State v. Sinica

Johnston apart from her alleged failure to pay money owed for
legal services.18
We conclude that the district court erred in concluding that
Burnison lacked standing because the firm had impermissi-
bly attempted to delegate personal legal services. We further
conclude that public policy does not prohibit an attorney’s
assignment of a claim for unpaid legal fees when the former
client defends with allegations of malpractice. Accordingly,
we reverse the judgment of the district court and remand the
cause with directions to the district court to make the necessary
findings of fact and conclusions of law and decide the remain-
ing issues.
R eveRsed and Remanded with diRections.
heavican, C.J., not participating.
18 See, generally, Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
state of nebRaska , appellee , v.
peteR m. sinica , JR., appellant.
764 N.W.2d 111
Filed April 23, 2009. 	No. S-08-042.
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. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
4. 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.
5. Lesser-Included Offenses. To determine whether one statutory offense is a
lesser-included offense of the greater, Nebraska courts look to the elements of the
crime and not to the facts of the case.
6. Homicide: Lesser-Included Offenses: Minors. Involuntary manslaughter is a
lesser-included offense of child abuse resulting in death.
STATe v. SINICA 	629
Cite as 277 Neb. 629
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

7. Lesser-Included Offenses: Jury Instructions. In conducting the first step of
the statutory elements approach to determine whether a lesser-included offense
instruction should be given, the greater offense should be the offense with
which the defendant is charged. Thus, if it would be impossible to commit the
charged offense without simultaneously committing the lesser offense, and the
evidence produces a rational basis for acquitting the defendant of the former
and convicting of the latter, the lesser offense should be included in the step
instruction regardless of its relationship to other lesser-included offenses in
the instruction.
8. 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 (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
9. Lesser-Included Offenses: Jury Instructions. error in failing to instruct the
jury on a lesser-included offense is harmless when the jury necessarily decides
the factual questions posed by the omitted instructions adversely to the defendant
under other properly given instructions.
10. Lesser-Included Offenses: Jury Instructions: Presumptions: Appeal and
Error. When the trial court in a criminal case provides the jury with a step
instruction specifically instructing the jury that if it determined that the State
proved each element of the charged offense beyond a reasonable doubt, it
should not consider lesser-included offenses, an appellate court presumes that
the jury followed the instruction and did not consider any of the purported
lesser-included offenses after finding that the defendant was guilty of the
charged offense.
Appeal from the District Court for Lancaster County: steven
d. buRns, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
Matthew G. Graff for appellant.
Jon 	Bruning, 	Attorney 	General, 	and 	James 	D. 	Smith
for appellee.
heavican, 	c.J., 	wRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
stephan, J.
Peter M. Sinica, Jr., appeals his conviction and sentence
following a trial by jury on the charge of intentional child
abuse resulting in death. Sinica was sentenced to a term of
imprisonment of 20 to 30 years. We affirm the conviction
and sentence.
630 	277 NeBRASKA RePoRTS

BACKGRoUND
Tori Ziana Lee Stone (Tori) died on July 27, 2006. Her
father, Sinica, was charged with intentional child abuse result-
ing in death, a Class IB felony.1 He entered a plea of not guilty
and was tried by a jury. We summarize those proceedings.
Tori was born on May 10, 2006. She was the child of Sinica
and Tory Lee Stone, both unmarried Lincoln residents who
lived apart and had ended their relationship by the time of
Tori’s birth. Tori lived with Stone for the first month of her
life, but stayed with Sinica at his home for short periods dur-
ing that time. In mid-June, Stone asked Sinica to keep Tori
with him for an indefinite period of time, and he agreed to do
so. Shortly thereafter, Sinica initiated proceedings to gain legal
custody of the child. The court awarded joint custody of Tori
to Sinica and Stone, with each to have physical custody on a
rotating basis.
Sinica described Tori as being “fussy” and crying more than
usual in July 2006. on July 10, a doctor treated Tori for an
inner ear infection. Sinica testified that on that evening, Tori
was “fussy” and had “mild vomiting.” Sinica testified that on
the following day, Tori rolled off his bed and may have hit
her head on a rock which was on the floor next to the bed. At
some time during this period, Sinica told Stone that Tori had
slipped out of his hands and hit her head while he was bath-
ing her. Tori was with Stone during the weekend of July 14 to
17, and then Stone returned her to Sinica’s residence. Stone
testified that during the weekend, Tori cried more than usual
but that Stone did not notice any bruising on the child’s head
or body.
Sinica testified that Tori was “fussy” and “spitting up” on
July 17 and 18, 2006, and that she was vomiting and had diar-
rhea by July 19. Sinica admitted that out of frustration, he shook
the child for “a couple of seconds” on the evening of July 19,
but denied that he intended to harm her. on the following day,
Sinica took Tori to the doctor because she was still vomiting
and had diarrhea. He did not mention that he had shaken her
the night before, because he did not think that the shaking had
1 See Neb. Rev. Stat. § 28-707 (Reissue 2008).
STATe v. SINICA 	631
Cite as 277 Neb. 629

caused any harm. The doctor suggested admitting Tori to the
hospital for observation, but after consulting with his father,
Sinica declined. He agreed to watch her carefully and return
her to the doctor’s office if her symptoms worsened. When
Stone came to pick up Tori on July 20 or 21, Sinica told her
that Tori was sick and had been to the doctor and that it would
not be wise for her to be around Stone’s other children. Stone
noticed that Tori was crying more than usual. She decided to
leave Tori with Sinica, who was then residing with his parents.
Sinica testified that Tori’s symptoms had subsided by July 23
and that when he took her to the doctor for a followup visit on
July 24, he was told that she was “perfectly healthy.”
on July 26, 2006, Sinica fed Tori between 6 and 7 p.m.
and then put her to bed. He testified that she was still asleep
at approximately 10 p.m. and that she continued to sleep
when he repositioned her. He next checked her at midnight,
and again she did not awaken when he repositioned her head.
At approximately 1:30 a.m., he heard crying, so he changed
Tori’s diaper, gave her a pacifier, and laid her on his bed while
he went to the kitchen to prepare a bottle. Sinica testified
that when he returned to the bedroom about 10 minutes later,
Tori was lying face down on the bed. When he picked her up
to give her the bottle, he noticed that she was not breathing
normally, her lips were blue, and she was making a gurgling
sound. Sinica testified that when he realized Tori was not
responding, he became frantic, picked her up, and shook her.
He later told police that he shook her hard enough that her
head and legs were “flopping back and forth.” Sinica testified
that he shook the child in an attempt to obtain a response, but
with no intent to harm her. When Tori did not respond and
Sinica was unsuccessful at reviving her with CPR and chest
compressions, he and his father took her to a nearby fire sta-
tion for medical attention. When they arrived at approximately
2:25 a.m., an emergency medical technician detected a faint
pulse but no spontaneous respiration. The technician called
for an ambulance and continued his efforts to resuscitate the
child until the ambulance arrived and transported her to a
Lincoln hospital. She was then transported by “Life Flight” to
Children’s Hospital in omaha.
632 	277 NeBRASKA RePoRTS

A physician at the pediatric intensive care unit of Children’s
Hospital noted that when he took over Tori’s care at approxi-
mately 8 a.m., she “already had signs that she was neurologi-
cally devastated.” CT scans revealed both old and new head
injuries. Tori’s condition did not change, and she died that
evening. An autopsy performed on the following day revealed
extensive bleeding and swelling of her brain. The forensic
pathologist who performed the autopsy testified to a reasonable
degree of medical certainty that the cause of death was “severe
closed head injury or craniocerebral trauma with extensive
acute subdural and subarachnoid hemorrhage, a massive acute
cerebral edema.” The pathologist testified that beyond these
fatal injuries, he also found evidence of multiple healed rib
fractures, an “old” fracture of a lumbar vertebra, and “corner
fractures” of both tibial bones. The pathologist testified that in
his opinion, Tori died as a result of homicide caused by inten-
tionally inflicted injuries.
At the instruction conference held at the conclusion of trial,
the court proposed a step instruction which permitted the jury
to find Sinica either not guilty or guilty of one of the follow-
ing offenses: (1) intentional child abuse resulting in death, (2)
intentional child abuse resulting in serious bodily injury, (3)
intentional child abuse, or (4) negligent child abuse. The State
objected to the inclusion of negligent child abuse, arguing that
it was not supported by the evidence. Sinica’s counsel argued
that negligent child abuse was a lesser-included offense of
intentional child abuse resulting in death and that the evidence
provided a rational basis upon which the jury could conclude
that Sinica acted negligently. The court overruled the State’s
objection. Sinica’s counsel did not object to any portion of the
court’s proposed instruction, but requested that it be amended
to include the following language:
2. Regarding the charge of Manslaughter, the State
must prove beyond a reasonable doubt:
a. that Peter Sinica, Jr., caused the death of Tori
Stone;
b. that he did so unintentionally;
c. that he did so while in the commission of the unlaw-
ful act of Negligent Child Abuse . . . ;
STATe v. SINICA 	633
Cite as 277 Neb. 629

d. that he did so on, about or between July 13, 2006,
and July 27, 2006; and
e. that he did so in Lancaster County, Nebraska.
The State objected to this amendment, arguing that man-
slaughter was not a lesser-included offense of intentional child
abuse resulting in death. The court overruled Sinica’s pro-
posed amendment and gave the step instruction as originally
proposed. The jury was given separate verdict forms for its
use in returning a verdict of guilty of one of the four offenses
listed in the step instruction or not guilty. After deliberating,
the jury returned a verdict of guilty on the charged offense of
intentional child abuse resulting in death. After Sinica was con-
victed and sentenced for that offense, he perfected this timely
direct appeal.
ASSIGNMeNT oF eRRoR
Sinica’s sole assignment of error is that the district court
erred in failing to instruct on the lesser-included offense
of manslaughter.
STANDARD oF ReVIeW
[1-3] Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question
of law.2 Whether jury instructions given by a trial court are
correct is a question of law.3 When reviewing questions of
law, we resolve the questions independently of the lower
court’s conclusions.4
ANALYSIS
[4,5] This appeal presents the legal issue of whether invol-
untary manslaughter is a lesser-included offense of intentional
child abuse resulting in death. Conceptually, a lesser-included
offense is a “device that permits a jury to acquit a defendant of
a charged offense and instead to convict of a less serious crime
2 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008); State v.
Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).
3 State v. Draganescu, supra note 2; State v. Molina, 271 Neb. 488, 713
N.W.2d 412 (2006).
4 State v. Draganescu, supra note 2.
634 	277 NeBRASKA RePoRTS

that is necessarily committed during the commission of the
charged offense.”5 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 defendant of the greater offense and convicting
the defendant of the lesser offense.6 To determine whether one
statutory offense is a lesser-included offense of the greater,
Nebraska courts look to the elements of the crime and not to
the facts of the case.7
Child abuse offenses are defined by § 28-707. The statute
defines multiple offenses ranging in severity from a Class I
misdemeanor to a Class IB felony, depending upon the state of
mind of the abuser and the result of the abuse.8 At the time of
the offense and trial involved in this case, § 28-707 provided
in pertinent part:
(1) A person commits child abuse if he or she know-
ingly, intentionally, or negligently causes or permits a
minor child to be:
(a) Placed in a situation that endangers his or her life or
physical or mental health;
(b) Cruelly confined or cruelly punished;
. . . .
(3) Child abuse is a Class I misdemeanor if the offense
is committed negligently.
(4) Child abuse is a Class IIIA felony if the offense is
committed knowingly and intentionally and does not result
in serious bodily injury as defined in section 28-109.
(5) Child abuse is a Class III felony if the offense is
committed knowingly and intentionally and results in
serious bodily injury as defined in such section.
5 Michael H. Hoffheimer, The Rise and Fall of Lesser Included Offenses, 36
Rutgers L.J. 351, 354 (2005).
6 State v. Draganescu, supra note 2; State v. Gresham, supra note 2.
7 State v. Draganescu, supra note 2; State v. Williams, 243 Neb. 959, 503
N.W.2d 561 (1993).
8 See State v. Parks, 253 Neb. 939, 573 N.W.2d 453 (1998).
STATe v. SINICA 	635
Cite as 277 Neb. 629

(6) Child abuse is a Class IB felony if the offense is
committed knowingly and intentionally and results in the
death of such child.
Sinica was charged with intentional child abuse resulting in
death, a Class IB felony under § 28-707(6).
We held in State v. Parks9 that misdemeanor negligent child
abuse is a lesser-included offense of felony intentional child
abuse, noting that “it is impossible to commit intentional child
abuse without also committing negligent child abuse.” Parks did
not involve a death, but in two subsequent cases, State v. Blair10
and Molina,11 we relied upon Parks to conclude that negligent
child abuse was a lesser-included offense of intentional child
abuse resulting in death. Neither of those cases presented the
issue of whether the jury should have been instructed on the
lesser-included offense of manslaughter.
[6] At the time of the offense and trial in this case, Nebraska’s
manslaughter statute provided in pertinent part: “(1) A person
commits manslaughter if he . . . causes the death of another
unintentionally while in the commission of an unlawful act.”12
We have characterized this offense as “involuntary manslaugh-
ter.”13 It is a Class III felony.14 Applying the elements test stated
above, we conclude that one cannot commit the greater offense
of intentional child abuse resulting in death without simul-
taneously committing the lesser offense of involuntary man-
slaughter. The difference between the two lies in the actor’s
state of mind. If the abuse resulting in death was committed
knowingly and intentionally, it is a Class IB felony as defined
in § 28-707(6). If the child abuse which results in death is
committed negligently, it is the misdemeanor offense defined
by § 28-707(3) which constitutes the predicate “unlawful act”
9 Id. at 948, 573 N.W.2d at 459.
10 State v. Blair, 272 Neb. 951, 726 N.W.2d 185 (2007).
11 State v. Molina, supra note 3.
12 Neb. Rev. Stat. § 28-305 (Reissue 2008).
13 State v. Pettit, 233 Neb. 436, 454, 445 N.W.2d 890, 901 (1989), overruled
on other grounds, State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).
14 § 28-305(2).
636 	277 NeBRASKA RePoRTS

for the lesser offense of involuntary manslaughter. Thus, invol-
untary manslaughter is a lesser-included offense of child abuse
resulting in death and the jury should be so instructed if there
is a rational basis upon which it could conclude that the defend-
ant committed child abuse negligently, but not knowingly
and intentionally.
We recognize tension between our holding today and our
analytical approach in State v. White.15 In that case, the defend-
ant was charged with first degree murder and the jury was
instructed on lesser-included offenses of second degree mur-
der and manslaughter. The jury convicted the defendant of
manslaughter. on appeal, the defendant argued that the trial
court erred in denying his request to instruct on additional
lesser-included offenses of child abuse and third degree assault.
Applying the statutory elements approach, we concluded that it
was possible to commit manslaughter without committing child
abuse or third degree assault and that therefore, neither was a
lesser-included offense of manslaughter.
our analysis in White suggests that a linear application of
the statutory elements approach should be undertaken where
several offenses are claimed to be lesser-included offenses of
the charged offense. In determining whether child abuse and
third degree assault were lesser-included offenses in White,
we did not look to whether their elements were necessarily
included in the charged offense of first degree murder. Instead,
we compared the elements of child abuse and the elements of
third degree assault to those of manslaughter, which was itself a
lesser-included offense on which the defendant was ultimately
convicted. With respect to the child abuse offense, the result
would have been the same under either approach, because it is
possible to commit first degree murder or manslaughter with-
out committing child abuse. But the linear analysis employed
in White would prevent a jury from considering alternative
lesser-included offenses, i.e., all crimes which constitute lesser-
included offenses of the charged offense, regardless of their
relationship to each other.
15 State v. White, 217 Neb. 783, 351 N.W.2d 83 (1984).
STATe v. SINICA 	637
Cite as 277 Neb. 629

other courts have employed a broader application of the
statutory elements approach or a similar analytical device
which permits the jury to consider all lesser-included offenses
of the charged offense. For example, the rule in Vermont
is that “[a] criminal defendant is entitled to have the jury
instructed on every offense that is composed solely of some of
the same elements as the offense charged and is supported by
the evidence.”16 Illinois courts employ a “charging instrument
approach” which permits a jury to consider all “less serious
offenses that are included in the charged offense,”17 but not
less serious, unrelated offenses which were not charged.18 In
Indiana, the statutory elements of the charged crime are com-
pared with the statutory elements of the lesser offense to deter-
mine whether the latter is “inherently included” in the former
and is thus a lesser-included offense.19
[7] Comparing the elements of a proposed lesser-included
offense to those of the offense charged is consistent with
the purpose of a lesser-included instruction, which is to give
the jury reasonable alternatives to conviction on the charged
offense or acquittal, where the evidence supports such alter-
natives.20 For example, where a defendant is charged with
intentional child abuse resulting in death and there is conflict-
ing evidence as to whether the child abuse was intentional or
negligent, a jury which concludes that the child abuse resulted
in death should have the option of finding the defendant guilty
of the charged offense or the lesser-included offense of man-
slaughter, based on the predicate unlawful act of negligent
child abuse. Likewise, in such a case where there is conflict-
ing evidence as to whether the child abuse caused death, the
jury should be permitted to consider the lesser felony and
16 State v. Russo, 177 Vt. 394, 400, 864 A.2d 655, 661 (2004).
17 People v. Ceja, 204 Ill. 2d 332, 359, 360, 789 N.e.2d 1228, 1246, 273 Ill.
Dec. 796, 814 (2003).
18 People v. Davis, 213 Ill. 2d 459, 821 N.e.2d 1154, 290 Ill. Dec. 580
(2004).
19 Brown v. State, 770 N.e.2d 275, 280 (Ind. 2002).
20 See, Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. ed. 2d 392
(1980); State v. Molina, supra note 3.
638 	277 NeBRASKA RePoRTS

misdemeanor child abuse offenses defined by § 28-707(1) and
(3) through (5).21 We therefore hold that in conducting the first
step of the statutory elements approach to determine whether a
lesser-included offense instruction should be given, the “greater
offense” should be the offense with which the defendant is
charged. Thus, if it would be impossible to commit the charged
offense without simultaneously committing the lesser offense,
and the evidence produces a rational basis for acquitting the
defendant of the former and convicting of the latter, the lesser
offense should be included in the step instruction regardless of
its relationship to other lesser-included offenses in the instruc-
tion. To the extent that State v. White22 suggests otherwise, it
is disapproved.
[8] Based upon the foregoing, we conclude that the district
court erred in not instructing the jury on involuntary man-
slaughter as a lesser-included offense of child abuse resulting
in death. To establish reversible error from a court’s refusal
to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction.23
[9] The step instruction given by the district court could
not have been prejudicial to Sinica despite the fact that it
did not include manslaughter as a lesser-included offense
of intentional child abuse resulting in death. error in failing
to instruct the jury on a lesser-included offense is harmless
when the jury necessarily decides the factual questions posed
by the omitted instructions adversely to the defendant under
other properly given instructions.24 In Molina, we held that
the failure to instruct on negligent child abuse as a lesser-
included offense of child abuse resulting in death was not
prejudicial, because the jury was required by an instruction
21 See State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005).
22 State v. White, supra note 15.
23 State v. Moore, 276 Neb. 1, 751 N.W.2d 631 (2008); State v. Hessler, 274
Neb. 478, 741 N.W.2d 406 (2007).
24 State v. Molina, supra note 3.
STATe v. SINICA 	639
Cite as 277 Neb. 629

on another count to determine whether or not the defendant
acted with the intent to kill, and concluded that he did. We
reasoned that the “same jury could not have concluded that
[the defendant] acted without intent” with respect to the child
abuse charge.25
[10] This case presents a similar circumstance. The step
instruction given by the trial court specifically instructed the
jury that if it determined that the State proved each element
of intentional child abuse resulting in death beyond a rea-
sonable doubt, it must find Sinica guilty of that offense and
proceed no further. When such a step instruction is given,
we presume that the jury followed the instruction and did not
consider any of the purported lesser-included offenses after
finding that the defendant was guilty of the charged offense.26
Having specifically found that Sinica acted intentionally, we
must presume that the same jury could not have found that
he acted without intent and committed negligent child abuse,
which would have been the predicate act for an involuntary
manslaughter instruction.
CoNCLUSIoN
For the reasons discussed, we affirm the judgment of the
district court.
affiRmed.
25 Id. at 521, 713 N.W.2d at 442.
26 See, State v. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995); State v. Pribil,
224 Neb. 28, 395 N.W.2d 543 (1986).
640 	277 NeBRASKA RePoRTS