State v. Sing

S tate of nebraSka , appeLLee , v .
danny L. S ing , appeLLant .
746 N.W.2d 690
Filed april 4, 2008. 	No. s-07-345.
1. Convictions: Evidence: Appeal and Error. In reviewing a claim that the evidence
was insufficient to support a criminal conviction, an appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evi-
dence; 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.
2. Homicide: Intent: Words and Phrases. a person kills with premeditated malice
if, before the act causing the death occurs, the person has formed the intent or
determined to kill the victim without legal justification.
3. Criminal Law: Evidence: Intent. When the sufficiency of the evidence as
to criminal intent is questioned, independent evidence of specific intent is not
required. rather, the intent with which an act is committed is a mental process
and may be inferred from the words and acts of the defendant and from the cir-
cumstances surrounding the incident.
4. Trial: Pleadings: Proof: Appeal and Error. In order to preserve any error before
an appellate court, the party opposing a motion in limine which was granted must
make an offer of proof outside the presence of the jury unless the evidence is
apparent from the context in which the questions were asked.
5. Criminal Law: Sentences. a sentencing judge must separately determine, state,
and grant the amount of credit on the defendant’s sentence to which the defendant
is entitled.
appeal from the District Court for Douglas County: patricia
a. L amberty, Judge. affirmed as modified.
thomas C. riley, Douglas County public Defender, Mikki C.
Jerabek, and scott C. sladek for appellant.
Jon bruning, attorney general, and James D. smith for
appellee.
heavican, 	C.J., 	wright, 	connoLLy, 	gerrard, 	S tephan,
mccormack, and miLLer -L erman, JJ.
totality of the circumstances when considering whether any
communities around Dunlap should factor into the assessment of
giboo’s earning capacity.
reverSed and remanded with directionS.
state v. sINg 	391
Cite as 275 Neb. 391
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

392 	275 Nebraska reports
wright, J.
NatUre oF Case
Danny L. sing was convicted of first degree murder, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a felon, following the death of edi torres. sing was
sentenced to life in prison, a consecutive term of 5 to 10 years
in prison for use of a weapon, and a concurrent term of 5 to 10
years for possession of a deadly weapon. He appeals.
sCope oF reVIeW
[1] In reviewing a claim that the evidence was insufficient
to support 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 sup-
port the conviction. see State v. Thurman, 273 Neb. 518, 730
N.W.2d 805 (2007).
FaCts
sing lived on south 9th street in omaha, Nebraska. a com-
mon driveway ran between sing’s house and the house next
door, in which Loc Nguyen and Johanna Nguyen resided. the
Nguyens had moved in several weeks prior to september 30,
2005, and in that time, police had been called to the Nguyens’
house for a noise complaint and a complaint about a dog.
the police had also towed a vehicle from the backyard of the
Nguyens’ house.
torres was a friend of Loc’s and often came to the Nguyens’
house to lift weights. on september 30, 2005, Loc and torres
made plans to meet around midnight. When Loc and Johanna
arrived home, torres was waiting on the enclosed front porch.
because Loc had sprained his hand and could not lift weights, he
and torres decided to buy some beer. Loc, Johanna, and torres
were on the porch when sing came over at about 1 a.m.
sing drank two or three beers in 15 to 30 minutes. He
repeatedly talked about a stolen vehicle that had been parked
behind the Nguyens’ house. Loc asked sing if he had called the
police about the vehicle, and sing said he was not a “snitch.”

because Loc’s wrist was wrapped, sing repeatedly asked Loc
what was wrong with his wrist. Loc finally responded that he
was about to sprain his other wrist if sing did not stop asking
about it. Loc, Johanna, and torres all laughed at this, but sing
did not. at Loc’s suggestion, sing left, and Loc secured the
door to the porch.
a few minutes later, Loc saw sing run up the steps to the
porch. torres was seated on a chair, Johanna was sitting on
the weight bench, and Loc was standing against the house near
Johanna. sing tried to open the door, but it was locked. He had
a small pistol in his left hand and a shotgun in his right hand.
sing asked Loc if he had “anything to say now” and asked Loc
and torres if they were “tough now.” sing pointed the pistol at
Loc and torres, and the muzzle of the pistol was touching the
glass in the door.
torres told sing not to point the gun at him or anyone
else. sing then pointed the pistol at Loc’s face and fired, but
Loc dodged and the shot missed him. torres told Loc to take
Johanna inside the house, and Loc walked behind Johanna to
protect her. before Johanna got into the house, she heard a gun-
shot that was louder than the first. as Loc reached the doorway,
he looked at torres to tell him to come into the house. at that
moment, a gun was fired and Loc saw sing with both hands on
the shotgun, which was pointed at torres. torres was knocked
backward, and his chair flew against the wall. Loc saw sing
run away.
Inside the house, Johanna called the 911 emergency dispatch
service. Loc went into the kitchen, grabbed two knives, and
went to the back door because he thought sing might try to
return through that door. Loc then returned to the front porch
and saw torres struggling to move. When medical person-
nel arrived, Loc told them to hurry because torres was badly
injured. Loc saw sing on his porch, looking out. When the
police arrived, Loc directed them to sing’s house. torres died
later that day from a gunshot wound to the head. the shot had
been roughly parallel to the top of torres’ head.
police officers ordered sing to come out of his house, and
he was taken into custody. police found a shotgun shell on
the ground near the garage of sing’s house and a shotgun in a
state v. sINg 	393
Cite as 275 Neb. 391

394 	275 Nebraska reports
wooded area behind sing’s house. the shotgun was test fired
and found to be operational.
sing told the officer who transported him to police headquar-
ters that he had gone next door to confront Loc and Johanna
about a car which had been “dumped” in his backyard and
that they laughed at him. He said that Loc and torres told him
they were going to “storm troop his residence, kill him, [and]
rape his wife.” Loc and Johanna denied that anyone made any
threats to sing and denied that there had been foul language
spoken that night or raised voices.
During a police interview the morning of october 1, 2005,
sing stated that he had gone to tell the Nguyens that they lived
in a quiet neighborhood and that it was not “cool” to bring
the police around. sing claimed Loc stated that if they found
out sing had called the police about the stolen car, they would
come to his house, rape his wife or girlfriend, and kill him
while he was sleeping. sing gave several explanations for the
events of the night of september 30, 2005: (1) He got his guns
from his house and went next door because he wanted to scare
the Nguyens and torres; (2) the shooting was an accident; (3)
he stumbled, and the shotgun went off; and (4) he blacked out
and had no memory of that segment of time.
sing told police that he did not have to work on september
30, 2005, and that he began drinking about 11 a.m. He claimed
that he consumed approximately 34 beers between 11 a.m.
and 5 p.m. and napped until about 8 p.m. When his girlfriend
arrived home, they went to a neighborhood bar. He claimed to
have consumed six or seven beers there, as well as seven shots
of liqueur. sing then went home and drank “a couple” of beers
before going to the Nguyens’ house.
sing was charged in an amended information with first
degree murder, use of a deadly weapon to commit a felony,
and possession of a deadly weapon by a felon. a jury returned
verdicts of guilty on all three charges.
sing was sentenced to life in prison for first degree murder
and 5 to 10 years’ imprisonment for use of a weapon to com-
mit a felony, to be served consecutively to the life sentence. He
was sentenced to 5 to 10 years’ imprisonment for possession of
a deadly weapon by a felon, to be served concurrently to the

sentence for the weapons conviction. He was given credit for
time served of 522 days against the sentence imposed for first
degree murder.
assIgNMeNts oF error
sing’s assignments of error can be summarized to allege
that the evidence was insufficient to support the conviction for
first degree murder and that the district court erred in sustain-
ing the state’s motion in limine regarding the victim’s alleged
gang affiliation.
aNaLYsIs
S ufficiency of evidence
sing asserts that the evidence was insufficient to support
the conviction for first degree murder. He argues that the
state failed to prove that he killed torres purposely and with
deliberate and premeditated malice. Neb. rev. stat. § 28-303(1)
(Cum. supp. 2006) provides that the killing must be commit-
ted “purposely and with deliberate and premeditated malice.”
sing claims that the evidence never established such intent and
that the record supports a finding that the death was the result
of an accident. He alleges that he had consumed an excessive
amount of alcohol, he was verbally threatened by Loc and
torres, and the shotgun discharged when he stumbled in his
drunken state.
the jury was given a step instruction stating that sing could
be found guilty of first degree murder, second degree mur-
der, or manslaughter, or found not guilty. It was also given
an instruction defining intoxication as a defense. although
sing argues that the facts support a manslaughter charge, we
note that the jury was given this option, but did not make that
factual finding.
Concerning the elements of first degree murder, we have held
that deliberate means “not suddenly, not rashly, and requires
that the defendant considered the probable consequences of his
or her act before doing the act.” State v. Robinson, 272 Neb.
582, 627, 724 N.W.2d 35, 73 (2006). premeditated means the
actor has formed a design to commit an act before it is done.
see State v. Robinson, supra.
state v. sINg 	395
Cite as 275 Neb. 391

396 	275 Nebraska reports
[2,3] a person kills with premeditated malice if, before the
act causing the death occurs, the person has formed the intent
or determined to kill the victim without legal justification. see
id. there is no particular length of time required for premedi-
tation, as long as the intent to kill is formed before the act is
committed and not simultaneously with the act that caused the
death. see id. It is for the jury to decide whether the defen-
dant acted with premeditation. see id. When the sufficiency of
the evidence as to criminal intent is questioned, independent
evidence of specific intent is not required. rather, the intent
with which an act is committed is a mental process and may
be inferred from the words and acts of the defendant and from
the circumstances surrounding the incident. State v. White, 272
Neb. 421, 722 N.W.2d 343 (2006).
Loc testified that sing returned to the porch with two guns
and asked Loc if he had “anything to say now.” sing pointed a
pistol directly at Loc and fired, but he missed. as Loc attempted
to go into the house with Johanna, a shot was fired and he saw
sing with both hands on the shotgun. torres was knocked back
against the wall, and sing ran away. this evidence is sufficient
to demonstrate beyond a reasonable doubt that sing intended
to kill torres. sing formulated the design to commit the act by
going to his house and returning to the Nguyens’ house with
two guns. It may be reasonably inferred from sing’s actions
and the circumstances surrounding the incident that he had
the intent to kill torres purposely and with deliberate and
premeditated malice.
sing argues that “the homicide was the result of an acci-
dent and [was] not committed purposely with deliberate and
premeditated malice.” brief for appellant at 11. sing contends
that he had two weapons, was standing in front of the porch,
discharged the pistol into the doorjamb, stumbled, and then
accidentally discharged the shotgun. His defense was that the
shooting was an accident.
the record does not support this argument. the witnesses
testified that sing did not appear to stumble or fall as he came
up the steps with the guns. None of the police officers who
had contact with sing observed any instability due to intoxi-
cation. the autopsy revealed that torres died from a gunshot

that was approximately parallel to the top of his head. Loc
saw sing point the shotgun at torres. the shotgun was tested
and found to be operational. It fired as it was designed, with
no defects. It had a trigger guard that would keep the trigger
from being depressed if the gun was dropped. the guard was
not found to be defective. there was no evidence that the shot-
gun was accidentally discharged or that sing stumbled due to
his intoxication.
sing also argues that neither Loc nor Johanna witnessed sing
discharge the shotgun. the record does not support this claim.
Loc and Johanna testified that they saw sing point the pistol
and shoot in Loc’s direction. Immediately after hearing a sec-
ond shot, Loc saw sing with both hands on the shotgun, which
was pointed at torres.
In reviewing a claim that the evidence was insufficient to
support 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 sup-
port the conviction. see State v. Thurman, 273 Neb. 518, 730
N.W.2d 805 (2007). the evidence admitted at sing’s trial was
sufficient to support the murder conviction. sing’s assignment
of error has no merit.
motion in L imine
sing claims the district court erred in sustaining the state’s
motion in limine concerning torres’ alleged affiliation with a
street gang. prior to trial, the state argued that sing’s opinion
concerning an alleged affiliation between torres and a gang
was speculation and was not relevant. sing claimed that it
was relevant to his state of mind and to explain why he feared
torres and Loc. sing also claimed that gang members had
attended gatherings at the Nguyens’ house.
When the motion in limine was made, defense counsel indi-
cated that sing would testify at trial. the district court reserved
final ruling on the receipt of gang evidence in relation to sing’s
state of mind. the court directed that witnesses were not to be
state v. sINg 	397
Cite as 275 Neb. 391

398 	275 Nebraska reports
asked whether they were members of a gang and that torres
was not to be identified as a gang member.
Following the testimony of four police officers at trial,
the issue of gang affiliation was raised again. sing sought to
present evidence that he returned to the Nguyens’ residence
with two guns because he believed torres was a member of a
gang based on a tattoo of the number 13 on torres’ ear. sing
intended to solicit testimony from a police officer that would
support sing’s contention that he was afraid of torres. the dis-
trict court ruled that witnesses could not testify whether sing
was fearful that torres was a member of a gang. the court
stated that it would allow the witnesses to testify about subjects
previously mentioned during the trial, including a stolen car,
threats made to sing, and a tattoo of the number 13. the court
stated it would not allow questions regarding the alleged gang
affiliation of persons who visited the Nguyens’ house.
sing did not testify at trial. the evidence of his motive and
intent was presented through the testimony of a police officer
who had interviewed sing. there was no evidentiary ruling by
the district court that would have excluded testimony by sing
concerning his knowledge of whether torres had any gang
affiliation. Nor was there any testimony concerning how such
affiliation may have affected sing’s state of mind.
Neb. rev. stat. § 27-103 (reissue 1995) provides:
(1) error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of
the party is affected, and:
. . . .
(b) In case the ruling is one excluding evidence, the
substance of the evidence was made known to the judge
by offer or was apparent from the context within which
questions were asked.
see, 	also, 	State 	v. Williams, 	269 	Neb. 	917, 	697 	N.W.2d
273 (2005).
[4] In order to preserve any error before this court, the party
opposing a motion in limine which was granted must make
an offer of proof outside the presence of the jury unless the
evidence is apparent from the context in which the questions
were asked. McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803

(1990). see, also, State v. Bruna, 12 Neb. app. 798, 686 N.W.2d
590 (2004). there was no offer of proof made concerning any
testimony related to alleged gang affiliation. there are only
two references in the trial transcript that might be construed to
relate to gang affiliation. one of the police officers stated that
sing described one of the individuals next door as a Hispanic
male, 20 years old, with the number 13 tattooed on his right
ear. the physician who completed the autopsy stated that
torres had a tattoo of the number 13 on his left ear. sing made
no offer of proof as to any witness who would have testified
that torres was a gang member or that any gang members had
visited the Nguyens’ home. No one testified and no offer of
proof was made to suggest that sing returned to the Nguyens’
home with guns because he felt threatened by Loc or torres due
to their affiliation with a gang.
sing argues that testimony about the gang affiliation of
torres and Loc was relevant to sing’s state of mind, specifically
his fear of torres and Loc, who sing claimed had threatened
him earlier. sing claims that he was prejudiced because he was
not allowed to present an essential aspect of his defense.
this argument has no merit. sing did not testify. the defense
presented only two witnesses: a bartender who testified as to the
amount of alcohol sing consumed the evening of the shooting
and a police officer who interviewed Johanna. apparently, the
officer’s testimony was intended to impeach Johanna’s testi-
mony concerning sing’s level of intoxication.
sing did not make an offer of proof concerning testimony
about gang affiliation, which testimony he claims should have
been admitted. because he did not make a record, there is
nothing to support his claim that the district court wrongly
sustained the motion in limine.
S entenceS
the district court sentenced sing to life in prison for first
degree murder; to a term of 5 to 10 years in prison for use of
a weapon to commit a felony, to be served consecutively to the
life sentence; and to a term of 5 to 10 years in prison for the
possession of a deadly weapon by a felon, to be served concur-
rently to the sentence for the weapons conviction. sing was
state v. sINg 	399
Cite as 275 Neb. 391

400 	275 Nebraska reports
given credit for time served (522 days) against the sentence
imposed on the first degree murder conviction. We find plain
error in the allocation of credit for time served.
When a defendant is sentenced to life imprisonment for first
degree murder, the defendant is not entitled to credit for time
served in custodial detention pending trial and sentence; how-
ever, when the defendant receives a sentence consecutive to
the life sentence that has a maximum and minimum term, the
defendant is entitled to receive credit for time served against
the consecutive sentence. see State v. Ildefonso, 262 Neb. 672,
634 N.W.2d 252 (2001), citing State v. Mantich, 249 Neb. 311,
543 N.W.2d 181 (1996).
[5] a sentencing judge must separately determine, state,
and grant the amount of credit on the defendant’s sentence to
which the defendant is entitled. State v. Ildefonso, supra. sing
is entitled to receive credit for 522 days served, but the credit
should be applied against the sentence for use of a weapon
rather than against the sentence for first degree murder. We
therefore modify sing’s sentences by ordering that the credit
for time served be applied against the sentence for use of a
weapon to commit a felony.
CoNCLUsIoN
the evidence was sufficient to support the conviction for first
degree murder, and the district court did not err in sustaining
the state’s motion in limine concerning evidence of gang affili-
ation. thus, sing’s convictions are affirmed.
the sentencing order incorrectly granted sing credit for
time served against the life sentence. We modify the sentence
to apply credit for time served to the sentence for use of a
weapon to commit a felony. the sentences are, in all other
respects, affirmed.
affirmed aS modified .