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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. GONZALEZ

Cite as 313 Neb. 520

State of Nebraska, appellee, v. 

Jake J. Gonzalez, appellant.

___ N.W.2d ___

Filed February 17, 2023. No. S-22-053.

1. Lesser-Included Offenses. Whether a crime is a lesser-included offense 

is determined by a statutory elements approach and is a question of law.

2. Jury Instructions. Whether jury instructions given by a trial court are 

correct is a question of law.

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusions.

4. Venue: Appeal and Error. A motion for change of venue is addressed 

to the discretion of the trial judge, whose ruling will not be disturbed 

absent an abuse of discretion.

5. ____: ____. A trial court abuses its discretion in denying a motion to 

change venue when a defendant establishes that local conditions and 

pretrial publicity make it impossible to secure a fair and impartial jury.

6. Venue: Proof. A motion to change venue due to pretrial publicity should 

be granted only when the moving party demonstrates that it is impossible to secure a fair and impartial jury in the county where the offense 

was committed.

7. Criminal Law: Due Process. Mere exposure to news accounts of 

a crime does not presumptively deprive a criminal defendant of due 

process.

8. Venue: Due Process: Proof. To warrant a change of venue due to 

pretrial publicity, a defendant must show pervasive misleading pretrial 

publicity that makes it impossible to secure a fair trial and impartial jury.

9. Venue: Proof. In determining whether a defendant has shown pervasive 

misleading pretrial publicity, a court generally evaluates a number of 

factors, including (1) the nature of the publicity, (2) the degree to which 

the publicity has circulated throughout the community, (3) the degree to 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/17/2023 09:05 AM CST
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Cite as 313 Neb. 520

which the publicity circulated in areas to which venue could be changed, 

(4) the length of time between the dissemination of the publicity complained of and the date of the trial, (5) the care exercised and ease 

encountered in the selection of the jury, (6) the number of challenges 

exercised during voir dire, (7) the severity of the offenses charged, and 

(8) the size of the area from which the venire was drawn.

10. ____: ____. Where voir dire examination shows that despite pretrial 

publicity a fair and impartial jury can be selected, a defendant seeking 

to change venue has failed to meet his or her burden to show that a fair 

and impartial jury is impossible.

11. Juror Qualifications. The law does not require that a juror be totally 

ignorant of the facts and issues involved; it is sufficient if the juror can 

lay aside his or her impressions or opinions and render a verdict based 

upon the evidence presented in court.

12. Venue: Juror Qualifications: Proof. Voir dire examination provides the 

best opportunity to determine whether the moving party has met his or 

her burden and venue should be changed.

13. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

14. Lesser-Included Offenses. A lesser-included offense is a device that 

permits a jury to acquit a defendant of a charged offense and instead to 

convict of a less serious crime that is necessarily committed during the 

commission of the charged offense.

15. Lesser-Included Offfenses: Jury Instructions. Lesser-included offense 

instructions benefit the defendant because they give the jury a less drastic alternative than the choice between conviction of the offense charged 

and acquittal.

16. Due Process: Lesser-Included Offenses: Jury Instructions. It violates 

due process to refuse to instruct the jury on a lesser-included offense 

where such refusal enhances the risk of unwarranted conviction.

17. Lesser-Included Offenses: Jury Instructions: Evidence. Lesserincluded offense instructions are required in all criminal cases if (1) the 

elements of the lesser offense for which an instruction is requested are 

such that one cannot commit the greater offense without simultaneously 

committing the lesser offense and (2) the evidence produces a rational 

basis for acquitting the defendant of the greater offense and convicting 

the defendant of the lesser offense.
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Cite as 313 Neb. 520

18. Homicide: Lesser-Included Offenses: Minors. Involuntary manslaughter is a lesser-included offense of child abuse resulting in death.

19. ____: ____: ____. It would be impossible to commit child abuse resulting in death without committing involuntary manslaughter.

20. ____: ____: ____. The offense of negligent child abuse may constitute 

the commission of an unlawful act as the predicate offense for involuntary manslaughter.

21. ____: ____: ____. Where a person commits child abuse, either intentionally or negligently, and that abuse results in the death of the child, 

the person has necessarily committed involuntary manslaughter.

22. ____: ____: ____. Negligent child abuse resulting in death is a lesserincluded offense of intentional child abuse resulting in death.

23. ____: ____: ____. The only difference in the elements of intentional 

and negligent child abuse resulting in death is the state of mind of the 

defendant in committing the child abuse.

24. ____: ____: ____. A person cannot intentionally abuse a child without 

also acting negligently in failing to exercise due care toward that child. 

This applies equally when the child abuse results in death.

25. ____: ____: ____. Where a person’s intentional child abuse results in the 

death of a child, that person has necessarily committed negligent child 

abuse resulting in death.

26. ____: ____: ____. Involuntary manslaughter is only a lesser-included 

offense of intentional child abuse resulting in death when negligent child 

abuse is the predicate crime.

27. ____: ____: ____. When negligent child abuse is the predicate crime, 

involuntary manslaughter presents the jury with essentially the same 

questions of fact as negligent child abuse resulting in death.

28. Convictions: Homicide: Lesser-Included Offenses: Minors: Proof: 

Words and Phrases. To obtain a conviction on negligent child abuse 

resulting in death, the State must prove that the defendant negligently 

abused a child as defined by Neb. Rev. Stat. § 28-707(1) (Cum. Supp. 

2022) and that such abuse resulted in the child’s death.

29. ____: ____: ____: ____: ____: ____. To obtain a conviction on involuntary manslaughter as a lesser-included offense of intentional child abuse 

resulting in death, the State must prove that the defendant unintentionally caused a child’s death while in the commission of negligent child 

abuse as defined by Neb. Rev. Stat. § 28-707(1) (Cum. Supp. 2022).

30. Convictions: Homicide: Lesser-Included Offenses: Minors. Both 

involuntary manslaughter and negligent child abuse resulting in death 

provide the jury with the opportunity to convict of a less serious crime 

than intentional child abuse resulting in death if it finds the defendant’s 

abusive actions caused a child’s death but were unintentional.
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STATE V. GONZALEZ

Cite as 313 Neb. 520

31. Lesser-Included Offenses: Jury Instructions: Appeal and Error.

Error in failing to instruct the jury on a lesser-included offense is harmless when the jury necessarily decides the factual questions posed by 

the omitted instructions adversely to the defendant under other properly 

given instructions.

Appeal from the District Court for Jefferson County: Vicky 

L. Johnson, Judge. Affirmed.

Kelly S. Breen, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, Siobhan E. Duffy, 

and Erin E. Tangeman for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

The defendant was convicted by a jury of intentional child 

abuse resulting in death and making terroristic threats, for 

which the district court sentenced him to 70 to 80 years’ 

imprisonment and 3 to 3 years’ imprisonment, respectively, to 

be served concurrently. The jury had been instructed on the 

lesser-included offense of negligent child abuse resulting in 

death, but not on involuntary manslaughter as he had requested. 

On direct appeal, the defendant argues that the district court’s 

failure to instruct the jury on a lesser-included offense of manslaughter constituted structural error and deprived him of due 

process. He also argues that he could not have had a fair and 

impartial trial in the county where he was tried because many 

of the prospective jurors admitted to bias and preconceived 

opinions about the case. We affirm.

BACKGROUND

In 2020, B.S. was the single mother of two children, M.W. 

and H.S. B.S. lived with H.S., who was born in 2018. M.W. 

lived with her father during the week and stayed with B.S. 
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Cite as 313 Neb. 520

on weekends. In August 2020, B.S. began a casual sexual 

relationship with Jake J. Gonzalez. In October, B.S. discovered she was pregnant with Gonzalez’ child. In January 2021, 

Gonzalez began living with B.S. and H.S. at her apartment in 

Jefferson County.

B.S. testified that Gonzalez was controlling and physically 

abusive. B.S. developed a safety plan with a friend where she 

would say “sushi” and the friend would contact law enforcement. She had a similar plan with a worker at a child welfare 

nonprofit organization, where she would say she “was having a 

fantastic day or everything was going fantastic” and the worker 

would get help. B.S. testified that Gonzalez was often irritated 

with H.S.’ crying, would yell at him, and on occasion pushed 

and threatened him.

On February 26, 2021, while Gonzalez was at work, B.S. 

and a friend went to the sheriff’s office to seek help getting 

B.S. out of her relationship with Gonzalez. After Gonzalez 

got home from work, he, B.S. and M.W. picked up H.S. from 

daycare. B.S. took Gonzalez and H.S. to the apartment because 

Gonzalez offered to change H.S.’ diaper and look after him 

while B.S. and M.W. went to buy groceries.

B.S. testified that when they returned, she found H.S. lying 

in bed, undressed down to his diaper and with visible bruising. 

B.S. tried to move toward H.S., but Gonzalez grabbed her arm 

and told her not to touch H.S. Gonzalez picked up H.S. by the 

arm and tried to stand him up, but H.S. could not stand on 

his own. Gonzalez told B.S. to calm down or else “the same 

thing would happen to [M.W.]” When B.S. attempted to move 

toward H.S. again, Gonzalez pushed her back and then dragged 

H.S. into the bedroom closet and slammed him against the 

closet wall.

B.S. suggested that she go get a pizza she had left in the 

car, hoping to seek help outside, but Gonzalez insisted on 

going with her. While they were briefly separated outside the 

apartment, B.S. was able to call her mother and tell her to give 

the safety word to her friend with whom she had established 
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Cite as 313 Neb. 520

the safety plan. When they returned to the apartment, B.S. tried 

to check on H.S. in the bedroom closet, but Gonzalez told her 

to leave him alone. B.S. then convinced Gonzalez to allow her 

to make her regular call to the worker at the nonprofit organization, and she used her safety word.

The sheriff’s office received a call for dispatch to the 

apartment. A deputy sheriff was one of the first responders. 

He called an ambulance and followed B.S. to the bedroom 

closet where he observed H.S. to be “very distressed,” pale, 

minimally responsive, and unable to pick himself off the floor, 

as well as with bruising all over his body. The doctor who 

attempted to treat H.S. at the hospital testified that H.S.’ liver 

was “basically split almost in half,” his blood was not circulating, and it was too late for surgery because he was “brain 

dead.” An autopsy determined that the cause of H.S.’ death 

was from lethal damage to the liver from blunt force trauma 

to the abdomen.

Gonzalez was charged in Jefferson County with child abuse 1

and making terroristic threats. 2 Before a final jury panel had 

been selected for trial, Gonzalez moved to change venue. 

He argued that a fair and impartial trial could not be had in 

Jefferson County because 25 prospective jurors had admitted 

bias or preformed opinions because of pretrial publicity. The 

State had acknowledged that there had been a “whirlwind of 

media and gossip.” However, the State responded that the prospective jurors who admitted bias had been struck and argued 

there were enough remaining jurors who said they could be 

fair and impartial. The district court agreed with the State and 

denied the motion because the jury selection process had not 

finished and there were 40 prospective jurors at that point who 

said they could be fair and impartial.

The case proceeded to trial. After the close of evidence, 

the State submitted proposed jury instructions that included 

1 See Neb. Rev. Stat. § 28-707 (Cum. Supp. 2022).

2 See Neb. Rev. Stat. § 28-311.01 (Reissue 2016).
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Cite as 313 Neb. 520

an instruction on negligent child abuse resulting in death as a 

lesser-included offense of intentional child abuse resulting in 

death. Gonzalez objected to the State’s proposed instructions, 

requesting that the court also instruct the jury on manslaughter as a lesser-included offense. The State argued that the jury 

instructions were correct because negligent child abuse resulting in death carries the same penalty as manslaughter and was 

the “more appropriate” charge. The district court overruled the 

objection and gave the jury a step instruction on intentional 

and negligent child abuse resulting in death.

ASSIGNMENTS OF ERROR

On appeal, Gonzalez assigns that the district court erred 

by (1) failing to instruct the jury on manslaughter as a lesserincluded offense and (2) denying his motion to change venue.

STANDARD OF REVIEW

[1] Whether a crime is a lesser-included offense is determined by a statutory elements approach and is a question 

of law. 3

[2] Whether jury instructions given by a trial court are correct is a question of law. 4

[3] When reviewing questions of law, we resolve the questions independently of the lower court’s conclusions. 5

[4] A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed 

absent an abuse of discretion. 6

[5] A trial court abuses its discretion in denying a motion to 

change venue when a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair 

and impartial jury. 7

3 State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).

4 Id.

5 Id.

6 State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).

7 Id.
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ANALYSIS

Gonzalez argues that due to pretrial publicity, the district 

court should have granted his motion to change venue. He 

also argues that the district court was required to instruct the 

jury on manslaughter as a lesser-included offense of child 

abuse resulting in death. We hold that the district court did 

not abuse its discretion by denying Gonzalez’ motion to 

change venue because Gonzalez failed to demonstrate pervasive misleading publicity and the jurors that were ultimately 

chosen said they could be fair and impartial. We also hold 

that assuming the district court was required to instruct on 

manslaughter, its failure to do so was ultimately harmless 

error because the jury was given the opportunity to determine 

whether Gonzalez’ actions were intentional and found that 

they were.

Venue

[6] The district court did not abuse its discretion in denying 

Gonzalez’ motion to change venue because he failed to show 

pervasive misleading publicity and there were enough jurors 

who said they could consider the evidence fairly and impartially. Under Nebraska law, all criminal cases “shall be tried 

in the county where the offense was committed,” but if “it 

shall appear to the court by affidavits that a fair and impartial 

trial cannot be had therein,” then the court “shall transfer the 

proceeding to any other district or county in the state as determined by the court.” 8 A motion to change venue due to pretrial publicity should be granted only when the moving party 

demonstrates that it is impossible to secure a fair and impartial 

jury in the county where the offense was committed. 9 Such a 

motion is addressed to the discretion of the trial judge, whose 

ruling will not be disturbed absent an abuse thereof. 10

8 Neb. Rev. Stat. § 29-1301 (Cum. Supp. 2022).

9 See State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 (1999).

10 Id.
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[7-9] Mere exposure to news accounts of a crime does not 

presumptively deprive a criminal defendant of due process. 11

Rather, to warrant a change of venue, a defendant must show 

pervasive misleading pretrial publicity that makes it impossible to secure a fair trial and impartial jury. 12 In determining 

whether a defendant has met this burden, we generally evaluate 

a number of factors, including (1) the nature of the publicity, 

(2) the degree to which the publicity has circulated throughout 

the community, (3) the degree to which the publicity circulated 

in areas to which venue could be changed, (4) the length of 

time between the dissemination of the publicity complained 

of and the date of the trial, (5) the care exercised and ease 

encountered in the selection of the jury, (6) the number of 

challenges exercised during voir dire, (7) the severity of the 

offenses charged, and (8) the size of the area from which the 

venire was drawn. 13

[10-12] Further, where voir dire examination shows that 

despite pretrial publicity a fair and impartial jury can be 

selected, a defendant has failed to meet his or her burden to 

show that a fair and impartial jury is impossible. 14 The law 

does not require that a juror be totally ignorant of the facts 

and issues involved; it is sufficient if the juror can lay aside 

his or her impressions or opinions and render a verdict based 

upon the evidence presented in court. 15 And voir dire examination provides the best opportunity to determine whether the 

moving party has met his or her burden and venue should 

be changed. 16

11 Id.

12 Id.

13 Id.

14 See State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990). See, also, 

State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).

15 Bradley, supra note 14.

16 See Erickson, supra note 14.
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Accordingly, we held in State v. Strohl 17 that the defendant 

did not meet his burden to change venue despite significant 

pretrial publicity and knowledge about the case among the 

potential jurors. 18 The record showed that 19 of the 29 potential jurors had heard or read something regarding the case. The 

defendant moved to strike 10 of those potential jurors, and the 

trial court granted only 3 of those motions. 19 In upholding the 

trial court’s denial of the other seven motions to strike, we 

noted that each juror either had formed no opinion regarding 

the defendant’s guilt or innocence or could set aside any opinions and decide the case based on evidence. 20 We then upheld 

the trial court’s denial of the defendant’s motion to change 

venue because the jurors said that they could put aside their 

knowledge and follow the court’s instructions, and the news 

articles offered by the defendant could not show pervasive 

misleading pretrial publicity because they were purely factual 

in nature. 21

Likewise here, the district court did not abuse its discretion in denying Gonzalez’ motion to change venue. Gonzalez 

offered no evidence of news articles or other media publications concerning the case. He offered no evidence on the 

nature, circulation, or publication date of any pretrial publicity. Instead, he points to the 25 potential jurors who were 

struck and the State’s comment on the “whirlwind of media 

and gossip.” However, assuming there was a “whirlwind 

of media and gossip,” without affidavits or other evidence, 

Gonzalez failed to meet his burden to establish that the 

pretrial publicity was pervasive and misleading rather than 

purely factual. Most importantly, at the end of the voir dire 

17 See Strohl, supra note 9.

18 Id.

19 Id.

20 Id.

21 Id.
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selection process, a jury was selected of those potential jurors 

who said they could be fair and impartial. For these reasons, 

Gonzalez failed to show that it was impossible to secure a fair 

and impartial jury in Jefferson County and the district court 

did not abuse its discretion in denying Gonzalez’ motion to 

change venue.

Lesser-Included Offense

Gonzalez next argues that the district court erred by refusing 

to instruct the jury on involuntary manslaughter as a lesserincluded offense of intentional child abuse resulting in death. 

Although we have said that involuntary manslaughter is a 

lesser-included offense of intentional child abuse resulting in 

death, 22 in Gonzalez’ trial, the jury was instructed on negligent child abuse resulting in death. Under the circumstances 

presented, we question whether Gonzalez’ due process right 

was violated by failing to instruct the jury on involuntary 

manslaughter. In any event, because the jury was given the 

choice between convicting Gonzalez of intentional child abuse 

resulting in death and the less serious offense of negligent 

child abuse resulting in death, we hold that any alleged error 

in refusing to give an involuntary manslaughter instruction 

was harmless.

[13] To establish reversible error from a court’s refusal to 

give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

refusal to give the tendered instruction. 23 Whether a crime is a 

lesser-included offense is determined by a statutory elements 

approach and is a question of law. 24 Whether jury instructions given by a trial court are correct is also a question of 

22 See Sinica, supra note 3.

23 Id.

24 Id.
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law. 25 When reviewing questions of law, we resolve the questions independently of the lower court’s conclusions. 26

[14-16] A lesser-included offense is a “‘device that permits 

a jury to acquit a defendant of a charged offense and instead 

to convict of a less serious crime that is necessarily committed during the commission of the charged offense.’” 27 The 

U.S. Supreme Court explained the rationale for requiring 

instructions on lesser-included offenses in Beck v. Alabama.

 28

The defendant in Beck was tried for the capital offense of 

“‘[r]obbery or attempts thereof when the victim is intentionally killed by the defendant.’” 29 Alabama law at the time 

precluded the trial court from instructing the jury on the 

lesser-included offense of felony murder, which was not a 

capital offense. 30 The Court noted that it had long been recognized that lesser-included offense instructions benefit the 

defendant because they give the jury “a less drastic alternative 

than the choice between conviction of the offense charged 

and acquittal.” 31 It explained, “Where one of the elements 

of the offense charged remains in doubt, but the defendant is 

plainly guilty of some offense, the jury is likely to resolve its 

doubts in favor of conviction.” 32 The Court concluded that it 

violates due process to refuse to instruct the jury on a lesserincluded offense where such refusal enhances the risk of 

unwarranted conviction. 33

[17] Following Beck, we have required lesser-included 

offense instructions in all criminal cases if (1) the elements 

25 Id.

26 Id.

27 Id. at 634-35, 764 N.W.2d at 116.

28 Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980).

29 Id., 447 U.S. at 627.

30 Beck, supra note 28.

31 Id., 447 U.S. at 633.

32 Id., 447 U.S. at 634 (emphasis in original).

33 Beck, supra note 28.
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of the lesser offense for which an instruction is requested 

are such that one cannot commit the greater offense without 

simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant 

of the greater offense and convicting the defendant of the 

lesser offense. 34

[18-21] We agree with Gonzalez that involuntary manslaughter is a lesser-included offense of child abuse resulting 

in death. We so held in State v. Sinica. 35 It would be impossible to commit child abuse resulting in death without committing involuntary manslaughter. 36 A person commits child 

abuse if he or she “knowingly, intentionally, or negligently 

causes or permits a minor child” to be subject to the various harms listed in § 28-707(1)(a) through (f). Child abuse 

is classified anywhere from a Class I misdemeanor to a Class 

IB felony depending on the state of mind of the defendant 

and the result of the abuse. 37 Child abuse that is committed 

intentionally and knowingly and results in the death of the 

child is a Class IB felony. 38 Child abuse that is committed 

negligently and results in the death of the child is a Class IIA 

felony. 39 A person commits involuntary manslaughter if he or 

she “causes the death of another unintentionally while in the 

commission of an unlawful act.” 40 Involuntary manslaughter is 

a Class IIA felony. The offense of negligent child abuse may 

constitute the “commission of an unlawful act” as the predicate 

offense for involuntary manslaughter. 41 Thus, where a person 

34 Sinica, supra note 3.

35 See id.

36 See id.

37 See § 28-707.

38 § 28-707(8).

39 § 28-707(6).

40 Neb. Rev. Stat. § 28-305(1) (Reissue 2016). See Sinica, supra note 3.

41 See Sinica, supra note 3.
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commits child abuse, either intentionally or negligently, and 

that abuse results in the death of the child, the person has necessarily committed involuntary manslaughter. 42

[22-25] Although involuntary manslaughter is a lesserincluded offense of intentional child abuse resulting in death, 

so is the offense of negligent child abuse resulting in death. The 

only difference in the elements of intentional and negligent 

child abuse resulting in death is the state of mind of the 

defendant in committing the child abuse. In State v. Parks,

 43

we held that negligent child abuse is a lesser-included offense 

of intentional child abuse because a person cannot intentionally abuse a child without also acting negligently in failing to 

exercise due care toward that child. This applies equally where 

the child abuse results in death. Therefore, where a person’s 

intentional child abuse results in the death of a child, that person has necessarily committed negligent child abuse resulting 

in death.

[26-28] Gonzalez does not explain how he could have been 

prejudiced by the trial court’s instructing the jury on negligent 

child abuse resulting in death rather than involuntary manslaughter when, under the facts of this case, there is little, if 

any, practical difference between the two. Involuntary manslaughter is only a lesser-included offense of intentional child 

abuse resulting in death when negligent child abuse is the 

predicate crime. And when negligent child abuse is the predicate crime, involuntary manslaughter presents the jury with 

essentially the same questions of fact as negligent child abuse 

resulting in death. To obtain a conviction on negligent child 

abuse resulting in death, the State must prove that the defendant negligently abused a child as defined by § 28-707(1) and 

that such abuse resulted in the child’s death.

[29,30] To obtain a conviction on involuntary manslaughter as a lesser-included offense of intentional child abuse 

42 See id.

43 State v. Parks, 253 Neb. 939, 573 N.W.2d 453 (1998).
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resulting in death, the State must prove that the defendant 

unintentionally caused a child’s death while in the commission 

of the same negligent child abuse as defined by § 28-707(1). 

Furthermore, both involuntary manslaughter and negligent 

child abuse resulting in death carry the same, less serious, 

punishment than the predicate offense. They are both Class 

IIA felonies. Therefore, both offenses provide the jury with 

the opportunity to convict of a less serious crime if it finds 

the defendant’s abusive actions caused a child’s death but 

were unintentional. Under such circumstances, the due process 

right to give the jury “a less drastic alternative than the choice 

between conviction of the offense charged and acquittal” 44 and 

instead to convict of a less serious crime that is necessarily 

committed during the commission of the charged offense does 

not appear to have been violated in the first instance.

[31] In any event, Gonzalez was not prejudiced by the 

court’s refusal to give the requested instruction on involuntary 

manslaughter when the court instructed the jury on the lesserincluded offense of negligent child abuse resulting in death. 

Error in failing to instruct the jury on a lesser-included offense 

is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to the defendant under other properly given instructions. 45

We confronted a similar situation in State v. Huff 46 and 

reached a similar conclusion. The defendant in Huff was 

charged with motor vehicle homicide with driving under the 

influence as the predicate offense, a Class IIA felony. The 

trial court also instructed the jury on involuntary manslaughter 

with both driving under the influence and speeding as alternative predicate offenses, Class IIA felonies, but refused to 

give the defendant’s requested instruction on motor vehicle 

homicide with speeding as the predicate offense, a Class I 

44 See Beck, supra note 28, 447 U.S. at 633.

45 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

46 State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
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misdemeanor. 47 We indicated that Beck did not apply, explaining that the manslaughter instruction gave the jury the opportunity to convict the defendant of the lesser offense if it 

found that the defendant was not guilty of driving under the 

influence. 48 We reasoned that Beck did not require the motor 

vehicle homicide instruction because, “considered as a whole,” 

the jury instructions did not confront the jury with the “‘all 

or nothing’” dilemma. 49 However, we ultimately held that 

because the due process concerns in Beck did not apply, the 

defendant was not prejudiced by the refusal to instruct the jury 

on a lesser-included offense. 50

We disagree with Gonzalez’ argument that our decision in 

Sinica requires trial courts to instruct on involuntary manslaughter as a lesser-included offense of intentional child abuse 

resulting in death regardless of other lesser-included offense 

instructions that have been given. 51 Sinica is distinguishable 

from the present case.

In Sinica, the trial court instructed the jury on intentional 

child abuse resulting in death and negligent child abuse, but 

refused to give the defendant’s additional requested instruction on involuntary manslaughter. We held that the trial court 

erred by not giving the involuntary manslaughter instruction. 52 However, the defendant in Sinica was not charged 

with negligent child abuse resulting in death as a specific 

offense because that offense did not exist at the time. Without 

instructions on negligent child abuse resulting in death or 

involuntary manslaughter, there was a risk in Sinica that 

a jury could resolve any doubts in favor of convicting on 

intentional child abuse resulting in death, a Class IB felony, 

47 Id.

48 Id. 

49 Id. at 118, 802 N.W.2d at 108.

50 Huff, supra note 46.

51 Sinica, supra note 3.

52 Id.
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rather than convicting on negligent child abuse, a misdemeanor. Therefore, Sinica does not directly apply because we 

did not discuss the situation, presented here, where the jury 

was instructed on a lesser-included offense that is essentially 

identical to the requested instruction.

Moreover, we ultimately held in Sinica that the trial court’s 

refusal to instruct on involuntary manslaughter was harmless 

because, by being instructed on both intentional child abuse 

and negligent child abuse, the jury had the opportunity to 

consider whether the defendant’s actions were intentional. 53

We explained that in rendering a guilty verdict on intentional 

child abuse rather than negligent child abuse, the jury must 

have found that the defendant acted intentionally. 54 We concluded that the same jury could not have found that he acted 

without intent if it were given an involuntary manslaughter instruction. 55

We based our decision in Sinica on State v. Molina.

 56 In 

Molina, the defendant was accused of beating a minor child 

and was charged with first degree murder and intentional 

child abuse resulting in death. The trial court did not instruct 

the jury on the lesser-included offense of negligent child 

abuse. 57 We noted that in giving a guilty verdict on the murder 

charge, the jury had to decide that the defendant acted with 

intent to kill. 58 We reasoned that the same jury “could not 

have concluded that [the defendant] acted without intent” with 

respect to the child abuse charge. 59 We concluded that there 

was no reasonable or plausible basis for finding that the trial 

53 Compare Sinica, supra note 3, with State v. Blair, 272 Neb. 951, 726 

N.W.2d 185 (2007).

54 Sinica, supra note 3.

55 Id.

56 Molina, supra note 45.

57 Id.

58 Id.

59 Id. at 521, 713 N.W.2d at 442.
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court’s refusal to instruct on negligent child abuse was prejudicial to the defendant because the jury necessarily rejected the 

evidence that would support a finding that the defendant committed only negligent child abuse. 60

Just as in Sinica and Molina, the jury here had the opportunity to decide whether Gonzalez acted with intent and found 

that he did. The district court instructed the jury that the elements of intentional child abuse resulting in death included that 

Gonzalez acted knowingly and intentionally. It then instructed 

the jury to convict Gonzalez of intentional child abuse resulting in death only if the jury found that the State had proved 

all of the elements beyond a reasonable doubt, and to only 

proceed to consider negligent child abuse if the jury found that 

the State failed to do so.

Under these instructions, when the jury found Gonzalez 

guilty of intentional child abuse resulting in death, it necessarily found that Gonzalez acted knowingly and intentionally and 

rejected a finding that he acted only negligently. The same jury 

could not have found that he acted only negligently in committing child abuse as the predicate crime for the lesser offense of 

involuntary manslaughter. Therefore, the district court’s refusal 

to instruct on involuntary manslaughter was not reversible 

error because it could not have prejudiced Gonzalez.

CONCLUSION

The district court did not err in denying Gonzalez’ motion 

for change of venue. Additionally, any error in refusing to 

instruct the jury on involuntary manslaughter was harmless.

Affirmed.

60 Compare Molina, supra note 45, with Blair, supra note 53.