State v. Tucker

State of NebraSka , appellee , v.
D wight l. tucker , appellaNt.
774 N.W.2d 753
Filed November 20, 2009. 	No. S-08-623.
1. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
2. 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.
3. Criminal Law: Weapons: Intent. A person cannot use a weapon for the purpose
of unintentionally committing another crime.
4. Criminal Law: Trial: Judges: Presumptions. A trial judge is presumed in a
jury-waived criminal trial to be familiar with and apply the proper rules of law,
unless it clearly appears otherwise.
5. Criminal Law: Assault. The crime of first degree assault can only be commit-
ted intentionally.
Petition for further review from the Court of Appeals, irwiN,
carlSoN, and caSSel, Judges, on appeal thereto from the
District Court for Douglas County, M arloN a. polk, Judge.
Judgment of Court of Appeals affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Timothy P. Burns for appellant.
Dwight L. Tucker, pro se.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heavicaN, 	c.J., 	wright, 	coNNolly, 	gerrarD, 	StephaN,
MccorMack , and M iller-lerMaN, JJ.
MccorMack , J.
NATURE OF CASE
In a case where the only injury to the victim was a single
gunshot wound that caused his death, we address whether it is
irreconcilable for a judge in a bench trial to find the defendant
guilty of unintentional manslaughter while also finding him
guilty of the intentional use of a weapon to commit the felony
STATE v. TUCkER 	935
Cite as 278 Neb. 935
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

of either terroristic threats, first degree assault, or second
degree assault.
BACkGROUND
ShootiNg
Dwight L. Tucker testified that at around 12:30 a.m. on
June 2, 2007, his cousin, Jerry Valentine, called and asked
Tucker to assist in “a run” to sell drugs. Tucker agreed.
Valentine picked Tucker up, and the two drove from North
Omaha, Nebraska, to a gas station on 13th and Vinton Streets.
The gas station was closed, but the exterior of the convenience
store and the pumps were well lit and monitored by three sur-
veillance cameras. There was light street traffic in front of the
station, and the pumps and convenience store were in plain
view of the street.
Silent footage from the cameras showed that at approxi-
mately 1:15 a.m., Valentine’s vehicle pulled up askew to the gas
pumps, which were in front of the convenience store. Almost
immediately thereafter, Daniel Everbeck pulled up in front of
a pay telephone located on the wall outside the front entrance
of the convenience store. Tucker testified that when they pulled
up, he saw Everbeck and assumed he was the person Valentine
would be selling drugs to.
Everbeck opened his door, but did not immediately exit.
Instead, the two vehicles stood in plain sight of one another,
until Valentine’s vehicle backed up out of view from the
cameras. Tucker explained at trial that after backing up, they
parked on a side street.
Tucker testified that he and Valentine exited Valentine’s
vehicle. Before doing so, Valentine put a gun on Tucker’s
lap and told him to watch his back in case somebody tried
to rob him. Tucker testified that he did not know the gun
was loaded.
Everbeck exited his vehicle and walked around the front and
toward the pay telephone. He then disappeared from view of
the camera because the pay telephone and the immediate vicin-
ity of the pay telephone are not captured. Approximately 30
seconds later, Everbeck returned to retrieve something from the
vehicle and walked back to the pay telephone.
936 	278 NEBRASkA REPORTS

One minute after Everbeck walked to the telephone, Valentine
appeared strolling through the area of the gas pumps, looking in
the direction of the pay telephone, before leaving the camera’s
coverage area. Tucker explained at trial that Everbeck was on
the telephone and that Valentine was walking around “to make
sure it wasn’t a setup” and that everything was “cool.” Tucker
waited by the side of the building.
Everbeck’s girlfriend, a bartender at a bar across the street
from the gas station, testified that Everbeck called her on
her cellular telephone at 1:17 a.m. The conversation lasted
approximately 2 minutes, and she noted nothing out of the
ordinary. They made arrangements to meet after she was fin-
ished closing the bar. She did not know where Everbeck was
calling from.
A little over 2 minutes after Valentine had strolled through
the gas pump area, Valentine and Tucker approached Everbeck
from the side of the convenience store. The three were in view
of the cameras only briefly. During this time, Everbeck stood
with his back to his vehicle and facing Tucker, whose back was
facing the convenience store. Valentine stood slightly to the
side, with his back at an angle between the convenience store
and the side lot from which they came.
Everbeck soon appeared to become agitated with Tucker,
gesticulating in an animated fashion toward him and apparently
talking. Tucker stood, apparently silent, with his arms straight
at his sides, but looking at Everbeck. Tucker explained at trial
that he was holding the gun aimed at the ground.
Everbeck then appeared to shove Tucker in the direction
of the pay telephone, and Tucker and Everbeck disappeared
from view of the cameras. At approximately the same time,
another camera showed Valentine calmly walking away in the
direction from which they came and looking back in the direc-
tion of the pay telephone. Then, Valentine started to run and
Tucker appeared in the camera’s view, running away behind
him. The actual shooting was not recorded by the cameras.
Everbeck’s girlfriend testified that she heard a bang outside
the bar approximately 30 seconds after her conversation with
Everbeck had ended.
STATE v. TUCkER 	937
Cite as 278 Neb. 935

Tucker explained at trial that when they approached Everbeck,
Valentine greeted him, saying, “[W]hat’s up.” Everbeck ignored
Valentine and angrily turned his attention to Tucker instead,
asking, “What you got a gun for? What, you going to shoot
me?” Tucker stated he did not respond. According to Tucker,
Everbeck then pushed him and started coming toward him,
backing him into the wall where the pay telephone was located.
Tucker testified that Everbeck tried to reach for his gun and
tried to hit him. As Tucker pulled his arm back to keep the gun
out of Everbeck’s reach, it “just went off.”
The police arrived at the scene approximately 10 minutes
after the shooting. Everbeck was semiconscious. Everbeck told
an officer that he was in pain and that he had been shot by
a black male. On the way to the hospital, Everbeck gave an
approximate description of the age and height of the shooter.
Everbeck did not explain the circumstances of the shooting nor
indicate whether he had been robbed.
Another officer searching the area soon found Tucker, dressed
in a white tank top and sweatpants, approximately three blocks
from the gas station. Tucker was waiting at the corner and had
no identification or other possessions on his person. Tucker
gave the officer his brother’s name as an alias.
The police also found a semiautomatic revolver and a red-
and-white striped shirt under a tree. Tucker appears wearing
that same shirt in the surveillance videos. The revolver was
later identified as the weapon used in the shooting. Expert tes-
timony established that the gun was working properly. When
found, the gun contained five live rounds in the magazine and
one live round in the chamber.
Everbeck died at the hospital as the result of the gunshot
wound. The bullet had entered his lower abdomen, traveled
through the liver and lacerated the abdominal aorta. There
was no evidence of any injuries other than those attributable
to the gunshot wound. The forensic pathologist stated that
the bullet entered Everbeck at a slightly downward angle and
exited through his back. According to the toxicology report,
at the time of his death, Everbeck had a vitreous humor
ethanol level of 0.174 and cannabinoids were also detected in
his system.
938 	278 NEBRASkA REPORTS

The authorities found numerous items in Everbeck’s pock-
ets, including Everbeck’s identification, approximately $15,
cigarettes, two prescription oxycodone pills, and approximately
11.8 grams of what appeared to be marijuana. There was also
a paycheck stub dated June 1, 2007, for $267.54. A witness
indicated that Everbeck cashed this check earlier that day. The
evidence was unclear, however, as to how much of that check
Everbeck spent prior to the shooting.
chargeS aND verDict
Tucker was charged with first degree murder, use of a deadly
weapon to commit a felony, and possession of a deadly weapon
by a felon. Tucker waived a jury trial. The parties stipulated
that he was a convicted felon. The State’s charge of first degree
murder was based on alternative theories of premeditation and
felony murder.
The court found Tucker guilty of the lesser-included offense
of manslaughter “by unintentionally causing the death of . . .
Everbeck while in the commission of an unlawful act.” The
court did not specify the unlawful act, although it also found
Tucker guilty of possession of a deadly weapon by a felon.
Finally, the court found Tucker guilty of use of a deadly
weapon to commit a felony. In so doing, the court explained
that the predicate felony to that offense was “assault — at least
in the first and/or second degree on . . . Everbeck and/or a ter-
roristic threat towards . . . Everbeck.”
NebraSka court of appealS
Tucker appealed his convictions to the Nebraska Court of
Appeals.1 Among other assignments of error no longer relevant,
Tucker argued there was insufficient evidence to convict him of
the charge of use of a weapon to commit a felony, especially
in light of the trial court’s finding that he did not intention-
ally kill Everbeck. Although the Court of Appeals recognized
that the predicate felony for use of a deadly weapon must be
intentional, it found the evidence sufficient to support the trial
court’s finding of the intentional act of terroristic threats. The
1 See State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009).
STATE v. TUCkER 	939
Cite as 278 Neb. 935

Court of Appeals did not address the trial court’s findings of
first or second degree assault. A partial dissent to the case
argued that there was insufficient evidence to prove any of
these predicate offenses. With regard to first or second degree
assault, the dissent argued, “The mere fact that the victim in
this case was killed does not allow an inference that Tucker
intended to inflict any bodily injury . . . .”2 As for terroristic
threats, the dissent argued that the majority’s opinion “results
in the inescapable conclusion that anytime somebody holds
a firearm in the presence of somebody else, there has been a
terroristic threat, and there is no authority for such an expan-
sive conclusion.”3
We granted Tucker’s petition for further review.
ASSIGNMENT OF ERROR
Tucker asserts that the Court of Appeals erred in affirming
the use of a deadly weapon to commit a felony conviction,
because there was insufficient evidence as a matter of law to
sustain this finding.
STANDARD OF REVIEW
[1] On a question of law, an appellate court reaches a con-
clusion independent of the court below.4
[2] 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.5
ANALYSIS
The only conviction being challenged by this petition for
further review is the use of a weapon to commit a felony. In his
2 Id. at 504, 764 N.W.2d at 152 (Irwin, Judge, concurring in part, and in part
dissenting).
3 Id. at 503, 764 N.W.2d at 152 (Irwin, Judge, concurring in part, and in part
dissenting).
4 State ex rel. Reed v. State, 278 Neb. 564, 773 N.W.2d 349 (2009).
5 State v. Canaday, 263 Neb. 566, 641 N.W.2d 13 (2002).
940 	278 NEBRASkA REPORTS

petition for further review, Tucker makes three basic arguments
under what he classifies as an insufficiency of the evidence
claim. First, Tucker argues there was insufficient evidence to
support the predicate offenses of first degree assault, second
degree assault, or terroristic threats. Second, Tucker argues that
such predicate offenses are inconsistent with the trial court’s
verdict that he unintentionally killed Everbeck. Third, Tucker
asserts that second degree murder and terroristic threats can-
not be used as the predicate offenses for the use of a weapon
charge, because those crimes can be committed recklessly and
the trial court did not specify under what theory he would
be guilty.
preDicate criMe MuSt be iNteNtioNal
[3] In State v. Ring,6 we explained that use of a weapon “‘to
commit any felony’” was synonymous with use of a weapon
“‘for the purpose of committing any felony.’” Thus, the felony
motor vehicle homicide presented in that case, which is by
definition committed unintentionally, could not form the basis
of a use of a weapon conviction. We explained that a person
cannot use a weapon “for the purpose of” unintentionally com-
mitting another crime.7
In State v. Pruett,8 we similarly reversed the defendant’s
use of a weapon conviction where the jury found the defend-
ant guilty of manslaughter by unintentionally causing anoth-
er’s death during a reckless assault. The defendant in Pruett
thought there was only a “dummy round” in the chamber, and
he was trying “‘to mess with’” his friend when he fired in his
direction.9 We explained that both manslaughter and reckless
assault are unintentional crimes and thus could not be used as
predicate offenses for the use of a weapon conviction.
Later, in State v. Thurman,10 we explained that while a
purely unintentional crime could not form the predicate offense
6 State v. Ring, 233 Neb. 720, 724, 447 N.W.2d 908, 911 (1989).
7 Id. at 725, 447 N.W.2d at 911.
8 State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
9 Id. at 102, 638 N.W.2d at 813.
10 State v. Thurman, 273 Neb. 518, 730 N.W.2d 805 (2007).
STATE v. TUCkER 	941
Cite as 278 Neb. 935

for a use of a weapon conviction, the predicate crime need not
be a specific intent crime. Instead, the predicate offense could
be a general intent crime. Thus, first degree sexual assault
could be the predicate crime for the use of a weapon convic-
tion. We noted it would be “‘absurd’” to say a weapon was
not used “‘for the purpose of’ subjecting another to sexual
penetration through the use of force, threat of force, coercion,
or deception.”11
These cases make clear that Tucker’s conviction of unin-
tentional manslaughter could not form the basis of the use of
a weapon conviction unless predicated on the commission of
an intentional unlawful act. Reckless assault and reckless ter-
roristic threats would be an insufficient basis for the use of a
weapon conviction. In contrast, intentional terroristic threats or
intentional assault could legally form the basis for an uninten-
tional manslaughter conviction and the predicate for a use of a
weapon charge.
failure to Specify iNteNt
[4,5] We find no merit to Tucker’s argument that his con-
viction must be reversed because the court failed to specify
whether the predicate crimes were committed intentionally
as opposed to recklessly. A trial judge is presumed in a jury-
waived criminal trial to be familiar with and apply the proper
rules of law, unless it clearly appears otherwise.12 In this
case, it is especially clear that the judge was aware that the
predicate offense must be intentional. The crime of first degree
assault can only be committed intentionally.13 And although
the crimes of second degree assault and terroristic threats
can be committed recklessly, we will assume that the judge,
being aware of the law, found Tucker had committed those
crimes intentionally.
iNcoNSiSteNt verDict
We find no inherent inconsistency between the trial court’s
rejection of the murder charges and its conclusion that Tucker
11 Id. at 524, 730 N.W.2d at 812.
12 State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003).
13 Neb. Rev. Stat. § 28-308 (Reissue 2008).
942 	278 NEBRASkA REPORTS

had committed intentional assault or intentional terroristic
threats. In so concluding, we bear in mind that any rule barring
an inconsistent judgment does not encompass cases where it is
“merely difficult to find a truly satisfying explanation for the
differing conclusions.”14 While it may at first appear the judge
concluded the same act was both intentional and unintentional,
a closer examination of the object of the mens rea for the dif-
ferent offenses reveals that the crimes do not involve the same
act and that the judge’s findings were reconcilable.
Both first15 and second16 degree murder are specific intent
crimes. Thus, by acquitting Tucker of first and second degree
murder, the trial court made the implicit finding that Tucker
lacked the specific intent to kill and that he also lacked the
specific intent to commit any of the listed felonies for felony
murder. By finding Tucker guilty of unintentional manslaugh-
ter, the court found that Tucker did not intend to kill Everbeck,
but that he did kill Everbeck during the intentional commission
of an unlawful act.17
The crime of terroristic threats requires the specific intent to
terrorize, not an intent to kill, and it is not one of the felonies
listed for felony murder. Assault is a general intent crime that
requires only the intent to commit the assault, and not the spe-
cific injury that results.18 Assault also is not a listed predicate
felony for felony murder. It was consistent for the court to con-
clude that Tucker intended to commit assault but did not intend
for Everbeck to die as a result of the assault. It was likewise
legally consistent for the court to conclude that Tucker intended
to terrorize Everbeck,19 but did not intend to kill him.
14 United States v. Wilson, 342 F.2d 43, 45 (2d Cir. 1965).
15 State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006); State v. Aldaco,
271 Neb. 160, 710 N.W.2d 101 (2006); State v. Dixon, 237 Neb. 630, 467
N.W.2d 397 (1991).
16 See, State v. Davlin, supra note 15; State v. Weaver, 267 Neb. 826, 677
N.W.2d 502 (2004); State v. Burlison, 255 Neb. 190, 583 N.W.2d 31
(1998); State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991).
17 See Neb. Rev. Stat. § 28-305 (Reissue 2008).
18 See, e.g., State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
19 See Neb. Rev. Stat. § 28-311.01 (Reissue 2008).
STATE v. TUCkER 	943
Cite as 278 Neb. 935

SufficieNcy of eviDeNce
The final question Tucker presents is whether the evidence
was sufficient for the trial court to conclude he had committed
these predicate crimes of assault and/or terroristic threats. A
reversal for insufficiency of the evidence should be treated no
differently than a trial court’s granting a judgment of acquittal
at the close of all the evidence. A trial court, in passing on such
a motion, considers all of the evidence it has admitted, and to
make the analogy complete, it must be this same quantum of
evidence which is considered by the reviewing court.20 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 rea-
sonable doubt.21
We do not express any opinion as to the crime of, nor the
sufficiency of the evidence of, terroristic threats, because we
determine that assault constitutes the predicate felony for the
use of a weapon charge. We find, instead, that the evidence was
sufficient to support intentional assault, the element of which
is intentionally or knowingly causes serious bodily injury to
another person. There was testimony at trial that the gun was
in working order, and Tucker admitted he shot Everbeck. While
Tucker testified that he did not know the gun was loaded and
that it “just went off,” Tucker’s credibility was a matter for the
trier of fact. Although the trial court concluded that Tucker did
not rob Everbeck and did not intend to kill him, the court was
not thereby obligated to accept Tucker’s explanation that the
shooting was accidental. Viewed in a light most favorable to
the State, the facts that the gun was operational, was loaded,
and was used to shoot Everbeck are enough to infer that Tucker
pulled the trigger intentionally—even if he harbored such intent
only briefly. Thus, the evidence was sufficient to establish that
Tucker intended to commit an assault.
20 State v. Palmer, 257 Neb. 702, 600 N.W.2d 756 (1999).
21 State v. Canaday, supra note 5.
944 	278 NEBRASkA REPORTS

CONCLUSION
We find that based on the predicate offense of intentional
assault, the evidence was sufficient to support the trial court’s
judgment that Tucker was guilty of use of a weapon to com-
mit a felony. There being no further issues raised by Tucker
in his petition for further review, we affirm the judgment of
the Court of Appeals, which affirmed the judgment of the
trial court.
affirMeD.
STATE v. GOODWIN 	945
Cite as 278 Neb. 945
State of NebraSka , appellee , v.
JorDaN M. gooDwiN, appellaNt.
774 N.W.2d 733
Filed November 20, 2009. 	No. S-08-1159.
1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and Error. A
trial court’s denial of a motion to transfer a pending criminal proceeding to the
juvenile court is reviewed for an abuse of discretion.
2. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Words and Phrases.
The district court and the separate juvenile court have concurrent jurisdiction over
felony prosecutions of a juvenile, defined as a person who is under the age of 18
at the time of the alleged criminal act.
3. Courts: Juvenile Courts: Jurisdiction. In determining whether a case should
be transferred to juvenile court, a court should consider those factors set forth in
Neb. Rev. Stat. § 43-276 (Reissue 2004). In order to retain the proceedings, the
court does not need to resolve every factor against the juvenile; moreover, there
are no weighted factors and no prescribed method by which more or less weight
is assigned to each specific factor. It is a balancing test by which public protec-
tion and societal security are weighed against the practical and nonproblematical
rehabilitation of the juvenile.
4. Courts: Juvenile Courts: Jurisdiction: Evidence. When a court’s basis for
retaining jurisdiction over a juvenile is supported by appropriate evidence, it can-
not be said that the court abused its discretion in refusing to transfer the case to
the juvenile court.
5. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a confession based on the
claimed involuntariness of the statement, including claims that it was procured in
violation of the safeguards established by the U.S. Supreme Court in Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court
applies a two-part standard of review. With regard to historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those facts suffice