State v. France

State of NebraSka , appellee , v.
StepheN e. fraNce , appellaNt.
776 N.W.2d 510
Filed December 24, 2009. 	No. S-09-101.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing 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 support the conviction.
2. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
3. 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.
4. 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.
5. Criminal Law: Mental Competency. The test of responsibility for crime is a
defendant’s capacity to understand the nature of the act alleged to be criminal and
the ability to distinguish between right and wrong with respect to the act.
6. Criminal Law: Insanity: Time. For an insanity defense, the insanity must be in
existence at the time of the alleged criminal act.
7. Insanity: Proof. A defendant who pleads that he or she is not responsible by
reason of insanity has the burden to prove the defense by a preponderance of
the evidence.
8. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact on the
issue of insanity will not be disturbed unless there is insufficient evidence to sup-
port such a finding.
9. Witnesses: Juries: Appeal and Error. The credibility and weight of witness
testimony are for the jury to determine, and witness credibility is not to be
reassessed on appellate review.
10. Evidence: Appeal and Error. Any conflicts in the evidence or questions con-
cerning the credibility of witnesses are for the finder of fact to resolve.
11. Self-Defense. Self-defense is a statutorily affirmative defense in Nebraska.
12. ____. To successfully assert the claim of self-defense, one must, inter alia, have
a reasonable and good faith belief in the necessity of using force.
13. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Ordinarily,
when an appellate court judicially construes a statute and that construction fails
to evoke an amendment, it is presumed that the Legislature has acquiesced in the
court’s determination of the Legislature’s intent.
STATe v. FRANce 	49
cite as 279 Neb. 49
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

Appeal from the District court for Dawson county: JameS
e. D oyle Iv, Judge. Affirmed.
corey A. Burns for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heavIcaN, 	c.J., 	WrIght, 	coNNolly, 	gerrarD, 	StephaN,
mccormack , and mIller-lermaN, JJ.
mIller-lermaN, J.
NATURe OF cASe
Stephen e. France appeals his convictions and sentences for
first degree murder and use of a weapon to commit a felony.
France asserts that the jury erred in rejecting his insanity
defense and in failing to find that he acted in self-defense. He
also asserts that the district court for Dawson county erred by
instructing the jury that to find France acted in self-defense, the
jury must find that he “reasonably” believed deadly force was
necessary to defend himself. We affirm France’s convictions
and sentences.
STATeMeNT OF FAcTS
France was charged with first degree murder and use of a
weapon to commit a felony in connection with the December
18, 2007, stabbing death of Dwayne R. Morrison. France
and Morrison were coworkers at a haymill in Gothenburg,
Nebraska. The two frequently argued with one another, particu-
larly in the week prior to Morrison’s death. On the morning of
December 18, France and Morrison had a physical altercation
in which France stabbed Morrison with a knife. Morrison died
from his injuries, which included three deep stab wounds to the
chest, with one stab penetrating the heart.
After charges were filed against France, the court granted
France’s motion for a psychological evaluation pursuant to
Neb. Rev. Stat. § 29-1823 (Reissue 2008). Dr. Bruce Gutnik
conducted a psychiatric evaluation and concluded that France
was suffering from mental illness and was not competent to
stand trial. Based on Gutnik’s report, the court, on March
24, 2008, found that France was not then competent to
50 	279 NeBRASkA RepORTS

stand trial but that there was a substantial probability he
would become competent to stand trial within the foreseeable
future. The court ordered France committed to the Lincoln
Regional center for appropriate treatment until his disability
was removed. On August 8, the court determined, based on
the opinion of Dr. klaus Hartmann, that France was compe-
tent to stand trial.
France thereafter filed a notice of intent to rely upon a
defense that he was not responsible by reason of insanity. The
court granted the State’s motion to require France to be exam-
ined by Hartmann to determine France’s sanity at the time of
Morrison’s killing.
At trial, the State presented the testimony of coworkers of
France and Morrison who testified regarding the animosity
between the two. Jason edgins testified that approximately
4 days before Morrison’s death, he heard France say that he
would like to kill Morrison. edgins also testified that the day
before his death, Morrison told edgins he feared for his life
and was going to the police to get a restraining order against
France, because France had threatened to kill Morrison and
his family.
Another coworker, Donald Friesenborg, testified that he
heard France say “maybe half a dozen times” that he was going
to kill Morrison. Two days before Morrison’s death, France
confronted Friesenborg at his home, because Morrison’s wife
had said that Friesenborg wanted France to quit his job.
Friesenborg denied having made a remark regarding France’s
job and suggested that Morrison’s wife was trying to agitate
France. France told Friesenborg that Morrison abused his
children and that “somebody ought to kill him.” France also
told Friesenborg he suspected that Morrison had sabotaged
machinery at work, and France said, “I’m going to stab and
kill that SOB.” Morrison told Friesenborg the day before he
was killed that France had threatened to kill Morrison and
his family and that he planned to get a restraining order
against France.
A third coworker, Tony cañas, testified that France and
Morrison argued and threatened each other on a daily basis
the week prior to Morrison’s death. During such arguments,
STATe v. FRANce 	51
cite as 279 Neb. 49

cañas heard France threaten to kill Morrison. cañas also heard
France on the telephone telling Morrison he was going to kill
Morrison and his family. Two days before Morrison was killed,
France told cañas that he blamed Morrison for a fire in the mill
the night before and that he was trying to borrow a gun from
another coworker in order to kill Morrison.
cañas testified that on the morning of December 18, 2007,
Morrison arrived early for his daytime shift, while cañas and
France were finishing a nighttime shift. cañas was walking
toward the back door of the mill when he saw Morrison stum-
ble out the door and fall to the ground. cañas then saw France
come through the door, straddle Morrison, and stab Morrison
in the chest with a knife. France kicked Morrison and said, “I
told you I was going to kill you, you son of a bitch.” cañas
did not see Morrison make any movement after he fell to the
ground. France went back into the building, and cañas called
the 911 emergency dispatch service.
Deputy Sheriff Greg Gilg was the first law enforcement
officer to arrive at the mill. Gilg saw Morrison’s body and then
saw France come out of the building with his hands held up
and out. France was covered in “blood from head to toe.” Gilg
handcuffed France and secured him inside Gilg’s patrol car.
Gilg examined Morrison’s body and determined that he was
dead. After other officers arrived, Gilg placed France under
arrest and took him to a hospital. A physician’s assistant at the
hospital determined that France had a cut on the back of his
head that required stitches. Gilg heard France tell the physi-
cian’s assistant that he and Morrison got into a fight and that
Morrison got France down on the ground and bashed France’s
head into the concrete. Gilg observed other cuts and bruises
on France’s body, but France did not require medical attention
beyond the stitches to the head. During the trip to the hospital,
France told Gilg that Morrison “was basically bugging him so
much that he was tired of his crap.”
The pathologist who conducted the autopsy on Morrison’s
body testified that Morrison’s death was caused by “deeply
penetrating stab wounds of the trunk or torso.” The wounds
included three stabs to the chest caused by a knife, including
one stab that went through the heart. The pathologist noted
52 	279 NeBRASkA RepORTS

other injuries to Morrison’s body, including cuts, bruises,
and abrasions to the face, head, arms, hands, and legs. The
pathologist opined that the injuries were contemporaneous
to the stab wounds and were consistent with being defen-
sive wounds.
France testified in his own defense. France admitted stab-
bing Morrison but asserted that it was in self-defense. France
described various instances of conflict with Morrison over
a period of years that the two had worked together. In par-
ticular, France described a machine malfunction and a fire
that occurred in the mill during the week prior to December
18, 2007. France asserted that Morrison was to blame for both
incidents. France did not immediately confront Morrison about
the incidents but told coworkers that Morrison was to blame.
France admitted that he told coworkers that Morrison “ought
to be killed,” but asserted he did not mean it literally and
did not expect anyone to take it seriously. On December 16,
France received a call from Morrison and his wife in which
Morrison confronted France about France’s comments that
Morrison should be killed. In that call and in subsequent calls
between the two on December 16, Morrison told France that
coworkers wanted France to quit his job at the mill and that
Morrison was going to have France arrested for making ter-
roristic threats. France testified that Morrison called him names
and threatened him; he denied that he threatened Morrison or
his family. France initially testified that he did not remember
telling Friesenborg he wanted to stab and kill Morrison, but
on cross-examination, he admitted he told Friesenborg he was
going to kill Morrison. France also admitted that he tried to
borrow a gun from a coworker but instead got a knife from the
same coworker; he testified that he wanted a weapon to defend
himself against Morrison.
According to France, he worked the night shift on the eve-
ning of December 17, 2008. He brought the knife with him
“just in case [Morrison] came in and was acting real bad or
anything or wanted to hit me.” France feared Morrison because
of threats that Morrison had made and because Morrison
was younger and larger than France. Toward the end of his
shift, on the morning of December 18, France was in the
STATe v. FRANce 	53
cite as 279 Neb. 49

mill office filling out reports when Morrison walked into
the office and told France, “I’m going to break your nose.”
France told Morrison that he wanted to settle their differences,
but Morrison came at France with his fists in the air. France
testified he did not run from Morrison because he had a bad
knee and did not think he could escape. France pulled out the
knife, Morrison grabbed France by the hand that was holding
the knife, and the two wrestled. Morrison got France down
on the floor, grabbed his hair, and banged his head on the
floor. France did not remember clearly, but thought he stabbed
Morrison while Morrison was on top of him. Morrison got up
and said he was going to his car to go home, and France fol-
lowed him to the door. France admitted on cross-examination
that he stabbed Morrison again after he fell to the ground
outside the building. France went back into the mill office and
washed the blood off his hands. When law enforcement arrived
at the mill, France “put [his] hands up in the air and went out
and met them.”
Gutnik also testified in France’s defense. Gutnik diagnosed
France as having schizophrenia and schizoid personality dis-
order. Gutnik opined that France’s mental illness amplified
his animosity toward Morrison, that France believed that he
had to defend himself against Morrison, and that France felt
that he had done the right thing by killing Morrison, because
he acted in self-defense. Gutnik also opined that at the time
France killed Morrison, France suffered from a mental illness
and did not understand the nature and consequences of his
action and did not understand the difference between right
and wrong.
The State called Hartmann as a rebuttal witness. Hartmann
agreed with Gutnik’s opinion that France had a mental illness
but differed as to whether France knew right from wrong.
Hartmann opined that at the time France killed Morrison,
France knew what he was doing, knew what the consequences
would be, and knew that it was wrong.
The court instructed the jury on the insanity defense and
on self-defense. In the self-defense instruction, the court
instructed that France acted in self-defense if, inter alia,
he “reasonably believed that his use of deadly force was
54 	279 NeBRASkA RepORTS

immediately necessary to protect him against death or serious
bodily harm.”
The jury found France guilty of first degree murder and use
of a weapon to commit a felony. By their guilty verdicts, the
jury rejected France’s defenses of insanity and self-defense.
The court sentenced France to life imprisonment without
parole on the murder conviction and to imprisonment for 15
to 20 years on the weapon conviction, with the sentences to be
served consecutively.
France appeals his convictions and sentences.
ASSIGNMeNTS OF eRROR
France asserts that the jury erred by (1) failing to find that
he was legally insane at the time he killed Morrison and (2)
failing to find that he acted in self-defense. With respect to
the self-defense jury instruction, France asserts that the district
court erred by instructing the jury that he must have “reason-
ably” believed that deadly force was necessary to defend him-
self against Morrison.
STANDARDS OF ReVIeW
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late 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 suf-
ficient to support the conviction. State v. Banks, 278 Neb. 342,
771 N.W.2d 75 (2009).
[2-4] Whether jury instructions given by a trial court are cor-
rect is a question of law. State v. Robinson, 278 Neb. 212, 769
N.W.2d 366 (2009). 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
STATe v. FRANce 	55
cite as 279 Neb. 49

questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. Id.
ANALYSIS
The Jury Did Not Err in Rejecting
France’s Insanity Defense.
France first claims that the jury erred by failing to find
that he was legally insane at the time he killed Morrison. We
read France’s assignment of error as asserting a claim that
he established his insanity defense and that there was insuf-
ficient evidence to support the jury’s rejection of his insanity
defense. Having reviewed the record, we reject France’s claim
of error.
[5-8] Nebraska follows the M’Naghten rule as to the defense
of insanity. The test of responsibility for crime is a defendant’s
capacity to understand the nature of the act alleged to be crimi-
nal and the ability to distinguish between right and wrong with
respect to the act. State v. McGhee, 274 Neb. 660, 742 N.W.2d
497 (2007). For an insanity defense, the insanity must be in
existence at the time of the alleged criminal act. Id. A defend-
ant who pleads that he or she is not responsible by reason of
insanity has the burden to prove the defense by a preponder-
ance of the evidence. Id. The verdict of the finder of fact on
the issue of insanity will not be disturbed unless there is insuf-
ficient evidence to support such a finding. Id.
Gutnik testified in France’s defense that in his opinion, at
the time France killed Morrison, he suffered from a mental
illness and did not understand the nature and consequences
of his action or understand the difference between right and
wrong. Gutnik testified that France thought he had done the
right thing by killing Morrison, because he believed he was
defending himself at the time of the killing. To the contrary,
Hartmann testified in rebuttal that in his opinion, at the time
France killed Morrison, France knew what he was doing,
knew what the consequences would be, and knew that it
was wrong.
[9,10] The credibility and weight of witness testimony are
for the jury to determine, and witness credibility is not to be
reassessed on appellate review. Banks, supra. Any conflicts in
56 	279 NeBRASkA RepORTS

the evidence or questions concerning the credibility of wit-
nesses are for the finder of fact to resolve. State v. Branch,
277 Neb. 738, 764 N.W.2d 867 (2009). The jury apparently
believed Hartmann’s testimony over Gutnik’s. By rejecting
France’s insanity defense, the jury determined that France
failed to carry his burden of establishing insanity.
The record contains sufficient evidence for the jury to
have found that France was not insane at the time he killed
Morrison. France’s assignment of error regarding the insanity
defense is without merit.
The District Court Did Not Err by Instructing That France
Needed to Reasonably Believe That Self-Defense Was
Necessary, and the Jury Did Not Err in Rejecting
France’s Claim of Self-Defense.
France next asserts that the jury erred by failing to find that
he acted in self-defense when he killed Morrison. We read
France’s assignment of error as asserting the argument that he
established his claim of self-defense and that there was insuf-
ficient evidence to support a finding that he did not act in self-
defense. France also claims that the district court erred when
it instructed the jury that in order to find that France acted in
self-defense, it must find that he “reasonably” believed that
deadly force was necessary to defend himself. We conclude
that the court did not err in so instructing the jury, and having
reviewed the record, we find no error in the jury’s determina-
tion that France did not act in self-defense.
[11] Self-defense is a statutorily affirmative defense in
Nebraska. State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263
(2006). Neb. Rev. Stat. § 28-1409 (Reissue 2008) provides:
(1) . . . [T]he use of force upon or toward another per-
son is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other
person on the present occasion.
. . . .
(4) The use of deadly force shall not be justifiable
under this section unless the actor believes that such force
is necessary to protect himself against death, serious
STATe v. FRANce 	57
cite as 279 Neb. 49

bodily harm, kidnapping or sexual intercourse compelled
by force or threat . . . .
[12] We have repeatedly stated that to successfully assert
the claim of self-defense, one must, inter alia, have a reason-
able and good faith belief in the necessity of using force.
See, Iromuanya, supra; State v. Faust, 265 Neb. 845, 660
N.W.2d 844 (2003), disapproved on other grounds, State v.
McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007); State v.
Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999). In the pres-
ent case, the court instructed the jury consistent with such
precedent. The court instructed the jury that based on the
evidence, it should find France acted in self-defense if, inter
alia, he “reasonably believed that his use of deadly force was
immediately necessary to protect him against death or serious
bodily harm.”
France argues that the court erred by instructing that he
must have “reasonably” believed deadly force was necessary,
because § 28-1409 requires only that “the actor believes that
such force is necessary” and does not require that such belief
be reasonable. He asserts that this court improperly read a
reasonableness requirement into the statute in State v. Eagle
Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978).
This court rejected the same argument in State v. Stueben,
240 Neb. 170, 481 N.W.2d 178 (1992). We noted in Stueben
that the reasonable belief requirement appeared to have origi-
nated in Housh v. State, 43 Neb. 163, 61 N.W. 571 (1895), and
that the requirement was read into § 28-1409 after its enact-
ment. This court stated in Stueben:
Though there is justification for the position that a
simple, honest belief is all that is required by § 28-1409,
which has its origin in the Model penal code, this court,
since it was not specifically required to abandon the
reasonable belief standard, declined to do so in a series
of cases following the adoption of the statute. See, State
v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990); State v.
Graham, 234 Neb. 275, 450 N.W.2d 673 (1990); State v.
Cowan, 204 Neb. 708, 285 N.W.2d 113 (1979); State v.
Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978).
58 	279 NeBRASkA RepORTS

The Legislature has adhered to our construction for 20
years, and we are not constrained to abandon it now.
240 Neb. at 174, 481 N.W.2d at 182.
[13] We note that in the 17 years since Stueben, we have
reiterated the reasonable belief requirement, see Iromuanya,
supra; Faust, supra; and Urbano, supra, and the Legislature
has not acted to amend § 28-1409 in response to such con-
tinued construction. Ordinarily, when an appellate court judi-
cially construes a statute and that construction fails to evoke
an amendment, it is presumed that the Legislature has acqui-
esced in the court’s determination of the Legislature’s intent.
Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762
N.W.2d 51 (2009). We conclude that a reasonable belief that
force is necessary is required to successfully assert a self-
defense claim. Therefore, the court did not err by instructing
that France must have reasonably believed that deadly force
was necessary to establish his claim of self-defense.
France had the initial burden of going forward with evidence
of self-defense; after he did so, the State had the burden to
prove that he did not act in self-defense. See, Urbano, supra;
State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997). With
regard to sufficiency of the evidence, we note that although
France testified that he acted in self-defense, there was also
evidence from which the jury could have found that he planned
to kill Morrison, contradicting his claim of self-defense. Such
evidence included testimony by coworkers that in the days
prior to the killing, France made threats to Morrison that he
was going to kill him and that France told coworkers he wanted
to or was going to kill Morrison and was going to borrow a gun
to do so. One coworker, cañas, testified that he saw France
stab Morrison in the chest with a knife after Morrison had
fallen to the ground and that France kicked Morrison and said,
“I told you I was going to kill you, you son of a bitch.” In addi-
tion, France testified that after he initially stabbed Morrison,
Morrison got up and said he was going to go home. France
admitted that he followed Morrison to the door and that he
stabbed Morrison in the chest after Morrison had fallen to the
ground on his way out of the building. From such evidence, the
STATe v. FRANce 	59
cite as 279 Neb. 49

jury could reasonably conclude that France had planned to kill
Morrison and that the killing was not in self-defense.
The credibility and weight of witness testimony are for
the jury to determine, and witness credibility is not to be
reassessed on appellate review. State v. Banks, 278 Neb. 342,
771 N.W.2d 75 (2009). Any conflicts in the evidence or ques-
tions concerning the credibility of witnesses are for the finder
of fact to resolve. State v. Branch, 277 Neb. 738, 764 N.W.2d
867 (2009). Because it found France guilty, the jury apparently
disbelieved France’s assertion that he acted in self-defense.
Further, there was sufficient evidence to support a finding that
France did not act in self-defense, and we will not reassess the
jury’s finding on appeal. France’s assignments of error regard-
ing self-defense are without merit.
cONcLUSION
We conclude that the district court did not err in its self-
defense instruction and that given the evidence, there was
no error in the jury’s findings that France was not legally
insane and that he was not acting in self-defense when he
killed Morrison. We therefore affirm France’s convictions
and sentences.
affIrmeD.
copple coNStructIoN, l.l.c., appellee aND croSS-appellee ,
v. columbIa NatIoNal INSuraNce compaNy, appellaNt
aND croSS-appellee , aND tySoN freSh meatS, INc.,
appellee aND croSS-appellaNt.
776 N.W.2d 503
Filed December 24, 2009. 	No. S-09-267.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
60 	279 NeBRASkA RepORTS