State v. Gresham

S tate of nebraSka , appellee , v .
darrIelle greSham , appellant .
752 N.W.2d 571
Filed July 18, 2008. 	No. S-07-1043.
1. Lesser-Included Offenses. Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question of law.
2. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
3. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion
for mistrial is within the discretion of the trial court and will not be disturbed on
appeal in the absence of an abuse of discretion.
4. Lesser-Included Offenses: Jury Instructions: Appeal and Error. It is not error
for a trial court to instruct the jury, over the defendant’s objection, on any lesser-
included offenses supported by the evidence and the pleadings.
5. 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.
6. Lesser-Included Offenses. The fact that two offenses are of the same class and
carry the same range of penalties does not affect the determination of whether one
is a lesser-included offense of the other.
7. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial misconduct
in closing arguments, a court first determines whether the prosecutor’s remarks
were improper. It is then necessary to determine the extent to which the improper
remarks had a prejudicial effect on the defendant’s right to a fair trial.
8. Jury Instructions. An instruction directing the jury to continue its deliberations
does not require reversal if it cannot be shown that it tended to coerce the jury.
Appeal from the District Court for Douglas County: S andra
l. dougherty, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Timothy P. Burns for appellant.
Jon Bruning, Attorney General, and Erin E. Leuenberger for
appellee.
heavICan, 	C.J., 	W rIght, 	C onnolly, 	gerrard, 	S tephan,
mCC ormaCk, and mIller -lerman, JJ.
STATE v. GRESHAM 	187
Cite as 276 Neb. 187
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

mIller -lerman, J.
NATURE OF CASE
Darrielle Gresham was convicted of attempted murder in
the second degree, use of a deadly weapon to commit a felony,
and possession of a defaced firearm. Gresham appeals his con-
victions and asserts that the district court for Douglas County
erred in overruling his motions for a mistrial relating to clos-
ing argument and jury deliberations and in instructing the jury
on attempted murder in the second degree as a lesser-included
offense of attempted murder in the first degree. With regard to
the latter, Gresham argues that attempted murder in the second
degree cannot be a lesser-included offense of attempted murder
in the first degree because both crimes are Class II felonies
and are punishable by the same range of penalties. We reject
Gresham’s argument, and we affirm.
STATEMENT OF FACTS
On March 20, 2005, an Omaha police officer initiated a traf-
fic stop of a vehicle in which Gresham was a passenger. When
the vehicle eventually came to a stop, Gresham and another
passenger got out of the vehicle and ran in different directions.
The driver remained inside the vehicle. The officer who initi-
ated the stop stayed with the vehicle but sent out a radio alert
to other officers regarding the individuals who had fled from
the vehicle.
Various officers in the area, including Officers zachary
Petrick and Frank Platt, responded to the alert. Petrick and Platt
came upon Gresham, who was being pursued on foot by Officer
Matt Chandler. Petrick noted that Gresham was carrying a gun.
Chandler caught up to Gresham and grabbed him around the
waist. As Chandler struggled with Gresham, Gresham fired a
shot at Petrick who was standing approximately 10 feet away.
The bullet Gresham fired entered Petrick’s thigh and exited
through his buttocks. Petrick returned a shot at Gresham, who
fell to the ground as a result of either Petrick’s shot or the
struggle with Chandler. Chandler fell with Gresham. As the two
continued their struggle on the ground, Gresham fired two shots
toward Platt. With the assistance of other officers, Chandler
eventually gained control of Gresham and handcuffed him.
188 	276 NEBRASkA REPORTS

Gresham was arrested and was hospitalized as a result of injuries
from the shot fired by Petrick. Officers found the gun Gresham
had used, and it was later determined that the gun’s serial num-
ber had been scratched or rubbed off.
Gresham was charged with attempted murder in the first
degree, use of a deadly weapon to commit a felony, and posses-
sion of a defaced firearm. At trial, the State presented witnesses
who testified to the facts set forth above. Gresham testified
in his defense. He stated that he had the gun because he had
taken it from a man who had threatened him earlier. He ran
from the traffic stop because he was on probation and he was
scared that if he was found with the gun, his probation would
be revoked. Gresham testified that when Chandler caught up to
him, Gresham was going to give up, and that he took the gun
out of his pocket to let Chandler know that he had it. Gresham
denied that he intentionally fired any shots; he testified that
he did not remember firing his gun, nor did he remember
anything from the time he was handcuffed until he awoke in
the hospital.
The trial court instructed the jury on attempted murder in the
second degree as a lesser-included offense of attempted murder
in the first degree. Gresham objected to the lesser-included
offense instruction and argued that because both offenses were
Class II felonies, attempted murder in the second degree could
not be a lesser-included offense. The court gave the instruction
over Gresham’s objection.
During the rebuttal portion of the State’s closing arguments,
the prosecutor commented on the jury’s duty to assess the cred-
ibility of witnesses and reasonable doubt. The prosecutor stated
in part:
The Judge will give you an instruction on beyond a reason-
able doubt and what that means. And that last sentence is
proof beyond a reasonable doubt. It does not mean proof
beyond all possible doubt. What I said before that is that
proof beyond a reasonable doubt is similar to situation[s]
in more serious and important transactions in life. So you
can have some doubt and still decide this case, but the
more serious and important transactions in life, for exam-
ple hiring somebody to be your CEO for your corporation,
STATE v. GRESHAM 	189
Cite as 276 Neb. 187

hiring somebody to take care of your kids on a European
vacation. Would you trust that man?
Gresham objected to the prosecutor’s statement and moved for a
mistrial. The court overruled the motion.
The case was submitted to the jury in the late morning of
June 26, 2007. The jury deliberated through that afternoon and
the next day. Late in the afternoon of June 27, the jury sent a
note to the court stating that it was at an impasse. The court
questioned the jury and determined that the jury had reached
a unanimous decision regarding the charge of possession of a
defaced firearm but was at an impasse with respect to the two
other charges. The court asked the jurors whether they thought
additional further deliberations, following an overnight break,
might result in a just and unanimous verdict. The foreperson
replied, “I don’t think it’s probable, no.” However, other jurors
disagreed and thought that the issues could be resolved. The
court stated that it was “getting a sense from more persons that
it would be appropriate to give this further thought and further
reflection and further deliberation.” The court therefore stated
that the jury should break for the evening and return for further
deliberations the next morning.
After the court so informed the jury, one juror reminded the
court that, as she had noted during voir dire, she was scheduled
to leave on vacation the next day, June 28, 2007. The court
asked whether she had airplane tickets; she responded that the
trip would be by car. The court asked the jury how the votes
were divided as to the two counts that were not unanimous. The
foreperson responded that the vote was 11 to 1. The court sent
the jurors to the jury room to discuss whether they would prefer
to continue deliberations that evening or return the next day.
While the jury was outside the courtroom, Gresham moved for
a mistrial and declaration of a hung jury based on the 11 to 1
split and the possibility that the juror who was to leave for vaca-
tion the next day would be subject to “serious outside pressure”
to cause an end to deliberations. The court overruled Gresham’s
motion. The court excused the jury after being informed that
the jurors preferred to return to deliberations the next morning
rather than continuing that evening.
190 	276 NEBRASkA REPORTS

The jury continued deliberations on the morning of June 28,
2007. At approximately 10:45 a.m., the jury informed the court
that it had reached unanimous verdicts. Before reading the ver-
dicts, the court asked the jury foreperson whether, in light of
the prior day’s events, there was any undue pressure placed on
the one dissenting juror. The foreperson responded that there
was not. The verdict form stated that the jury found Gresham
guilty of attempted murder in the second degree, use of a deadly
weapon to commit a felony, and possession of a defaced firearm.
The court polled the jurors, and each juror responded that he or
she agreed with the verdicts.
The court accepted the verdicts and entered judgment against
Gresham. The court later sentenced Gresham to imprisonment
for 20 to 40 years on the attempted murder conviction, for 10 to
20 years on the weapon conviction to be served consecutive to
the sentence on the murder conviction, and for 20 to 60 months
on the defaced firearm conviction to be served concurrent with
the sentence for the attempted murder conviction.
Gresham appeals his convictions.
ASSIGNMENTS OF ERROR
Gresham asserts that the district court erred in (1) instructing
on attempted murder in the second degree as a lesser-included
offense of attempted murder in the first degree, (2) overruling
his motion for a mistrial based on the prosecutor’s comments
during closing arguments, and (3) overruling his motion for a
mistrial based on the jury’s initial impasse on two counts.
STANDARDS OF REVIEW
[1,2] Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question of
law. State v. Blair, 272 Neb. 951, 726 N.W.2d 185 (2007). When
dispositive issues on appeal present questions of law, an appel-
late court has an obligation to reach an independent conclusion
irrespective of the decision of the court below. Id.
[3] The decision whether to grant a motion for mistrial is
within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion. State v.
Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
STATE v. GRESHAM 	191
Cite as 276 Neb. 187

ANALySIS
Attempted Murder in the Second Degree Is a Lesser-Included
Offense of Attempted Murder in the First Degree Even
Though the Two Crimes Are of the Same
Class and Carry the Same Penalty.
Gresham asserts that the district court erred in instructing on
the lesser-included offense of attempted murder in the second
degree. He argues that attempted murder in the second degree
cannot be a lesser-included offense of attempted murder in the
first degree because both crimes are Class II felonies and carry
the same penalty. We reject Gresham’s argument.
[4] We have held that it is not error for a trial court to instruct
the jury, over the defendant’s objection, on any lesser-included
offenses supported by the evidence and the pleadings. State v.
Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986). See, also, State
v. James, 265 Neb. 243, 655 N.W.2d 891 (2003). We noted
in Pribil that while a trial court is not required to sua sponte
instruct on lesser-included offenses, the trial court may do so if
the evidence adduced at trial would warrant conviction of the
lesser charge and the defendant has been afforded fair notice
of the lesser-included offense. Id. We further noted that either
the State or the defendant may request a lesser-included offense
instruction where it is supported by the pleadings and the evi-
dence. Id.
[5] The rule we have adopted for determining whether an
instruction on a lesser-included offense is warranted is as fol-
lows: 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
lesser offense. State v. Blair, supra. We have followed this rule
since we readopted the rule in State v. Williams, 243 Neb. 959,
503 N.W.2d 561 (1993). In Williams, we described the rule as
a statutory elements approach in which a court initially “looks
only to the elements of the criminal offense” to determine if it
is a lesser-included offense of another. 243 Neb. at 965, 503
N.W.2d at 565. If it is so determined, then the court looks to the
192 	276 NEBRASkA REPORTS

evidence in the case to determine whether the evidence justifies
an instruction.
Gresham concedes that in prior cases, we have held that
attempted murder in the second degree is a lesser-included
offense of attempted murder in the first degree. See, State
v. Dixon, 259 Neb. 976, 614 N.W.2d 288 (2000); State v.
Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997). Gresham
asserts, however, that in those cases, we did not address the
argument he advances here to the effect that a lesser-included
offense must also be an offense that carries a lesser penalty.
Attempted murder in the second degree does not carry a
lesser penalty than attempted murder in the first degree. Under
Neb. Rev. Stat. § 28-201(4)(a) (Cum. Supp. 2006), criminal
attempt is a Class II felony when the crime attempted is a
Class I, Class IA, or Class IB felony. Murder in the first degree
is either a Class I or Class IA felony, Neb. Rev. Stat. § 28-303
(Cum. Supp. 2006), and murder in the second degree is a
Class IB felony, Neb. Rev. Stat. § 28-304(2) (Reissue 1995).
Therefore, attempted murder in the first degree and attempted
murder in the second degree are both Class II felonies subject
to the same range of penalties under Neb. Rev. Stat. § 28-105
(Cum. Supp. 2006).
However, the relative penalties are not a factor in determin-
ing whether one offense is lesser included. As noted above, the
rule we have adopted for determining whether an offense is a
lesser-included offense employs a statutory elements approach
in which we look only to the elements of two criminal offenses
to determine whether one cannot commit one of the offenses,
the “greater offense,” without simultaneously committing the
other offense, the “lesser offense.” Under this approach, the
“lesser offense” is the one for which fewer—or in the lesser-
included vernacular “less”—elements are required to be proved.
The approach focuses on the elements of the offenses, and
comparison of the penalties associated with the offenses is not
a factor.
In support of his argument, Gresham refers us to Rivers v.
State, 425 So. 2d 101 (Fla. App. 1982), which he characterizes
as supporting the proposition that no offense is deemed to be a
lesser offense if it carries the same penalty as the crime under
STATE v. GRESHAM 	193
Cite as 276 Neb. 187

consideration. However, we agree with the greater weight of
authority to the contrary. We note that in State v. Habhab, 209
N.W.2d 73 (Iowa 1973), the Iowa Supreme Court rejected an
argument similar to Gresham’s that an offense could not be a
lesser-included offense if the penalty were not lesser. The court
in Habhab noted that its “definition of included offenses . . .
has never made reference to a requirement of a lesser penalty”
and that its “previous holdings negative any inference the pos-
sible penalty for a criminal violation is in any way material
to a determination of whether one offense is included within
another.” 209 N.W.2d at 74. See, also, Mungo v. U.S., 772 A.2d
240 (D.C. 2001) (under statutory elements test, court compares
elements of two offenses without regard to punishment provi-
sions); Nicholson v. State, 656 P.2d 1209 (Alaska App. 1982) (in
connection with lesser-included offense analysis, “lesser” refers
to relation between elements of offenses, not relation between
their penalties); State v. Caudillo, 124 Ariz. 410, 604 P.2d 1121
(1979) (terms “lesser” and “greater” refer to number of elements
in respective crimes and offense may be lesser-included whether
penalty is less or same).
For completeness, we note that in Brown v. State, 261 Ind.
169, 301 N.E.2d 189 (1973), the Indiana Supreme Court held
that the penalty for a lesser-included offense is not required
to be less than that for the greater offense, but the court also
commented that both the Indiana Constitution and the Eighth
Amendment to the U.S. Constitution proscribe a greater pen-
alty for a lesser-included offense. In the present case, attempted
murder in the first degree and attempted murder in the second
degree carry the same penalty; therefore, our decision in this
case applies to circumstances where a lesser-included offense
carries the same penalty as the greater offense, and we need not
address the circumstance where a lesser-included offense might
carry a penalty greater than that of the greater offense.
[6] Under the statutory elements test adopted by this court, the
relative penalties are not a factor in identifying lesser-included
offenses, and we conclude that the fact that two offenses are
of the same class and carry the same range of penalties does
not affect the determination of whether one is a lesser-included
offense of the other. In the present case, Gresham does not argue
194 	276 NEBRASkA REPORTS

that the lesser-included offense instruction was improper either
because the offenses failed the statutory elements test or because
the instruction was not supported by the evidence. His sole argu-
ment is that the instruction was improper because the offenses
carried the same penalty. Having rejected this argument as a
matter of law, we conclude that the district court did not err in
instructing the jury on the lesser-included offense of attempted
second degree murder.
District Court Did Not Abuse Its Discretion by Overruling
Motion for Mistrial Based on the Prosecutor’s Comments.
Gresham asserts that the district court erred in overruling his
motion for mistrial based on the prosecutor’s statements dur-
ing closing argument. He argues that the prosecutor’s rhetorical
question regarding whether the jurors would trust “that man” as
a babysitter for their children was a reference specifically aimed
at Gresham and, as such, was improper and highly inflamma-
tory. We conclude that the district court did not abuse its discre-
tion by overruling Gresham’s motion for a mistrial on the basis
of these comments.
[7] Generally, in assessing allegations of prosecutorial mis-
conduct in closing arguments, a court first determines whether
the prosecutor’s remarks were improper. It is then necessary
to determine the extent to which the improper remarks had a
prejudicial effect on the defendant’s right to a fair trial. State v.
Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d
727 (2007). In Barfield, we found prosecutors’ remarks to
be improper based in part on personal invective aimed at the
defendant. We noted that prosecutors are charged with the duty
to conduct criminal trials in such a manner that the accused may
have a fair and impartial trial and that prosecutors are not to
inflame the prejudices or excite the passions of the jury against
the accused. Id.
Taken in the context in which it was delivered, we do not
find the challenged comment in this case to be improper or
to have had a prejudicial effect on Gresham’s right to a fair
trial. Gresham characterizes the prosecutor’s rhetorical question,
“Would you trust that man?” as conveying a message to the
STATE v. GRESHAM 	195
Cite as 276 Neb. 187

jurors on a personal level that Gresham was a danger to their
children because he was not the type of man they could trust to
care for their children. Viewing the question in context, however,
we do not read it as a specific reference to Gresham or to any
danger he might pose to the children of the jurors. Instead, the
prosecutor was explaining the concept of reasonable doubt and
how proof beyond a reasonable doubt was such that one would
rely on it in the most serious and important transactions of life.
As examples of such serious and important transactions of life,
the prosecutor used “hiring somebody to be your CEO for your
corporation” and “hiring somebody to take care of your kids
on a European vacation.” We read the prosecutor’s immediately
ensuing rhetorical question, “Would you trust that man?” to be
a reference to the hypothetical “somebody” that one would hire
and the level of trust one would place on such person. We do not
read the comment as a specific reference to Gresham.
We disagree with Gresham’s characterization of the prose-
cutor’s statements, and we determine that such statements were
not improper and therefore did not have a prejudicial effect on
Gresham’s right to a fair trial. We conclude that the district court
did not abuse its discretion by overruling Gresham’s motion for
a mistrial based on such statements.
District Court Did Not Abuse Its Discretion by Overruling
Motion for Mistrial Based on Jury’s Initial
Impasse on Two Counts.
Gresham asserts that the district court erred in overruling his
motion for mistrial with respect to the jury’s initial impasse on
the counts of attempted murder and use of a deadly weapon to
commit a felony. He argues that the jury was deadlocked and
that there was a danger that the dissenting juror could be subject
to outside pressure to change his or her vote. Having reviewed
the record, we conclude that the district court did not abuse its
discretion by overruling the motion for a mistrial based on the
initial jury impasse.
Gresham likens this case to State v. Garza, 185 Neb. 445,
446, 176 N.W.2d 664, 665 (1970), in which the jury, after hav-
ing deliberated for some time, reported that it was “hopelessly
deadlocked” at 11 to 1. The trial court admonished the jury with
196 	276 NEBRASkA REPORTS

what this court characterized as an “Allen charge” based on the
case of Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.
Ed. 528 (1896). The trial court in Garza told the jury
“in view of the fact that the vote is now 11 to 1, . . . this
case should be disposed of by your verdict, and it is cer-
tainly my earnest hope and, likewise, my firm belief that
this can be accomplished. . . . I just can’t be convinced that
there is no possibility of your agreeing.”
185 Neb. at 446, 176 N.W.2d at 665 (emphasis omitted). The
court then ordered the jury “‘to retire to your jury room’” and
“‘to earnestly renew your efforts to come to a verdict in this
case.’” Id. (emphasis omitted). Forty-five minutes later, the jury
arrived at a verdict of guilty.
In Garza, we noted that in Potard v. State, 140 Neb. 116,
299 N.W. 362 (1941), this court had rejected the giving of an
Allen charge as prejudicial error because its purpose was to
peremptorily direct an agreement. This court also found that the
instruction in Garza constituted reversible error because “the
court made it very clear that in its judgment a verdict could and
should be arrived at” and the instruction was “tantamount to
telling the dissenting juror that he was wrong.” 185 Neb. at 449,
176 N.W.2d at 667. Gresham asserts that the district court in this
case gave a similarly improper order to the jury.
We note that the facts of this case are significantly different
from those in Garza. The jury in this case reported to the court
that it was at an “impasse” rather than that it was deadlocked,
and the jury sought guidance from the court. The court ques-
tioned the jury in an apparent attempt to determine whether
there was a deadlock. The court asked the jurors whether they
felt that after the approximately 11 to 12 hours during which
they had deliberated, taking an overnight break and returning
the next day for further deliberations could result in unanimous
verdicts. Although the jury foreperson answered that it was not
probable, other jurors disagreed and stated that they thought that
the impasse could be resolved. The court indicated that it had
the sense that more jurors thought further deliberation would
be worthwhile, and the court therefore ordered the jury to sepa-
rate for the evening and to return for further deliberations the
next day.
STATE v. GRESHAM 	197
Cite as 276 Neb. 187

[8] We determine that the district court’s actions in this case
did not constitute an improper Allen charge. The court did not
pressure the jury to reach unanimous verdicts; instead, the court
determined that the jurors themselves thought they could reach
unanimous verdicts with further deliberation and it therefore
instructed the jury to take an overnight break and to continue
deliberations the next morning. An instruction directing the jury
to continue its deliberations does not require reversal if it cannot
be shown that it tended to coerce the jury. Shipler v. General
Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006). In this
case, there is no indication that the instruction tended to coerce
the jury.
Gresham further argues that a mistrial should have been
granted because of possible outside pressure on the juror who
needed to leave on a scheduled vacation the next day. At the
time Gresham moved for a mistrial, there was no indication that
outside pressure would influence the verdict. The court allowed
the jury to determine for itself whether it preferred to continue
deliberations that night or to return the next day, and there was
no indication that the juror who needed to leave was in fact
the dissenting juror or could unduly influence the dissenting
juror. Furthermore, after unanimous verdicts were returned,
the court asked the jury foreperson without objection whether
any undue pressure had been placed on the dissenting juror,
and the foreperson responded that there had not. The court also
polled the jurors, and all jurors indicated their agreement with
the verdicts.
There was no indication that undue pressure was exerted or
that the court’s instruction to continue deliberations coerced
the jurors to reach unanimous verdicts. We therefore conclude
that the district court did not abuse its discretion by overrul-
ing Gresham’s motion for a mistrial based on the jury’s initial
inability to reach unanimous verdicts on two counts.
CONCLUSION
We conclude that the district court did not err in instructing
the jury on attempted murder in the second degree as a lesser-
included offense of attempted murder in the first degree, and we
conclude that the district court did not abuse its discretion by
198 	276 NEBRASkA REPORTS

overruling Gresham’s motions for mistrial based on the prosecu-
tor’s statements in closing and on the jury’s initial impasse with
regard to the verdicts on two of the charges. We therefore affirm
Gresham’s convictions.
affIrmed .
STATE v. GRESHAM 	199
Cite as 276 Neb. 187