State v. Mann, 925 N.W.2d 324

Background

On Feb. 26, 2017, Gary L. Mann took a .40 caliber pistol belonging to his half-brother James Barnes; he later texted Barnes admitting he took the pistol and expressing suicidal thoughts.
Police located Mann, obtained a warrant, found the firearm in his car, and Mann was charged with possession of a stolen firearm under Neb. Rev. Stat. § 28-1212.03.
At trial Mann testified he believed he had prior permission to use the gun and said he intended to commit suicide and expected the State would return the gun to Barnes (i.e., he claimed intent to restore).
The district court instructed the jury on elements of possession of a stolen firearm but did not instruct that lack of intent to restore to the owner was an element; the jury convicted Mann and he was sentenced to 2–6 years.
On appeal the parties and this court focused on whether the statutory phrase "unless the firearm is possessed, received, retained, or disposed of with intent to restore it to the owner" (the "intent to restore" clause) is an element of the offense and whether omission of that element from the jury instructions was plain and prejudicial error.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mann)	Held
Whether the "intent to restore" clause in § 28-1212.03 is an element or an affirmative defense	The State initially argued it was an element (and in supplemental briefing alternatively suggested it might be an affirmative defense but maintained it should be treated as an element)	Mann argued the clause is a material element and the jury should have been instructed on it	Held: The absence of intent to restore is a material element of the offense under § 28-1212.03; it is not an affirmative defense.
Whether omission of the intent-to-restore element from the jury instructions was harmless error	The State argued the instructions taken as a whole covered the element and, alternatively, that any omission was harmless because the evidence could not support an intent-to-restore finding	Mann argued the omission shifted the burden and deprived him of due process because he presented evidence supporting intent to restore	Held: The omission was plain error and not harmless; reversal and new trial required because the jury never made a required factual finding.
Whether the trial court erred by failing to define "deprive" for the jury	The State implied the instruction language was sufficient and that § 28-509(1) definition was not required here	Mann argued the jury should have been instructed with the § 28-509(1) definition to avoid an overly broad understanding of "deprive"	Held: No error in failing to give § 28-509(1) definition; that statute applies to a different provisions range and § 28-1212.03 does not use the term directly.
Whether the court erred in refusing Mann’s proposed definition of "stolen" mirroring statutory theft language	The State argued the court’s given definition covered the substance	Mann argued the court should have used the statutory theft phrasing	Held: No prejudicial error; the court’s definition sufficiently covered the substance and Mann did not show prejudice.

Key Cases Cited

State v. Hinrichsen, 292 Neb. 611 (general principles on jury instructions and statutory elements)
State v. Thompson, 301 Neb. 472 (statutory interpretation and elements analysis)
State v. Mueller, 301 Neb. 778 (instruction and appellate-review principles)
State v. Wal, 302 Neb. 308 (related statutory interpretation guidance)
State v. Tucker, 257 Neb. 496 (duty to instruct on material elements)
State v. Rask, 294 Neb. 612 (consideration of penal statutes in context)
State v. Edwards, 286 Neb. 404 (criminal statutory construction principles)
State v. Gozzola, 273 Neb. 309 (give effect to all parts of penal statute)
State v. Merchant, 288 Neb. 440 (harmless error review for omitted elements)
State v. Hubbard, 267 Neb. 316 (treatment of similar intent-to-restore language in related statute)
State v. Minor, 188 Neb. 23 (historical quotation on negatives and burdens discussed and rejected for shifting burden)
State v. White, 249 Neb. 381 (absence of instruction on material element means no verdict for constitutional purposes)