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STATE v. STABLER

Cite as 305 Neb. 415

State of Nebraska, appellee, v. 

Eddy D. Stabler, appellant.

___ N.W.2d ___

Filed March 27, 2020. No. S-19-360.

1. Jury Instructions. Whether the jury instructions given by a trial court 

are correct is a question of law.

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

appellate court resolves the questions independently of the conclusion 

reached by the lower court.

3. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, an appellate 

court does not resolve conflicts in the evidence, pass on the credibility 

of witnesses, or reweigh the evidence; such matters are for the finder 

of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

5. 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.

6. Lesser-Included Offenses: Jury Instructions: Evidence. A court must 

instruct on a lesser-included offense 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 

Nebraska Supreme Court Online Library

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

04/10/2020 08:07 AM CDT
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defendant of the greater offense and convicting the defendant of the 

lesser offense.

7. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

8. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the 

amount of violence involved in the commission of the crime.

9. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, Shawn 

Elliott, and Ella Newell, Senior Certified Law Student, for 

appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

and Papik, JJ.

Heavican, C.J.

INTRODUCTION

Defendant Eddy D. Stabler was convicted by a jury of second degree assault and use of a deadly weapon to commit a 

felony. He was sentenced to a total of 15 to 25 years’ imprisonment. He appeals. We affirm.

FACTUAL BACKGROUND

Stabler and the victim, Jacinda Stabler, were married and 

resided together on B Street in Lincoln, Nebraska, with their 
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four children and the children of each of them from previous 

relationships with other individuals. In April 2016, Jacinda 

filed for divorce. Stabler moved out of the family home to live 

with his sister, who resided elsewhere in Lincoln.

At approximately this same time, Stabler began communicating via electronic messaging with a relative, Athea Stabler. 

Stabler and Athea were both members of the Omaha Tribe, and 

Athea lived in Macy, Nebraska.

As part of a cooperation agreement, Athea testified at 

trial as to her role in Jacinda’s assault. According to Athea’s 

testimony, in Stabler’s messages, which she later deleted, 

Stabler told Athea that Jacinda had been “cheating on” him 

and asked Athea whether she would “handle the situation.” 

Though by all indications Athea did not know Jacinda, she 

agreed to help Stabler because she viewed Jacinda as a threat 

to the family.

On May 28, 2016, Athea came to Lincoln to attend an 

event at a community center. While at this event, Athea communicated with Stabler, again via electronic messaging, who 

wondered if “she” was at the event. Athea took “she” to mean 

Jacinda. Athea told Stabler that “she” was not in attendance. 

Stabler then asked whether Athea was staying overnight. Athea 

indicated that she was driving back to Macy with her mother 

and stepfather. At this, Stabler invited Athea to a family birthday party at a local bar and offered to drive her back to Macy 

the next day “if u can handle this.” Athea testified that she 

understood “this” to refer to assaulting Jacinda. Athea agreed, 

and Stabler and Athea established general terms for payment—

“Yeah give u sum cash r sun chit either way half an half we 

can talk about it”—which Athea explained meant she was to 

earn some combination of money and drugs. Unlike the earlier 

messages, these messages were not deleted and are part of 

the record.

At the conclusion of the event at the community center, 

Athea met with Stabler and others at the home of Stabler’s 

sister to attend the birthday party. Athea testified that she 
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spoke alone with Stabler prior to leaving for the party and 

that Stabler indicated, in conformity with his and Athea’s electronic messaging communications, that Athea was to assault 

Jacinda that night. According to Athea’s testimony, Stabler told 

Athea to “leave a scar on [Jacinda’s] face and to cut off her 

mane.” In return, Athea was to be paid $400 and 4 grams of 

methamphetamine.

After attending the birthday party, Stabler and Athea dropped 

another partygoer off at the home of Stabler’s sister, then went 

to a different location to “get high.” During the car ride to the 

other location, Stabler gave Athea a knife.

At some point, Stabler and Athea went to yet another home. 

Athea testified that the individuals who lived in that home 

drove her to Jacinda’s house and waited in the car while Athea 

was inside. Athea located Jacinda in the home, where she was 

sleeping in a bed with some of her children. That Jacinda was 

with her children gave Athea pause, and she testified that she 

decided only to threaten Jacinda. As such, she put the knife 

to Jacinda’s throat; this woke Jacinda, who began screaming. 

Athea grabbed Jacinda by her hair and began to hit her. Jacinda 

fought back and kicked at Athea, so Athea began stabbing 

Jacinda and tried to cut off her hair. Having stabbed Jacinda, 

though not cut her hair, Athea fled the house, dropping the 

knife on her way out.

Over the next few months, Stabler and Athea continued 

to communicate via electronic messaging. As with the messages sent on the day of the assault, these later messages are 

in the record. According to Stabler, the messages, reprinted in 

relevant part below, can be explained because Athea was seeking drugs. However, Athea testified that she initiated contact 

and attempted to meet with Stabler because she felt she was 

“gypped” by the compensation she received from Stabler for 

assaulting Jacinda. Athea further testified that she had received 

“some meth” and “just a hundred dollars,” when she was 

promised $400 and more methamphetamine than she ultimately 

received. Athea did not think she would be successful simply 
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telling that to Stabler, so she wanted to force a face-to-face 

meeting with him.

During the course of these messages, Athea told Stabler that 

“iWent in With aKnife And Left WithOut It. My FingerPrints 

On That Shit. So Its Only aMatter Of Time.” She also messaged, “Ya Hear AnyThing About That Knife? That Shit Got 

Me Worried Like aMuhFcka. Ugh.” On another occasion, 

Stabler warned Athea, “Dude the cops . . . relax k” and “I got u 

. . . u have my word.” In response, Athea asked, “Any Updates 

With The Investigation?” Stabler informed Athea that “jacinda 

is pointing fingers at me . . . lol . . . I got this shit I tel u more 

in person u just relax as best u can.” Athea responded, “Im 

Tryin’ Unk. Juzt Impatient. Cuz if AnyThing Comes Bck On 

Me iAint Trynna Be Broke or Sober.” On yet another occasion, 

Athea asked for news updates. Stabler said that there were no 

updates, but that that was good news, and that the police were 

“Looking for a 6′ft tall 230lbs Mexican male,” to which Athea 

responded, “Ha! With Dark Curly Hair.” Stabler then replied, 

“Lol . . . shhh hit me up when ur in town.”

Meanwhile, shortly after the assault, law enforcement 

received an anonymous tip that Athea had assaulted Jacinda. 

Athea was eventually questioned while being held on other 

charges. Athea admitted to assaulting Jacinda, but said that she 

would not have done so absent the arrangement with Stabler. 

Athea was convicted of second degree assault and sentenced to 

18 to 20 years’ imprisonment.

Stabler was found guilty on both counts. He appeals.

ASSIGNMENTS OF ERROR

Stabler assigns as error that the district court erred by 

(1) failing to give a limiting instruction when requested in 

response to the State’s improper burden-shifting argument during rebuttal, (2) prohibiting Stabler from explaining that his 

prior convictions were for forgery, (3) failing to instruct the 

jury on the lesser-included offense of third degree assault, (4) 

finding that the evidence was sufficient to sustain Stabler’s 

convictions, and (5) imposing excessive sentences.
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STANDARD OF REVIEW

[1,2] Whether the jury instructions given by a trial court are 

correct is a question of law. 1 When reviewing questions of law, 

an appellate court resolves the questions independently of the 

conclusion reached by the lower court. 2

[3] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of 

the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on 

the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, 

in the absence of prejudicial error, if the evidence admitted at 

trial, viewed and construed most favorably to the State, is sufficient to support the conviction. 3

[4] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. 4

ANALYSIS

Limiting Instruction.

Stabler first assigns that statements made by the State in 

rebuttal closing arguments effectively shifted the burden of 

proof from the State to the defense and that the district court 

erred in not giving a limiting instruction to correct this burden 

shifting.

[5] 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 

1 State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

2 Id.

3 State v. Case, 304 Neb. 829, 937 N.W.2d 216 (2020).

4 State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
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evidence, and (3) the appellant was prejudiced by the court’s 

refusal to give the tendered instruction. 5

As relevant to this assignment of error, the record shows 

that during the State’s case in chief, it offered the testimony of 

one of the investigating officers. That officer testified that the 

police were able to locate just one of the two individuals who 

drove Athea to Jacinda’s home and that the individual refused 

to speak with them.

During closing arguments, defense counsel noted that the 

State was not able to produce any witnesses to corroborate 

Athea’s testimony, including either of those two individuals. 

Defense counsel then noted that though the State claimed that 

neither individual would cooperate, it was “not an excuse” and 

did not change the State’s burden of proof.

In response to this, the State commented in its rebuttal 

argument that it “[did not] deny [that] it’s [the State’s] burden to prove this case beyond a reasonable doubt, but parties 

have the power to subpoena, both parties have the power to 

compel witnesses,” apparently suggesting that Stabler, too, 

could have called these witnesses. Defense counsel objected 

at this point and requested the jury to be instructed that the 

burden never shifts to the defendant. The district court sustained the objection and noted, “The comments of the State 

are stricken from the record, and the jury is not to consider 

those comments.”

On appeal, Stabler argues that the district court erred in not 

giving a limiting instruction regarding burden shifting. While 

the district court did not immediately give the specific limiting 

instruction Stabler requested, it struck the comments in question and specifically instructed the jury that it should disregard 

the comments. And only a short time later, just prior to submission of the case, the trial court again so instructed the jury, both 

orally and in writing. The instructions informed the jury that it 

should not consider as evidence statements or arguments made 

by the attorneys, objections to questions, or testimony the jury 

5 State v. Case, supra note 3.
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had previously been told to disregard. In addition, the jury was 

instructed that the State had the burden to prove Stabler’s guilt. 

The jury was also informed about the State’s burden throughout the trial.

We find no error in the district court’s handling of this matter. And even if there was error, it was not prejudicial. Stabler’s 

first assignment of error is without merit.

Admissibility of Stabler’s Testimony 

Regarding Nature of His Prior 

Felony Convictions.

In his second assignment of error, Stabler assigns that the 

district court erred in finding that he could not testify on direct 

examination as to the basis of his prior felony convictions.

During the course of trial, and just prior to Stabler’s taking 

the stand to testify in his own behalf, the State moved in limine 

to prohibit Stabler from testifying as to the nature of his two 

prior felony convictions. That motion was granted, and Stabler 

made an offer of proof that had he been permitted to testify, 

he would have stated his prior convictions were for crimes of 

dishonesty, specifically forgery.

As relevant to this issue, Neb. Rev. Stat. § 27-609(1) 

(Reissue 2016) states:

For the purposes of attacking the credibility of a witness, 

evidence that he has been convicted of a crime shall be 

admitted if elicited from him or established by public 

record during cross-examination, but only if the crime 

(a) was punishable by death or imprisonment in excess of 

one year under the law under which he was convicted or 

(b) involved dishonesty or false statement regardless of 

punishment.

The issue presented in this case was addressed by the 

Nebraska Court of Appeals in State v. Howell.

 6 The Court of 

Appeals examined this court’s case law regarding § 27-609, 

and it concluded:

6 State v. Howell, 26 Neb. App. 842, 924 N.W.2d 349 (2019).
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[W]e are constrained to find that the district court did not 

err in prohibiting [the defendant] from testifying as to 

the specifics of his prior felony conviction. Pursuant to 

[§ 27-609], [the defendant] was permitted to testify that 

he had previously been convicted of a felony or a crime 

involving dishonesty. He was not permitted to divulge the 

specifics of his prior conviction, as such information was 

not relevant to his credibility. 7

Stabler argues in his brief that the district court erred, 

because without evidence on the nature of the felonies, “the 

jury was left to wonder about the nature of the prior felony 

convictions, in particular, left to wonder whether his felony 

convictions were for crimes of violence.” 8 Stabler asks this 

court to reverse the Court of Appeals’ decision in Howell.

We need not decide whether Howell was wrongly decided, 

because in this case, the evidence Stabler wished to admit 

was presented to the jury. The record shows that Stabler was 

permitted to testify, without objection or cross-examination, 

that his felonies were for crimes of dishonesty; thus, the 

jury was informed that Stabler’s felonies were not for crimes 

of violence.

We decline to address Stabler’s contention, made for the 

first time in oral arguments in this case, that there is a distinction between forgery and other crimes of dishonesty. This 

contention was not raised below, nor was it assigned or argued 

in his brief.

There is no merit to Stabler’s second assignment of error.

Lesser-Included Instruction.

Stabler also assigns that the district court erred in refusing to give his requested instruction for the lesser-included 

offense of third degree assault. He contends Athea testified that 

after she entered Jacinda’s home and found Jacinda sleeping 

with her children, she put the knife away and abandoned the 

7 Id. at 869, 924 N.W.2d at 371.

8 Brief for appellant at 37.
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original plan. Stabler further notes that Athea attacked Jacinda 

only to keep her from screaming. Stabler argues that even 

then, Athea attacked at first only by punching Jacinda, and that 

Athea did not use the knife until Jacinda kicked her. Stabler 

argues that this created a causal break, that Athea’s actions 

using the knife after this point cannot be attributed to Stabler, 

and that there was a “rational basis” to support a third degree 

assault instruction. 9

[6] A court must instruct on a lesser-included offense 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. 10 The State does not dispute, 

and our case law supports, that third degree assault is a lesserincluded offense of second degree assault. A person commits 

the offense of second degree assault by committing the offense 

of third degree assault of causing, intentionally, knowingly, 

or recklessly, bodily injury to another by the use of a dangerous instrument.

In State v. Al-Zubaidy,

 11 the defendant was charged with second degree assault. An issue on appeal was whether a lesserincluded instruction on the offense of third degree assault was 

warranted. We held such an instruction was not warranted, 

because the uncontroverted evidence established that a knife 

was used in perpetration of the assault. We noted:

Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the 

greater crime but not necessary for the lesser offense, a 

duty rests on the defendant to offer at least some evidence 

9 Id. at 41.

10 State v. Oliveira-Coutinho, 304 Neb. 147, 933 N.W.2d 825 (2019).

11 State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).
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to dispute this issue if he or she wishes to have the benefit 

of a lesser-offense instruction. 12

Here, the evidence was uncontroverted that Athea entered 

Jacinda’s house with a knife that she intended to use, and in 

fact did use, to assault Jacinda. It was Stabler’s duty to raise 

at least some evidence to dispute this issue. Stabler argues that 

Athea’s decision not to assault Jacinda after seeing Jacinda 

with her children was a causal break that disputed the evidence 

of second degree assault and entitled him to an instruction for 

the lesser-included offense of third degree assault.

But this was not a causal break. Any momentary hesitation on Athea’s part does not change the fact that Athea took 

a knife to Jacinda’s home and attacked Jacinda with the knife 

and that the jury found Stabler guilty of that crime under 

an aiding and abetting theory. Moreover, in finding Stabler 

guilty of both second degree assault and of use of a weapon to 

commit a felony, the jury agreed that there was a connection 

between Stabler’s arranging for the assault and Athea’s use of 

the weapon.

There is no merit to Stabler’s third assignment of error.

Sufficiency of Evidence.

Stabler next assigns that the district court erred in finding there was sufficient evidence to support his convictions. 

He argues first that Athea was not credible and that no other 

evidence supported Stabler’s guilt. Stabler also argues that 

because Athea had second thoughts about using the knife to 

assault Jacinda when she saw the children in the room with 

Jacinda, such constituted an abandonment of the original plan 

and was a casual break in the chain of events. For that reason, 

the subsequent attack was attributed solely to Athea and there 

was no aiding and abetting liability on Stabler’s part.

Stabler’s contention that Athea was not credible is not 

relevant to our determination of whether there was sufficient 

12 Id. at 607, 641 N.W.2d at 373-74.
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evidence to support the conviction. It is not the role of an 

appellate court to pass on the credibility of the witnesses, or 

otherwise resolve conflicts in or reweigh the evidence. 13 Rather, 

if in viewing the evidence in a light most favorable to the State 

there was any evidence to support Stabler’s guilt, such is sufficient to support the convictions. 14 In this case, Athea testified 

that she used a knife, given to her by Stabler, to stab Jacinda; 

that she did so at Stabler’s request; and that she was paid to do 

so. This is enough to support Stabler’s convictions.

Stabler’s contention that there was insufficient evidence to 

support his convictions because Athea abandoned the original 

plan and thereafter was solely responsible for Jacinda’s assault 

is also without merit. As noted above, this was not a causal 

break relieving Stabler of responsibility under an aiding and 

abetting theory. This conclusion is reinforced, again as noted 

above, by the fact that the jury found Stabler guilty of second 

degree assault and use of a weapon to commit a felony.

There is no merit to Stabler’s fourth assignment of error.

Excessive Sentences.

Finally, Stabler assigns that the sentences imposed by the 

district court were excessive. Stabler was convicted of second degree assault, a Class IIA felony, and sentenced to 10 

to 15 years’ imprisonment. He was also convicted of use of a 

weapon to commit a felony, a Class II felony, and sentenced to 

5 to 10 years’ imprisonment. The sentences were to be served 

consecutively.

[7] Under Neb. Rev. Stat. § 28-105 (Reissue 2016), a Class 

IIA felony is punishable by a maximum of 20 years’ imprisonment. There is no minimum. A Class II felony is punishable 

by a maximum of 50 years’ imprisonment and a minimum of 

1 year’s imprisonment. Where, as here, a sentence imposed 

within the statutory limits is alleged on appeal to be excessive, 

the appellate court must determine whether a sentencing court 

13 See State v. Case, supra note 3.

14 See id.
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abused its discretion in considering and applying the relevant 

factors as well as any applicable legal principles in determining 

the sentence to be imposed. 15

[8,9] In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) 

age, (2) mentality, (3) education and experience, (4) social and 

cultural background, (5) past criminal record or record of lawabiding conduct, and (6) motivation for the offense, as well as 

(7) the nature of the offense and (8) the amount of violence 

involved in the commission of the crime. 16 The appropriateness 

of a sentence is necessarily a subjective judgment and includes 

the sentencing judge’s observation of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding 

the defendant’s life. 17

A review of the record shows that not only were Stabler’s 

sentences within statutory limits, they were imposed based on 

Stabler’s plotting to have his wife, the mother of his children, 

assaulted. The sentences were not based on any inappropriate 

or irrelevant information. The district court did not abuse its 

discretion in sentencing Stabler, and there is no merit to his 

final assignment of error.

CONCLUSION

The convictions and sentences of the district court are 

affirmed.

Affirmed.

Freudenberg, J., not participating.

15 State v. Iddings, supra note 4.

16 Id.

17 Id.