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to Tristar free and clear of all previous liens and encumbrances 

as a matter of law and the SID’s special assessment liens did 

not survive the transfer to Tristar. The SID did not meet its 

burden of showing it had an enforceable interest that entitled it 

to judgment, and the district court erred when it granted summary judgment in favor of the SID, entered orders accordingly, 

and denied Tristar’s motion for summary judgment.

CONCLUSION

The treasurer tax deeds issued to Tristar pursuant to 

§ 77-1837 and in compliance with § 77-1801 et seq. passed 

title to Tristar free and clear of all previous liens and encumbrances, including the special assessment liens of the SID. The 

district court erred when it applied § 77-1902 from the judicial 

foreclosure statutes to this case involving the treasurer tax deed 

method and reached a contrary conclusion. We reverse the 

order of the district court granting summary judgment to the 

SID and denying Tristar’s motion for summary judgment, and 

remand the cause with directions to enter judgment in favor of 

Tristar on the SID’s complaint.

Reversed and remanded with directions.

State of Nebraska, appellee, v. 

Thomas P. Merchant, appellant.

___ N.W.2d ___

Filed June 27, 2014. No. S-13-903.

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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, 

for which an appellate court has an obligation to reach an independent conclusion 

irrespective of the determination made by the court below.

3. Criminal Law: Directed Verdict. In a criminal case, a court can direct a 

verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, 

lacking probative value, that a finding of guilt based on such evidence cannot 

be sustained.
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4. Directed Verdict. If there is any evidence which will sustain a finding for the 

party against whom a motion for directed verdict is made, the case may not be 

decided as a matter of law, and a verdict may not be directed.

5. Jury Instructions: Appeal and Error. 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.

6. Jury Instructions: Proof: Appeal and Error. The appellant has the burden to 

show that a questioned jury instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant.

7. Appeal and Error. Under the law-of-the-case doctrine, the holdings of an 

appellate court on questions presented to it in reviewing proceedings of the 

trial court become the law of the case; those holdings conclusively settle, for 

purposes of that litigation, all matters ruled upon, either expressly or by necessary implication.

8. Actions: Appeal and Error. The law-of-the-case doctrine operates to preclude 

a reconsideration of substantially similar, if not identical, issues at successive 

stages of the same suit or prosecution.

9. ____: ____. On appeal, the law-of-the-case doctrine is a rule of practice that 

operates to direct an appellate court’s discretion, not to limit its power.

10. Motor Vehicles: Licenses and Permits: Words and Phrases. The definition 

of a motor vehicle dealer under Neb. Rev. Stat. § 60-1401.26 (Reissue 2010) 

entails three requirements. To be a motor vehicle dealer, a person must (1) not be 

a bona fide consumer; (2) be actively and regularly engaged in selling, leasing 

for a period of 30 or more days, or exchanging new or used motor vehicles; and 

(3) buy, sell, exchange, cause the sale of, or offer or attempt to sell new or used 

motor vehicles.

11. Motor Vehicles: Licenses and Permits. A person is subject to the licensure 

requirement of Neb. Rev. Stat. § 60-1403.01(1) (Reissue 2010) as a motor vehicle 

dealer only if all three requirements of Neb. Rev. Stat. § 60-1401.26 (Reissue 

2010) are met.

12. Jury Instructions: Appeal and Error. A jury instruction that omits an element 

of the offense from the jury’s determination is subject to harmless error review.

13. Verdicts: Appeal and Error. Harmless error review looks to the basis on which 

the trier of fact actually rested its verdict; the inquiry is not whether in a trial 

that occurred without the error a guilty verdict surely would have been rendered, 

but, rather, whether the actual guilty verdict rendered in the questioned trial was 

surely unattributable to the error.

14. Criminal Law: Evidence: Double Jeopardy: New Trial: Appeal and Error. 

Upon finding reversible error in a criminal trial, an appellate court must determine whether the total evidence admitted by the district court, erroneously or 

not, was sufficient to sustain a guilty verdict. If it was not, then double jeopardy 

forbids a remand for a new trial.

15. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a 

criminal conviction for sufficiency of the evidence to sustain the conviction, the 

relevant question for an appellate court is whether, after viewing the evidence in 
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STATE v. MERCHANT 441

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the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.

16. Directed Verdict: Evidence. A directed verdict is proper at the close of all the 

evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, when an issue should be decided as a 

matter of law.

Appeal from the District Court for Lancaster County: Steven

D. Burns, Judge. Reversed and remanded for a new trial.

Mark Porto, of Shamberg, Wolf, McDermott & Depue, for 

appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Per Curiam.

INTRODUCTION

Thomas P. Merchant appeals his conviction, after a second 

trial, for acting as a motor vehicle dealer, auction dealer, 

motor vehicle salesperson, or dealer’s agent without the 

required license under the Motor Vehicle Industry Regulation 

Act.1 His first conviction was reversed by this court in State 

v. Merchant (Merchant I)2 because of improperly admitted 

evidence. Merchant now contends that the jury instructions 

given at his second trial misstated the definition of motor 

vehicle dealer. We agree. In order to qualify as a motor vehicle dealer, a person must be actively and regularly engaged 

in one of the statutory enumerated acts.3 But the instructions 

given at Merchant’s second trial omitted this requirement 

from the elements of the offense. We reverse, and remand for 

a new trial.

1 Neb. Rev. Stat. § 60-1401 et seq. (Reissue 2010).

2 State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013).

3 See § 60-1401.26.
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BACKGROUND

The facts surrounding the charges against Merchant are 

outlined in Merchant I. We briefly recite them here. Merchant 

undertook a series of transactions with Nebraska Auto Auction, 

Inc. (NAA), involving the sale and purchase of motor vehicles 

on June 1, 2011. NAA is an automobile auction company that 

facilitates sales and purchases between dealers. It holds a valid 

Nebraska auction license, and by law, only licensed dealers can 

participate in auctions held by NAA.

NAA requested a copy of Merchant’s motor vehicle dealer’s 

license, but he never provided a copy. NAA reported Merchant 

to the Nebraska Motor Vehicle Industry Licensing Board. After 

determining that he did not possess a dealer’s license, the State 

charged him with being an unlicensed dealer. 

After a jury trial, Merchant was convicted. He appealed, and 

we reversed his conviction and remanded the cause for a new 

trial due to the improper admission of expert testimony.

In analyzing Merchant’s first trial, we also provided guidance as to the jury instructions given by the district court. We 

observed that the instructions correctly required the jury to 

determine that Merchant was not a bona fide consumer, but 

were incomplete for assuming that he was a motor vehicle 

dealer. Merchant’s status as a motor vehicle dealer was an 

essential element of the offense that was required to be determined by the jury. We therefore instructed the district court 

to add an instruction charging the jury to determine whether 

“Merchant bought, sold, exchanged, caused the sale of, or 

offered or attempted to sell new or used motor vehicles on or 

around June 1, 2011.”4

A second jury trial was held. The State presented evidence 

that NAA facilitated transactions for Merchant involving the 

sale and purchase of motor vehicles on two occasions in May 

and June 2011. Specifically, the State’s evidence showed that 

on June 1, NAA facilitated transactions in which Merchant 

sold 10 or more vehicles and purchased 19 vehicles. The 

State further established Merchant’s lack of a motor vehicle 

dealer’s license. After the State rested, Merchant moved to 

4 Merchant I, supra note 2, 285 Neb. at 471, 827 N.W.2d at 485.
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dismiss on the ground that the State had failed to prove a 

prima facie case.

In arguing that the State had failed to prove a prima facie 

case, Merchant cited to the definition of “[m]otor vehicle 

dealer” as provided by § 60-1401.26. That section defines a 

motor vehicle dealer as

any person, other than a bona fide consumer, actively 

and regularly engaged in the act of selling, leasing for a 

period of thirty or more days, or exchanging new or used 

motor vehicles . . . who buys, sells, exchanges, causes 

the sale of, or offers or attempts to sell new or used 

motor vehicles.5

Because a motor vehicle dealer was defined as any person 

“actively and regularly engaged” in one of the enumerated 

acts, Merchant contended that there was insufficient evidence 

to prove such active and regular engagement.

The district court overruled Merchant’s motion, finding that 

his status as a motor vehicle dealer was a question of fact for 

the jury and that the State had presented sufficient evidence to 

submit the issue. The court then conducted the jury instruction 

conference. The court’s jury instruction No. 3 as to the elements of the offense provided, in pertinent part:

Regarding the crime of Unlawful Sale or Purchase of 

Motor Vehicle, the State must prove beyond a reasonable 

doubt that:

1. . . . Merchant bought, sold, exchanged, caused the 

sale of, or offered or attempted to sell new or used motor 

vehicle; and

2. On the day he sold or purchased a motor vehicle 

described in paragraph 1, . . . Merchant did not possess a valid Nebraska Motor Vehicle Dealer’s license, 

Motor Vehicle Auction Dealer license, Motor Vehicle 

Salesperson license, or Motor Vehicle Dealer’s Agent 

license, and

3. Any one of the following:

a. . . . Merchant did not acquire the vehicle he sold or 

purchased for use in business or for pleasure purposes, or

5 § 60-1401.26.
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b. the motor vehicle sold was not titled in . . . Merchant’s 

name, or

c. the motor vehicle sold was not registered to . . . 

Merchant in accordance with the laws of his resident 

state, or

d. . . . Merchant sold more than eight registered motor 

vehicles within a twelve month period;

and

4. . . . Merchant did so on or about June 1, 2011, in 

Lancaster County, Nebraska.

When given the opportunity to object to the above instruction, Merchant requested that the district court give his proposed instructions. The court declined to do so.

The jury returned a verdict finding Merchant guilty of the 

unlawful sale or purchase of a motor vehicle. He was found 

to be a habitual criminal and sentenced to imprisonment for a 

minimum term of 12 years and a maximum term of 26 years. 

Merchant timely appeals.

ASSIGNMENTS OF ERROR

Merchant assigns that the district court erred in (1) utilizing 

instruction No. 3, rather than his proposed instructions, and (2) 

overruling his motion for directed verdict.

STANDARD OF REVIEW

[1,2] Whether jury instructions are correct is a question 

of law, which an appellate court resolves independently of 

the lower court’s decision.6 Statutory interpretation presents a 

question of law, for which an appellate court has an obligation 

to reach an independent conclusion irrespective of the determination made by the court below.7

[3,4] In a criminal case, a court can direct a verdict only 

when there is a complete failure of evidence to establish an 

essential element of the crime charged or the evidence is so 

doubtful in character, lacking probative value, that a finding 

6 State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).

7 State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
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STATE v. MERCHANT 445

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of guilt based on such evidence cannot be sustained.8 If there 

is any evidence which will sustain a finding for the party 

against whom a motion for directed verdict is made, the case 

may not be decided as a matter of law, and a verdict may not 

be directed.9

ANALYSIS

Before addressing the merits of Merchant’s assignments 

of error, we first review the licensure requirements under the 

Motor Vehicle Industry Regulation Act. Section 60-1403.01(1) 

provides that “[n]o person shall engage in the business as, 

serve in the capacity of, or act as a motor vehicle . . . dealer, 

salesperson, auction dealer, [or] dealer’s agent . . . in this state 

without being licensed by the board under the Motor Vehicle 

Industry Regulation Act.”

The State charged Merchant under § 60-1416, which states 

that “[a]ny person acting as a motor vehicle dealer, . . . auction 

dealer, motor vehicle . . . salesperson, [or] dealer’s agent . . . 

without having first obtained the license provided in section 

60-1406 is guilty of a Class IV felony . . . .”

The act provides definitions of the above persons subject 

to the licensure requirement. The most significant to this 

appeal is the definition of motor vehicle dealer, which has 

been provided above. But it is relevant to note that a bona fide 

consumer is expressly excluded from the definition of motor 

vehicle dealer.10 Section 60-1401.07 defines a bona fide consumer as

an owner of a motor vehicle . . . who has acquired such 

vehicle for use in business or for pleasure purposes, who 

has been granted a certificate of title on such motor vehicle, . . . and who has registered such motor vehicle . . . all 

in accordance with the laws of the residence of the owner, 

except that no owner who sells more than eight registered 

motor vehicles . . . within a twelve-month period shall 

qualify as a bona fide consumer.

8 State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).

9 Id.

10 See § 60-1401.26.
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Three other definitions of persons subject to the licensure 

requirement are also pertinent to our analysis. Because this 

appeal does not involve motorcycles or trailers, we omit portions of the definitions pertaining to those items. Similarly, 

we omit language addressing multiple dealerships. Section 

60-1401.11 defines “[d]ealer’s agent” as “a person who acts as 

a buying agent for one or more motor vehicle dealers . . . .” 

Section 60-1401.05 defines “[a]uction dealer” as “any person 

engaged in the business of conducting an auction for the sale of 

motor vehicles . . . .” And § 60-1401.27 defines “[m]otor vehicle . . . salesperson” as “any person who, for a salary, commission, or compensation of any kind, is employed directly by [a] 

licensed Nebraska motor vehicle dealer . . . to sell, purchase, 

or exchange or to negotiate for the sale, purchase, or exchange 

of motor vehicles . . . .”

Having reviewed the applicable law, we now turn to 

Merchant’s first assignment of error regarding instruction 

No. 3.

Instruction No. 3

[5,6] We first recall governing principles of law relating to 

a claim of erroneous jury instructions. We have stated that 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.11

And the appellant has the burden to show that a questioned 

jury instruction was prejudicial or otherwise adversely affected 

a substantial right of the appellant.12

As noted above, in Merchant I, we found the instructions 

given at Merchant’s first trial to be incomplete. In order to find 

Merchant guilty, the instructions correctly required the jury to 

determine that he was not a bona fide consumer, but assumed 

that he qualified as a motor vehicle dealer. We therefore 

directed the district court to add an instruction charging the 

11 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

12 State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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jury to determine whether “Merchant bought, sold, exchanged, 

caused the sale of, or offered or attempted to sell new or used 

motor vehicles on or around June 1, 2011.”13

In the present appeal, Merchant contends that we erred in 

our analysis of the jury instructions in Merchant I. He argues 

that the instruction we directed the district court to utilize 

at his second trial (which was incorporated into instruction 

No. 3) misstated the statutory definition of motor vehicle 

dealer by failing to require that he be actively and regularly 

engaged in one of the enumerated acts. Thus, he claims that 

instruction No. 3 caused him prejudice by omitting a material 

element of the offense.

[7,8] But we must first address the State’s argument that 

Merchant is barred from challenging instruction No. 3. Although 

not expressly acknowledged, the State implicitly relies upon 

the law-of-the-case doctrine for its argument. Under the lawof-the-case doctrine, the holdings of an appellate court on 

questions presented to it in reviewing proceedings of the trial 

court become the law of the case; those holdings conclusively 

settle, for purposes of that litigation, all matters ruled upon, 

either expressly or by necessary implication.14 The law-of-thecase doctrine operates to preclude a reconsideration of substantially similar, if not identical, issues at successive stages of the 

same suit or prosecution.15

Merchant failed to move for rehearing from our analysis 

of the jury instructions in Merchant I. Consequently, upon 

remand, our findings as to the jury instructions became the law 

of the case and conclusively settled the issue for purposes of all 

subsequent stages of the prosecution. Thus, under the doctrine, 

the district court lacked the ability to deviate from our findings 

at Merchant’s second trial and was required to incorporate the 

instruction we provided in Merchant I, notwithstanding any 

claim of error that Merchant might raise.16

13 Merchant I, supra note 2, 285 Neb. at 471, 827 N.W.2d at 485.

14 State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).

15 Id.

16 See State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).
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[9] We, however, are not so bound. On appeal, the law-ofthe-case doctrine is a rule of practice that operates to direct 

an appellate court’s discretion, not to limit its power.17 And 

we have recognized that the doctrine does not apply if considerations of substantial justice suggest a reexamination of the 

issue is warranted.18 Considerations of substantial justice are 

present in this case.

[10,11] We agree that we erred in our analysis of the jury 

instructions in Merchant I. The instruction we directed the 

district court to incorporate into instruction No. 3 misstated the 

statutory definition of motor vehicle dealer. The instruction we 

provided omitted the “actively and regularly engaged” requirement of § 60-1401.26. Under that section, the definition of 

motor vehicle dealer entails three requirements. To be a motor 

vehicle dealer, a person must (1) not be a bona fide consumer; 

(2) be actively and regularly engaged in selling, leasing for a 

period of 30 or more days, or exchanging new or used motor 

vehicles; and (3) buy, sell, exchange, cause the sale of, or offer 

or attempt to sell new or used motor vehicles.19 A person is 

subject to the licensure requirement of § 60-1403.01(1) as a 

motor vehicle dealer only if all three of these requirements 

are met.

Because Instruction No. 3 failed to charge the jury to determine whether Merchant was “actively and regularly engaged” 

in one of the acts enumerated by § 60-1401.26, it omitted a 

material element of the offense from the jury’s determination. 

Such instructional error necessarily implicates considerations 

of substantial justice, because it violates a defendant’s Sixth 

Amendment guarantee to trial by jury.20

[12] But the omission of an element of the offense from the 

jury’s determination is not a constitutional violation requiring 

17 Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

18 See id.

19 See § 60-1401.26.

20 See, Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 

(1999); State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996), overruled on 

other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
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automatic reversal. Such error is not structural—so affecting the framework within which the trial proceeds that it 

affects the entire trial process and renders it fundamentally 

unfair.21 Rather, an instruction that omits an element of the 

offense from the jury’s determination is subject to harmless 

error review.22

[13] We have stated that harmless error review looks to the 

basis on which the trier of fact actually rested its verdict; the 

inquiry is not whether in a trial that occurred without the error 

a guilty verdict surely would have been rendered, but, rather, 

whether the actual guilty verdict rendered in the questioned 

trial was surely unattributable to the error.23 Where a court cannot conclude beyond a reasonable doubt that the jury verdict 

would have been the same absent the error, it should not find 

the error harmless.24

We do not find that the instructional error was harmless in 

this case. That is, we cannot say beyond a reasonable doubt 

that the jury would still have found Merchant guilty had it been 

required to find that he was “actively and regularly engaged” 

in one of the statutory enumerated acts. At Merchant’s second 

trial, the State presented evidence that he undertook transactions with NAA involving the sale and purchase of motor vehicles on two separate occasions. Although one of these occasions involved the sale and purchase of a significant number of 

motor vehicles, we are unable to conclude beyond a reasonable 

doubt that the jury would have found such transactions to constitute active and regular engagement.

[14,15] Because the omission of the active and regular 

engagement requirement from instruction No. 3 was not 

harmless, it warrants reversal and remand for a new trial. 

But Merchant argues that retrial is prohibited by the Double 

Jeopardy Clause. With one minor exception, we disagree. Upon 

finding reversible error in a criminal trial, an appellate court 

21 See Neder, supra note 20.

22 See, id.; State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).

23 Abram, supra note 22.

24 See Neder, supra note 20.
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must determine whether the total evidence admitted by the district court, erroneously or not, was sufficient to sustain a guilty 

verdict.25 If it was not, then double jeopardy forbids a remand 

for a new trial.26 When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant 

question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.27

Although we acknowledge that this is a close case, when 

viewed in the light most favorable to the prosecution, we find 

that the total evidence admitted by the district court was sufficient to sustain a guilty verdict. The evidence received at 

Merchant’s second trial established that he undertook transactions with NAA involving the sale and purchase of motor 

vehicles on two separate occasions within a 2-month period. 

And the June 1, 2011, transaction involved the sale of approximately 10 vehicles and the purchase of 19 more. In our 

view, this evidence was sufficient for a jury to conclude that 

Merchant was actively and regularly engaged in the acts of 

selling or exchanging new or used motor vehicles. Further, 

this evidence established that Merchant was not a bona fide 

consumer, because he sold more than eight motor vehicles 

within a 12-month period.28 And because the State proved that 

Merchant bought and sold motor vehicles without any of the 

licenses set out in § 60-1406, there was sufficient evidence 

from which the jury could find all of the elements of acting as 

a motor vehicle dealer, motor vehicle salesperson, or dealer’s 

agent without a license.

However, there was no evidence that Merchant was “engaged 

in the business of conducting an auction for the sale of motor 

vehicles.”29 The evidence showed that Merchant sold and 

25 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

26 Id.

27 State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011).

28 See § 60-1401.07.

29 § 60-1401.05 (defining “[a]uction dealer”).
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purchased vehicles through an auction dealer, but not that he 

was engaged in the business of conducting an auction. Thus, 

upon remand, he cannot be retried for acting as an auction 

dealer. This does not affect the other three alternatives for violation of § 60-1416, namely, acting as a motor vehicle dealer, 

motor vehicle salesperson, or dealer’s agent.

Based upon our above analysis, we reverse the judgment 

of conviction and remand the cause for a new trial. In doing 

so, we wish to make clear that this decision is based upon 

our own error in Merchant I. The district court did nothing 

but faithfully follow our direction in instructing the jury at 

Merchant’s second trial. Upon retrial, the district court should 

craft an instruction charging the jury to determine whether 

Merchant acted as a motor vehicle dealer, motor vehicle 

salesperson, or dealer’s agent without having first obtained 

the required license at the time he undertook the transactions 

with NAA.

Characterizing the offense as an unlawful sale or purchase 

of a motor vehicle is likely to cause confusion and render 

the instructions unintelligible, because reference would be 

required to a complicated series of statutes. Instead, the offense 

could be described as acting as a motor vehicle dealer, motor 

vehicle salesperson, or dealer’s agent without a license. The 

State chose to charge Merchant with a single offense that can 

be committed in more than one way. It may be feasible for 

the trial judge to craft an elements instruction that begins by 

charging the jury to determine whether Merchant acted (1) as 

a motor vehicle dealer, motor vehicle salesperson, or dealer’s 

agent; (2) without the appropriate license; (3) on or about June 

1, 2011, in Lancaster County. The elements instruction could 

then charge the jury on the statutory elements that the State 

must prove beyond a reasonable doubt to show that Merchant 

acted, respectively, as a motor vehicle dealer, motor vehicle 

salesperson, or dealer’s agent. But the instructions must be 

tailored to the evidence at the new trial. And they could vary 

depending upon which one or more of the three ways of committing the offense could be supported by the evidence. We 

decline to tie the hands of the trial judge in crafting an appropriate set of instructions.
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Directed Verdict

[16] Merchant contends that the district court erred in overruling his motion for directed verdict. Although the record does 

not show that Merchant ever moved for a directed verdict, he 

moved to dismiss after the close of the State’s case in chief. 

And we have stated that a motion to dismiss for failure to 

prove a prima facie case should be treated as a motion for a 

directed verdict.30 A directed verdict is proper at the close of 

all the evidence only when reasonable minds cannot differ and 

can draw but one conclusion from the evidence, that is to say, 

when an issue should be decided as a matter of law.31 And in 

reviewing a criminal conviction, we view the evidence in the 

light most favorable to the State.32

Merchant argues that the evidence presented at his second trial was insufficient to establish that he was “actively 

and regularly engaged” in one of the acts enumerated by 

§ 60-1401.26. Based upon our above analysis, we disagree. As 

we have already noted, although this is a close case, we view 

the evidence of the transactions Merchant undertook with NAA 

as being sufficient to support a finding that he was actively and 

regularly engaged in the acts of selling or exchanging new or 

used motor vehicles. Because Merchant limited his argument 

to the definition of a motor vehicle dealer, we do not address 

the motion insofar as it was addressed to the alternatives of 

acting as a motor vehicle salesperson or a dealer’s agent. This 

assignment of error is without merit.

CONCLUSION

Although we analyzed the jury instructions in this case 

in Merchant I, we erred in instructing the district court as 

to the statutory definition of motor vehicle dealer. Our error 

resulted in a material element of the offense being omitted 

from the jury’s determination and caused Merchant prejudice. 

We reverse Merchant’s conviction for acting as a motor vehicle 

30 See State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).

31 Id.

32 See State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).
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dealer, motor vehicle salesperson, dealer’s agent, or auction 

dealer without the required license and remand the cause 

for a new trial. Because there was no evidence to show that 

Merchant was acting as an auction dealer, he cannot be retried 

on that alternative means of committing the offense. Thus, the 

new trial must be limited to the other three alternatives for 

which Merchant was charged.

Reversed and remanded for a new trial.

Gary M. Lenz, appellee, v. Central Parking System

of Nebraska, Inc., and New Hampshire

Insurance Company, appellants.

___ N.W.2d ___

Filed June 27, 2014. No. S-13-930.

1. Workers’ Compensation: Appeal and Error. Regarding questions of law, 

an appellate court in workers’ compensation cases is obligated to make its 

own decisions.

2. Statutes. Statutory interpretation presents a question of law.

3. Workers’ Compensation: Limitations of Actions. Determining when the statute 

of limitations starts under Neb. Rev. Stat. § 48-137 (Reissue 2010) presents a 

question of law.

4. Workers’ Compensation: Appeal and Error. A judgment, order, or award of 

the compensation court may be modified, reversed, or set aside only upon the 

grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not 

sufficient competent evidence in the record to warrant the making of the order, 

judgment, or award; or (4) the findings of fact by the compensation court do not 

support the order or award.

5. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When 

judicial interpretation of a statute has not evoked a legislative amendment, it is 

presumed that the Legislature has acquiesced in the court’s interpretation.

6. Workers’ Compensation. Disability as a basis for compensation under Neb. 

Rev. Stat. § 48-121(3) (Reissue 2010) is determined by the loss of use of a body 

member, not loss of earning power.

7. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an 

appellate court.

Appeal from the Workers’ Compensation Court: Thomas E. 

Stine, Judge. Affirmed.