State v. Moore

cases determined
in the
supreme court of nebraska
()
S tate of N ebraSka , appellee , v .
J oNathaN M oore , appellaNt .
75 n.W.2d 63
filed July 3, 2008. 	no. s-06-00.
. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the trial court.
2. Courts: Appeal and Error. regarding a question of law, the nebraska supreme
court reaches a conclusion independent of the determination reached by the
nebraska court of appeals.
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 () 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. Courts: Judgments: Appeal and Error. upon further review from a judgment
of the nebraska court of appeals, the nebraska supreme court will not reverse a
judgment which it deems to be correct simply because its reasoning differs from
that employed by the court of appeals.
petition for further review from the court of appeals, I rwIN,
SIeverS, and C aSSel, Judges, on appeal thereto from the district
court for douglas county, J ruSSell D err, Judge. Judgment of
court of appeals affirmed.
Joseph L. howard, of Gallup & schaefer, for appellant.
Jon bruning, attorney General, George r. Love, and James
d. smith for appellee.
heavICaN, 	C.J., 	wrIght , 	C oNNolly , 	gerrarD, 	S tephaN,
MCC orMaCk , and MIller -lerMaN, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

MCC orMaCk , J.
nature of case
in State v. Moore, the nebraska court of appeals reversed
Jonathan moore’s conviction for first degree assault and use
of a weapon to commit a felony, and remanded the cause for a
new trial. the court of appeals held that the jury was misled
by the trial court’s failure to instruct the jury on the meaning
of “recklessly.” the court also found that the jury was misled
by the giving of an instruction which stated that the jury “must
find [moore] guilty[,] even though the achieved wrong was
unintended,” if it found that he had “intended to do wrong, but
as a result of his actions[,] an unintended wrong occurred as a
natural and probable consequence.” on further review, the state
assigns as error the court of appeals’ determination that the trial
court should have defined “recklessly” for the jury. although our
reasoning differs from that of the court of appeals, we affirm
its judgment.
backGround
S hootINg
kenesha burton and her brother, karnell burton, have the
same father as moore, but not the same mother. the half sib-
lings knew each other, saw each other frequently, and were
generally on friendly terms. sometime in late march 2005,
however, moore and karnell had an argument over whom their
father favored more. karnell testified that he did not believe this
argument was anything serious, and he never expected that any
violence would result from the dispute.
the day of the shooting, april 3, 2005, a group of people,
including moore, his girlfriend, their infant child, and a friend,
deandre primes, were outside “hanging out” near the “spencer
projects” in omaha. moore and primes had been drinking.
karnell drove by the gathering in his black 986 chevrolet
monte carlo, and an unfriendly exchange was had between
moore and karnell. that exchange resulted in moore’s spit-
ting in the direction of karnell’s car. karnell kept driving, but
when he reached the street corner, his passengers, who were
 State v. Moore, 6 neb. app. 27, 740 n.W.2d 52 (2007).
2 	276 nebraska reports

apparently armed, fired several gunshots. there is some dispute
about whether these shots were fired into the air or toward the
crowd, but no one was injured.
karnell drove away, and soon thereafter, moore left with
primes to go to a store. on the way, moore first drove past
the house where karnell and kenesha lived with their mother.
primes testified that there was no discussion between himself
and moore as to why moore went there.
at the time that moore drove by the house, kenesha, her
mother, and some friends were sitting inside watching a movie.
karnell was not there, and his car was not nearby. the mother’s
car, a black 2004 monte carlo, was parked in the driveway, and
two other cars were parked on the street in front of the house.
nobody was standing outside. the evidence was in dispute as
to whether light from the television or any other source inside
the house was visible from the street. there is no indication that
anyone was standing near a window or otherwise visible from
outside the house.
primes testified that he did not, in fact, believe there was any-
one home. he did not see any lights on, or any other evidence
that anyone was inside. but primes testified, at one point, that
he and moore had observed a black monte carlo and discussed
that it looked like karnell’s car.
primes testified that he did not expect a shooting to occur.
but, when they circled past the house for a second time, moore
suddenly pulled out his .44 magnum revolver. according to
primes, moore took no real “aim.” With the gun pointing
across primes’ face, moore fired a single shot out the passenger
window in the general direction of the house and drove away.
that shot pierced the house and hit kenesha as she sat inside
on a stool, leaning against the wall. kenesha was paralyzed as
a result.
J ury INStruCtIoNS
moore was charged with assault in the first degree and use
of a deadly weapon to commit a felony, and the case proceeded
to a jury trial. at the instruction conference, the court denied
moore’s request that the jury be instructed on assault in the
third degree as a lesser-included offense. the court reasoned that
state v. moore 	3
cite as 276 neb. 

there was no dispute that kenesha had suffered a “serious bodily
injury,” as opposed to only the “bodily injury” referred to in the
third degree assault statute. failing to get an instruction on third
degree assault, moore asked that the court at least instruct the
jury on the definition of “recklessly.” moore did not request any
instruction that would describe recklessness as a defense to the
crime for which he was charged. neither did moore object to
instruction no. 7, which distinguished “‘[i]ntentionally’” from
“accidentally or involuntarily,” but not from “recklessly.” the
court denied moore’s motion. the jury was not given the defini-
tion of “recklessly,” and that term was not found in any of the
instructions given.
Jury instruction no. 4 provided that in order to convict moore
of assault in the first degree, the state had to prove beyond a
reasonable doubt that moore did cause “serious bodily injury to
kenesha” and that moore “caused said serious bodily injury . . .
intentionally or knowingly.” but, over moore’s objection, the
court gave instruction no. 0 on natural and probable conse-
quences: “if you find that [moore] intended to do wrong, but as
a result of his actions an unintended wrong occurred as a natural
and probable consequence, you must find that [moore] is guilty
even though the achieved wrong was unintended.”
the jury returned a general verdict finding moore guilty
of both first degree assault and use of a weapon to commit a
felony. moore was sentenced to two consecutive terms of 20 to
20 years’ imprisonment, and he appealed.
on appeal, moore argued that the court erred in giving
instruction no. 0 to the jury and in failing to instruct the jury
on the definition of “recklessly.” he did not dispute the failure
to instruct the jury on third degree assault. the court of appeals
agreed that the lack of a “recklessly” instruction and the giv-
ing of instruction no. 0 were erroneous decisions by the trial
court. the court of appeals explained that the instructions, as
given, 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. in addition, the jury was not pre-
sented with “recklessly” as a possible mens rea and would not
have understood that if it found that moore had shot into the
4 	276 nebraska reports

house with a reckless disregard for the risk of an assault occur-
ring, then moore would lack the intent necessary for assault in
the first degree.
We granted the state’s petition for further review of the court
of appeals’ decision.
assiGnment of error
the state assigns on further review that the court of appeals
erroneously concluded that the trial court had committed preju-
dicial error by not instructing the jury on moore’s requested
definition of “recklessly.”
standard of reVieW
[,2] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court.2 regarding a question of law, the nebraska supreme
court reaches a conclusion independent of the determination
reached by the court of appeals.3
anaLYsis
the state’s assignment of error narrowly focuses on the issue
of whether the court of appeals erred in concluding that the
trial court committed error in failing to define “recklessly” for
the jury. the state did not assign as error the court of appeals’
holding that instruction no. 0 was likewise confusing and mis-
leading to the jury. although the state argued during oral argu-
ment that the trial court did not err in giving instruction no. 0,
absent plain error, our review on a petition for further review is
restricted to matters assigned and argued in the briefs.4
[3] We find no plain error in the court of appeals’ con-
clusion regarding instruction no. 0.5 We therefore limit our
review in the present case to whether the court of appeals erred
2 State v. Gutierrez, 272 neb. 995, 726 n.W.2d 542 (2007).
3 Liming v. Liming, 272 neb. 534, 723 n.W.2d 89 (2006).
4 State v. Rieger, 270 neb. 904, 708 n.W.2d 630 (2006).
5 see, generally, Francis v. Franklin, 47 u.s. 307, 05 s. ct. 965, 85 L. ed.
2d 344 (985);  Wayne r. Lafave, substantive criminal Law § 5.2(f) (2d
ed. 2003).
state v. moore 	5
cite as 276 neb. 

in concluding that the lack of a “recklessly” instruction was
erroneous and prejudicial. to establish reversible error from a
court’s refusal to give a requested instruction, an appellant has
the burden to show that () 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.6 While the defini-
tion was a correct one, we agree with the state that a definition
of “recklessly” was unwarranted and that the failure to define
“recklessly” for the jury was not prejudicial to moore.
moore was charged with first degree assault under neb. rev.
stat. § 28-308() (reissue 995), which states, “a person com-
mits the offense of assault in the first degree if he intentionally
or knowingly causes serious bodily injury to another person.”
nowhere in that statute, or in the instruction given to the jury on
the crime charged, is the term “recklessly” used.
nor was the concept of “recklessly” implicated by any of the
remaining instructions. We recognize that the theory of moore’s
defense was that he acted with reckless disregard as to whether
an assault would occur. but without an instruction explaining
this theory of defense, the bald definition of “recklessly” has no
context. on appeal, moore does not argue that any other instruc-
tion should have been given. in fact, had moore’s requested
instruction on “recklessly” been given as requested by moore,
there would have been a danger that the jury would have inferred
that “recklessly” was a sufficient mens rea for the crime with
which moore was actually charged.
in short, moore’s proposed instruction on “recklessly” was
unrelated to the legal issues presented in the case, and would
have been confusing to the jury. moore was not prejudiced by
its rejection, and the trial court did not err in refusing to give
it. the court of appeals erred in concluding that it should have
been given.
concLusion
[4] the state’s assignment of error in its petition for further
review has merit. nevertheless, upon further review from a
6 State v. Hessler, 274 neb. 478, 74 n.W.2d 406 (2007).
6 	276 nebraska reports

judgment of the court of appeals, this court will not reverse
a judgment which it deems to be correct simply because its
reasoning differs from that employed by the court of appeals.7
the court of appeals also reversed moore’s conviction because
of its conclusion that the trial court had erred in giving the jury
instruction no. 0—a decision that is not challenged by the cur-
rent petition. the judgment of the court of appeals, reversing
moore’s conviction and remanding the cause for a new trial, is
therefore affirmed.
affIrMeD.
7 Mumin v. Dees, 266 neb. 20, 663 n.W.2d 25 (2003).
S tate of N ebraSka , appellee , v .
C hrIStopher e. bazer , appellaNt .
75 n.W.2d 69
filed July 3, 2008. 	no. s-07-36.
. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law. When reviewing
a question of law, an appellate court resolves the question independently of the
lower court’s conclusion.
2. Effectiveness of Counsel: Appeal and Error. appellate review of a claim of inef-
fective assistance of counsel is a mixed question of law and fact. When reviewing
a claim of ineffective assistance of counsel, an appellate court reviews the factual
findings of the lower court for clear error. With regard to the questions of counsel’s
performance or prejudice to the defendant as part of the two-pronged test articu-
lated in Strickland v. Washington, 466 u.s. 668, 04 s. ct. 2052, 80 L. ed. 2d 674
(984), an appellate court reviews such legal determinations independently of the
lower court’s decision.
3. Postconviction: Constitutional Law. postconviction relief is a very narrow cat-
egory of relief, available only to remedy prejudicial constitutional violations.
4. Pleas: Effectiveness of Counsel. When a defendant pleads guilty, he is limited
to challenging whether the plea was understandingly and voluntarily made and
whether it was the result of ineffective assistance of counsel.
5. Postconviction: Appeal and Error. a defendant cannot secure postconviction
review of issues which were or could have been litigated on direct appeal.
6. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. in order to
establish a right to postconviction relief based on a claim of ineffective assistance
of counsel, the defendant has the burden first to show that counsel’s performance
was deficient; that is, counsel’s performance did not equal that of a lawyer
state v. bazer 	7
cite as 276 neb. 7