State v. McGuire

494 	286 NEBRASKA REPORTS
State of NebraSka, appellee, v.
ShawN a. Mc Guire, appellaNt.
837 N.W.2d 767
Filed August 23, 2013. 	No. S-12-279.
1. Right to Counsel: Appeal and Error. An appellate court reviews the trial court’s
decision on a motion to withdraw as counsel for an abuse of discretion.
2. Prosecuting Attorneys: Conflict of Interest. Whether an apparent conflict of
interest justifies the disqualification of other members of a prosecuting office is a
matter committed to the discretion of the trial court.
3. Right to Counsel: Waiver: Appeal and Error. When determining whether a
defendant’s waiver of his or her former attorney’s conflict of interest was vol-
untary, knowing, and intelligent, an appellate court applies a clearly erroneous
standard of review.
4. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
(Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial court’s decision
will not be reversed absent an abuse of discretion.
5. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the trial court.
6. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact, and, in particular, determi-
nations regarding whether counsel was deficient and whether the defendant was
prejudiced are questions of law.
7. 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. In review-
ing a criminal conviction, an appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the evidence.
8. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
9. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
10. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must
remain with an indigent accused unless one of the following conditions is met:
(1) The accused knowingly, voluntarily, and intelligently waives the right to
counsel and chooses to proceed pro se; (2) appointed counsel is incompetent, in
which case new counsel is to be appointed; or (3) the accused chooses to retain
private counsel.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:38 AM CST

STATE v. McGUIRE 	495
Cite as 286 Neb. 494
11. 	Attorneys at Law: Conflict of Interest. Appointed counsel may be removed
because of a potential conflict of interest, and such a conflict could, in effect,
render a defendant’s counsel incompetent to represent the defendant and warrant
appointment of new counsel.
12. Attorney and Client: Conflict of Interest: Words and Phrases. The phrase
“conflict of interest” denotes a situation in which regard for one duty tends to
lead to disregard of another or where a lawyer’s representation of one client is
rendered less effective by reason of his or her representation of another client.
13. Constitutional Law: Waiver. Generally, for a waiver of a constitutional right to
be valid, it must be made voluntarily, knowingly, and intelligently, with sufficient
awareness of the relevant circumstances and likely consequences.
14. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Cum. Supp. 2012), prohibits the admission of other bad acts evidence for the
purpose of demonstrating a person’s propensity to act in a certain manner. But
evidence of other crimes which is relevant for any purpose other than to show the
actor’s propensity is admissible under rule 404(2).
15. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is
often referred to as having a “special” or “independent” relevance, which means
that its relevance does not depend upon its tendency to show propensity.
16. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analy-
sis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2012),
considers (1) whether the evidence was relevant for some purpose other than to
prove the character of a person to show that he or she acted in conformity there-
with; (2) whether the probative value of the evidence is substantially outweighed
by its potential for unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited purpose for which
it was admitted.
17. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A
claim of ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. Rather, the determining factor is whether the record
is sufficient to adequately review the question.
18. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
19. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), the defendant must first show that counsel’s performance was
deficient and second, that this deficient performance actually prejudiced his or
her defense.
20. ____: ____. The two prongs of the ineffective assistance test under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), deficient
performance and prejudice, may be addressed in either order.
21. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. An
appellate court will not second-guess reasonable strategic decisions by counsel.
22. Effectiveness of Counsel: Proof. To show prejudice on a claim of ineffective
assistance of counsel, the defendant must demonstrate a reasonable probability

496 	286 NEBRASKA REPORTS
that but for counsel’s deficient performance, the result of the proceeding would
have been different.
23. Proof: Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
24. 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.
25. Homicide: Intent. An intentional killing committed without malice upon a sud-
den quarrel constitutes the offense of manslaughter.
26. Jury Instructions: Proof: Appeal and Error. The appellant has the burden to
show that a questioned jury instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
27. Trial: Courts: Homicide: Jury Instructions. A trial court is required to give
an instruction where there is any evidence which could be believed by the trier
of fact that the defendant committed manslaughter and not murder. But a trial
court is not obligated to instruct the jury on matters which are not supported by
evidence in the record.
28. Homicide: Words and Phrases. Sudden quarrel manslaughter requires sufficient
provocation which causes a reasonable person to lose normal self-control.
29. Homicide: Intent. The question for sudden quarrel manslaughter is whether there
existed reasonable and adequate provocation to excite one’s passion and obscure
and disturb one’s power of reasoning to the extent that one acted rashly and from
passion, without due deliberation and reflection, rather than from judgment.
30. ____: ____. The test for sudden quarrel manslaughter is an objective one.
31. Aiding and Abetting. Aiding and abetting is simply another basis for holding
one liable for the underlying crime.
32. Aiding and Abetting: Proof. Aiding and abetting requires some participation in
a criminal act and must be evidenced by some word, act, or deed.
33. ____: ____. For aiding and abetting, no particular acts are necessary, nor is it
necessary that the defendant take physical part in the commission of the crime or
that there was an express agreement to commit the crime. Mere encouragement
or assistance is sufficient.
34. Criminal Law: Conspiracy. A person is guilty of criminal conspiracy if the per-
son intends to promote or facilitate the commission of a felony, agrees with one
or more persons to commit that felony, and then the person, or a coconspirator,
commits an overt act furthering the conspiracy.
35. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and
(8) the amount of violence involved in the commission of the crime.
36. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.

STATE v. McGUIRE 	497
Cite as 286 Neb. 494
Appeal from the District Court for Douglas County: J ruSSell
D err, Judge. Affirmed.
Sarah M. Mooney, of Mooney Law Office, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
wriGht, 	coNNolly, 	StephaN, 	MccorMack, 	and 	M iller-
lerMaN, JJ.
MccorMack, J.
I. NATURE OF CASE
After a jury trial, Shawn A. McGuire was found guilty of
second degree murder under a theory of aiding and abetting,
use of a deadly weapon to commit a felony, and criminal
conspiracy to unlawfully possess and deliver a controlled
substance. The convictions were based on McGuire’s involve-
ment with a cocaine exchange that resulted in the murder of
informant Cesar Sanchez-Gonzalez (Sanchez) by Robert B.
Nave. McGuire appeals the convictions and argues that he was
prejudiced when the district court allowed his trial counsel to
withdraw prior to trial and by accepting McGuire’s waiver of
the conflict of interest created by the former trial counsel’s
new employment with the Douglas County Attorney’s office,
which was prosecuting McGuire in this case. McGuire also
argues the court impermissibly allowed evidence of prior bad
acts and used improper jury instructions. In addition, McGuire
argues that his trial counsel was ineffective for failing to
request jury instructions regarding robbery and attempted rob-
bery as lesser-included offenses of felony murder. Finally,
McGuire argues that the district court erred in upholding the
convictions without sufficient evidence and in imposing exces-
sive sentences.
II. BACKGROUND
Sanchez was an informant for the Greater Omaha Safe
Streets Task Force. The task force also used Jorge Palacios
as an informant. The task force is a joint operation involv-
ing the Federal Bureau of Investigation (FBI), the Omaha

498 	286 NEBRASKA REPORTS
Police 	Department, 	the 	Bellevue 	Police 	Department, 	the
Nebraska State Patrol, and, at times, the Drug Enforcement
Administration. The purpose of the task force is to pool federal
and state resources in order to target Mexican drug trafficking
organizations and violent street gangs.
In November 2009, Sanchez informed FBI Special Agent
Gregory Beninato that a group of Mexican drug traffickers,
including Abdul Vann, wanted to conduct a drug transaction in
Kansas City, Missouri. A year after the Kansas City drug deal,
Vann went to Sanchez’ automotive repair shop (auto shop) in
South Omaha, Nebraska, in an attempt to purchase cocaine.
With this information, “Operation Sheepdog” was formed by
the task force with the purpose of identifying the Mexican drug
trafficking organization and Vann.
1. eveNtS of SepteMber 28, 2010
On September 28, 2010, “Operation Sheepdog” was con-
ducting surveillance on an expected drug deal involving Vann
at Sanchez’ auto shop. Beninato observed Vann approach and
communicate with an African-American male passenger of
a Chevrolet Impala with Indiana license plates, which was
parked in a fast-food restaurant’s parking lot near Sanchez’
auto shop. Vann then went in the direction of Sanchez’ auto
shop and eventually returned to get into the driver’s seat of
the Impala.
Later, a white Chrysler Sebring, which was a rental car with
Missouri plates, drove to and parked in the fast-food restau-
rant’s parking lot. An African-American male, later identified
as McGuire, exited the Sebring to talk to the passenger of the
Impala. McGuire then proceeded to Sanchez’ auto shop.
A Hispanic male, later identified as Cesar Ayala-Martinez,
driving a GMC Yukon Denali, also arrived and entered the auto
shop. Shortly thereafter, McGuire left the shop with Vann, and
both got into the Sebring. Vann exited after driving in a circle,
and McGuire left. McGuire later came back as the passenger in
a black Ford Explorer and reentered Sanchez’ auto shop.
Ayala-Martinez 	testified 	to 	the 	events that occurred in
Sanchez’ auto shop. Present for the drug exchange on September
28, 2010, were Ayala-Martinez, Sanchez, Vann, McGuire, and

STATE v. McGUIRE 	499
Cite as 286 Neb. 494
possibly Palacios. Ayala-Martinez had agreed to sell Sanchez,
the informant, 500 grams of powder cocaine in exchange for
$13,500. Ayala-Martinez handed the cocaine to Sanchez, who
handed it to McGuire. McGuire opened the package and tasted
the cocaine. Vann stated that “[i]t looks good,” and McGuire
paid Sanchez, who paid Ayala-Martinez.
2. eveNtS of october 22, 2010
On October 22, 2010, the task force again set up surveil-
lance at Sanchez’ auto shop for another proposed drug deal
involving Vann. Prior to the deal, Sanchez and Ayala-Martinez
agreed that Ayala-Martinez would sell Sanchez 11⁄2 kilograms
of powder cocaine in exchange for $40,500. The task force
members were briefed that they were conducting surveillance
on Vann, McGuire, and Ayala-Martinez.
Richard Lutter, a narcotics investigator for the Nebraska
State Patrol, was conducting surveillance on October 22, 2010,
as a member of the task force for “Operation Sheepdog.” Lutter
was exiting a parking lot near 24th and G Streets, where he
observed McGuire standing next to a white Nissan. According
to Lutter, McGuire was conversing with the passengers of the
Nissan and was holding a black bag underneath his right arm.
As Lutter drove past the vehicles, McGuire proceeded to a
Sebring parked 20 yards behind the Nissan.
Beninato and FBI Special Agent Paris Capalupo were sta-
tioned in a parking lot with a direct view of Sanchez’ auto
shop. At approximately 12:50 p.m., a white Chrysler Sebring
pulled up and parked on the south side of the auto shop.
McGuire exited the vehicle.
At around the same time, Vann and two unknown individ-
uals, later identified as Kim Thomas and Nave, arrived at
the auto shop. Beninato observed McGuire interact with both
Thomas and Vann as he exited the Sebring. McGuire then
proceeded in the direction of Sanchez’ auto shop. Sometime
after McGuire entered the shop, Capalupo observed Nave
put his hood over his head and pull a handgun from his
waistband. Nave proceeded to enter Sanchez’ auto shop.
Beninato testified that as Nave entered, McGuire almost
instantaneously exited.

500 	286 NEBRASKA REPORTS
The events that occurred in the auto shop were not wit-
nessed by any members of the task force. Ayala-Martinez tes-
tified that on October 22, 2010, he went to Sanchez’ auto shop
to sell 11⁄2 kilograms of powder cocaine. When he arrived at
the shop, Ayala-Martinez went into the office where Sanchez,
Palacios, and Vann were waiting. McGuire arrived alone,
approximately 20 minutes later. McGuire wanted Vann to test
the cocaine by “cooking” the powder cocaine with baking
soda and water. Vann and Palacios left the store to buy bak-
ing soda.
Shortly 	after Vann 	and 	Palacios 	exited 	the 	auto 	shop,
McGuire told Sanchez that he was going to get some tea and
left the office. Ayala-Martinez testified that within seconds
of McGuire’s exiting, Nave entered the office. According to
Ayala-Martinez, Sanchez then pulled a revolver out of his
desk drawer and was attempting to open the chamber while
the gun was pointing down. Before Sanchez could raise his
weapon, Nave shot Sanchez two or three times. Nave then
pointed the gun at Ayala-Martinez and asked for the cocaine.
Ayala-Martinez pointed to the cocaine, and Nave ran out with
it. Sanchez later died due to the gunshot wounds.
After witnessing Nave enter the auto shop with the gun,
Beninato and Capalupo proceeded in their vehicle toward the
auto shop. Capalupo observed Nave run out the door of the
auto shop and fire several shots at Palacios. Thomas ran from
the back of the building and began firing at Palacios and Ayala-
Martinez, who had exited the building.
At this time, McGuire was in the driver’s seat of the
Sebring. After firing shots, Thomas and Nave ran straight to
the Sebring and got in the vehicle. McGuire then sped off at a
high rate of speed down I Street. Beninato and Capalupo pur-
sued the vehicle.
The Sebring crashed head on into a pickup truck near 20th
and I Streets. McGuire immediately fled from the driver’s
seat. Thomas and Nave exited the vehicle and huddled near
the driver’s-side rear door. Thomas complied with orders to
get on the ground, while Nave fled. On the driver’s side of
the Sebring, 10 live rounds of ammunition, head-stamped or
marked “9mm CCI Luger,” were found.

STATE v. McGUIRE 	501
Cite as 286 Neb. 494
Thomas was handcuffed and taken into custody at the scene
of the accident. A search of Thomas revealed a pair of black
gloves. Nave was apprehended by Lutter, who had also pur-
sued the Sebring to the crash scene. Capalupo and another
officer arrested McGuire after a 3- to 5-minute pursuit. A
search of McGuire revealed a roll of cash with $20 and $50
bills on the outside and regular paper on the inside of the roll,
in an attempt to make the cash roll appear to contain a larger
amount of cash. The search also revealed keys to the Sebring,
an electronic ignition key for a Nissan, a black Kansas City
hat, and $3,858.
In the office area of Sanchez’ auto shop, four Winchester
9-mm cartridge casings were found on the floor. No firearms
were found in the office. A search of the white Nissan found
a yellow sporting goods store bag on the passenger front seat
containing a box of “CCI” ammunition, a pair of black gloves,
and packaging material for black duct tape. Ten rounds were
missing from the “CCI” ammunition box. Also found in the
Nissan were three black head coverings.
Inside the Sebring, investigators found black duct tape con-
sistent with the packaging found in the Nissan. A .357 Magnum
pistol, a “.38 Special cartridge” revolver, a Smith & Wesson
9-mm pistol, and a .45-caliber Glock semiautomatic pistol
were recovered from the Nissan. A firearms expert testified that
the bullet recovered from Sanchez’ body during the autopsy
was fired from the 9-mm Smith & Wesson. Each of the four
casings found in the auto shop were also from the 9-mm Smith
& Wesson.
The Nissan was owned by Monique Pridgeon. Pridgeon
testified that she was dating McGuire on October 22, 2010.
Pridgeon 	testified 	that, 	while 	dating, 	she 	had 	witnessed
McGuire talk to Vann in Omaha and had witnessed McGuire
talk to Thomas in Kansas City.
On October 22, 2010, Pridgeon allowed McGuire to borrow
her car. The previous night, Pridgeon had gone to a sporting
goods store to purchase bullets for the shooting range. She
also purchased a little blue bag to hold change. When she
returned home, she placed the blue bag on her dresser and put
the bullets, which were in a yellow bag, in her garage. When

502 	286 NEBRASKA REPORTS
she purchased the bullets, the box was sealed and she had not
removed any bullets before or after placing the ammunition in
the garage.
Pridgeon did not realize her bag and box of ammunition
were missing until after she was questioned by investigators.
She testified that although she thought the bag was blue—the
bag found on McGuire was black—the fanny pack found on
McGuire appeared to be similar to the bag she purchased.
Pridgeon testified that only she, her mother, and McGuire had
keys to her garage.
The State charged McGuire with the first degree murder of
Sanchez, alleging two theories of the crime: felony murder and
premeditated murder. It also charged him with use of a deadly
weapon to commit a felony and criminal conspiracy to unlaw-
fully possess and distribute a controlled substance.
3. appoiNteD couNSel’S
MotioN to withDraw
At a hearing on September 20, 2011, McGuire’s trial coun-
sel, Chad Brown, filed a motion to withdraw as counsel
for McGuire. Brown explained that he sought to withdraw
from the case because he had accepted a position with the
Douglas County Attorney’s office in the felony division. He
was terminating his private practice and felt it was neces-
sary to withdraw because of the conflict of interest. The court
asked McGuire if he understood, and the following exchange
occurred:
THE COURT: All right. Have you had an opportunity
to discuss this with your attorney . . . ?
[McGuire]: Yes.
THE COURT: How do you feel about this?
[McGuire]: Kind of confused a little bit.
THE 	COURT: 	Yeah. 	You 	understand 	that 	[Chad]
Brown is asking to withdraw because he’s terminating his
private practice, regardless of whether he was rejoining
the Douglas County Attorney’s Office or not? So do you
object that I let him out, release him from further repre-
sentation duties to you?
[McGuire]: I mean —

STATE v. McGUIRE 	503
Cite as 286 Neb. 494
THE COURT: I didn’t hear you. You understand, if
. . . Brown withdraws, I’m going to appoint [Daniel]
Stockmann, okay?
[McGuire]: He’s fine (indicating).
THE COURT: . . . Stockmann’s fine with you?
[McGuire]: Yes.
The district court allowed Brown to withdraw and appointed
Daniel Stockmann as trial counsel.
4. MotioN to D iSqualify
proSecutor’S office
After being appointed, Stockmann believed that McGuire
should file a motion to disqualify the Douglas County Attorney’s
office in light of Brown’s employment with the office. In
November 2011, Stockmann filed a motion to withdraw and
a hearing was held. Stockmann told the district court that he
advised McGuire to file the motion but that McGuire refused to
do so. The district court denied the motion and stated:
THE COURT: So they don’t feel there’s an issue here,
the State does not. . . . Stockmann, I think, is just — in
zealously representing your interest, has advised you that
that’s an issue you should pursue. Now it’s my under-
standing you’ve advised him you do not wish for him to
pursue that strategy and, if he persists in pursuing that
strategy, I’m not — asking — you want a new attorney
appointed; is that correct?
[McGuire]: Yes, sir.
THE COURT: All right. So, to the extent there’s any
potential conflict here —
And, again, you feel you’ve been able to fully discuss
this with . . . Stockmann? I’m not asking you to tell me
what you discussed but — the specifics, but you feel that
you’ve been able to discuss this issue with . . . Stockmann
to the fullest extent, that you feel like he’s answered all of
your questions regard[ing] this potential conflict and, to
the extent that there is any potential conflict, you waive
your opportunity or right to pursue that potential conflict
issue; is that correct?
[McGuire]: Yes, sir.

504 	286 NEBRASKA REPORTS
THE COURT: All right. Therefore, . . . Stockmann,
your motion to withdraw is — under the circumstances,
I’ll — you’ve been told by your client he does not want
you to pursue this, so the issue you raised in your motion
to withdraw is fairly moot, wouldn’t you think?
The district court went on to find that McGuire “has waived
any potential conflict [and] is doing that knowingly, willingly,
intelligently and voluntarily.”
5. pretrial aND trial
Before trial, the State filed a motion in limine and notice
of intent to use Neb. Evid. R. 404(2)1 evidence. The State
requested authorization to adduce evidence of the drug deal
that had occurred on September 28, 2010, involving McGuire
and Ayala-Martinez at Sanchez’ auto shop. The evidence was
to be used for the limited purposes of showing McGuire’s
motive, intent, and knowledge. Following a hearing, the dis-
trict court found by clear and convincing evidence that the
State had proved McGuire’s involvement in the September
28 drug deal. It concluded that the evidence was admissible
to prove McGuire’s knowledge that a substantial amount of
cocaine would change hands during the October 22 transaction
and to prove McGuire’s motive and intent to commit a rob-
bery on that date. The court reasoned that McGuire’s motive
and intent to commit the robbery was key to the State’s felony
murder charge.
At the jury instruction conference, McGuire offered a pro-
posed jury instruction to replace jury instruction No. 5, which
concerned the elements of second degree murder. The proposed
instruction included the element “not upon a sudden quarrel.”
Jury instruction No. 5, as given to the jury, used only the sud-
den quarrel language under “Section III” when describing the
elements of manslaughter. The proposed addition of “not upon
a sudden quarrel” to the elements of second degree murder was
denied by the district court.
After a 10-day jury trial, McGuire was convicted of second
degree murder, use of a deadly weapon to commit a felony,
1 Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2012).

STATE v. McGUIRE 	505
Cite as 286 Neb. 494
and criminal conspiracy to unlawfully possess and deliver a
controlled substance. The district court sentenced McGuire to
consecutive terms of imprisonment of 40 to 60 years for the
conviction of second degree murder, 25 years for the convic-
tion of use of a deadly weapon to commit a felony, and 40
years for the conviction of criminal conspiracy.
III. ASSIGNMENTS OF ERROR
McGuire assigns as error, restated and summarized: (1) the
district court’s allowing Brown to withdraw, (2) the district
court’s allowing McGuire to waive the conflict of interest,
(3) the district court’s admission of the September 28, 2010,
events as prior bad acts, (4) ineffective assistance of trial
counsel, (5) the district court’s not using McGuire’s proposed
manslaughter instruction, (6) the district court’s finding suf-
ficient evidence to support all three convictions, and (7)
the district court’s abuse of discretion by imposing exces-
sive sentences.
IV. STANDARD OF REVIEW
[1-3] We review the trial court’s decision on a motion to
withdraw as counsel for an abuse of discretion.2 Likewise,
whether an apparent conflict of interest justifies the disquali-
fication of other members of a prosecuting office is a mat-
ter committed to the discretion of the trial court.3 However,
when determining whether a defendant’s waiver was voluntary,
knowing, and intelligent, an appellate court applies a clearly
erroneous standard of review.4
[4] It is within the discretion of the trial court to deter-
mine relevancy and admissibility of evidence of other wrongs
or acts under Neb. Evid. R. 4035 and rule 404(2), and the
trial court’s decision will not be reversed absent an abuse
of discretion.6
2 See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
3 See State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008).
4 See State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).
5 Neb. Rev. Stat. § 27-403 (Reissue 2008).
6 State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).

506 	286 NEBRASKA REPORTS
[5] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court.7
[6] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact, and, in par-
ticular, determinations regarding whether counsel was defi-
cient and whether the defendant was prejudiced are questions
of law.8
[7] 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. 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.9
[8] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.10
[9] A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.11
V. ANALYSIS
1. MotioN to withDraw aND waiver
of coNflict of iNtereSt
McGuire’s 	first 	attorney, 	Brown, 	moved 	to 	withdraw
because he had been hired by the office prosecuting McGuire.
7 State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
8 State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).
9 State v. Reinpold, 284 Neb. 950, 824 N.W.2d 713 (2013).
10 State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
11 In re Interest of Samantha L. & Jasmine L., 284 Neb. 856, 824 N.W.2d
691 (2012).

STATE v. McGUIRE 	507
Cite as 286 Neb. 494
After 	granting 	the 	motion, 	the 	district 	court 	appointed
Stockmann to represent McGuire. As his newly appointed
attorney, Stockmann advised McGuire to file a motion request-
ing the district court to recuse the prosecuting office from the
case. Stockmann advised McGuire that Brown’s employment
with the prosecuting office could have an adverse effect on
McGuire’s ability to receive a fair trial. Despite his attorney’s
advice, McGuire refused to file such a motion. Based on
McGuire’s refusal, the district court held that McGuire had
waived the issue and allowed the prosecuting office to con-
tinue with the trial.
McGuire now argues that the district court erred in two ways
in its handling of this situation. First, McGuire argues that the
district erred in allowing Brown to end his representation of
McGuire. Second, McGuire argues that the district court erred
by accepting McGuire’s waiver of the conflict of interest and
by not disqualifying the prosecuting office.
(a) Motion to Withdraw
McGuire argues that the district court committed reversible
error in granting Brown’s motion to withdraw. McGuire alleges
the withdrawal prejudiced him, because the newly appointed
trial counsel had very little time to prepare for trial and had
to do so without access to prior counsel to help expedite
the trial preparations. We disagree and hold that the district
court did not abuse its discretion in granting Brown’s motion
to withdraw.
[10] Brown was appointed to represent McGuire, who was
deemed indigent. We have held that appointed counsel must
remain with an indigent accused unless one of the following
conditions is met: (1) The accused knowingly, voluntarily,
and intelligently waives the right to counsel and chooses
to proceed pro se; (2) appointed counsel is incompetent, in
which case new counsel is to be appointed; or (3) the accused
chooses to retain private counsel.12 The State concedes, and
the record reflects, that McGuire did not choose to proceed
pro se or with private counsel. Rather, the State argues that
12 See State v. Molina, supra note 2.

508 	286 NEBRASKA REPORTS
the district court did not abuse its discretion, because Brown
became “incompetent” by way of his new employment with
the Douglas County Attorney’s office, which was the office
prosecuting McGuire.
[11,12] We have held that appointed counsel may be removed
because of a potential conflict of interest and that such a con-
flict could, in effect, render a defendant’s counsel incompetent
to represent the defendant and warrant appointment of new
counsel.13 The phrase “conflict of interest” denotes a situa-
tion in which regard for one duty tends to lead to disregard
of another or where a lawyer’s representation of one client is
rendered less effective by reason of his or her representation of
another client.14
Here, Brown’s new employment did create a conflict of
interest. He was ending his private practice and joining the
Douglas County Attorney’s felony division, which was pros-
ecuting McGuire. He could not maintain his representation of
McGuire while being employed by the prosecution.
McGuire argues that the conflict only came to be once
the court allowed Brown to withdraw. In other words, if the
district court did not grant his withdrawal, Brown would
be unable to begin employment with the Douglas County
Attorney’s office.
We disagree. Such an action would not have prevented a
conflict of interest, because Brown told the court that he was
terminating his private practice. Forcing Brown to represent
McGuire would have created a different conflict of interest,
because it would have prevented Brown from seeking alter-
native employment. We refuse to set a rigid rule of law that
prevents an attorney from changing employment without first
seeing all of his or her clients’ cases to the end. The decision
on a motion to withdraw should remain at the discretion of the
trial court.
We find that Brown was incompetent to represent McGuire
due to his new employment. Further, we find that McGuire has
13 Id.
14 See State v. Marchese, 245 Neb. 975, 515 N.W.2d 670 (1994).

STATE v. McGUIRE 	509
Cite as 286 Neb. 494
failed to provide specific evidence of how he was prejudiced
by Brown’s withdrawal. Therefore, we hold that the trial court
did not abuse its discretion in allowing Brown to withdraw as
McGuire’s trial counsel.
(b) Waiver of Conflict
of Interest
McGuire argues that the district court erred when it allowed
McGuire to waive the alleged conflict of interest created
by Brown’s new employment with the prosecuting office.
McGuire makes two arguments. First, McGuire argues that
it should be an absolute requirement that the court immedi-
ately disqualify the prosecuting office in situations where a
prosecutor in the office previously represented the defend-
ant. Second, McGuire argues that the district court erred in
accepting his waiver, because he did not properly understand
why Brown had withdrawn from his case and thus, did not
understand why requesting recusal was important. We reject
both arguments.
First, in State v. Kinkennon,15 we rejected a per se rule of
requiring disqualification of a prosecuting office when a con-
flict of interest with a defendant arises. We held that the ulti-
mate goal of maintaining both public and individual confidence
in the integrity of our judicial system can be served without
resorting to such a broad and inflexible rule.16 A per se rule
would unnecessarily limit mobility in the legal profession and
inhibit the ability of prosecuting attorney’s offices to hire the
best possible employees because of the potential for absolute
disqualification in certain instances.17 In his brief, McGuire
does not challenge this reasoning, and we find no reason to
reevaluate our precedent.
Second, we find that under these unique circumstances,
McGuire has voluntarily, knowingly, and intelligently waived
the alleged conflict of interest created by Brown’s employment
15 State v. Kinkennon, supra note 3.
16 Id.
17 Id.

510 	286 NEBRASKA REPORTS
with the prosecuting office. Our research finds it to be exceed-
ingly rare for a defendant to waive a conflict of interest that
could result in disqualifying the prosecutor’s office. However,
our precedent does establish that a defendant can waive a
right to assistance of an attorney unhindered by a conflict
of interest,18 and under Neb. Rev. Stat. § 24-739 (Reissue
2008), parties can consent to waiving a judicial disqualifica-
tion. Because recusal is not a per se rule in this instance, we
hold that a defendant can waive a conflict of interest that
would disqualify the prosecuting office.
[13] Generally, for a waiver of a constitutional right to be
valid, it must be made voluntarily, knowingly, and intelli-
gently, with sufficient awareness of the relevant circumstances
and likely consequences.19 A waiver is permissible provided a
defendant “‘knows what he is doing and his choice is made
with eyes open.’”20
Here, the unique facts demonstrate that McGuire voluntarily,
knowingly, and intelligently waived the possible disqualifica-
tion of the prosecuting office. McGuire’s second attorney,
Stockmann, fully informed him of the relevant circumstances
and likely consequences of waiving the disqualification. In
fact, Stockmann was so concerned about McGuire’s decision to
not file the motion to recuse that he sought the court’s permis-
sion to withdraw from the case for that reason.
Additionally, 	the 	record 	demonstrates 	that 	during
Stockmann’s hearing to withdraw, the district court fully dis-
cussed the disqualification issue with McGuire. McGuire then
affirmatively waived his right to pursue the issue. Based on
McGuire’s statements in court, the district court found that
McGuire voluntarily, knowingly, and intelligently waived the
issue of disqualification. There is no evidence to demonstrate
otherwise, and therefore, the district court’s decision to accept
the waiver was not clearly erroneous.
18 See id.
19 See State v. Turner, 218 Neb. 125, 354 N.W.2d 617 (1984).
20 Id. at 137, 354 N.W.2d at 625 (quoting Adams v. U. S. ex rel. McCann, 317
U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268 (1942)).

STATE v. McGUIRE 	511
Cite as 286 Neb. 494
2. rule 404(2) eviDeNce—eveNtS of
SepteMber 28, 2010
McGuire argues the district court erred in admitting the
events of September 28, 2010, as rule 404(2)21 evidence.
McGuire argues that the evidence was offered to show a
propensity to commit the charged crime and that it was sub-
stantially outweighed by its potential for unfair prejudice.
We disagree, because the events of September 28 establish
McGuire’s motive, intent, and knowledge to commit the rob-
bery on October 22.
[14-16] Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Rule 404(2) prohibits the admission of other bad acts evi-
dence for the purpose of demonstrating a person’s pro-
pensity to act in a certain manner.22 But evidence of other
crimes which is relevant for any purpose other than to show
the actor’s propensity is admissible under rule 404(2).23
Evidence that is offered for a proper purpose is often referred
to as having a “special” or “independent” relevance, which
means that its relevance does not depend upon its tendency
to show propensity.24 An appellate court’s analysis under rule
404(2) considers (1) whether the evidence was relevant for
some purpose other than to prove the character of a person
to show that he or she acted in conformity therewith; (2)
whether the probative value of the evidence is substantially
outweighed by its potential for unfair prejudice; and (3)
whether the trial court, if requested, instructed the jury to
21 § 27-404(2).
22 State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012), cert. denied ___
U.S. ___, 133 S. Ct. 244, 184 L. Ed. 2d 129.
23 Id.
24 Id.

512 	286 NEBRASKA REPORTS
consider the evidence only for the limited purpose for which
it was admitted.25
Prior to trial, the State filed a motion in limine and notice of
intent to use the evidence of the September 28, 2010, drug deal
as rule 404(2) evidence. A hearing was held. At the hearing,
the State argued that under our holding in State v. Collins,26
the admission of the evidence was proper for the purposes
of showing motive, intent, and knowledge. As noted, the dis-
trict court admitted the evidence for the purposes of proving
McGuire’s motive, intent, and knowledge to commit a robbery
on October 22.
In Collins, we affirmed the admission of evidence under
rule 404(2) that the defendant had organized and previously
participated in drug deals with the two victims in the defend-
ant’s trial for first degree murder and attempted first degree
murder.27 We determined that the evidence was admissible to
show the defendant’s motive, intent, and knowledge to rob the
victims during the charged crimes. The previous transactions
showed the defendant’s knowledge that the victims would
have significant amounts of cocaine with them and where they
would keep it.28 Because of this knowledge, a juror could have
reasonably inferred that the defendant wanted the cocaine for
himself because he understood that he would gain more profit
without sharing the proceeds of subsequent drug sales with
the victims. This profit was his motive to rob both men and
showed his intent to do so.29 “And this robbery is, of course,
key to the State’s felony murder theory—that [the defendant]
was guilty of first degree murder because [a victim] was killed
during the commission of the robbery.”30
The same reasoning applies here. McGuire’s involvement
in the September 28, 2010, drug deal was relevant to show
25 Id.
26 State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
27 Id.
28 Id.
29 Id.
30 Id. at 944, 799 N.W.2d at 708.

STATE v. McGUIRE 	513
Cite as 286 Neb. 494
that he knew there would be a large amount of cocaine in
Sanchez’ auto shop on October 22 and knew how the drug
transaction would take place. A juror could reasonably infer
that this knowledge gave McGuire a profit motive to rob
Sanchez. And a defendant’s motivation may support an infer-
ence that the defendant intended to commit the act that would
accomplish the goal implied by his motivation—especially
when the State proves that the defendant participated in a plan
to commit the act.31
When the underlying felony for a felony murder charge is
a robbery, the intent that the State must prove is the intent to
commit the robbery, not the intent to kill.32 So as in Collins,
McGuire’s intent to rob Sanchez was key to the State’s felony
murder theory. It is true that McGuire did not personally shoot
Sanchez. But the State claimed that McGuire aided and abet-
ted a robbery which resulted in the robbery victim’s death.
And under an aiding and abetting theory of felony murder
premised on an underlying robbery, even if a coparticipant in
the robbery caused the victim’s death, the defendant aider and
abettor can be convicted of felony murder if the State proves
the defendant intended to rob the victim.33 Therefore, the dis-
trict court did not err in allowing the events of September 28,
2010, to be elicited at trial. Under rule 404(2), the testimony
was independently relevant to demonstrate McGuire’s motive,
intent, and knowledge to rob Sanchez.
3. iNeffective aSSiStaNce
of trial couNSel
McGuire argues that his trial counsel should have requested
jury instructions for the crimes of attempted robbery and rob-
bery, allowing the jury to consider convicting McGuire of rob-
bery or attempted robbery as opposed to first degree murder,
second degree murder, or manslaughter. He further argues that
31 See, State v. Collins, supra note 26; 22A Charles Alan Wright & Kenneth
W. Graham, Jr., Federal Practice and Procedure § 5240 (2012).
32 See, State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013) (citing State
v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996)).
33 See id.

514 	286 NEBRASKA REPORTS
“[t]he evidence produced a rational basis for acquitting . . .
McGuire of felony murder and convicting him of robbery or
attempted robbery, and therefore trial counsel’s performance
was deficient when he did not propose the trial court use rob-
bery or attempted robbery jury instructions as lesser included
offenses.”34 We reject this claim because McGuire failed to
sufficiently plead that he was actually prejudiced by his trial
counsel’s failure to request the proposed instructions.
[17,18] A claim of ineffective assistance of counsel need
not be dismissed merely because it is made on direct appeal.35
Rather, the determining factor is whether the record is suffi-
cient to adequately review the question.36 An ineffective assist-
ance of counsel claim will not be addressed on direct appeal if
it requires an evidentiary hearing.37
[19-21] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,38 the defendant must
first show that counsel’s performance was deficient and sec-
ond, that this deficient performance actually prejudiced his
or her defense.39 The two prongs of the ineffective assistance
test, deficient performance and prejudice, may be addressed in
either order.40 An appellate court will not second-guess reason-
able strategic decisions by counsel.41 In this case, there was
not an evidentiary hearing and therefore, we have no evidence
concerning trial counsel’s strategy.
[22,23] We can, however, address whether McGuire was
prejudiced from his trial counsel’s alleged error. To show
prejudice, the defendant must demonstrate a reasonable prob-
ability that but for counsel’s deficient performance, the result
34 Brief for appellant at 37.
35 State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
36 Id.
37 Id.
38 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
39 State v. Poe, 284 Neb. 750, 822 N.W.2d 831 (2012).
40 Id.
41 Id.

STATE v. McGUIRE 	515
Cite as 286 Neb. 494
of the proceeding would have been different.42 A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.43
The alleged error could not have prejudiced McGuire. The
jury did not convict McGuire of felony murder. Therefore,
McGuire’s argument, as stated in his brief, does not demon-
strate actual prejudice because the error did not result in him
actually being convicted of felony murder. His trial counsel’s
error was harmless.
Not only was the “error” harmless, the “error” was likely
beneficial. If the jury was instructed on the crimes of robbery
and attempted robbery, which the evidence in this case does
support, the only change in outcome that could have occurred
is McGuire’s being convicted of felony murder. Had McGuire
been convicted of robbery, for instance, the evidence supports
that during the commission of that crime, Sanchez was shot
and killed. Under our felony murder statute, McGuire could
have been convicted of first degree felony murder for the death
of Sanchez during the robbery.44 Instead, he was convicted of
second degree murder under an aiding and abetting theory.
McGuire does not present an argument of how instructing on
robbery or attempted robbery would have resulted in an acquit-
tal of McGuire on the second degree murder charge.
Therefore, from our review of the record, trial counsel’s
alleged ineffectiveness did not prejudice McGuire. This assign-
ment of error is without merit.
4. propoSeD M aNSlauGhter
iNStructioN
McGuire argues that the district court erred in denying his
proposed jury instruction for second degree murder. McGuire
wanted to add “not upon a sudden quarrel” to the language
of the second degree murder instruction. He relies on State v.
42 Id.
43 Id.
44 See, Neb. Rev. Stat. § 28-303 (Reissue 2008); State v. Quintana, 261 Neb.
38, 621 N.W.2d 121 (2001), modified on denial of rehearing 261 Neb.
623, 633 N.W.2d 890.

516 	286 NEBRASKA REPORTS
Smith45 for his argument that the failure to include the sudden
quarrel language resulted in an instruction that did not require
the jury to consider voluntary and involuntary manslaughter.
We agree that the instruction was in error but find that the error
did not result in prejudice.
[24] 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.46
[25] In Smith,47 we held that an intentional killing committed
without malice upon a sudden quarrel constitutes the offense of
manslaughter. After a lengthy discussion on what constitutes
manslaughter, we explained:
Because of our holding today, the step instruction given
in this case was not a correct statement of the law.
Specifically, the step instruction required the jury to con-
vict on second degree murder if it found that [the defend-
ant] killed [the victim] intentionally, but it did not permit
the jury to consider the alternative possibility that the
killing was intentional but provoked by a sudden quarrel,
and therefore constituted manslaughter.48
A review of the instructions given to the jury in this case
demonstrates a similar incorrect statement of law. In the rel-
evant parts, the jury was instructed as follows:
SECTION II
The material elements which the State must prove
by evidence beyond a reasonable doubt in order to con-
vict [McGuire] of the crime of murder in the second
degree are:
1. That [McGuire], on or about October 22, [2]010, did
kill Cesar Sanchez-Gonzalez;
45 State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
46 State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
47 State v. Smith, supra note 45.
48 Id. at 734, 806 N.W.2d at 394.

STATE v. McGUIRE 	517
Cite as 286 Neb. 494
2. That he did so in Douglas County, Nebraska; and
3. That [McGuire] did so intentionally, but without
premeditation.
SECTION III
The material elements which the State must prove by
evidence beyond a reasonable doubt in order to convict
[McGuire] of the crime of manslaughter are:
1. That [McGuire], on or about October 22, 2010, did
kill Cesar Sanchez-Gonzalez;
2. That he did so in Douglas County, Nebraska; and
3. That he did so without malice, either:
a. Intentionally upon a sudden quarrel, or
b. Unintentionally while in the commission of an
unlawful act.
EFFECT OF FINDINGS
You must separately consider in the following order the
crimes of murder in the first degree, murder in the second
degree, and manslaughter.
For the crime of murder in the first degree, you must
decide whether the state proved each element beyond a
reasonable doubt. If the state did so prove each element,
then you must find [McGuire] guilty of murder in the first
degree and stop.
If, however, you find that the state did not so prove,
then you must proceed to consider the crimes of murder
in the second degree and manslaughter until you find
[McGuire] guilty of one of the crimes or find him not
guilty of all of them.
The error in these instructions is similar to the error out-
lined in Smith. If the jury finds beyond a reasonable doubt that
McGuire aided and abetted the intentional killing of Sanchez
without premeditation, the jury is instructed to stop and not
review the elements of other homicide offenses, including
manslaughter. Thus, the jury would never consider whether
Nave killed Sanchez upon a “sudden quarrel,” which would
have reduced McGuire’s conviction to manslaughter. Jury
instruction No. 5 was an incorrect statement of law.
[26] However, in order for us to reverse on a jury instruc-
tion, the evidence must support the inclusion of “upon a

518 	286 NEBRASKA REPORTS
sudden quarrel” and the defendant must have been prejudiced
by the exclusion of that language.49 The appellant has the
burden to show that the questioned instruction was preju-
dicial or otherwise adversely affected a substantial right of
the appellant.50
[27] A trial court is required to give an instruction where
there is any evidence which could be believed by the trier of
fact that the defendant committed manslaughter and not mur-
der.51 But a trial court is not obligated to instruct the jury on
matters which are not supported by evidence in the record.52 In
the context of this case, McGuire was prejudiced by the erro-
neous jury instruction only if the jury could have reasonably
concluded on the evidence presented that his intent to kill was
the result of a sudden quarrel.
[28-30] Sudden quarrel manslaughter requires sufficient
provocation which causes a reasonable person to lose normal
self-control.53 The question is whether there existed reason-
able and adequate provocation to excite one’s passion and
obscure and disturb one’s power of reasoning to the extent
that one acted rashly and from passion, without due delibera-
tion and reflection, rather than from judgment.54 The test is an
objective one.55
McGuire fails to explain in his appellate brief how the jury
could have reasonably concluded that Sanchez was killed dur-
ing a sudden quarrel. The evidence shows that before enter-
ing the auto shop, Nave cinched up his hood over his head,
removed a loaded gun from his waistband, and proceeded
to enter the shop. According to Ayala-Martinez, Nave shot
Sanchez upon entering the office, stating that “he came in,
and he already had the weapon in his two hands, and he just
49 See State v. Freemont, supra note 46.
50 See State v. Smith, supra note 45.
51 Id.
52 Id.
53 See id.
54 See id.
55 See id.

STATE v. McGUIRE 	519
Cite as 286 Neb. 494
looked at him and fired.” There was no scuffle or altercation,
and no words were exchanged. When Nave entered, Sanchez
was holding an unloaded revolver, but the revolver was point-
ing down. There is no evidence that Nave saw Sanchez holding
the revolver. In fact, it should be noted that the gun allegedly
held by Sanchez was not found by investigators. Further, out-
side surveillance confirms that Nave was in and out of the auto
shop quickly.
We conclude that there is no evidence in this record upon
which the jury could have concluded that Nave was provoked,
lost the power of reasoning, and acted rashly without due
deliberation. Nave’s actions outside of the auto shop of cinch-
ing his hood and pulling the gun, when considered with the
fact that he immediately shot Sanchez upon entering the office,
demonstrate that Nave intended to shoot Sanchez before any
alleged provocation. There is no evidence in this record upon
which the jury could have concluded that McGuire (through
the aiding and abetting instruction) committed sudden quarrel
manslaughter instead of second degree murder. We therefore
conclude that the improper jury instruction was not warranted
by the evidence and did not prejudice McGuire. This jury
instruction error does not require the reversal of his second
degree murder conviction.
5. SufficieNcy of eviDeNce
McGuire argues that the evidence was insufficient to sup-
port his convictions for second degree murder, criminal con-
spiracy to unlawfully possess and distribute a controlled
substance, and use of a deadly weapon to commit a felony.
McGuire argues, summarized, that there was insufficient
evidence establishing that he was a conspirator to the crimes
and insufficient evidence to establish that he aided and abet-
ted. Because there was considerable evidence demonstrat-
ing cooperation between McGuire and Nave, Thomas, and
Vann, there is sufficient evidence in the record to support
the convictions.
McGuire was convicted of second degree murder and use of
a deadly weapon to commit a felony under an aiding and abet-
ting theory. Under Neb. Rev. Stat. § 28-304(1) (Reissue 2008),

520 	286 NEBRASKA REPORTS
“[a] person commits murder in the second degree if he causes
the death of a person intentionally, but without premeditation.”
Further, under Neb. Rev. Stat. § 28-1205(1)(a) (Cum. Supp.
2012), “[a]ny person who uses a firearm, a knife, brass or iron
knuckles, or any other deadly weapon to commit any felony
which may be prosecuted in a court of this state commits the
offense of use of a deadly weapon to commit a felony.” It is
undisputed that McGuire was not the shooter.
[31-33] However, under Neb. Rev. Stat. § 28-206 (Reissue
2008), “[a] person who aids, abets, procures, or causes another
to commit any offense may be prosecuted and punished as if he
[or she] were the principal offender.” We have stated that aid-
ing and abetting is simply another basis for holding one liable
for the underlying crime.56 By its terms, § 28-206 provides that
a person who aids or abets may be prosecuted and punished as
if he or she were the principal offender. We have stated that
aiding and abetting requires some participation in a criminal
act and must be evidenced by some word, act, or deed.57 No
particular acts are necessary, nor is it necessary that the defend-
ant take physical part in the commission of the crime or that
there was an express agreement to commit the crime.58 Mere
encouragement or assistance is sufficient.59
A rational jury could conclude beyond a reasonable doubt
that McGuire intended to aid and abet the crime committed
by Nave. Before the theft of the cocaine and the shooting,
law enforcement surveillance described three individuals—
McGuire, Nave, and Thomas—as being in proximity to each
other and the Sebring immediately before the crime. While
inside the auto shop, McGuire had a roll of cash filled with
paper to make it appear like he had substantially more money.
This indicates that McGuire never had intentions of buying the
cocaine. When McGuire exited the shop, Nave instantaneously
entered the shop with his gun drawn.
56 See State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012).
57 Id.
58 Id.
59 Id.

STATE v. McGUIRE 	521
Cite as 286 Neb. 494
Furthermore, the fact that Nave entered the auto shop spe-
cifically demanding drugs indicates that he was working with
McGuire and Vann. Only McGuire and Vann had purchased
drugs from Sanchez through Ayala-Martinez before. There is no
evidence that Nave was involved in the prior deal. Therefore,
the only logical way for Nave to know there was going to be
a large amount of drugs in the auto shop was by being told by
McGuire and Vann.
After Nave committed the murder and robbery, he fled with
Thomas in the Sebring, driven by McGuire. Subsequent to his
arrest, it was determined a box of 9-mm bullets had been taken
from McGuire’s girlfriend’s garage. The box of 9-mm bullets,
head-stamped “CCI,” was found in the front seat of the Nissan;
however, 10 rounds were missing. This was the same Nissan
that Lutter had seen McGuire standing next to prior to the rob-
bery. In fact, when McGuire was arrested, he had an electronic
ignition key for a Nissan.
Investigators found 10 live 9-mm rounds, head-stamped
“CCI,” next to the Sebring where Nave had been standing.
Nave was attempting to load a gun with the 9-mm rounds
following the crash. In the Sebring, investigators found black
duct tape that was consistent with the packaging in the Nissan.
The evidence overwhelmingly supports that the Nissan and
Sebring were intended to be used together in the crime. The
evidence also overwhelmingly supports the jury’s likely con-
clusion that McGuire provided Nave with 9-mm bullets, head-
stamped “CCI.”
Therefore, a rational jury could conclude that McGuire
aided and abetted Nave in the murder of Sanchez (which
involved a handgun) by providing information on the drug
deal, providing a getaway car, and providing bullets. As such,
the evidence is sufficient to uphold McGuire’s convictions for
second degree murder and use of a deadly weapon to commit
a felony.
[34] McGuire also unsuccessfully argues that his con-
viction for criminal conspiracy to unlawfully possess and
distribute a controlled substance is not supported by the
evidence. A person is guilty of criminal conspiracy if the
person intends to promote or facilitate the commission of

522 	286 NEBRASKA REPORTS
a felony, agrees with one or more persons to commit that
felony, and then the person, or a coconspirator, commits an
overt act furthering the conspiracy.60 The State claimed that
McGuire conspired to possess and then distribute cocaine. In
relevant part, Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 2010)
makes it unlawful “for any person knowingly or intentionally
. . . [t]o manufacture, distribute, deliver, dispense, or possess
with intent to manufacture, distribute, deliver, or dispense a
controlled substance.” Cocaine is a controlled substance.61
So we must affirm McGuire’s conviction where there is
evidence from which a rational jury could find beyond a
reasonable doubt that he intended to promote or facilitate
the crime of possession with intent to distribute cocaine, that
he agreed with others to commit that crime, and that he or
another coconspirator committed an overt act in furtherance
of the conspiracy.
The evidence supports that McGuire conspired with Vann,
Thomas, and Nave to acquire possession of cocaine with intent
to distribute it. All of the evidence supporting McGuire’s aid-
ing and abetting Vann also applies here. Ayala-Martinez testi-
fied that McGuire wanted to test the 11⁄2 kilograms of powder
cocaine before purchasing. It was McGuire who had the roll
of cash to “purchase” the cocaine. It was McGuire who aided
and abetted Nave in the murder of Sanchez for the cocaine.
And the cocaine was found in the Sebring driven by McGuire
after he had crashed the vehicle. From these facts, a rational
jury could conclude that McGuire conspired to possess cocaine
with the three other men.
6. exceSSive SeNteNceS
McGuire argues that his sentences were plainly unjust
due to his minimal criminal record and because he was less
“culpable” than Nave, who received a substantially similar
60 See, Neb. Rev. Stat. § 28-202 (Reissue 2008); State v. Nave, 284 Neb. 477,
821 N.W.2d 723 (2012), cert. denied ___ U.S. ___, 133 S. Ct. 1595, 185
L. Ed. 2d 591 (2013).
61 See Neb. Rev. Stat. § 28-405(a)(4) [Schedule II] (Cum. Supp. 2010) and
§ 28-416(7) and (8).

STATE v. McGUIRE 	523
Cite as 286 Neb. 494
sentence. McGuire was sentenced to terms of imprisonment
of 40 to 60 years for the conviction of second degree murder,
25 years for the conviction of use of a deadly weapon to com-
mit a felony, and 40 years for the conviction of criminal con-
spiracy. All of the sentences were to be served consecutively
to each other. McGuire concedes that his sentences are within
the statutory range. Accordingly, we review the sentences for
an abuse of discretion.62
[35,36] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the amount of violence involved in the com-
mission of the crime.63 The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defend-
ant’s life.64
Beyond having a minimal criminal record and arguing he
was less culpable than Nave, McGuire gives few reasons why
his sentences were excessive. However, this was a serious
crime of violence. McGuire aided and abetted in the cold-
blooded murder of Sanchez. Additionally, according to the
presentence investigation, McGuire has failed to take respon-
sibility for his involvement in the events of October 22, 2010.
Further, McGuire scored in the high-risk level to reoffend on
an assessment test.
In light of these considerations noted by the sentencing
court and the State, we conclude that McGuire has not shown
that the sentencing court abused its discretion with respect
to the amount of incarceration imposed for each conviction.
We reject McGuire’s argument that the court imposed exces-
sive sentences.
62 State v. Pereira, supra note 10.
63 Id.
64 Id.

524 	286 NEBRASKA REPORTS
VI. CONCLUSION
For the reasons discussed, we affirm McGuire’s convictions
and sentences.
affirMeD.
heavicaN, C.J., and caSSel, J., not participating.