State v. Nero

an attorney, Neb. Rev. Stat. § 7-104. It is the judgment of this
court that respondent should be and is hereby placed on proba-
tion commencing on the filing of this opinion and that respond-
ent is ordered to submit a probation plan for approval by this
court within 30 days of the date of filing of this opinion. The
probation plan must show supervision of respondent by a moni-
toring lawyer licensed in the State of Nebraska on the terms
listed previously in this opinion, with compliance reports to be
submitted quarterly to relator by respondent and approved by
the monitoring lawyer. Respondent’s probation shall terminate
2 years after this court approves the submitted probation plan.
Further, respondent must submit to an audit of his trust account
by a certified public accountant at his own expense, to be con-
ducted at the end of each year during respondent’s term of pro-
bation. We also direct respondent to pay costs and expenses in
accordance with Neb. Rev. Stat. § 7-115(2) (Reissue 2007) and
§ 3-310(P) and Neb. Ct. R. § 3-323(B) of the disciplinary rules
within 60 days after an order imposing costs and expenses, if
any, is entered by this court.
Judgment of probation.
Wright, J., not participating.
State of nebraSka , appellee , v.
terence W. nero, appellant.
798 N.W.2d 597
Filed June 3, 2011. 	No. S-10-457.
1. 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.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: 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.
3. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
680 	281 NeBRASkA RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

4. Burglary: Intent. A person commits burglary if such person willfully, mali-
ciously, and forcibly breaks and enters any real estate or any improvements
erected thereon with intent to commit any felony or with intent to steal property
of any value.
5. Criminal Law: Constitutional Law. The federal Constitution guarantees crimi-
nal defendants a meaningful opportunity to present a complete defense.
6. Appeal and Error. Whether an assigned error was prejudicial, requiring reversal,
is at issue in every appeal.
7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court would have been sufficient to sustain a guilty verdict.
8. Burglary: Intent: Convictions. Intent sufficient to support a conviction for
burglary may be inferred from the facts and circumstances surrounding an ille-
gal entry.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. Reversed and remanded for a new trial.
Dennis R. keefe, Lancaster County Public Defender, Joseph
D. Nigro, and Matthew F. Meyerle, Senior Certified Law
Student, for appellant.
Jon Bruning, Attorney General, and kimberly A. klein for
appellee.
heavican, c.J., connolly, gerrard, Stephan, mccormack ,
and miller-lerman, JJ.
mccormack , J.
NATURe oF CASe
Terence W. Nero appeals his conviction of burglary, a
Class III felony, under Neb. Rev. Stat. § 28-507 (Reissue
2008), which states: “A person commits burglary if such
person willfully, maliciously, and forcibly breaks and enters
any real estate . . . with intent to commit any felony or with
intent to steal property of any value.” Nero entered a plea
of not guilty, and a bench trial was held in the Lancaster
County District Court. The district court declined to make a
specific finding regarding which felony it determined Nero
had intended to commit to support the charge of burglary.
The court found Nero guilty of burglary and sentenced him to
24 to 40 months’ imprisonment. Nero appeals the conviction.
The issues presented in this appeal are whether the State is
STATe v. NeRo 	681
Cite as 281 Neb. 680

required to specify the underlying felony or felonies it seeks
to prove to support a charge of burglary and whether the evi-
dence presented at trial was sufficient to sustain the convic-
tion. For the following reasons, we reverse, and remand for a
new trial.
BACkGRoUND
Nero was charged with burglary, a Class III felony. An infor-
mation was filed in the district court on May 8, 2009. Nero
filed a written waiver of his right to appear at arraignment and
entered a plea of not guilty. Nero waived his right to a jury
trial, and a bench trial followed.
evidence preSented at trial
The evidence adduced at trial was as follows: on February
25, 2009, Jennifer McDonald was at home in her apart-
ment, which she shared with two roommates, including katie
Huenink. The apartment was located on the second floor of a
house converted to apartments. The main door to the apartment
was at the top of a flight of stairs, at the bottom of which the
outside door to the house was located. The door at the bottom
of the stairs automatically locked when shut; however, the door
to McDonald’s apartment needed to be manually locked, and
McDonald never locked it.
At approximately 4 a.m., McDonald was lying down on
the couch in the living room, and Huenink was asleep in her
bedroom. McDonald was half asleep, but she heard the outside
door and then the apartment door open and someone enter and
walk over to where she lay on the couch. After looking at the
man who had entered, McDonald realized she did not recognize
him. He carried a magazine, and sat down next to McDonald.
When she asked him what he was doing in her house, he said
that he just wanted to talk to her. He said that his name was
“Steve” and continued repeating that he just wanted to talk
to her.
McDonald stood up and offered the man some water, but
he pulled her back down to the couch by her hips and said he
did not want any. She asked him whether he wanted a ciga-
rette, and he said he did. When McDonald stood to get him
682 	281 NeBRASkA RePoRTS

a cigarette, he pulled her back down to the couch and said
he would get it. After being pulled down to the couch twice,
McDonald again asked whether he would like a cigarette. The
man “finally” let McDonald go get him a cigarette, which she
then gave him. She told the man she had to go to the bathroom
and went instead into Huenink’s room. McDonald woke up
Huenink and told her there was a man in the apartment that
she had never seen before. Huenink went into the living room,
yelled at the man, and told him to get out of the apartment.
The man repeated that he just wanted to talk to McDonald, and
Huenink told him no and again told him to leave. The man then
left the apartment.
McDonald called the police to report what had happened.
McDonald noticed that the man had left the magazine he had
been carrying—which was a pornographic magazine containing
photographs of nude men. McDonald and Huenink observed
that the downstairs door was damaged where a piece of wood
appeared to be “busted out,” and on the stairs leading up to
the apartment, they found an ice scraper that did not belong
to them. Huenink testified that the damage to the door had not
been present prior to the man’s entering their apartment.
officers Andrew Nichols and Jeffrey Hanson responded
to McDonald’s call. Hanson had the magazine processed for
fingerprints, and a print belonging to Nero was identified. No
other usable prints were found on the scene. The officers issued
a broadcast to interview or pick up Nero.
on April 7, 2009, officer Robert Brenner stopped Nero for
a traffic violation. Brenner ran a check of police traffic charges
and found that Nero was flagged for a broadcast for burglary.
Brenner told Nero he needed to be interviewed regarding a
burglary for entering a female’s apartment. Nero told Brenner
that he had not entered anybody’s apartment, and then said that
he did not touch anyone and did not hurt anyone. Brenner took
Nero to the police station for questioning. Nero was taken to
an interview room and read the Miranda warnings, to which
Nero waived his rights. Nero consented to a search of his
apartment, and following the search, he was arrested for bur-
glary. After Nero was arrested, Nichols showed McDonald and
STATe v. NeRo 	683
Cite as 281 Neb. 680

Huenink a photographic lineup which included Nero; neither
woman identified any of the suspects as the man who entered
their apartment.
procedural background
Prior to the filing of the information in district court, Nero
initially appeared in county court for a preliminary hearing.
After hearing testimony from Nichols, the court heard argu-
ment on whether there was probable cause to believe a felony
had occurred. Nero conceded that his behavior in the apart-
ment was inappropriate and disturbing, and he stated that the
circumstances of the case might support a charge of trespass,1
misdemeanor false imprisonment,2 disturbing the peace,3 or
criminal mischief.4 However, he maintained that there was
no evidence that he intended to commit any felony or steal
any property. Upon the court’s request, the State provided the
elements of false imprisonment. The court stated that the cir-
cumstances of the case were consistent with the crime of false
imprisonment in the first degree and bound the case over to
district court.
Nero filed a plea in abatement in district court, arguing that
there was insufficient evidence to bind over the case. At the
hearing on Nero’s plea in abatement, Nero maintained that
there was no evidence of any underlying felony. The State
argued that it was not required to prove what underlying felony
Nero intended to commit. The State admitted that it did not
have a clear theory as to exactly what underlying felony it
might seek to prove. The State offered the possible felonies of
terroristic threats, sexual assault, and false imprisonment. The
district court found that the case was appropriately bound over
and denied Nero’s plea in abatement.
Nero next filed a pretrial motion for a bill of particulars,
requesting that the court require the State to specify Nero’s
alleged intent at the time he entered the apartment relating to
1 Neb. Rev. Stat. § 28-520 (Reissue 2008).
2 Neb. Rev. Stat. § 28-315 (Reissue 2008).
3 Neb. Rev. Stat. § 28-1322 (Reissue 2008).
4 Neb. Rev. Stat. § 28-519 (Reissue 2008).
684 	281 NeBRASkA RePoRTS

the charge of burglary. At the hearing on Nero’s motion for a
bill of particulars, Nero again argued that the State must spec-
ify the underlying felony that supported the charge of burglary.
Nero further stated that without being informed of the underly-
ing felony, his ability to defend against the burglary charge was
hampered. The State asserted that it is required only to allege
crimes in the language of the statute.
At the hearing, the State noted that if the case were tried
to a jury, it would request instructions on sexual assault, false
imprisonment, and terroristic threats, but argued: “[B]ased on
the fact that obviously you [the judge] have the knowledge of
all the potential felonies out there, [you] could come to your
own conclusion without the State specifically saying what
felony was believed to be committed.” However, the State
was unwilling to limit its theory of the case to the underlying
felonies it named. The State argued that the bill of particulars
should be overruled:
[I]t’s premature to be able to say because, depending on
how the evidence comes in, I may or may not prove up
the requisite things to have the trier of fact believe that
[Nero] was — what felony he may have been entering the
residence to commit.
. . . .
It’s, in effect, simpler with the court because with a
jury, obviously, we have to define every single one of
them and that is something that should be done at the
close of the evidence and arguably — obviously, I’ll
argue my theory on which felonies and it may change if
he testifies.
The 	district 	court 	overruled 	Nero’s 	motion 	for 	a 	bill 	of
particulars.
At trial, the State presented its theory that Nero intended
to commit first or second degree false imprisonment and that
his plans were interrupted by Huenink’s presence in the apart-
ment. After the State rested, Nero moved for a directed verdict
on the ground that the State had failed to establish a prima
facie case. The court heard argument on the motion, found
that the State had met its burden, and overruled Nero’s motion
for directed verdict. Nero offered no evidence. In closing
STATe v. NeRo 	685
Cite as 281 Neb. 680

argument, Nero argued that the State failed to adduce evidence
to show that Nero intended to commit a felony to support the
charge of burglary.
on January 15, 2010, the district court found that the evi-
dence presented against Nero supported a finding of guilt
beyond a reasonable doubt. After the court’s pronouncement
of guilt, Nero inquired as to what underlying felony the court
determined Nero tried to commit. Nero argued that if the case
had been heard by a jury, the court would have instructed the
jury on a specific felony, and that due process required the
court to inform him of the basis on which he was convicted.
The State objected, and the court denied Nero’s request that
it announce a finding of what underlying felony supported the
conviction. Nero was sentenced to 24 to 40 months’ imprison-
ment. Nero now appeals.
ASSIGNMeNTS oF eRRoR
Nero assigns that (1) the district court erred in failing to
require the State to specify at any stage of the proceedings what
underlying felony Nero intended to commit when prosecuting
him for burglary under § 28-507 and (2) the evidence adduced
at trial was insufficient to sustain a conviction for burglary.
STANDARD oF RevIeW
[1] 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.5
[2,3] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: 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.6 The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
5 State v. Peterson, 280 Neb. 641, 788 N.W.2d 560 (2010).
6 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009); State v. Babbitt,
277 Neb. 327, 762 N.W.2d 58 (2009).
686 	281 NeBRASkA RePoRTS

found the essential elements of the crime beyond a reason-
able doubt.7
ANALySIS
failure to Specify underlying felony
[4] Section 28-507(1) defines burglary: “A person commits
burglary if such person willfully, maliciously, and forcibly
breaks and enters any real estate or any improvements erected
thereon with intent to commit any felony or with intent to steal
property of any value.” Nero does not contest that he entered
McDonald’s apartment unlawfully. However, there is no allega-
tion that Nero stole or intended to steal any property from the
apartment he entered. Therefore, the basis for charging Nero
with burglary rests on the proposition that Nero unlawfully
entered the apartment with the intent to commit a felony. We
must determine whether the State is required to specify the
underlying felony upon which the charge of burglary is based
in order to sustain a conviction under § 28-507. This presents
a question of law for which we have an obligation to reach
an independent conclusion irrespective of the decision of the
court below.8
Nero asserts that the district court’s failure to require the
State to specify an underlying felony to support the charge of
burglary violated his rights to due process and a fair trial.9 Nero
contends that the State must specify which felony or felonies
he allegedly intended to commit when breaking and entering.
Failure to specify the intended felony, he maintains, forces
the defendant to defend himself against “‘the entire crimi-
nal code.’”10
The State argues that in the information, it is not obligated to
include anything other than the applicable statutory language,
and that Nero was adequately apprised of the State’s theories of
guilt during the pretrial proceedings. The State concedes that,
7 State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010).
8 See State v. Peterson, supra note 5.
9 See State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989).
10 Brief for appellant at 24.
STATe v. NeRo 	687
Cite as 281 Neb. 680

were this case tried to a jury, it would be required to instruct on
the underlying felonies it sought to prove.
At the hearing on Nero’s motion for a bill of particulars, the
State argued that the judge, based on his knowledge “of all the
potential felonies out there,” could come to his own conclusion
without the State specifically saying what felony was believed
to be committed. But the issue is whether Nero had an opportu-
nity to prepare an adequate defense, not whether the court had
a proper knowledge of the law to analyze the State’s theory on
what underlying felony Nero intended to commit.
[5] The federal Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense.11 This
is no less true should a defendant choose to waive his right to a
jury, as Nero did in this case. We agree that unless we require
the State to specify the underlying felony or felonies support-
ing a burglary charge, defendants may be convicted on nothing
more than speculation as to what might have happened. We
determine that the State is required to specify the felony or fel-
onies that the defendant intended to commit after the breaking
and entering. Here, the district court erred in denying Nero’s
motion for a bill of particulars specifying any underlying felo-
nies the State sought to establish. Unless the State limits its
prosecution to establishing that the defendant intended to steal
property as encompassed in our burglary statute,12 the State
must specify which felony or felonies it believes a defendant
intended to commit.
The jurisdictions that have addressed this issue are split, but
the relevant statutory language accounts for the difference in
treatment. In states where the burglary statute requires only
intent to commit “an offense,” “a crime,” or “any crime,” spe-
cific intent to commit a particular crime upon entry is not a
material element of the offense.13 Thus, in these jurisdictions,
11 State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008).
12 See § 28-507(1).
13 See, De Vonish v. Keane, 19 F.3d 107 (2d Cir. 1994); State v. Robinson,
289 N.J. Super. 447, 673 A.2d 1372 (1996); Com. v. Alston, 539 Pa. 202,
651 A.2d 1092 (1994); State v. Bergeron, 105 Wash. 2d 1, 711 P.2d 1000
(1985) (en banc).
688 	281 NeBRASkA RePoRTS

the State need prove only general intent, which may be inferred
from the circumstances of the break-in itself.14 Such statutes
are much broader than the common-law definition of burglary
where one of the elements was that the breaking and entering
be “with intent to commit any felony” therein.15
In those states where the burglary statute is in terms of
“intent to commit a felony” or “intent to commit any felony
or steal property,” such intent is considered an essential ele-
ment of the offense, and the State must specify the particular
felony that the defendant intended to commit after the breaking
and entering.16 These courts reason that the particular crime
intended must be specified because, if anything other than a
felony was intended, the breaking and entering did not consti-
tute burglary.17
Nebraska’s burglary statute is comparable to the common-
law definition of burglary and those statutes in jurisdictions
which require the State to specify an underlying felony.18 In
keeping with the common-law definition, the intent to commit
a felony or to steal property is an element of burglary under
§ 28-507. The State is therefore required to specify the felony
or felonies that the defendant intended to commit after the
breaking and entering.
The jurisdictions that have adopted this reasoning have
generally done so in the context of a jury trial.19 But we do
not find the present case to be distinguishable simply because
Nero was convicted by a judge. And, in either instance, it
14 See, De Vonish v. Keane, supra note 13; Com. v. Alston, supra note 13.
15 See id.
16 See, e.g., State v. Mesch, 574 N.W.2d 10 (Iowa 1997); Com. v. Walter, 40
Mass. App. 907, 661 N.e.2d 942 (1996); State v. Rush, 255 kan. 672, 877
P.2d 386 (1994); People v. Palmer, 83 Ill. App. 3d 732, 404 N.e.2d 853,
39 Ill. Dec. 262 (1980); People v. Failla, 64 Cal. 2d 560, 414 P.2d 39, 51
Cal. Rptr. 103 (1966).
17 See State v. Mesch, supra note 16.
18 See, e.g., Cal. Penal Code § 459 (West 2010); 720 Ill. Comp. Stat. Ann.
5/19-1 (LexisNexis 2008); Iowa Code Ann. § 713.1 (West 2003); kan.
Stat. Ann. § 21-3715 (2007) (see § 21-5807, effective July 1, 2011); Mass.
Gen. Laws. Ann. ch. 266, § 18 (West 2008).
19 See, e.g., State v. Mesch, supra note 16.
STATe v. NeRo 	689
Cite as 281 Neb. 680

remains that “[r]equiring the State to specify the felony is not
onerous. While the State may not know what the defendant
actually intended to do inside the dwelling, the State knows
very well what evidence of intent it has.”20 Throughout the
preliminary proceedings, the State did refer to underlying felo-
nies it believed Nero may have intended to commit. However,
the State was clear that it was unwilling to limit its theory of
guilt. We agree that this placed Nero in a position where he
was forced to prepare a broad defense in an attempt to rebut all
possible underlying felonies.
The issue is whether Nero had such an opportunity, not
whether the court had a proper knowledge of the law to analyze
the State’s theory on what underlying felony Nero intended to
commit. Nero was made to speculate as to the State’s appar-
ently limitless theory of guilt. This did not provide Nero
an opportunity to prepare an adequate defense. The federal
Constitution guarantees Nero an opportunity to prepare an ade-
quate defense,21 regardless of the identity of the trier of fact. A
jury must be instructed on such underlying felonies, and when
a defendant requests such information during a bench trial, it
is error to deny it.
harmleSS error
[6] We therefore conclude that it was error for the district
court to deny Nero’s motion for a bill of particulars. Still,
whether an assigned error was prejudicial, requiring reversal,
is at issue in every appeal.22 We consider whether the court’s
failure to require the State to specify the underlying felonies
was harmless error.
In Stirone v. United States,23 the U.S. Supreme Court stated
that under the Fifth Amendment’s right to a grand jury indict-
ment, “a court cannot permit a defendant to be tried on charges
that are not made in the indictment against him.” The Court
20 Id. at 14 (emphasis in original).
21 See State v. Poe, supra note 11.
22 State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).
23 Stirone v. United States, 361 U.S. 212, 217, 80 S. Ct. 270, 4 L. ed. 2d 252
(1960).
690 	281 NeBRASkA RePoRTS

characterized a variance between the charges contained in the
indictment and the evidence presented during trial as “fatal
error,”24 because it “destroyed the defendant’s substantial right
to be tried only on charges presented in an indictment returned
by a grand jury. Deprivation of such a basic right is far too
serious to be treated as nothing more than a variance and then
dismissed as harmless error.”25 The eighth Circuit has also
noted such error can be harmless only if a defendant’s right to
notice is not prejudiced.26 We find this rule to be persuasive in
Nero’s case.
Nero was not charged by indictment, but by information.
However, analogous to the right recognized in Stirone, this
court has determined that a defendant must be given notice of
information vital to the preparation of a defense.27 An informa-
tion may sufficiently allege the statutory elements of a criminal
offense, yet fail to state with sufficient particularity informa-
tion about the alleged crime which is vital to the preparation of
a defense.28 The court failed to give Nero notice of the alleged
underlying felonies with sufficient particularity. The court’s
failure to require the State to specify the underlying felonies
prejudiced Nero’s right to notice and denied Nero a meaning-
ful opportunity to present a complete defense. Because Nero’s
right to notice was prejudiced, we cannot determine such
prejudice to be “harmless.” Accordingly, the judgment should
be reversed.
Sufficiency of evidence
[7] 	Having 	found 	reversible 	error, 	we 	must 	determine
whether the totality of the evidence admitted by the district
court was sufficient to sustain Nero’s conviction. If it was not,
24 Id., 361 U.S. at 219.
25 Id., 361 U.S. at 217. See, also, Gautt v. Lewis, 489 F.3d 993 (9th Cir.
2007).
26 See, U.S. v. Whirlwind Soldier, 499 F.3d 862 (8th Cir. 2007); U.S. v.
Harris, 344 F.3d 803 (8th Cir. 2003); U.S. v. Stuckey, 220 F.3d 976 (8th
Cir. 2000).
27 See State v. Beermann, supra note 9.
28 Id.
STATe v. NeRo 	691
Cite as 281 Neb. 680

then concepts of double jeopardy would not allow a remand
for a new trial.29 The Double Jeopardy Clause does not forbid a
retrial so long as the sum of all the evidence admitted by a trial
court would have been sufficient to sustain a guilty verdict.30
We determine that the circumstantial evidence against Nero
was sufficient to sustain the verdict. We therefore reverse the
conviction and remand the cause for a new trial.
In reviewing a sufficiency of the evidence claim, whether
the evidence is direct, circumstantial, or a combination thereof,
the standard is the same: 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.31 When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for
an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.32
[8] Intent sufficient to support a conviction for burglary may
be inferred from the facts and circumstances surrounding an
illegal entry.33 viewing the evidence in the light most favorable
to the prosecution, we determine intent to commit a felony
could be inferred from the circumstances surrounding Nero’s
entry and subsequent actions in the apartment. We determine
that a rational trier of fact could have found the underlying fel-
ony element proved beyond a reasonable doubt. Accordingly,
we remand for a new trial.
CoNCLUSIoN
For the foregoing reasons, we reverse the judgment of the
district court and remand the cause for a new trial.
reverSed and remanded for a neW trial .
Wright, J., not participating.
29 See State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
30 Id.
31 State v. Edwards, supra note 6.
32 State v. Lamb, supra note 7.
33 State v. Vaughn, 225 Neb. 38, 402 N.W.2d 300 (1987).
692 	281 NeBRASkA RePoRTS