State v. Esch
| Docket Number | S-22-855 |
| Decision Date | 01 December 2023 |
| Parties | State of Nebraska, Appellee, v. Trenton R. Esch, Appellant. |
| Court | Nebraska Supreme Court |
1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.
2. __ __. All the jury instructions must be read together, and if taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
3. __ __. Failure to object to a jury instruction after it has been sub mitted to counsel for review precludes raising an objection on appeal absent plain error indicative of a probable miscarriage of justice.
4. Effectiveness of Counsel: Appeal and Error. An appellate court resolves claims of ineffective assistance of counsel on direct appeal only where the record is sufficient to conclusively determine whether trial counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance as matters of law.
5. __ __. An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.
6. Effectiveness of Counsel: Proof: Appeal and Error. When reviewing an ineffective assistance of counsel claim on direct appeal, the question is whether the record affirmatively shows that the defendant's trial counsel's performance was deficient and that the deficient performance actually prejudiced the defendant's defense.
7. Effectiveness of Counsel: Proof. A court may examine performance and prejudice in any order and need not examine both prongs if a defendant fails to demonstrate either.
8. Criminal Law: Jury Instructions. When there is an applicable instruction in the Nebraska Jury Instructions, the court should usually give that instruction to the jury in a criminal case.
9. Constitutional Law: Jury Instructions: Proof. So long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the U.S. Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury.
10. Jury Instructions: Presumptions. It is presumed that a jury followed the instructions given in arriving at its verdict, and unless it affirmatively appears to the contrary, it cannot be said that such instructions were disregarded.
11. Criminal Law: Intoxication: Proof. Neb. Rev. Stat. § 29-122 (Reissue 2016) redefined the mental state elements of all subjective criminal offenses in Nebraska to provide for an objective inquiry: whether the State proved circumstances surrounding the offense that would otherwise establish the requisite mental state "but for" the defendant's voluntary intoxication.
12. Criminal Law: Rules of Evidence: Other Acts. In a criminal case, Neb. Rev. Stat. § 27-404(1) (Cum. Supp. 2022) operates as a broad exclusionary rule of relevant evidence that speaks to a criminal defendant's propensity to have committed the crime or crimes charged.
13. Rules of Evidence: Other Acts. Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2022) operates as an inclusionary rule of evidence that provides that evidence that raises a propensity inference is admissible for other proper purposes, including proof of motive, intent, preparation, or absence of mistake or accident.
14. Criminal Law: Rules of Evidence: Other Acts: Trial: Proof. While evidence is not an "other act" under Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2022) when it only tends to logically prove an element of the crime charged, proof of another distinct substantive act is admissible in a criminal prosecution when there is some legal connection between the two upon which it can be said that one tends to establish the other or some essential fact in issue.
15. Rules of Evidence: Records. Under Neb. Rev. Stat. § 27-404(3) (Cum. Supp. 2022), a proponent of evidence offered pursuant to § 27-404(2), upon objection to its admissibility, is required to state on the record the specific purpose or purposes for which the evidence is being offered, and the trial court must similarly state, on the record, the purpose or purposes for which such evidence is received.
16. Criminal Law: Rules of Evidence: Other Acts: Proof: Jury Instructions. Neb. Rev. Stat. § 27-404(3) (Cum. Supp. 2022) provides that in criminal cases, before the admission of evidence under § 27-404(2), the prosecution must prove to the court, outside the presence of any jury, by clear and convincing evidence that the accused committed the crime, wrong, or act. When admissible, upon a party's request, the trial court must instruct the jury as to the specific purposes for which the evidence was received.
17. Homicide: Words and Phrases. For a killing to occur upon a sudden quarrel, the defendant must have actually lost self-control and in conditions that would cause a reasonable person to lose normal self-control.
18. Motions for Mistrial: Motions to Strike: Appeal and Error. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material.
Appeal from the District Court for Custer County: Karin L. Noakes, Judge.
Mark E. Rappl, of Naylor &Rappl Law Office, for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.
Trenton R. Esch appeals from his convictions and sentences after a trial by jury for first degree murder,[1] use of a deadly weapon to commit a felony,[2] and possession of a deadly weapon by a prohibited person.[3] Esch received a life sentence for his conviction of first degree murder and consecutive sentences of 45 to 50 years' imprisonment for his use and possession of a deadly weapon.[4] Because of the life sentence imposed by the district court, this appeal was directly filed with this court.[5]
Esch's charges arose from the death of Esch's stepmother after Esch discharged a firearm at her on July 11, 2020. Esch was 44 years old.
It was undisputed at trial that Esch's stepmother was shot multiple times when Esch emptied the magazine of a .22-caliber target pistol at her. The sole issue at trial was the grade of homicide Esch committed: whether Esch shot his stepmother purposely and with deliberate and premeditated malice (first degree murder)[6]; intentionally, but without premeditation (second degree murder)[7]; or without malice upon a sudden quarrel (manslaughter).[8] We recount the evidence presented to the jury of events particularly relevant to this issue.
Shortly after Esch was born, his parents divorced, which the record suggests was related to his father's alcoholism. His father later remarried and became sober. Esch's father lived and farmed in Broken Bow, Nebraska. As a child, Esch spent every other weekend with his father and his paternal grandparents on his grandparents' neighboring farm. His relationship with his stepmother was strained, and Esch felt that she did not like him and bullied him and his father.
After Esch graduated from high school, he forewent attending college and assisted his aging grandfather in running his grandparents' farm for a decade until his grandfather died in 2004. Esch then took over the farming operation and cared for his grandmother. Esch's grandmother, his father, and Esch discussed the farm's future on a couple of occasions. After these discussions, Esch's grandmother deeded the farm to Esch's father, and there was at least some consideration that Esch would later inherit the farm. Esch's stepmother was present for one of those discussions.
In 2007, Esch's grandmother broke her hip and was moved into a nursing home. Esch moved into his grandparents' house and continued running the farming operation. Shortly thereafter, Esch's father deeded some of the farmland to him. His grandmother passed away in 2011.
In 2012, Esch was convicted of felony criminal mischief[9]and sentenced to 20 to 36 months' incarceration.[10] While Esch was incarcerated, his father committed suicide, for which Esch blamed his stepmother's bullying. After his father's death, Esch learned that his father had disinherited him in a 2010 will, and his stepmother became the owner of his grandparents' house and farm. Esch believed his stepmother bullied his father into removing Esch from the will.
Esch completed his sentence in 2015 and resumed farming the land his father deeded him. But Esch's stepmother did not let him return to his grandparents' home and deeded some of the property to Esch's half sisters. Thereafter, Esch filed a civil suit alleging that his grandmother established a constructive trust and that Esch's father held the property for his benefit. That suit was ultimately unsuccessful.
While the civil suit was pending, Esch's stepmother and half sisters sought harassment protection orders, alleging that Esch was harassing them with phone calls and text messages. The harassment protection orders were granted, and Esch was ordered to have no contact with them.
Esch later violated the harassment protection orders when he texted one of his half sisters, "hope your husband shows up at the fair this year to help with the calves," because at the fair the year before the son's calf "drug him all over the fairgrounds," as well as when Esch later called his stepmother...
To continue reading
Request your trial