore asserts that the evidence was insufficient to sustain the
convictions. Fourth, moore asserts that the sentences imposed
were excessive. Fifth, moore asserts that there was “cumulative
error” warranting reversal.
IV. aNaLYsIs
1. J ury iNStruCtioNS
moore argues that the district court erred in overruling
moore’s objection to jury instruction No. 10 and in giving that
state v. moore 	29
Cite as 16 Neb. app. 27

instruction, because the instruction “is misleading, confusing
and an incorrect statement of law.” Brief for appellant at 34 35.
moore also argues that the district court erred in failing to
instruct the jury on the definition of “recklessly.” We conclude
that the instructions, when read together, were confusing or
misleading on the facts of this case, and we find merit to these
assignments of error.
[1 3] Whether jury instructions given by a trial court are cor
rect is a question of law. State v. Fischer, 272 Neb. 963, 726
N.W.2d 176 (2007). When dispositive issues on appeal present
questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision of the
court below. Id. In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. Id. to establish
reversible error from a court’s refusal to give a requested jury
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 ten
dered instruction. State v. Blair, 272 Neb. 951, 726 N.W.2d
185 (2007).
[4 6] moore was charged with first degree assault. Pursuant
to Neb. rev. stat. § 28 308 (reissue 1995), a person commits
the offense of assault in the first degree if he intentionally or
knowingly causes serious bodily injury to another person. the
requisite intent for first degree assault relates to the prohibited
act, i.e., the assault, and not to the result achieved, i.e., the
injury. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
that is to say, first degree assault is a general intent, not a spe
cific intent, crime. Id. the required mens rea set forth in the
statute applies only to the course of action that brings about the
actual assault. see State v. Cebuhar, 252 Neb. 796, 567 N.W.2d
129 (1997).
In the present case, moore was charged with intentionally
or knowingly causing serious bodily injury to Kenesha under
a theory of transferred intent. the gravamen of the theory was
that moore intended to assault Karnell but instead assaulted
30 	16 NeBrasKa aPPeLLate rePorts

Kenesha; the theory of transferred intent would allow moore’s
intent to assault Karnell to “transfer” to the shooting of Kenesha.
see State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999). the
district court instructed the jury on the theory of transferred
intent in jury instruction No. 9, in which the court instructed the
jury as follows:
If you find that [moore] intended to assault a per
son other than Kenesha . . . and by mistake or accident
assaulted Ken[e]sha . . . the element of intent is satisfied,
even though [moore] did not intend to assault Kenesha . .
. . In such a case, the law regards the intent as transferred
from the original intended victim to the actual victim.
In instruction No. 10, the district court instructed the jury
that if the jury found that moore “intended to do wrong, but
as a result of his actions an unintended wrong occurred as a
natural and probable consequence,” then the jury must find
moore guilty even though the achieved wrong was unintended.
this instruction, when read in conjunction with instruction
No. 9, appears to be an attempt to reflect the general intent
nature of first degree assault and demonstrate to the jury that
the issue related to moore’s intent was whether his action of
firing the weapon at the house was done with the requisite
intent and not whether he intended to injure the actual victim,
Kenesha, or intended to cause the severity of injury that actu
ally occurred, paralysis.
In State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003),
the Nebraska supreme Court discussed the defendant’s argument
that there was insufficient evidence that she had intentionally or
knowingly inflicted injury on her infant daughter through shak
ing. the court emphasized that first degree assault is a general
intent crime and that the intent required relates to the assault, not
the injury. the court clarified that the required intent in State v.
Leibhart was an intent to shake the infant, not an intent to cause
the specific injury that resulted.
similarly, in the present case, the jury was instructed in the
instructions, read as a whole, that the state did not have a burden
to prove that moore intended to assault Kenesha specifically or
that moore intended to cause the injuries suffered by Kenesha.
rather, the state had a burden to prove that moore’s actions
state v. moore 	31
Cite as 16 Neb. app. 27

resulted in serious bodily injury to Kenesha and that moore
acted “intentionally or knowingly.” see § 28 308. the requisite
intent in this case was moore’s intent to commit an assault.
However, instruction No. 10, together with the court’s failure to
instruct the jury on the definition of “recklessly,” was confusing
and misleading to the jury on the issue of intent.
We find no merit to moore’s arguments on appeal that
instruction No. 10 allowed the jury to find him guilty based
upon any number of unspecified and incorrect “wrongs” includ
ing, among other things, consuming alcohol as a minor, driving
while intoxicated, using foul language, having a child out of
wedlock, associating with people who carry firearms, or spitting
at his brother Karnell’s car and causing animosity. Instruction
No. 10 specifically required the unintended wrong of Kenesha’s
paralysis to occur “as a natural and probable consequence” of
the intended wrong.
Nonetheless, the jury instructions, read as a whole, were
confusing or misleading to the jury in this case on the issue of
intent. the court instructed the jury that “intentionally” meant
“willfully or purposely, as distinguished from accidentally or
involuntarily.” Because the court rejected moore’s requested
instruction defining “recklessly,” however, the jury was left with
instructions that suggested that the only two mens reas possible
were intentional on the one hand and accidental or involuntary
on the other. then, in instruction No. 10, the court instructed the
jury to find moore guilty if the jury found that he “intended to
do wrong” but some unintended consequence occurred. read as
a whole, the instructions suggested to the jury that it had to find
moore guilty if it found that he intentionally shot at the house,
as opposed to accidentally doing so, without regard to whether
moore intended to assault anyone. However, intentional and
accidental were not the only possible mens reas.
a review of the record makes it apparent that moore’s defense
at trial was that he had acted recklessly in firing at the house,
but had not intended to assault Karnell, Kenesha, or anyone
else. there was evidence in the record indicating that moore
fired a single shot at the house, that it was not clear whether
the house was occupied when the shot was fired, and that it was
not clear whether Karnell was at the house at the time. as such,
32 	16 NeBrasKa aPPeLLate rePorts

there was evidence from which the jury could have concluded
that moore did not intend to assault anyone but fired a single
shot at the house with disregard for the risks of doing so—in
other words, that he acted recklessly.
moore’s requested instruction was a correct statement of law
and was supported by the evidence. We conclude that moore
was prejudiced from the court’s failure to give the instruction,
because the jury, as a result of instruction No. 10, was left
with the impression that if moore had not acted accidentally or
involuntarily when firing a shot at the house, then he was guilty
of first degree assault and culpable for the unanticipated injuries
caused to the unexpected victim, Kenesha. this is true only if
moore had the general intent to commit an assault, rather than
having acted recklessly. Because the jury was not informed
that there was any other choice of mens rea besides intentional
and accidental, the instructions as a whole were confusing
and misleading.
We find merit to moore’s assignments of error concerning the
jury instructions. Instruction No. 10 was confusing or mislead
ing to the jury, especially because the court refused to instruct
the jury on the definition of “recklessly.” read as a whole, the
instructions in this case suggested to the jury that it was to find
moore guilty and culpable for the consequences of firing a shot
at a house so long as it found that he did not accidentally do
so. as such, we must reverse, and, because of our conclusion
regarding the sufficiency of the evidence below, remand for a
new trial.
2. S uffiCieNCy of evideNCe
Next, moore asserts that there was insufficient evidence to
support his convictions. moore argues that there was insufficient
evidence to support a finding that he intentionally committed an
assault and that as such, there was insufficient evidence to sup
port the conviction for first degree assault and the corresponding
conviction for use of a deadly weapon in the commission of a
felony. We disagree.
[7] on a claim of insufficiency of the evidence, an appellate
court will not set aside a guilty verdict in a criminal case where
such verdict is supported by relevant evidence. only where
state v. moore 	33
Cite as 16 Neb. app. 27

evidence lacks sufficient probative value as a matter of law may
an appellate court set aside a guilty verdict as unsupported by
evidence beyond a reasonable doubt. State v. Grosshans, 270
Neb. 660, 707 N.W.2d 405 (2005).
[8,9] In reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the cred
ibility 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 properly admitted evidence,
viewed and construed most favorably to the state, is sufficient
to support the conviction. State v. Gutierrez, 272 Neb. 995, 726
N.W.2d 542 (2007). When reviewing a criminal conviction for
sufficiency of the evidence to sustain the conviction, the relevant
question for an appellate court is whether, after viewing the evi
dence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Id.
In this case, the state presented evidence, as recounted above,
to establish that Karnell drove past moore, moore spit in the
direction of Karnell’s vehicle, somebody in Karnell’s car fired
shots, and moore responded by getting into moore’s girlfriend’s
vehicle, driving to Karnell’s residence, observing and comment
ing on a vehicle looking like Karnell’s at the residence, and
firing a shot at the house. as a result of this action, Kenesha
was shot in the back and is now paralyzed and confined to a
wheelchair. the evidence was sufficient to support a rational
trier of fact’s conclusion that moore intentionally or knowingly
caused serious bodily injury to Kenesha, first degree assault,
and did so with the use of a gun, use of a deadly weapon in the
commission of a felony. this assignment of error is meritless.
as such, the state is not prohibited from retrying moore. see
State v. Noll, 3 Neb. app. 410, 527 N.W.2d 644 (1995), over-
ruled on other grounds, State v. Anderson, 258 Neb. 627, 605
N.W.2d 124 (2000).
3. exCeSSive S eNteNCeS
Next, moore asserts that the sentences imposed were exces
sive. moore argues that the district court abused its discre
tion in imposing consecutive sentences of 20 years’ to 20
34 	16 NeBrasKa aPPeLLate rePorts

years’ imprisonment on each conviction. In light of our reso
lution above of moore’s assignments of error concerning the
jury instructions, we need not further address this assignment
of error.
4. C umulAtive error
Finally, moore argues that there was “cumulative” error mer
iting reversal. moore argues that “some of the errors [alleged]
may not have been of sufficient importance if considered sepa
rately to warrant a reversal, but if considered together, they
present a genuine question as to whether [moore] received a fair
trial.” Brief for appellant at 48. Inasmuch as we have already
found above that there is merit to moore’s allegations of error
concerning the jury instructions, there is no need to further
address this assignment of error.
V. CoNCLUsIoN
We find that the jury instructions were confusing or mis
leading to the jury. We find, however, that there was sufficient
evidence to support a finding of guilt. as a result, we reverse,
and remand for a new trial.
reverSed ANd remANded for A New triAl .
firSt NAtioNAl bANk N orth plAtte , truStee , Appellee , v .
JAmeS ANd mAry S heetS et Al ., AppelleeS, ANd firSt
NAtioNAl bANk S outh dAkotA, AppellANt .
740 N.W.2d 613
Filed october 16, 2007. 	No. a 07 632.
1. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
2. Jurisdiction: Appeal and Error. a jurisdictional question which does not involve
a factual dispute is determined by an appellate court as a matter of law.
3. Equity: Claims: Property. Interpleader, although authorized by statute, is an equi
table remedy whereby a disinterested stakeholder in possession of property claimed
by two or more persons may require them to litigate the claims of each without
embroiling him or her in the controversy.
FIrst Nat. BaNK NortH PLatte v. sHeets 	35
Cite as 16 Neb. app. 35