State v. Welch

corresponding exemption in the political subdivisions tort
Claims act, and we affirm the judgment dismissing his claim
against the City. We also affirm the entry of summary judgment
in favor of kramer, because the record reflects no genuine issue
of material fact as to Hofferber’s claim against her and she is
therefore entitled to judgment of dismissal as a matter of law.
However, we conclude that kleinjan did not make a prima facie
showing that she was entitled to summary judgment, and we
therefore reverse the judgment entered in her favor and remand
the cause to the district court for further proceedings consistent
with this opinion.
affirMed iN part , aNd iN part reverSed aNd
reMaNded for further proceediNgS.
S tate of N ebraSka , appellee , v .
deNiSe r. W elch , appellaNt .
747 N.W.2d 613
Filed april 18, 2008. 	No. s-07-289.
1. Jury Instructions. Whether jury instructions given by a trial court are correct 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. 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.
4. Jury Instructions: Convictions: Appeal and Error. before an error in the giving
of instructions can be considered as a ground for reversal of a conviction, it must
be considered prejudicial to the rights of the defendant.
5. Jury Instructions: Appeal and Error. all the jury instructions must be read
together, and if, taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
6. Pedestrians: Motor Vehicles: Statutes. Neb. rev. stat. § 60-6,109 (reissue 2004)
sets out a higher standard of care in the situations described in the statute.
7. Pedestrians: Motor Vehicles: Proof. In order for a driver to be held to the higher
standard of care in Neb. rev. stat. § 60-6,109 (reissue 2004), there must be
evidence both that the person was actually confused or actually incapacitated and
that such condition was objectively obvious to a reasonable driver.
state v. WeLCH 	517
Cite as 275 Neb. 517
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

518 	275 Nebraska reports
8. Jury Instructions: Appeal and Error. a jury instruction which misstates the
issues and has a tendency to confuse the jury is erroneous.
9. Double Jeopardy: Evidence: Appeal and Error. the Double Jeopardy Clause
precludes a second trial once the reviewing court has found the evidence
legally insufficient.
appeal from the District Court for Lancaster County, J effre
cheuvroNt, Judge, on appeal thereto from the County Court for
Lancaster County, laurie yardley, Judge. Judgment of District
Court reversed, and cause remanded with directions.
robert b. Creager, of anderson, Creager & Wittstruck, p.C.,
for appellant.
Jon bruning, attorney General, and erin e. Leuenberger for
appellee.
heavicaN, 	c.J., 	W right , 	coNNolly , 	gerrard , 	S tephaN,
M ccorMack , and M iller -lerMaN, JJ.
M iller -lerMaN, J.
NatUre oF Case
as a result of charges stemming from a motor vehicle-
pedestrian accident, Denise r. Welch was convicted of misde-
meanor motor vehicle homicide by a jury at a trial conducted
in the county court for Lancaster County. Welch appealed
her conviction to the district court for Lancaster County and
claimed that the county court had erred in instructing the jury
on a theory of guilt that was not supported by the evidence.
the district court rejected Welch’s argument and affirmed her
conviction. Welch appeals. We conclude that the evidence did
not support the challenged instruction regarding a driver’s duty
to exercise proper precaution with respect to an obviously con-
fused or incapacitated person. We therefore reverse the deci-
sion of the district court and remand the cause with directions
to reverse the conviction and remand the matter to the county
court for a new trial.
stateMeNt oF FaCts
Welch was charged in county court with misdemeanor motor
vehicle homicide in violation of Neb. rev. stat. § 28-306 (Cum.

supp. 2004). the charge arose from an accident that occurred
on october 7, 2005, in which a van driven by Welch collided
with a pedestrian, Mitchell Fitzgibbons, at the intersection of
19th and south streets in Lincoln, Nebraska. Fitzgibbons was
knocked to the ground and died as a result of injuries received
in the accident.
officer bryan tankesley testified at the trial in this matter.
at approximately 12:30 p.m. on october 7, 2005, tankesley
responded to a report of an injury accident at 19th and south
streets. Nineteenth street runs north-south, and south street
runs east-west. When he arrived at the intersection, he observed
a Dodge Caravan that appeared to have been turning right off
of 19th street to go eastbound on south street. He also saw
Fitzgibbons lying on the ground near the passenger side of the
van. Fitzgibbons appeared to have suffered significant head
trauma. tankesley spoke with Welch, who had been identified
as the driver of the van.
tankesley testified regarding Welch’s statements to him at
the scene. Welch was driving northbound on 19th street and
stopped at the stop sign south of the intersection with south
street. Welch saw Fitzgibbons standing at the corner but “she
didn’t pay all that much attention to him” because he had
stopped walking and she “figured that he was going to stop and
wait for her to proceed with her turn.” Welch looked to make
sure traffic was safe and proceeded with her turn. she then
“heard a bang, felt a thud, felt the van rock just a little bit” and
realized that her van had come into contact with Fitzgibbons.
she stopped the van, got out and ran to see what had happened.
she saw that her front passenger tire was on Fitzgibbons’ upper
arm area and so she backed the van off of him. by that time,
witnesses had stopped to help.
after questioning Welch, tankesley referred her to another
officer, richard roh, for further questioning. roh testified that
he asked Welch to make a taped statement of what she recalled
about the accident and that Welch agreed to do so. roh took
Welch to the main police station to make the taped statement,
which was admitted into evidence at trial and played for the
jury without objection. a transcript of the taped statement was
also admitted into evidence without objection, and the jury was
state v. WeLCH 	519
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520 	275 Nebraska reports
allowed to use the transcript to follow along while the tape
was played.
In the taped statement, Welch stated that she saw Fitzgibbons
at the southeast corner of 19th and south streets and that she
was not sure whether he was intending to go west across 19th
street or north across south street. she also stated that she
thought that Fitzgibbons was “not all there, so I was afraid you
know, I don’t know what it is, it’s a weird feeling I had with
him, and I don’t really know the guy, but I’ve seen him before,
and I, I was wondering if he was mentally retarded or some-
thing.” Welch further stated that she did not remember whether
she was talking on her cellular telephone at the time she was
turning onto south street.
Fitzgibbons’ mother testified at trial. at the time of his
death, Fitzgibbons was 49 years old and lived with his mother
at a home near the accident scene. He worked part time at an
insurance company in omaha, Nebraska, as an internal auditor.
Fitzgibbons was visually impaired as a result of diabetes and
could not drive due to this impairment. However, Fitzgibbons’
mother testified that he did not let the diabetes “keep him from
doing most everything he wanted to do”; that his visual impair-
ment was not such that it would have prevented him, under
ordinary circumstances, from safely negotiating the path he was
taking at the time of the accident; and that he did not carry a
white cane.
on the morning of october 7, 2005, Fitzgibbons and his
mother had been working on a rental house they owned that
was across the street from their home. their home was on the
south side of south street east of 19th street, and the rental
house was on the north side of south street west of 19th street.
they walked home to have lunch, and afterward, Fitzgibbons
left to return to the rental house while his mother stayed to fin-
ish tasks at home. shortly thereafter, she noticed that traffic had
slowed on south street and she looked out her front door and
saw that Fitzgibbons had been injured.
Four persons who witnessed the accident testified for the
state. susan blasius testified that she was driving eastbound on
south street and that she did not see the actual collision, but
saw Fitzgibbons walking west down the sidewalk and Welch’s

van on 19th street. she testified that afterward, she saw that
Fitzgibbons had been hit. Carole Maasch testified that she was
traveling in the right eastbound lane of south street. she saw
Welch’s van moving north on 19th street, and she “wasn’t quite
sure the van was going to stop, and so [she] wanted to stay
aware” and pulled into the left lane in case the van did not stop.
Maasch testified that “the van wasn’t speeding or anything,
but the van didn’t stop and slow down, and I saw the van hit
a man.” Maasch saw the driver of the van looking westward
toward oncoming traffic but did not see the driver look to check
the other direction. Maasch testified that she was “fairly posi-
tive” that the driver was using a cellular telephone at the time
of the accident.
robin Derr testified that at the time of the accident, he was
painting a house on the northeast corner of 19th and south
streets. He saw Fitzgibbons standing on the southeast corner
of the intersection; he then saw the van pull up and “they
were both kind of facing the same direction.” Derr did not
see the collision but he heard a screech and a thud. Derr ran
across south street to assist and saw Fitzgibbons lying on the
ground underneath the van’s front tire. Derr noted injuries to
Fitzgibbons’ head and bleeding from his ears and nose. Derr
testified regarding his observation of Fitzgibbons after the
accident that “by his facial expression, I thought maybe he
[Fitzgibbons] was maybe mildly retarded or something . . . like
maybe he was a little slow.”
sean barry testified that he was eastbound on south street
and that he saw Welch’s van stopped about 10 feet back from
the intersection and Fitzgibbons walking west on the sidewalk.
barry saw the van begin to move forward, and he moved from
the right lane to the center lane either “because the van was in
the street or I was moving over in anticipation of the van enter-
ing.” barry saw Fitzgibbons continue walking despite the fact
that the van had started to move, and he saw Fitzgibbons’ arms
fly up in the air as Fitzgibbons and the van collided.
the state’s other witnesses included a pathologist who
testified that Fitzgibbons died as the result of head injuries
that were caused by a fall to the ground rather than by his
head striking the vehicle. the state also presented testimony
state v. WeLCH 	521
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522 	275 Nebraska reports
by an accident reconstructionist who opined that based on his
investigation, Fitzgibbons had been crossing 19th street in the
crosswalk when he was struck by Welch’s vehicle, causing him
to fall over backward and hit his head on the pavement.
In her defense, Welch presented the testimony of a profes-
sor with experience in accident reconstruction who opined that
based on his investigation, a dent in the side of the van was
caused by Fitzgibbons tripping or stumbling forward and hit-
ting his head on the side of the van. Welch did not testify.
after both sides rested, the county court instructed the jury
regarding, inter alia, the elements of motor vehicle homicide,
§ 28-306(1), as charged. In instruction No. 3, the court instructed
that the elements of motor vehicle homicide included:
Welch proximately caused the death of Mitchell Fitzgibbon
[sic] unintentionally while in the commission of any of
the following unlawful acts:
a. Careless driving as described in Instruction 4; or
b. Failure to Yield the right of way as described in
Instruction 5; or
c. Failing to exercise due care with a pedestrian as
described in Instruction 6.
the elements described in paragraphs 3(a) – 3(c) of
this instruction constitute a single offense. therefore,
you need not agree unanimously on which unlawful act
listed in element 3(a) – 3(c) was committed by . . . Welch,
so long as you are unanimous that the state has proven
beyond a reasonable doubt that an act of . . . Welch was
unlawful as described in paragraphs 3(a) – 3(c).
In instruction No. 6, the court instructed:
as to failure to exercise due care with a pedestrian the
state must prove beyond a reasonable doubt, each of the
following elements:
(a) . . . Welch was driving a motor vehicle in this state;
(b) . . . Welch did fail to exercise due care to avoid
colliding with any pedestrian and give an audible signal
when necessary; or
(C) . . . Welch failed to exercise proper precaution upon
observing a [sic] obviously confused or incapacitated per-
son upon a roadway.

Instruction No. 6 was based on Neb. rev. stat. § 60-6,109
(reissue 2004). at the instruction conference, the court over-
ruled Welch’s objection to instruction No. 6 and the portion of
instruction No. 3 referring to instruction No. 6.
the jury found Welch guilty of motor vehicle homicide. the
county court sentenced Welch to probation for 2 years.
Welch appealed her conviction to the district court for
Lancaster County. she claimed that the county court erred in
giving instructions Nos. 3 and 6 and, in particular, in instructing
the jury regarding the duty owed by motorists to an obviously
confused or incapacitated person, as set forth in instruction No.
6 which was derived from § 60-6,109. she argued that instruc-
tion No. 6 was not supported by the evidence because there was
no evidence that Fitzgibbons appeared obviously confused or
incapacitated and no evidence that he was on the “roadway.”
the court rejected Welch’s arguments, finding that there was
evidence, including photographs and drawings of the scene of
the collision, which showed that Fitzgibbons was on the road-
way. the court also noted Welch’s statement to police that she
thought that Fitzgibbons was “mentally retarded or something”
and that he was “not all there” as evidence that Fitzgibbons was
obviously confused or incapacitated. the district court affirmed
Welch’s conviction.
Welch appeals.
assIGNMeNt oF error
Welch challenges the giving of instructions Nos. 3 and 6 and
claims that the county court erred in instructing the jury on a
theory of guilt that was not supported by the evidence.
staNDarDs oF reVIeW
[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.
state v. WeLCH 	523
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524 	275 Nebraska reports
aNaLYsIs
Evidence Does Not Support Instruction Regarding
“Obviously Confused or Incapacitated Person.”
Welch argues that the county court erred in giving instruc-
tions Nos. 3 and 6 because there was no evidence to support a
finding that Fitzgibbons was “obviously confused or incapaci-
tated.” We agree that the evidence did not support an instruc-
tion regarding the care required with respect to an obviously
confused or incapacitated person. We conclude that the county
court erred in giving instruction No. 6(C) and that the instruc-
tion was prejudicial to Welch. We do not find error in instruc-
tion No. 3’s reference to instruction No. 6, because, with a
minor exception, the remainder of instruction No. 6 was proper
and supported by the evidence.
[4,5] before an error in the giving of instructions can be
considered as a ground for reversal of a conviction, it must be
considered prejudicial to the rights of the defendant. State v.
Fischer, supra. all the jury instructions must be read together,
and if, taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error neces-
sitating reversal. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d
542 (2007). Welch does not claim that the instructions do not
correctly state the law. Instead, she argues that instruction No.
6(C), the portion of the instruction relating to the duty of care
to an obviously confused or incapacitated person, was mis-
leading because the issue of a driver’s duty to an obviously
confused or incapacitated person was not supported by the
evidence in this case.
Instruction 	No. 	6 	was 	adapted 	from 	§ 	60-6,109,
which provides:
Notwithstanding the other provisions of the Nebraska
rules of the road, every driver of a vehicle shall exercise
due care to avoid colliding with any pedestrian upon any
roadway and shall give an audible signal when neces-
sary and shall exercise proper precaution upon observing
any child or obviously confused or incapacitated person
upon a roadway.

section 60-6,109 sets forth both the duty a driver owes
with respect to any pedestrian and the duty a driver owes with
respect to particular persons, including children and persons
who are obviously confused or incapacitated. the county court
instructed on both duties in subparagraphs (b) and (C) of
instruction No. 6. the county court instructed that in order to
find that Welch had failed to exercise due care with a pedes-
trian, the jury would need to find either that “Welch did fail
to exercise due care to avoid colliding with any pedestrian and
give an audible signal when necessary” or that “Welch failed
to exercise proper precaution upon observing a [sic] obviously
confused or incapacitated person upon a roadway.” the court
therefore instructed on all parts of the statute except the refer-
ence to children which was not relevant in this case.
[6] this court has previously considered § 60-6,109 and
found that the statute “sets out a higher standard of care in the
situations described in the statute.” Hines v. Pollock, 229 Neb.
614, 619, 428 N.W.2d 207, 210 (1988) (interpreting Neb. rev.
stat. § 39-644 (reissue 1984), which was later transferred to
§ 60-6,109). see, also, Dutton v. Travis, 4 Neb. app. 875, 551
N.W.2d 759 (1996). although our pronouncement was made
in a civil case, it applies equally to the criminal case under
consideration. thus, § 60-6,109 requires a driver to exercise
“due care” with any pedestrian, but the statute requires a higher
standard of care, described as “proper precaution,” when the
person is a child or the person is an obviously confused or
incapacitated person. at issue in this case is consideration of
the evidence necessary to support an instruction that a person
is “obviously confused or incapacitated,” thereby imposing a
higher standard of care on a driver.
[7] as we read § 60-6,109, “obviously” refers to both “con-
fused” persons and “incapacitated” persons and thus modifies
both categories of persons. In the context of § 60-6,109, “con-
fused” and “incapacitated” describe conditions which actu-
ally affect a person’s ability to avoid coming to harm on a
roadway, and the presence of persons with such conditions
requires a driver to take greater care with regard to such per-
sons. the statute’s use of “obviously” means that the conditions
state v. WeLCH 	525
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526 	275 Nebraska reports
referred to must be displayed. For a condition to be obvious,
the condition must be objectively apparent through conduct or
other unequivocal means such that a driver should be aware
of the condition. We conclude that in order for a driver to be
held to the higher standard of care in § 60-6,109, there must be
evidence both that the person was actually confused or actually
incapacitated and that such condition was objectively obvious
to a reasonable driver.
In 	the 	present 	case, 	although 	there 	was 	evidence 	that
Fitzgibbons suffered some degree of visual impairment, this
evidence was not sufficient to characterize Fitzgibbons as either
an actually “confused” or an actually “incapacitated” person
under § 60-6,109 at the time of the accident, and, in addition,
there is no evidence that his limitation, such as it was, was
obvious. to the contrary, Fitzgibbons’ mother testified that
Fitzgibbons’ sight was not such that it prevented Fitzgibbons
from safely walking the path he was on at the time of the
accident and that he had safely walked that route at other
times. Further, although there was some evidence that Welch
wondered about Fitzgibbons’ condition and that another wit-
ness observed Fitzgibbons’ facial expression after the accident
and thought maybe he was mentally retarded, neither witness
gave descriptions of Fitzgibbons’ behavior or even appearance
which warrants an objective conclusion that Fitzgibbons was
an obviously confused or incapacitated person. referring to the
record as a whole, no witness described actions or conduct by
Fitzgibbons or anything definitive about Fitzgibbons immedi-
ately prior to the accident which would objectively lead a rea-
sonable driver to conclude that Fitzgibbons was an obviously
confused or incapacitated person at the time of the accident.
In concluding that there was evidence to support the chal-
lenged instruction and affirming the decision of the county
court, the district court relied on Welch’s statements to police
that she had seen Fitzgibbons before and had wondered whether
he was “mentally retarded or something.” Given the require-
ments of § 60-6,109, which we have described above, the
district court’s reliance on Welch’s subjective feeling, without
more, was misplaced. the record did not support an instruc-
tion that assumed without evidence that Fitzgibbons was an

obviously confused or incapacitated person. We therefore con-
clude that the evidence did not support giving subparagraph (C)
of instruction No. 6.
[8] as we have noted, there was no evidence from which the
jury could have found that Fitzgibbons was “obviously con-
fused or incapacitated,” and therefore, the county court should
not have instructed the jury it could find that Welch had failed
to exercise due care with a pedestrian if it found that “Welch
failed to exercise proper precaution upon observing a [sic]
obviously confused or incapacitated person upon a roadway.” a
jury instruction which misstates the issues and has a tendency
to confuse the jury is erroneous. State v. Stark, 272 Neb. 89,
718 N.W.2d 509 (2006). subparagraph (C) of instruction No. 6
misstated the issues because it implied that there was evidence
from which the jury could find that Fitzgibbons was “obvi-
ously confused or incapacitated” and that therefore, Welch was
required to exercise the heightened standard of care described
as “proper precaution” rather than the due care owed to any
pedestrian. the county court erred in giving this portion of the
instruction, and the district court erred when it affirmed the
giving of this portion of the instruction.
although instruction No. 6(C) was not supported by the
evidence, we conclude that the remainder of instruction No.
6 and instruction No. 3 were not erroneous. as noted above,
a driver can violate § 60-6,109 either by failing to exercise
proper precaution with the specifically listed types of persons
or by failing to exercise due care with any pedestrian on the
roadway. although there was not evidence to support an instruc-
tion regarding whether Fitzgibbons was obviously confused or
incapacitated requiring Welch to exercise the legally heightened
duty of proper precaution, there was evidence to support an
instruction regarding whether Fitzgibbons was a pedestrian in
the roadway with respect to whom Welch was required to exer-
cise due care. In this regard, we note that in State v. Mattan,
207 Neb. 679, 300 N.W.2d 810 (1981), this court determined
that evidence was sufficient to find that the defendant caused
the death of a pedestrian while operating a vehicle in violation
of § 60-6,109 (then § 39-644). this court determined that there
was evidence in Mattan that the driver failed to see a pedestrian
state v. WeLCH 	527
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528 	275 Nebraska reports
who was in plain sight which could support a finding that the
driver failed to “exercise due care to avoid colliding with any
pedestrian upon any roadway” as required under § 60-6,109.
We note that there was evidence in the present case, in par-
ticular, the testimony of the state’s accident reconstructionist,
from which the jury could find that Fitzgibbons was a pedes-
trian upon the roadway when the collision occurred. there was
also evidence from which the jury could find that although
Welch had seen Fitzgibbons before the collision, she was look-
ing in a different direction and did not see that he had left the
corner at the time of the collision. From such evidence, the jury
could have found that Welch failed to exercise due care to avoid
colliding with a pedestrian on the roadway. therefore, although
the evidence did not support subparagraph (C) of instruction
No. 6, the evidence supported the remainder of the instruction.
For completeness, we note that subparagraph (b) of instruction
No. 6 as given by the county court failed to specify that under
§ 60-6,109, the pedestrian must be “upon any roadway.” In a
new trial upon remand, instruction No. 6, subparagraph (b),
should so specify.
Finally, we conclude that the error in giving subparagraph
(C) of instruction No. 6 was prejudicial to Welch and requires
reversal of her conviction. although, as indicated above, there
was evidence, if believed, from which the jury could have
found that Welch had violated § 60-6,109 on another basis,
it is important to note that in instruction No. 3, the jury was
instructed that it need not be unanimous in determining which
unlawful act Welch had committed in order to find her guilty
and that it need be unanimous only in finding that the state had
proved beyond a reasonable doubt that Welch had committed
at least one of the unlawful acts described in the instructions.
therefore, it is possible that at least one juror could have found
that although Welch exercised due care with a pedestrian as
described in instruction No. 6(b), she did not, however, meet
the higher standard of exercising proper precaution with an
obviously confused or incapacitated person as described in
instruction No. 6(C) and then based his or her decision to con-
vict on the basis described in instruction No. 6(C). because
the jury was given an improper basis upon which to convict

Welch and was not required to specify the basis or bases on
which it found Welch guilty, we conclude that subparagraph (C)
was prejudicial to Welch. therefore, the erroneous instruction
requires reversal of her conviction.
Double Jeopardy Does Not Bar New Trial on Other Bases.
Welch was charged with motor vehicle homicide which
involves causing a death unintentionally while engaged in
an unlawful act involving the operation of a motor vehicle.
see § 28-306. the state alleged alternate “unlawful acts” as
the basis for the charge. such acts included careless driving,
failure to yield, failure to exercise due care with a pedestrian,
and failure to exercise proper precaution with an obviously
confused or incapacitated person. We conclude that although
Welch cannot be retried for motor vehicle homicide on the
basis that she failed to exercise proper precaution with respect
to an obviously confused or incapacitated person, double jeop-
ardy does not prevent a new trial for motor vehicle homicide
on the remaining bases upon which the county court instructed
in the first trial.
[9] We have noted that generally, “if a convicted defendant
obtains a reversal and remand for a new trial on appeal, the
state may reprosecute.” State v. Palmer, 257 Neb. 702, 726,
600 N.W.2d 756, 774 (1999). However, “the Double Jeopardy
Clause precludes a second trial once the reviewing court has
found the evidence legally insufficient.” 257 Neb. at 727, 600
N.W.2d at 775 (citing Burks v. United States, 437 U.s. 1, 98 s.
Ct. 2141, 57 L. ed. 2d 1 (1978)).
In the present case, our conclusion that Welch’s conviction
should be reversed is premised on our determination that there
was not sufficient evidence at trial to support instruction No.
6(C) regarding the duty of a driver to exercise proper precau-
tion with an obviously confused or incapacitated person and
that at least one juror could have relied on that unwarranted
basis and corresponding instruction in voting to convict Welch.
because the state failed to produce evidence to support a con-
viction on the basis of Welch’s alleged failure to exercise proper
precaution with an obviously confused or incapacitated person,
double jeopardy precludes the state on remand from attempting
state v. WeLCH 	529
Cite as 275 Neb. 517

530 	275 Nebraska reports
to convict Welch of motor vehicle homicide on the basis of
such alleged unlawful act. However, as noted above, there was
sufficient evidence from which the jury could have found that
Welch failed to exercise due care with a pedestrian as instructed
in instruction No. 6(b), and she may be retried on such basis.
Further, Welch made no argument on appeal that the evidence
was insufficient to support the instructions on careless driving
in instruction No. 4 and on failure to yield the right of way in
instruction No. 5, and we have not analyzed these instructions
and corresponding evidence. therefore, on remand, Welch may
be tried on these bases without violating double jeopardy.
CoNCLUsIoN
We conclude that the evidence did not support instruction
No. 6(C) regarding failure to exercise proper precaution with an
obviously confused or incapacitated person. the county court
therefore erred in giving the instruction, and the instruction
was prejudicial to Welch. the district court erred in affirming
Welch’s conviction. We remand the cause to the district court
with directions to reverse Welch’s conviction and to remand the
matter to the county court for a new trial in accordance with
this opinion.
reverSed aNd reMaNded With directioNS.