State v. Mann
302 Neb. 804
| Neb. | 2019Background
- On Feb. 26, 2017, Gary L. Mann took a .40 caliber pistol belonging to his half-brother James Barnes; police later found the gun in Mann’s car and charged him under Neb. Rev. Stat. § 28-1212.03 for possession of a stolen firearm.
- Mann testified he believed he had prior permission to use the gun, intended to commit suicide, and expected the State would return the firearm to Barnes (i.e., he possessed it with intent to restore it to the owner).
- At trial, Mann requested an instruction stating that possession "with the intent to restore it to the owner" is a defense; the district court refused and instead instructed the jury without mentioning the "intent to restore" clause.
- The jury convicted Mann; he appealed, arguing the omission of the intent-to-restore language from the elements instruction was error and raised due process concerns.
- The Nebraska Supreme Court requested supplemental briefing on whether the intent-to-restore clause is a material element of § 28-1212.03 and whether failing to instruct was plain error.
- The court held the absence of intent to restore is a material element of the offense, the trial court plainly erred by omitting it, and the error was not harmless; it reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Mann) | Held |
|---|---|---|---|
| Whether the "intent to restore" clause in § 28-1212.03 is an element of the offense or an affirmative defense | The clause could be an affirmative defense; alternatively, if an element, the instructions as a whole were sufficient and omission was harmless | The clause is a material element; failure to instruct shifted burden and was prejudicial | The clause is a material element (an absence-of-intent element); omission was plain error |
| Whether the given instructions (elements + definition of "stolen") adequately conveyed the intent-to-restore element | The word "deprive" in the definition of "stolen" and the instructions read together sufficiently covered the element | The instructions failed to inform the jury that absence of intent to restore was an element | The instructions did not adequately cover the element; omission required reversal |
| Whether the omission was harmless error beyond a reasonable doubt | The State argued the evidence would not support an intent-to-restore finding, so error was harmless | Mann argued he presented evidence of intent to restore and the jury could have relied on that if instructed | Error was not harmless; cannot say verdict was surely untainted by the omission |
| Whether refusal to define "deprive" under § 28-509(1) or to adopt Mann’s proposed statutory wording for "stolen" was reversible error | State argued instruction as given was adequate | Mann argued broader statutory definitions should have been given | Court found no reversible error in these respects; refusal to add statutory wording or § 28-509(1) definition was not prejudicial |
Key Cases Cited
- State v. Hubbard, 267 Neb. 316 (Neb. 2004) (construed identical statutory clause and treated intent-to-restore language as material)
- In re Winship, 397 U.S. 358 (U.S. 1970) (Due Process requires proof beyond a reasonable doubt of every element of an offense)
- Mullaney v. Wilbur, 421 U.S. 684 (U.S. 1975) (burden shifting to defendant on element of intent violates due process)
- Mathis v. United States, 136 S. Ct. 2243 (U.S. 2016) (statutory elements control categorical inquiry into crime elements)
- State v. White, 249 Neb. 381 (Neb. 1996) (where jury is not instructed on a material element, there is no verdict for constitutional purposes)