State v. Lessley, 919 N.W.2d 884

In Oct. 2016, intruder(s) entered Curtis Goodwin and Suzanne Pope’s home; Pope was shot and killed, Goodwin was seriously injured. ShotSpotter and neighbors corroborated two shots about 4:30–4:31 a.m. and a dark Suburban/Tahoe leaving the scene.
Goodwin testified an unknown male pointed a gun, demanded property, took a laptop, and shot both victims during a struggle; Goodwin struck at the intruder with a bat.
Three projectiles recovered were fired from the same firearm. No gun was recovered. A laptop with a Nike Shox-type shoeprint was found in the yard; Lessley later was found wearing Nike Shox.
DNA from blood on the driveway and bat matched Lessley with very high statistical probability. GPS records placed a Suburban Lessley had purchased near the residence shortly before the shooting; Lessley’s vehicle matched witnesses’ description.
Lessley was charged with first degree murder (premeditation theory dropped; trial proceeded on felony-murder predicated on robbery/attempted robbery), first degree assault, possession of a deadly weapon by a prohibited person, and two counts of use of a weapon to commit a felony. Jury convicted on all counts; sentences imposed and later partly modified by the trial court.

Issue	Lessley’s Argument	State’s Argument	Held
Sufficiency of evidence for convictions	Evidence was inconsistent and circumstantial; DNA/GPS not conclusive; reasonable doubt exists	Evidence (eyewitness, DNA, shoeprint, vehicle/GPS) sufficed to prove robbery, felony murder, and assault beyond a reasonable doubt	Affirmed: viewed in light most favorable to prosecution, evidence was sufficient to support convictions
Duty to instruct manslaughter as lesser-included	Court should have instructed on manslaughter (sudden quarrel heat-of-passion) given evidence of struggle/disarray	Manslaughter is not a lesser-included of felony murder; and record lacks provocation/heat-of-passion evidence to support instruction	No error: when charge is solely felony murder, lesser homicide instructions are not required; alternatively, insufficient evidence to warrant manslaughter instruction
Sentencing modification / plain error (weapon-possession and use convictions; assault)	Trial court attempted to add +1 day to several fixed-term sentences after pronouncement; challenge to validity/modification	State conceded assault original sentence invalid but argued use/possession original fixed terms were valid under statute	Sentences affirmed for felony murder and assault (modified validly to 20–20 +1 day for assault). Sentences for weapon-use (5–5) and possession (3–3) vacated and remanded for resentencing to conform to the court’s initially pronounced terms (5–5 and 3–3 were valid)

State v. McCurdy, 918 N.W.2d 292 (Neb.) (standard for sufficiency review)
State v. Wells, 300 Neb. 296 (Neb.) (instructional and review standards)
State v. Smith, 284 Neb. 636 (Neb.) (manslaughter/sudden quarrel instruction analysis)
State v. Schnabel, 260 Neb. 618 (Neb.) (limits on modifying pronounced sentences)
State v. Vanness, 300 Neb. 159 (Neb.) (sentencing authority under Neb. Rev. Stat. § 29-2204)
State v. McDonald, 195 Neb. 625 (Neb.) (felony murder intent discussion)