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STATE v. COMBS

Cite as 297 Neb. 422

State of Nebraska, appellee, v. 

Patrick J. Combs, appellant.

___ N.W.2d ___

Filed August 4, 2017. No. S-16-798.

1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law.

2. Judgments: Appeal and Error. On a question of law, an appellate court 

reaches a conclusion independent of the court below.

3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, the party must be appealing from a 

final order or a judgment.

4. Criminal Law: Final Orders: Sentences. In a criminal case, the final 

judgment is the sentence.

5. Final Orders. The three categories of final orders in Neb. Rev. Stat. 

§ 25-1902 (Reissue 2016) are exclusive.

6. Criminal Law: Pleadings: Directed Verdict. A motion for judgment 

of acquittal is a criminal defendant’s request, at the close of the government’s case or the close of all evidence, to be acquitted because there is 

no legally sufficient evidentiary basis on which a reasonable jury could 

return a guilty verdict.

7. Pleadings: Directed Verdict. A motion for judgment of acquittal is 

simply another name for a motion for directed verdict of acquittal.

8. Motions to Dismiss: Directed Verdict. A motion to dismiss at the 

close of all the evidence has the same legal effect as a motion for 

directed verdict.

9. Directed Verdict: Motions for Mistrial: Time. A motion for judgment 

of acquittal or motion for directed verdict is untimely if made after a 

mistrial has been declared.

10. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A 

defendant who moves for dismissal or a directed verdict at the close of 

the evidence in the State’s case in chief in a criminal prosecution and 

who, when the court overrules the dismissal or directed verdict motion, 

Nebraska Supreme Court Online Library

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

08/11/2017 12:08 AM CDT
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proceeds with trial and introduces evidence, waives the appellate right 

to challenge correctness in the trial court’s overruling the motion for 

dismissal or a directed verdict but may still challenge the sufficiency of 

the evidence.

11. Criminal Law: Final Orders. A judgment entered during the pendency 

of a criminal cause is final when no further action is required to completely dispose of the cause pending.

12. Double Jeopardy: Pleadings. A plea in bar may be filed to assert any 

nonfrivolous double jeopardy claim arising from a prior prosecution.

13. Pleadings: Final Orders: Appeal and Error. An order overruling a 

plea in bar is a final, appealable order.

14. Double Jeopardy: Pleadings. A plea in bar may be used to raise a 

double jeopardy challenge to the State’s right to retry a defendant following a mistrial.

15. Constitutional Law: Double Jeopardy. The 5th Amendment’s protection against double jeopardy applies to states through the 14th 

Amendment to the U.S. Constitution.

16. Constitutional Law: Criminal Law: Double Jeopardy. The Double 

Jeopardy Clause of the Fifth Amendment to the U.S. Constitution 

prohibits a criminal defendant from being put in jeopardy twice for 

the same offense and unequivocally prohibits a second trial following 

an acquittal.

17. Double Jeopardy. The Double Jeopardy Clause’s prohibition on retrial 

is not unequivocal when the first trial ends in a mistrial.

18. Motions for Mistrial. Where a mistrial is declared over a defendant’s 

objection, he or she may only be retried if the prosecution can demonstrate a “manifest necessity” for the mistrial.

19. Double Jeopardy: Motions for Mistrial. Where a mistrial is declared 

at the behest of the defendant, the “manifest necessity” standard has no 

place in the application of the Double Jeopardy Clause.

20. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys. The 

narrow exception to the rule that where a defendant asks the court to 

declare a mistrial, the Double Jeopardy Clause does not bar retrial, is 

limited to those cases in which the prosecution’s conduct giving rise 

to the successful motion for a mistrial was intended to provoke the 

defendant into moving for a mistrial.

21. Trial: Juries: Verdicts. A jury’s action cannot become a verdict until 

it is finally rendered in open court and received and accepted by the 

trial judge.

22. Trial: Verdicts. A verdict, to be of any validity, must be delivered in 

open court.

23. Juries: Verdicts. A vote taken in the privacy of jury deliberations is not 

a verdict.
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STATE v. COMBS

Cite as 297 Neb. 422

Appeal from the District Court for Lancaster County: Robert

R. Otte, Judge. Affirmed.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., 

for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and

Funke, JJ.

Wright, J.

NATURE OF CASE

The appellant, Patrick J. Combs, was charged with four 

crimes in the district court for Lancaster County. His case 

was tried to a jury. After deliberating for 3 days, the jury 

reported that it was deadlocked. Combs moved for a mistrial, which the district court sustained. After the mistrial, 

Combs discovered that, according to the presiding juror, the 

jury had voted unanimously during its deliberations to acquit 

him on three of the four charges, but mistakenly thought 

it had to reach a unanimous verdict on all charges. Combs 

moved for a judgment of acquittal, which the district court 

overruled. Combs then filed a plea in bar, which the district 

court overruled. Combs appeals the overruling of his plea in 

bar on the ground that retrial of the three counts on which 

the jury reportedly voted to acquit him would violate the 

Double Jeopardy Clause of the Fifth Amendment to the U.S. 

Constitution. We affirm the district court’s order overruling 

Combs’ plea in bar.

BACKGROUND

Combs was charged with four crimes in connection with his 

financial dealings with Harold and Beverly Mosher. Combs 

was charged with (1) attempted theft by unlawful taking, over 

$1,500; (2) abuse of a vulnerable adult; (3) theft by unlawful 
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Cite as 297 Neb. 422

taking; and (4) unauthorized use of a financial transaction 

device, over $1,500. The details of these allegations and the 

evidence presented at trial are not relevant to this appeal.

A lengthy jury trial was held. At the conclusion of the 

State’s evidence and again after the defense’s evidence, Combs 

moved to dismiss. These motions were overruled, and the 

case was submitted to the jury. During its deliberations, the 

jury submitted several questions to the court in writing, which 

the court answered. After 2 days of deliberations, Combs 

moved for a mistrial, “largely out of concern that the time has 

become fairly lengthy,” which motion the district court overruled because the court “had no indication from the jury that 

there’s a problem.”

On the third day, the court spoke with counsel for Combs 

and the State and said, “The jury has submitted a question 

. . . that reads, The jury in the above-entitled case requests the 

court’s advice on how to proceed as the jury is unable to reach 

a unanimous verdict at this time.” Combs renewed his motion 

for mistrial. The district court overruled Combs’ motion and 

gave the jury a supplemental instruction, over Combs’ objection, instructing the jury to continue deliberating and urging 

the jury to continue trying to reach a verdict.

About 2 hours later, the district court received another note 

from the jury, requesting advice and stating that it was “deadlocked with no apparent ability to agree on a verdict.” The 

court said, “This is the second communication I’ve had that 

they’re deadlocked. I sent them to lunch after getting that communication earlier. It seems like they mean it now.”

Combs’ counsel renewed his motion for mistrial, saying, 

“[I]t is now quite apparent to me, you know, whether the verdict is eleven to one for acquittal or eleven to one for conviction or anything in between, that this jury has made it clear 

that any further deliberations would not be likely to result 

in a verdict.” Counsel for the State agreed that the jury was 

deadlocked. The court said, “I don’t think we’re going to get 

anywhere with this jury or [get] any further with this jury,” and 
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it declared a mistrial and dismissed the jury. The jury did not 

complete the verdict form it was given by the court.

After the mistrial, Combs filed a motion for judgment of 

acquittal. As to count 1, Combs argued that there was insufficient evidence presented by the State. As to the other three 

counts, Combs’ counsel stated that he learned after trial that 

the jury had unanimously voted in its deliberations to acquit 

Combs on counts 2 through 4, but mistakenly thought it was 

required to have a unanimous verdict on all counts.

Combs presented the affidavit of the presiding juror. The 

presiding juror stated that she supervised the deliberations and 

conducted the votes of the jury members. She said that the 

jury voted unanimously to find Combs not guilty on counts 2 

through 4. She said that following “extensive deliberations” on 

count 1, the jury voted 11 to 1 to find Combs not guilty. She 

said that she told the bailiff that “the jury had reached unanimous verdicts on 3 of the counts, without divulging which 

counts or whether [it] found guilty or not on those, but that [it] 

had deadlocked on the remaining count.” The presiding juror 

assumed that this information was passed on to the judge. She 

said that “[i]t was the jury’s general understanding from the 

jury instructions provided . . . that [it] had to find unanimously 

on all four counts, albeit separately guilty or not guilty on 

each count.”

At the hearing on the motion for judgment of acquittal, the 

State submitted two emails that were sent from other jurors 

to the court, which potentially conflicted in part with the 

affidavit of the presiding juror. The emails were not affidavits 

and did not contain sworn testimony. In the first email, the 

juror said that the votes to find Combs not guilty on counts 

2 through 4 were preliminary votes and that he believed 

the jurors were still free to change their minds. That juror 

also wrote that a holdout juror said that he felt pressured 

to vote not guilty. The juror confirmed in the email that the 

jury mistakenly believed it had to find Combs guilty on all 

four counts.
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Cite as 297 Neb. 422

In the second juror email, the juror also said that the jury 

“seemed to agree not guilty on three” of the counts. The juror 

said that the holdout juror on the one count on which the jurors 

disagreed said that he “‘went along’” with everyone else on 

the other three counts.

The district court overruled Combs’ motion for judgment 

of acquittal.

Combs then filed a plea in bar to prohibit the retrial of 

counts 2 through 4 on the bases that the jury found him not 

guilty on those counts and that retrial would violate the Double 

Jeopardy Clause of the U.S. Constitution. The district court 

overruled the plea in bar. Combs appealed.

ASSIGNMENTS OF ERROR

Combs asserts the district court erred in not sustaining his 

plea in bar for counts 2 through 4, of which the jury reportedly 

voted unanimously to acquit him. He also claims the district 

court erred in failing to sustain his motion for judgment of 

acquittal and failing to sustain his motion to dismiss at the 

close of the evidence. He argues that the district court committed plain error in not inquiring whether the jury was deadlocked on all or some of the counts. He also argues that “plain 

error exists” by the presiding juror’s not publishing the jury’s 

verdict for counts 2 through 4. Finally, Combs argues that the 

district court erred in admitting opinion testimony from a caregiver as to whether the alleged victim had capacity to execute 

legal documents.

STANDARD OF REVIEW

[1,2] Issues regarding the grant or denial of a plea in bar 

are questions of law.1 On a question of law, an appellate court 

reaches a conclusion independent of the court below.2

1 State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (2017).

2 Id.
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STATE v. COMBS

Cite as 297 Neb. 422

ANALYSIS

Appellate Jurisdiction: Combs’ 

Assignments of Trial Error

Because Combs’ trial ended in a mistrial with no verdict, 

there was no final order or judgment. Therefore, this court 

lacks jurisdiction over Combs’ assignments of error arising 

from his trial. The only final order in this case was the district 

court’s overruling of Combs’ plea in bar.

[3,4] This court has stated many times that “for an appellate court to acquire jurisdiction of an appeal, the party must 

be appealing from a final order or a judgment.”3 In a criminal 

case, the final judgment is the sentence.4 Because Combs’ trial 

ended in a mistrial, no sentence was issued. Thus, there is no 

final judgment. Because there is no judgment in this case, 

Combs may only appeal if there is a final order.

[5] Final orders have been defined by statute in Nebraska 

since 1858.5 Under § 25-1902, the three types of final orders 

which may be reviewed on appeal are (1) an order which 

affects a substantial right and which determines the action and 

prevents a judgment, (2) an order affecting a substantial right 

made during a special proceeding, and (3) an order affecting 

a substantial right made on summary application in an action 

after judgment is rendered.6 We have interpreted these three 

statutory categories of final orders as exclusive.7

3 Heckman v. Marchio, 296 Neb. 458, 462, 894 N.W.2d 296, 300 (2017).

4 See State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015). See, also, 

Neb. Rev. Stat. § 25-1911 (Reissue 2016).

5 John P. Lenich, What’s So Special About Special Proceedings? Making 

Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001). See, 

also, Neb. Rev. Stat. § 25-1902 (Reissue 2016).

6 In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).

7 See Heckman v. Marchio, supra note 3, 296 Neb. at 464, 894 N.W.2d 

at 301 (rejecting judicially created collateral order doctrine that allowed 

appeals of orders not final under three categories of § 25-1902 and quoting 

Lenich, supra note 5, “‘Section 25-1902 specifies three types of final 

orders, which implies that there are no others’”).
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The district court’s overruling of Combs’ motions to dismiss and motion for judgment of acquittal were not final 

orders.

Combs argues that “the Trial Court erred in failing to sustain the motion for judgment of acquittal as to all Counts” and 

that “the Trial Court erred in failing to dismiss the case at the 

close of the evidence.” He argues that the court should have 

dismissed the charges at the conclusion of the State’s evidence 

and should have entered a judgment of acquittal on all counts 

because the evidence was insufficient to submit the case to 

the jury.

[6-8] A motion for judgment of acquittal is “[a] criminal 

defendant’s request, at the close of the government’s case 

or the close of all evidence, to be acquitted because there is 

no legally sufficient evidentiary basis on which a reasonable 

jury could return a guilty verdict.”8 A motion for judgment 

of acquittal is simply another name for a motion for directed 

verdict of acquittal.9 And a motion to dismiss at the close of all 

the evidence has the same legal effect as a motion for directed 

verdict.10 Thus, whether styled as a motion for judgment of 

acquittal, motion for directed verdict, or motion to dismiss, 

these motions all have the same effect when used to challenge 

the sufficiency of the State’s evidence at the conclusion of the 

State’s case or the conclusion of the evidence.

[9] Combs’ motion for judgment of acquittal was untimely 

because it was filed after the court declared a mistrial. Because 

a motion for judgment of acquittal is a motion for a directed 

verdict, such a motion logically cannot be made after a trial 

has ended in a mistrial.

8 Black’s Law Dictionary 1170 (10th ed. 2014).

9 See State v. Foster, 230 Neb. 607, 611, 433 N.W.2d 167, 169 (1988) 

(citing case from another jurisdiction and “not[ing] that [that jurisdiction’s] 

motion for acquittal is procedurally the same as our motion for a directed 

verdict”).

10 Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017).
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[10] Combs’ has waived his claim that the district court 

erred in overruling his motions to dismiss. A defendant who 

moves for dismissal or a directed verdict at the close of the 

evidence in the State’s case in chief in a criminal prosecution 

and who, when the court overrules the dismissal or directed 

verdict motion, proceeds with trial and introduces evidence, 

waives the appellate right to challenge correctness in the trial 

court’s overruling the motion for dismissal or a directed verdict 

but may still challenge the sufficiency of the evidence.11

[11] Here, Combs waived his right to challenge the overruling of his motions to dismiss by proceeding with trial and 

introducing evidence in his defense. And Combs cannot challenge the sufficiency of the evidence underlying a conviction 

because no verdict was reached by the jury; there is no conviction to challenge. Furthermore, the overruling of a motion to 

dismiss is typically not a final order.12 As this court has said, 

“‘A judgment entered during the pendency of a criminal cause 

is final when no further action is required to completely dispose of the cause pending.’”13 The order overruling the motion 

to dismiss was not a final order because it did not “completely 

dispose of” the case.

Because Combs sought and was granted a mistrial, he cannot now challenge the district court’s failure to inquire whether 

the jury was deadlocked on all counts. We point out that the 

better practice would have been for the district court to have 

inquired of the jury whether it was deadlocked on every count 

before it granted a mistrial.

Combs cannot challenge as error the presiding juror’s failure 

to publish the jury’s verdict on counts 2 through 4. Appellate 

11 State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).

12 StoreVisions, Inc. v. Omaha Tribe of Nebraska, 281 Neb. 238, 795 N.W.2d 

271 (2011) (concluding in civil case that motion to dismiss is not special 

proceeding and that overruling of motion to dismiss is not final order).

13 State v. Warner, 290 Neb. 954, 959, 863 N.W.2d 196, 200 (2015) 

(discussing “the final order requirement in the context of § 29-2315.01” 

regarding appeals by the prosecution).
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courts consider errors made by the trial court, which may 

relate to the jury. Our rules of appellate procedure direct appellants to include in their briefs a “separate, concise statement of 

each error a party contends was made by the trial court,”14 not 

by the jury.

Finally, Combs cannot challenge the admission of certain 

opinion testimony because the court’s admission of such testimony is not subject to review, since Combs was granted a 

mistrial. No judgment was rendered in Combs’ trial because it 

resulted in a mistrial.

[12,13] But we have held that “a plea in bar . . . may be filed 

to assert any nonfrivolous double jeopardy claim arising from 

a prior prosecution” and that an “order overruling the plea in 

bar [is] a final, appealable order.”15 A plea in bar is a special 

proceeding’” for purposes of § 25-1902, and a nonfrivolous 

double jeopardy claim affects a substantial right.16 Thus, the 

district court’s order overruling Combs’ plea in bar is a final, 

appealable order that we have jurisdiction to review.

Overruling of Combs’ Plea

in Bar: Double Jeopardy

Combs argues that the district court erred in overruling his 

plea in bar. He argues that he presented evidence that the jury 

voted to acquit him on three of the four counts, but that the 

jury did not enter a verdict of acquittal on those counts because 

it mistakenly thought it had to reach a unanimous verdict on 

all counts. He asserts that he was effectively acquitted on 

those counts and that the Double Jeopardy Clause of the U.S. 

Constitution bars retrial.

[14] Under Neb. Rev. Stat. § 29-1817 (Reissue 2016), a 

criminal defendant “may . . . offer a plea in bar to the indictment that he has before had judgment of acquittal, or been 

14 Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014) (emphasis supplied).

15 State v. Williams, 278 Neb. 841, 850-51, 774 N.W.2d 384, 392 (2009).

16 Id. at 847, 774 N.W.2d at 390.
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convicted, or been pardoned for the same offense.” A plea in 

bar may be used to raise a double jeopardy challenge to the 

State’s right to retry a defendant following a mistrial.17

[15-17] The Double Jeopardy Clause of the Fifth Amendment 

to the U.S. Constitution provides that “No person shall . . . be 

subject for the same offence to be twice put in jeopardy of 

life or limb . . . .” The 5th Amendment’s protection against 

double jeopardy applies to states through the 14th Amendment 

to the U.S. Constitution.18 This provision prohibits a criminal defendant from being put in jeopardy twice for the same 

offense and “unequivocally prohibits a second trial following 

an acquittal.”19 But this prohibition on retrial is not unequivocal when the first trial ends in a mistrial.20

[18-20] Where a mistrial is declared over a defendant’s 

objection, he or she may only be retried if the prosecution 

can demonstrate a “‘manifest necessity’” for the mistrial.21

But as the U.S. Supreme Court has said, “[Where] a mistrial 

[is] declared at the behest of the defendant, quite different 

principles come into play. [Where] the defendant himself 

has elected to terminate the proceedings against him . . . the 

‘manifest necessity’ standard has no place in the application 

of the Double Jeopardy Clause.”22 Where a defendant asks 

the court to declare a mistrial, the Double Jeopardy Clause 

does not bar retrial, subject to one “narrow exception.”23

17 See State v. Williams, supra note 15.

18 U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any person of 

life, liberty, or property, without due process of law”); Benton v. Maryland, 

395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

19 Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 54 L. Ed. 2d 717 

(1978).

20 See Arizona v. Washington, supra note 19.

21 Id., 434 U.S. at 505.

22 Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 72 L. Ed. 2d 416 

(1982).

23 See id., 456 U.S. at 673.
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That narrow exception, where retrial is barred by the Double 

Jeopardy Clause following a mistrial declared on the defendant’s motion, is “limited to those cases in which the [prosecution’s] conduct giving rise to the successful motion for a 

mistrial was intended to provoke the defendant into moving 

for a mistrial.”24

In this case, Combs asked the district court three times to 

declare a mistrial. Double Jeopardy does not bar retrial where 

a defendant asks the trial court to declare a mistrial.25 The 

narrow exception for circumstances in which the prosecution 

intends to provoke the defendant into moving for a mistrial 

does not apply here.

[21-23] We disagree with Combs that the jury acquitted 

him. While the jury may have voted or tentatively voted to 

acquit Combs on three of the counts in its deliberations, it 

did not reach a verdict. The verdict form was not filled out or 

signed, the jury did not announce a verdict and was not available to be polled by the parties, nor was any verdict accepted 

by the district court. Neb. Rev. Stat. § 29-2024 (Reissue 2016) 

provides, “When the jury have agreed upon their verdict they 

must be conducted into court by the officer having them in 

charge. Before the verdict is accepted the jury may be polled 

at the request of either the prosecuting attorney or the defendant.” We have said that “[a] jury’s action cannot become a 

verdict until it is finally rendered in open court and received 

and accepted by the trial judge”26 and that “[a] verdict, to be 

of any validity, must be delivered in open court.”27 A vote 

taken in the privacy of jury deliberations is not a verdict. 

The fact that the jury may have planned to acquit him on 

three counts does not mean that the Double Jeopardy Clause 

24 Id., 456 U.S. at 679.

25 See id.

26 State v. Anderson, 193 Neb. 467, 469, 227 N.W.2d 857, 858 (1975).

27 Longfellow v. The State, 10 Neb. 105, 107, 4 N.W. 420, 422 (1880).
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prohibits retrial after the court declared a mistrial at Combs’ 

own request.

Combs claims that the trial judge erred by not asking the 

jurors whether they were deadlocked on all counts. But Combs 

did not ask the court to inquire whether the jury had reached 

a verdict on all counts. Instead, he asked for a mistrial, which 

the court granted. Where Combs asked for and was granted a 

mistrial, the Double Jeopardy Clause does not bar his retrial.

CONCLUSION

We affirm the order of the district court which overruled 

Combs’ plea in bar. The Double Jeopardy Clause does not bar 

Combs’ retrial after his first trial ended in a mistrial which was 

granted at Combs’ request.

Affirmed.

Cassel, J., participating on briefs.