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STATE V. CERRO

Cite as 312 Neb. 230

State of Nebraska, appellee, v. 

Joel A. Cerros, appellant.

___ N.W.2d ___

Filed August 12, 2022. No. S-21-527.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules and judicial discretion is involved only when the rules 

make discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

3. Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of 

that discretion.

4. 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.

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

correct is a question of law.

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

is obligated to reach a conclusion independent of the determination 

reached by the court below.

7. Witnesses: Trial. A witness may not give an opinion as to a defendant’s 

guilt or how the case should be decided, but, rather, must leave the 

Nebraska Supreme Court Online Library

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

10/28/2022 09:05 AM CDT
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conclusions to be drawn by the trier of fact, because such opinions are 

not helpful.

8. Convictions: Intent. Reckless driving is not a mere traffic infraction 

or public welfare offense; it requires the necessary mens rea to be the 

unlawful act to support a conviction for manslaughter.

9. 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 

defendant of the greater offense and convicting the defendant of the 

lesser offense.

10. Homicide: Lesser-Included Offenses: Jury Instructions. Where murder is charged, a court is required to instruct on lesser degrees of homicide where appropriate, but in other circumstances, a court must instruct 

on a lesser-included offense only if requested to do so, and failure to 

instruct on a lesser-included offense cannot be considered error if the 

defendant did not request the instruction. 

Appeal from the District Court for Butler County: Robert 

R. Steinke, Judge. Affirmed.

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

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

for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Joel A. Cerros appeals his conviction in the district court 

for Butler County for manslaughter, with reckless driving as 

the predicate unlawful act. Cerros claims that the district court 

erred when it allowed a law enforcement officer to testify 

that driving on the wrong side of the road could be a sign of 

reckless driving. Cerros also claims that there was insufficient 

evidence to support his conviction for manslaughter and, for 
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the first time on appeal, claims that the district court erred 

when it failed to instruct the jury on careless driving as a 

lesser-included offense. We affirm Cerros’ conviction.

STATEMENT OF FACTS

On June 20, 2020, Cerros was involved in a traffic accident 

on U.S. Highway 81 south of Columbus, Nebraska. The car 

driven by Cerros was traveling south and was heading in the 

wrong direction (wrong lane) when it collided with a motorcycle traveling north. The motorcyclist died as a result of injuries 

sustained in the collision.

The State theorized that Cerros was under the influence 

of marijuana at the time of the accident. The State therefore 

charged Cerros with (1) motor vehicle homicide with driving 

under the influence (DUI) as the predicate violation of law, 

(2) DUI, (3) manslaughter with reckless driving as the predicate unlawful act, and (4) possession of drug paraphernalia. 

Cerros pled no contest to the possession charge and went to 

trial by jury on the remaining counts. The jury acquitted Cerros 

of DUI and motor vehicle homicide but found him guilty of 

manslaughter. Given the homicide based on DUI acquittal, our 

analysis on appeal is focused on manslaughter.

The evidence at trial included testimony by witnesses, 

including other motorists who arrived at the scene shortly after 

the accident as well as rescue and law enforcement personnel 

who later arrived at the scene. Relevant to the charge of manslaughter based on reckless driving, various witnesses testified that Cerros’ car was in the wrong lane. For example, one 

rescue worker testified that the car “was facing south, but was 

in the northbound lane . . . in the shoulder area” and that the 

“motorcycle was directly in front of the vehicle.”

The State presented testimony by an accident reconstructionist who testified regarding his investigation of the accident 

in this case. He stated in his report that “Cerros was driving 

southbound on Highway 81,” that “Cerros crossed into the 

northbound lanes of travel,” and that the northbound motorcycle collided with the southbound vehicle driven by Cerros. 
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He concluded that the “actions of . . . Cerros resulted in the 

death” of the motorcyclist.

The State also elicited testimony regarding the DUI and 

motor vehicle homicide charges, including observations of witnesses regarding Cerros’ condition shortly after the accident. 

Among the witnesses the State questioned in this regard was 

Devin Betzen, a sheriff’s deputy who was dispatched to the 

scene of the accident. During initial general questioning of 

Betzen regarding his experience in law enforcement, the State 

asked Betzen, “[W]hat do you look for in determining signs 

of impairment, just in general cases?” Betzen responded by 

listing physical signs such as bloodshot, watery eyes, slurred 

speech, slow deliberate movement, and poor finger-to-thumb 

dexterity. The State then asked, “What about driving habits?” 

Betzen responded by listing actions such as speeding, driving 

on the shoulder of the road, and crossing centerlines. The State 

suggested, “Driving the wrong way . . . down a highway?” and 

Betzen responded in the affirmative.

During cross-examination of Betzen, Cerros elicited testimony related to his defense theory that at the time of the collision, he had crossed the centerline because he was preparing 

to turn left onto a county road that was a short distance ahead. 

Betzen testified that Cerros’ parents’ house was approximately 

4 miles from the site of the accident and that in order to go 

to their house, Cerros would have had to have turned left 

onto a county road that was approximately 15 to 20 feet south 

past the site of the collision. At the end of cross-examination, 

Betzen agreed that in the report he prepared after his investigation, he did not state that Cerros had shown any signs of 

impairment or that he had “found any signs of impairment by 

his driving.”

The State then began its redirect of Betzen with this 

exchange: “[State:] Deputy Betzen, driving on the wrong 

side of the road could be a sign of impairment; is that correct? [Betzen:] That’s correct. [State:] Could be a sign of 

reckless driving; is that correct? [Betzen:] That’s correct.” 
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Cerros objected on the basis that the State’s question “[c]alls 

for an answer that the jury has to decide. Ultimate issue, Your 

Honor.” The court overruled Cerros’ objection, and it stated, 

“And the answer was ‘that’s correct.’ And the question was ‘it 

could be a sign.’ All right.” The State then continued with a 

different line of questioning.

Other evidence presented by the State included testimony 

by emergency personnel that the motorcyclist had died at the 

scene of the accident. The State also presented testimony by 

the pathologist who conducted the autopsy on the motorcyclist. 

The pathologist testified that the motorcyclist had sustained 

various injuries, including injuries to the head, chest, and 

abdomen. The pathologist opined that the cause of death was 

blunt force trauma to the head, chest, and abdomen and that 

such injuries were consistent with the motorcycle having collided with the automobile.

Cerros moved for a directed verdict at the close of the 

State’s evidence. The district court overruled the motion and 

made certain remarks with regard to the manslaughter charge. 

The court noted that manslaughter was charged with reckless 

driving as the predicate unlawful act. The court stated that 

reckless driving was a misdemeanor offense and not a traffic 

infraction or a public welfare offense. The court stated that 

evidence offered by the State showed that Cerros “was operating his motor vehicle over a period of time and through a term 

of space completely in the wrong lane of a major U.S. highway,” and the court determined that “[s]uch evidence viewed 

most favorably to the State would establish that the unlawful 

act of reckless driving was done voluntarily and intentionally and was not the result of mistake, accident or momentary inattention.”

In his defense, Cerros presented evidence including testimony by an expert in pharmacology and toxicology who 

generally testified regarding studies that showed no increased 

risk of crashes for drivers who had used marijuana. He also 

testified that he had viewed videos of Cerros taken at the 
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scene of the accident, on the ride to the hospital, and at the 

hospital, and he opined that he did not see any indicators that 

Cerros was under the influence of marijuana at that time. 

Cerros also presented testimony by his mother, his father, and 

his sister to the effect that on the evening of June 20, 2020, 

Cerros’ parents were hosting a family gathering at their house 

north of Rising City, Nebraska, and that they were awaiting 

Cerros’ arrival.

At the jury instruction conference, the court presented its 

proposed instructions. With respect to manslaughter, the elements instruction, instruction No. 3, given by the court, provided that

the elements of the State’s case are:

1. That the defendant, . . . Cerros, caused the death of 

[the motorcyclist];

2. That the defendant did so while operating a motor 

vehicle upon the public streets or highways of the State 

of Nebraska;

3. That the defendant did so unintentionally while in 

the commission of an unlawful act, to-wit: reckless driving as defined in Instruction No. 4; and

4. That the defendant did so on or about June 20, 2020, 

in Butler County, Nebraska.

Instruction No. 4 provided:

The material elements of reckless driving are:

On or about June 20, 2020, in Butler County, Nebraska, 

the defendant, . . . Cerros, drove a motor vehicle upon the 

streets or highways of the State of Nebraska in such a 

manner as to indicate an indifferent or wanton disregard 

for the safety of persons or property.

Instruction No. 6 included definitions of various terms and 

defined “reckless” as “the disregard for or indifference to 

the safety of another or for the consequences of one’s act. 

‘Wanton’ and ‘reckless’ are treated synonymously.” The court 

asked the parties whether they had objections to its proposed 

instructions, and the State had no objections.
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Cerros, however, raised objections to the court’s instructions and proposed certain instructions of his own. Cerros first 

raised objections with regard to the instructions for motor vehicle homicide, and the court overruled his objections. Cerros 

then turned to the instructions on the charge of manslaughter. 

Cerros first stated that he asked that the predicate unlawful act 

for manslaughter should “be for willful reckless driving . . . 

instead of reckless driving” and that the court “give the definition for willful reckless driving.” Cerros next stated that he 

was “asking for the lesser included offense of reckless driving 

under [Neb. Rev. Stat. §] 60-6,212 or 60-6,213 because the 

jury theoretically could find there was no proximate cause, but 

he was reckless driving or willful reckless driving.”

Cerros also requested two additional instructions that he 

asserted were based on State v. Carman, 292 Neb. 207, 872 

N.W.2d 559 (2015). Cerros’ first proposed instruction stated: 

“‘Traffic infractions are public welfare offenses which do not 

require a showing of criminal intent and therefore, are insufficient by themselves to support a conviction for unlawful 

act manslaughter or involuntary manslaughter.’” His second 

proposed instruction stated: “‘Criminal intent is required to 

support a conviction for unlawful act manslaughter or involuntary manslaughter under this Count.’” Cerros asserted that 

the two instructions were necessary “to make it clear to the 

jury that he has to have criminal intent and that traffic infractions do not qualify, because the jury could easily find that 

there was a traffic infraction at this point, he was negligent, 

but not reckless.”

The court overruled Cerros’ objections and rejected his 

proposed instructions. The court stated that “reckless driving is not a public welfare offense and not a mere traffic 

infraction, and it has sufficient mens rea such that it can be 

the underlying unlawful offense for a manslaughter charge.” 

Regarding Cerros’ request to instruct the jury that criminal 

intent is required to support a conviction for manslaughter, the 

court noted that it would instruct the jury on the elements of 
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reckless driving and provide a definition of “reckless” and that 

those instructions would set forth “the mens rea that would 

be required.” The court stated that Cerros could argue the 

absence of the required mens rea for reckless driving during 

his closing argument.

In his closing argument, Cerros first focused on the charges 

of motor vehicle homicide and DUI. He then turned to the 

charge of manslaughter. Cerros argued, inter alia, that if the 

jurors thought that “he was driving negligently or carelessly 

. . . he is not guilty of driving recklessly causing [the motorcyclist’s] death.” Cerros then argued that his driving might have 

been negligent or careless but not reckless, and he asserted that 

he was “going into that left lane to turn at the first turnoff” and 

misjudged how close the oncoming headlights of the motorcycle were.

After closing arguments, the court gave its jury instructions 

and submitted the case to the jury. During deliberations, the 

jury submitted a written question to the court which asked, 

“What is the definition of negl[i]gent driving?” After discussion with counsel, the court responded by telling the jury that 

it was to make its determinations based on the evidence and the 

instructions that had been given.

The jury acquitted Cerros of motor vehicle homicide and 

DUI, but it found him guilty of manslaughter based on reckless 

driving. The court thereafter sentenced Cerros to imprisonment 

for 8 to 12 years for the manslaughter conviction.

Cerros appeals his conviction for manslaughter.

ASSIGNMENTS OF ERROR

Cerros claims that the district court erred when it allowed 

Betzen’s testimony that driving on the wrong side of the road 

could be a sign of reckless driving. Cerros also claims that 

there was insufficient evidence to support his conviction for 

manslaughter. Cerros finally claims for the first time on appeal 

that the district court erred when it did not instruct on careless 

driving as a lesser-included offense.
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Cite as 312 Neb. 230

STANDARDS OF REVIEW

[1-3] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules and judicial discretion is involved 

only when the rules make discretion a factor in determining 

admissibility. State v. Wood, 310 Neb. 391, 966 N.W.2d 825 

(2021). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

an appellate court reviews the admissibility of evidence for 

an abuse of discretion. Id. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and 

such determinations will not be disturbed on appeal unless they 

constitute an abuse of that discretion. State v. Rocha, 295 Neb. 

716, 890 N.W.2d 178 (2017).

[4] 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. State v. Pauly, 311 Neb. 418, 

972 N.W.2d 907 (2022).

[5,6] Whether jury instructions given by a trial court are 

correct is a question of law. Id. On a question of law, an appellate court is obligated to reach a conclusion independent of the 

determination reached by the court below. Id.

ANALYSIS

District Court Did Not Err When It Allowed 

Betzen’s Testimony Regarding Driving 

on the Wrong Side of the Road.

Cerros first claims that the district court erred when it 

allowed Betzen’s testimony to the effect that driving on the 
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wrong side of the road could be a sign of reckless driving. 

Cerros argues that Betzen’s testimony constituted an impermissible opinion as to Cerros’ guilt on a key element of the manslaughter charge in this case. Because Betzen did not express 

an opinion regarding Cerros’ guilt, we conclude that the district 

court did not err when it allowed the testimony.

[7] Cerros cites State v. Rocha, 295 Neb. at 733, 890 

N.W.2d at 194, in which we held that under Nebraska’s rules 

of evidence, including Neb. Evid. R. 701 and 702, Neb. Rev. 

Stat. §§ 27-701 and 27-702 (Reissue 2016), regarding opinion 

testimony, and Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), regarding relevancy and unfair prejudice, “a 

witness may not give an opinion as to a defendant’s guilt or 

how the case should be decided, but, rather, must leave the 

conclusions to be drawn by the trier of fact, because such 

opinions are not helpful.” We reasoned that such determinations are within the province of the trier of fact and that testimony that usurps the role of the trier of fact is not helpful 

and thus is improper opinion testimony under rules 701 and 

702. We further reasoned that the risk of unfair prejudice is 

heightened when such an opinion is given by a law enforcement officer.

When it overruled Cerros’ objection to Betzen’s testimony, 

the district court emphasized that the question was whether 

driving on the wrong side “[c]ould be” a sign of impaired 

driving or reckless driving and that Betzen merely answered, 

“That’s correct.” We read the court’s comment to indicate 

that the court did not think that Betzen’s answer constituted 

an opinion as to Cerros’ guilt. We agree with that reasoning. 

Considered in the context of earlier questioning, it appears 

that the State was asking about the sorts of actions or observations that would lead Betzen to suspect impaired driving 

or reckless driving as a general matter. The State did not ask 

for, and Betzen did not give, an opinion as to whether Cerros’ 

actions in this case established that Cerros was guilty of reckless driving.
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Under the rules of evidence, it was within the court’s discretion to determine whether Betzen’s testimony was relevant 

and whether it resulted in unfair prejudice to Cerros. Because 

Betzen agreed only in response to an isolated question that as 

a general matter, driving on the wrong side could be a sign 

of reckless driving, he did not provide an explicit opinion 

regarding whether Cerros was guilty of reckless driving. The 

testimony did not invade the jury’s province to make that 

determination based on all the evidence presented and the law 

as instructed. We therefore conclude that the district court did 

not abuse its discretion when it allowed Betzen’s testimony 

that driving on the wrong side of the road could be a sign of 

reckless driving.

There Was Sufficient Evidence to Support 

Cerros’ Manslaughter Conviction.

Cerros next claims that there was not sufficient evidence 

to support his conviction for manslaughter. He argues that the 

evidence does not show reckless driving, because at most, it 

showed a traffic infraction that would not support a conviction 

for manslaughter. We conclude that the evidence was sufficient 

to support Cerros’ conviction.

Cerros was convicted of manslaughter under Neb. Rev. Stat. 

§ 28-305 (Reissue 2016), which provides in part that “[a] person commits manslaughter if he or she kills another without 

malice upon a sudden quarrel or causes the death of another 

unintentionally while in the commission of an unlawful act.” In 

this case, Cerros was charged with manslaughter of the second 

type, that is, having “cause[d] the death of another unintentionally while in the commission of an unlawful act.” The predicate 

unlawful act was reckless driving as set forth in Neb. Rev. Stat. 

§ 60-6,213 (Reissue 2021), which provides that “[a]ny person 

who drives any motor vehicle in such a manner as to indicate 

an indifferent or wanton disregard for the safety of persons 

or property shall be guilty of reckless driving.” Neb. Rev. 

Stat. § 60-6,215 (Reissue 2021) provides that “[e]very person 
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convicted of reckless driving shall, upon a first conviction, be 

guilty of a Class III misdemeanor.”

Cerros’ argument relies on State v. Carman, 292 Neb. 207, 

216, 872 N.W.2d 559, 565 (2015), in which we held that 

“public welfare offenses such as traffic infractions which do 

not contain the element of criminal intent cannot support 

convictions for manslaughter.” We further stated in Carman

that “momentary inattentiveness and minor traffic violations 

do not involve the culpability or mens rea required to convict 

one of felony manslaughter.” 292 Neb. at 218, 872 N.W.2d at 

567. The defendant in Carman was convicted of manslaughter 

based on traffic offenses of following too closely and driving 

too fast for the conditions. We concluded that these traffic 

offenses were public welfare offenses that did not establish the 

required element of mens rea, and we therefore reversed the 

defendant’s conviction. Cerros argues that in this case, there 

was not sufficient evidence of the predicate act of reckless 

driving to support his conviction for manslaughter, because the 

evidence did not show he possessed the required mens rea for 

reckless driving, and that at best, it showed he had committed 

public welfare offenses involving momentary inattentiveness 

and minor traffic violations.

[8] We note that in Carman, we stated that in prior cases 

in which we had upheld manslaughter convictions based on 

offenses committed while driving, such cases “involved more 

than mere traffic infractions, which have no mens rea” and 

those convictions “almost invariably involved driving while 

intoxicated, driving recklessly, or both.” 292 Neb. at 224, 872 

N.W.2d at 570 (emphasis supplied). We stated that “[t]hese 

actions would establish that the unlawful act was done voluntarily and intentionally and was not the result of mistake, accident, or momentary inattention.” Id. We made clear in Carman

that reckless driving was not a mere traffic infraction or public 

welfare offense and that it required the necessary mens rea to 

be the unlawful act to support a conviction for manslaughter. 

We therefore reject any argument that reckless driving could 
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not support Cerros’ conviction for manslaughter. Our precedent 

is consistent with this conclusion.

We read Cerros to argue that, in any event, the evidence in 

this case does not support a finding that he committed reckless 

driving and instead that it showed at most that he was driving 

negligently. He contends that such negligence indicated a traffic infraction that was short of reckless driving and that, under 

Carman, would not support a conviction for manslaughter.

The State charged manslaughter based on reckless driving as 

the unlawful act. The court’s jury instruction setting forth the 

elements of manslaughter stated, inter alia, that the jury must 

find that Cerros caused the death of the motorcyclist while in 

the commission of the unlawful act of reckless driving, and 

a separate instruction set forth the elements of reckless driving as being that Cerros drove a vehicle “in such a manner as 

to indicate an indifferent or wanton disregard for the safety 

of persons or property.” The instruction therefore tracked the 

statute defining reckless driving and included the mens rea we 

found sufficient in Carman.

With respect to the evidence, there was sufficient evidence 

that the motorcyclist’s death was caused by the collision, 

and Cerros does not argue that there was not sufficient evidence to show that element of manslaughter. The evidence 

of reckless driving was that Cerros was driving on the wrong 

side of the highway and was 5 to 6 feet over the centerline 

at the time of the collision. The evidence also indicated a 

lack of skid marks, and the accident reconstructionist opined 

that Cerros had not taken reactive or corrective measures to 

avoid the collision. From this evidence, the jury could have 

determined that Cerros was not maintaining a proper lookout 

for an oncoming motorcycle as he drove in the wrong lane. 

The jury could reasonably have concluded that this evidence 

showed Cerros was operating the vehicle in such a manner as 

to indicate an indifferent or wanton disregard for the safety of 

persons or property and that therefore, he was committing the 

unlawful act of reckless driving. The jury had all the evidence 
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before it and was given a proper definition of reckless driving. A rational finder of fact could conclude Cerros committed 

reckless driving.

Cerros argues that his actions did not amount to reckless 

driving but instead were merely negligent or the result of 

momentary inattention. He presented evidence in his defense 

from which he argued that he was on the wrong side of the 

highway because he was preparing to turn left onto a county 

road. The jury could have considered the evidence Cerros 

presented in his defense and found that his driving did not 

meet the standard of “indifferent or wanton disregard” that 

was necessary to establish reckless driving. However, it is 

also reasonable that the jury could have rejected such evidence 

or that it could have found that even if his proffered reason 

was the true reason he was driving on the wrong side of the 

highway, that reason did not excuse his choice to drive on 

the wrong side of the highway and that doing so and failing 

to look out for oncoming traffic indicated an indifferent or 

wanton disregard for any motorist who might be driving from 

the opposite direction. Therefore, the jury could properly have 

considered the evidence presented by both parties and found 

reckless driving.

There was sufficient evidence to support Cerros’ conviction 

for manslaughter, and we reject this assignment of error.

District Court Did Not Err When It Failed

to Instruct on Careless Driving as a

Lesser-Included Offense.

Cerros finally claims that the district court erred when 

it failed to instruct the jury on careless driving as a lesserincluded offense. He argues that the evidence supported a 

finding that he was guilty of careless, but not reckless, driving. Cerros reasons that because careless driving cannot be 

the predicate unlawful act for manslaughter, the jury could 

have acquitted him of manslaughter and convicted him of the 

lesser offense of careless driving. We conclude that Cerros 
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did not explicitly request and did not offer a proposed lesserincluded offense instruction based on careless driving and that 

therefore, the district court did not err when it did not give 

such an instruction.

[9,10] With regard to lesser-included offense instructions, 

we have said that 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. State v. Wood, 310 Neb. 

391, 966 N.W.2d 825 (2021) (emphasis supplied). Specifically, 

with respect to lesser-included offense instructions, we have 

stated that in cases where murder is charged, a court is required 

to instruct on lesser degrees of homicide where appropriate, 

but in other circumstances, a court must instruct on a lesserincluded offense only if requested to do so and that failure 

to instruct on a lesser-included offense “cannot be considered 

error if the defendant did not request the instruction.” State v. 

Smith, 284 Neb. 636, 651, 822 N.W.2d 401, 413 (2012).

The issue as framed by Cerros on appeal regarding a 

lesser-included offense instruction is at odds with the record 

at trial and injects some confusion; thus, we clarify what the 

record shows. At the jury instruction conference and elsewhere, Cerros verbally asked the district court to instruct that 

reckless driving was a lesser-included offense even though 

Cerros was not charged with reckless driving and reckless 

driving served only as a predicate element of manslaughter. 

Cerros did not ask verbally or in writing that the jury be 

instructed that careless driving was a lesser-included offense 

of any charged crime.

At the jury instruction conference in this case, Cerros raised 

objections to the court’s proposed instructions and offered 

certain proposed instructions of his own. With regard to the 

charge of manslaughter, Cerros argued that the predicate 
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unlawful act should be willful reckless driving, an offense 

set forth in Neb. Rev. Stat. § 60-6,214 (Reissue 2021), rather 

than reckless driving, an offense set forth in § 60-6,213. The 

district court rejected this argument on the basis that reckless 

driving “has sufficient mens rea such that it can be the underlying unlawful offense for a manslaughter charge.” Cerros 

specifically stated that he was “asking for the lesser included 

offense of reckless driving.” The district court did not specifically address this request, but it overruled Cerros’ objections 

and did not give a lesser-included offense instruction on reckless driving. Cerros does not claim on appeal that the district 

court erred when it refused a lesser-included offense instruction on reckless driving. Instead, he claims the court erred 

when it did not give a lesser-included offense instruction on 

careless driving. Cerros cites State v. Howard, 253 Neb. 523, 

571 N.W.2d 308 (1997), for the proposition that careless driving is a lesser-included offense of reckless driving. He argues 

that there was evidence from which the jury could have determined that he drove carelessly but not recklessly. It is not 

clear from Cerros’ arguments whether he asserts that the court 

should have instructed on careless driving as a direct lesserincluded offense of manslaughter or whether there should 

have been a step instruction wherein reckless driving served 

as the lesser-included offense of manslaughter (based on reckless driving) and thence careless driving served as the lesserincluded offense of reckless driving. We need not resolve this 

issue, because despite his contentions to the contrary, Cerros 

did not request an instruction on careless driving and thus has 

not preserved this issue for appeal.

Cerros’ comments at the jury instruction conference focused 

first on his argument that the underlying offense should be 

willful reckless driving. He also verbally requested a lesserincluded offense instruction, but he identified the lesser offense 

as “reckless driving under 60-6,212 or 60-6,213” and argued 

that “the jury theoretically could find there was no proximate 

cause, but he was reckless driving or willful reckless driving.” 
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STATE V. CERRO

Cite as 312 Neb. 230

He did not state that he was requesting a lesser-included 

offense instruction on “careless driving.”

Nevertheless, Cerros argues on appeal that he was asking 

for an instruction on careless driving. Cerros concedes that 

he did not speak with clarity at the jury instruction conference and elsewhere, but argues that it was evident that he was 

referring to careless driving. We disagree. Cerros’ comments 

at the jury instruction conference referred only to “reckless 

driving” or “willful reckless driving,” and he did not explicitly refer to “careless driving.” The reference to “60-6,212 or 

60-6,213” was ambiguous at best and was not a clear reference 

to careless driving. Instead, we read the comment as suggesting uncertainty as to whether the statute defining “reckless 

driving” was found in Neb. Rev. Stat. § 60-6,212 (Reissue 

2021) or § 60-6,213, or it could suggest a mistaken reference 

to the two statutes as being the statutes that defined “reckless 

driving” and “willful reckless driving.” Furthermore, although 

he provided other proposed written instructions, to our knowledge, Cerros provided no proposed lesser-included offense 

instructions, and none appear in our appellate record. See State 

v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015) (stating appellant’s failure to include proposed jury instruction in record on 

appeal precluded appellate determination of whether tendered 

instruction was correct statement of law and was warranted 

by evidence).

Because Cerros did not request a lesser-included offense 

instruction on careless driving, the district court’s failure to 

instruct on careless driving as a lesser-included offense cannot be considered error. See State v. Smith, 284 Neb. 636, 822 

N.W.2d 401 (2012). Therefore, the district court did not err 

when it did not give a careless driving instruction that was not 

requested. We reject this assignment of error.

CONCLUSION

We conclude that the district court did not abuse its discretion when it allowed Betzen’s testimony that driving on the 
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STATE V. CERRO

Cite as 312 Neb. 230

wrong side could be a sign of reckless driving, and the district 

court did not err when it did not give a lesser-included offense 

instruction on careless driving when Cerros did not request 

such an instruction. We further conclude that there was sufficient evidence to support Cerros’ conviction for manslaughter. 

We therefore affirm Cerros’ conviction.

Affirmed.