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STATE v. LOVING

Cite as 27 Neb. App. 73

State of Nebraska, appellee, v. 

Jeffrey S. Loving, appellant.

___ N.W.2d ___

Filed April 9, 2019. No. A-18-112.

1. Jury Instructions: Appeal and Error. Whether a jury instruction is 

correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by 

the trial court.

2. Jury Instructions: Proof: Appeal and Error. The appellant has the 

burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

3. Trial: Courts: Homicide: Jury Instructions. A trial court is required to 

give an instruction where there is any evidence which could be believed 

by the trier of fact that the defendant committed manslaughter and 

not murder.

4. Homicide: Intent: Words and Phrases. A “sudden quarrel” is a legally 

recognized and sufficient provocation which causes a reasonable person 

to lose normal self-control; the question is whether there existed reasonable and adequate provocation to excite one’s passion and obscure 

and disturb one’s power of reasoning to the extent that one acted rashly 

and from passion, without due deliberation and reflection, rather than 

from judgment.

5. Appeal and Error: Words and Phrases. Plain error exists where there 

is error, plainly evident from the record but not complained of at trial, 

which prejudicially affects a substantial right of the litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

6. Trial: Judges: Jury Instructions: Appeal and Error. It is the duty of 

a trial judge to instruct the jury on the pertinent law of the case, whether 

requested to do so or not, and an instruction or instructions which 

by the omission of certain elements have the effect of withdrawing 

Nebraska Supreme Court Online Library

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

04/09/2019 09:06 AM CDT
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from the jury an essential issue or element in the case are prejudicially erroneous.

7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The 

Double Jeopardy Clause does not forbid a retrial if the sum of all the 

evidence admitted by a trial court, whether erroneously or not, would 

have been sufficient to sustain a guilty verdict.

Appeal from the District Court for Douglas County: Gregory

M. Schatz, Judge. Reversed and remanded for a new trial.

Thomas C. Riley, Douglas County Public Defender, and 

Leslie E. Cavanaugh for appellant.

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

for appellee. 

Moore, Chief Judge, and Pirtle and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Jeffrey S. Loving was convicted by a jury of murder in the 

second degree and use of a deadly weapon to commit a felony. 

The district court subsequently sentenced Loving to a total 

of 110 to 130 years’ imprisonment. Loving appeals from his 

convictions here. On appeal, Loving assigns numerous errors, 

including that the district court erred by incorrectly instructing 

the jury as to the elements of murder in the second degree. 

Because we find merit to Loving’s assertion that the district 

court erred in instructing the jury as to the elements of murder 

in the second degree and because we find such error is not 

harmless, we reverse Loving’s convictions and remand the 

cause for a new trial.

BACKGROUND

The State filed an information charging Loving with first 

degree murder pursuant to Neb. Rev. Stat. § 28-303(1) (Reissue 

2016) and with use of a deadly weapon to commit a felony 

pursuant to Neb. Rev. Stat. § 28-1205(1) (Reissue 2016). The 

charges against Loving stem from an incident which occurred 

on July 7, 2016. Evidence adduced at trial revealed that at 
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5:53 p.m., shots were fired near the intersection of 28th and 

Laurel Avenues in Omaha, Nebraska. Approximately 3 minutes 

after the shots were fired, the 911 emergency dispatch service 

received a telephone call indicating that there was a shooting 

victim located at a gas station a short distance from 28th and 

Laurel Avenues.

When police arrived at the gas station, they found Marshall 

Washington in the front seat of a silver sport utility vehicle 

(SUV) suffering from a gunshot wound to his right cheek. 

Washington’s injuries were “‘not compatible with life.’” He 

was pronounced dead at a hospital upon his arrival. At the gas 

station, police also located the driver of the SUV, Theodore 

Loving. Theodore told police that his nephew, Loving, had 

shot at the vehicle as a result of a dispute they were having. 

Theodore claimed that Loving owed him $3,000 for drugs he 

had purchased. Loving was subsequently arrested and charged 

with the murder of Washington.

At trial, Loving admitted that he fired the shots at 

Theodore’s SUV, which shots resulted in Washington’s death. 

However, he claimed that he was justified in firing the shots 

in defense of himself and his family, because he was afraid 

that Theodore was going to kill him, his sister, and his sister’s children.

The State disputed Loving’s claim of self-defense. It presented evidence to demonstrate that Loving was angry with, 

and not afraid of, Theodore on the day of the shooting. The 

State also presented evidence to show that Loving fired the 

shots at Theodore’s SUV when it was moving away from him 

and that after the shooting, Loving attempted to change his 

appearance and avoid arrest.

The State called Theodore to testify. Theodore testified that 

he lives in California, but occasionally comes to Nebraska to 

visit family, including Loving and Loving’s sister, Dynasti 

Loving. Theodore explained that his relationship with Loving 

and Dynasti was “nothing but love” and that he “always 

went out of [his] way to help them.” When Theodore visited 

Nebraska in 2012 or 2013, he helped supply Loving with a 
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large quantity of marijuana. Specifically, Theodore testified 

that on Loving’s behalf, he obtained 1 pound of marijuana 

from his associates in Juarez, Mexico, and 1 pound of marijuana from his “friends in east Oakland.” Despite receiving the 

2 pounds of marijuana, Loving refused to pay for it. Because 

of Loving’s refusal, Theodore paid $3,000 of his own funds 

to his associates in Mexico, because “you don’t want to mess 

with the Juarez boys.” Theodore’s friends from Oakland were 

never paid.

In May 2016, Theodore returned to Nebraska for a visit. 

When he arrived in Nebraska, Theodore had a “friendly” 

conversation with Loving about the debt Loving owed to 

Theodore’s friends in Oakland. Theodore testified that he was 

not concerned about Loving’s repaying the $3,000 he owed 

to Theodore; rather, he wanted Loving to repay Theodore’s 

friends from Oakland. According to Theodore, Loving told 

Theodore that he needed a few weeks to obtain the funds to 

repay his debt. After Theodore’s conversation with Loving, 

he continued to have contact with Loving, including purchasing marijuana from Loving and spending time together 

at Dynasti’s house. Theodore testified that everything was 

“[f]ine” and “great” between him and Loving through the 

beginning of July.

In the first few days of July 2016, Theodore’s relationship 

with Loving changed. Theodore testified that he observed 

Loving to be spending a lot of money “partying,” so he brought 

up again to Loving the drug debt. Testimony from Theodore 

and Loving and evidence recovered from Loving’s cellular 

telephone indicated that in the first few days of July, Theodore 

and Loving exchanged numerous text messages and telephone 

calls regarding Loving’s drug debt. Theodore sent Loving a text 

message telling him he could “at least send $200 towards [his] 

debt.” Loving replied to the message that he did not intend to 

repay a 3-year-old debt. Loving also told Theodore to stop calling him and threatened to go to Theodore’s girlfriend’s house 

where Theodore was staying “to do something” to him. The 

State presented evidence that around this same time, Loving 
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sent a text message to Dynasti, stating, “‘He talking about he 

on his way I’m going to smoke him.’”

Theodore testified that based on Loving’s behavior, on July 

5, 2016, he contacted a friend of his from Oakland named 

“Mike.” Theodore gave this friend Loving’s telephone number 

and told him that Loving lived with Dynasti. Text messages 

recovered from Theodore’s cellular telephone indicate that 

Theodore also instructed Mike what to say when he telephoned 

Loving. Theodore also texted Mike at some point asking him if 

he had called Loving yet. Ultimately, Mike telephoned Loving 

sometime in early July and left him a voice mail message. On 

the message, Mike mentioned Theodore’s name and threatened 

violence against Loving, Dynasti, and everyone who lived in 

Dynasti’s house, if Loving did not repay his debt. Specifically, 

the voice mail message stated as follows:

Your Uncle Theodore will get that money. I know you are 

at your sister’s house and I will come there if I have to 

and I will fuck both you all up. I am not going to leave 

nothing. Do you understand? So you best try to get that 

money as soon as you can and pass it to your blood or 

there will be some blood. And that is real ass talk. Now, 

if you got any sense, you better get my money or else I 

am going to [indecipherable] everybody in the house at 

your sister’s.

Theodore testified that he learned that Mike had left the message after Dynasti contacted Theodore on July 7 and was upset 

with him. Theodore then sent a text message to Mike, asking 

him, “‘Why did you say my name?’”

Also on July 7, 2016, Theodore learned through social media 

that it was the birthday of his childhood friend, Washington, 

who he had not seen in a number of years. Theodore also 

learned that Washington was not in good health and was residing at a local nursing home. He went to visit Washington 

for his birthday. Theodore and Washington left the nursing 

home after eating dinner there so that Theodore could “show 

[Washington] a good time on his birthday.” From the nursing 

home, Theodore drove with Washington in the passenger seat 
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of his SUV to the area of 30th and Crown Point Avenues to 

obtain marijuana. Dynasti’s house is located at the intersection 

of 28th and Crown Point Avenues. Theodore testified that he 

was not “particularly heading to Dynasti’s” when he left the 

nursing home.

Theodore testified that when he approached Dynasti’s house 

on Crown Point Avenue, he recognized someone, whose name 

he did not know, who was parked in front of the house and 

pulled up next to the person’s vehicle to ask him if he had any 

marijuana to sell. While Theodore was stopped in front of the 

house, Loving came to the front of the house from the backyard. Loving told Theodore, “‘You better get out of here before 

something happens. Ya’ll weed days over here are over with.’” 

Theodore then began to drive away from Dynasti’s house, telling Loving that he and Washington would just go around the 

corner to buy marijuana.

Theodore drove around the block, trying to get to a nearby 

liquor store. He testified that he could not continue east on 

Crown Point Avenue after leaving Dynasti’s house because 

there was a schoolbus blocking his way. Theodore admitted 

that this was the first time he had mentioned the schoolbus. 

When Theodore’s SUV was near the intersection of 28th and 

Laurel Avenues, which is located behind Dynasti’s house, 

Theodore observed Loving running toward him from behind 

Dynasti’s house. At this time, Theodore had slowed his SUV 

down, but he did not stop. Loving then started shooting a gun 

toward the SUV. Theodore believed Loving fired four shots. 

Theodore quickly drove away from the area. He observed that 

Washington had been shot and “knew it was bad.” Theodore 

testified that he was not heading anywhere in particular and 

that he ended up at a nearby gas station. He did not call 911 

until he reached the gas station because his cellular telephone’s 

“battery was dead.” Theodore testified that he did not threaten 

Loving during their encounter on July 7, 2016. He also testified 

that he did not have a gun.

During the defense’s cross-examination of Theodore, he 

admitted that although he spoke with numerous officers 
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immediately after the shooting and had given a deposition prior 

to trial, he had never before mentioned obtaining marijuana 

for Loving from people located in Mexico and Oakland and, 

thus, never mentioned Loving owed the people from Mexico 

or Oakland any money. Instead, Theodore repeatedly told 

police that Loving owed him money for marijuana and that 

Theodore wanted it back. In fact, in Theodore’s text messages 

to Loving from May through July 2016, he never mentioned 

Loving owing anyone but Theodore money. In a telephone call 

to his sister while he was in a police interview room, Theodore 

stated that “‘all I want is my money.’” Theodore also told 

police several times that he went to Dynasti’s house on July 7, 

2016, in order “‘to settle this with Jeffrey.’” Theodore believed 

that Loving was “dodging” him. Theodore did not mention 

wanting to buy marijuana for Washington when he initially 

spoke with police. Theodore told police that he did not even 

smoke marijuana.

During the defense’s cross-examination of Theodore, it presented evidence that prior to Theodore’s trial testimony, he had 

denied knowing anything about Mike or about the threatening 

message Mike had sent to Loving.

Forensic investigators who inspected Theodore’s SUV after 

the shooting located three bullets on its passenger side. One of 

the bullets entered through the outside of the front passengerside door and was located inside that door. A second bullet was 

located in the top molding of the rear passenger-side door. The 

third bullet was located on the plastic trim on the bottom of the 

passenger side between the front and rear doors. The three bullets recovered from Theodore’s SUV and the bullet recovered 

from Washington were all .40-caliber and were all fired from 

the same gun.

Both the front and rear passenger-side windows of Theodore’s 

SUV were shattered during the shooting. The front passengerside window was made of clear or greenish-colored glass. 

Glass matching that window was located on the east side of the 

intersection of 28th and Laurel Avenues. The rear passengerside window was made of tinted glass. The glass appeared to 
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Cite as 27 Neb. App. 73

be black in color. Glass matching the rear window was located 

on Laurel Avenue, a few feet to the west of 28th Avenue. There 

was no damage to the driver’s side of the SUV, the front of the 

SUV, or the back of the SUV.

Forensic investigators also recovered 12 casings from the 

area of the shooting. Ten of these casings were found approximately halfway between Crown Point and Laurel Avenues on 

28th Avenue. The casings were located near the curb on the 

east side of the street. The other two casings were located 

on the northeast corner of 28th and Crown Point Avenues, 

across the street from Dynasti’s house. All of the casings were 

from .40-caliber bullets and were fired from the same gun; 

however, two of the casings were a different brand. Although 

police searched the area thoroughly, they were unable to 

locate a gun.

The State also presented evidence regarding Loving’s actions 

after the shooting to refute his claim of self-defense and defense 

of others. The State called Kirk Carter, Loving’s friend, to testify. Carter testified that he was at Dynasti’s house at the time 

of the shooting. In fact, Carter was in his vehicle in front of 

Dynasti’s house when Theodore’s SUV pulled up next to him. 

Carter indicated that he did not see who was in the SUV, but 

he did observe Loving to gesture that the SUV should leave. 

Carter indicated that the music playing in his vehicle was very 

loud and that, as a result, he could not hear the exact words 

exchanged between Loving and the person in the SUV. Carter 

explained that after the SUV left, he saw Loving move to the 

side of Dynasti’s house and then heard three or four “bangs” 

from behind Dynasti’s house. Loving then got into Carter’s 

vehicle and they drove away. Carter drove Loving to the house 

of another of Loving’s friends. During the drive, Carter testified that he and Loving did not say much. However, Loving 

did say, “‘He played with me.’” Carter and Loving smoked 

marijuana in Carter’s vehicle, and then Carter left Loving at 

his friend’s house.

Later on the night of July 7, 2016, Loving’s girlfriend 

picked up Loving from his friend’s house in a vehicle that she 
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had borrowed from a friend. Apparently, prior to picking up 

Loving, she had driven to her friend’s house in her own vehicle 

in order to borrow her friend’s vehicle so that she could go 

look for Loving. The State presented evidence to demonstrate 

that by the time Loving’s girlfriend picked up Loving, he had 

changed his clothes from the clothes he was wearing at the 

time of the shooting and had cut his hair much shorter than it 

had been earlier that day.

After Loving’s girlfriend picked up Loving, they returned to 

the area of her friend’s home, presumably to return the friend’s 

vehicle. However, when Loving and his girlfriend drove by, 

they observed a number of police at the house. They attempted 

to drive away from the house, but were ultimately stopped by 

the police and Loving was arrested.

After the State rested its case, Loving called Dynasti to testify in his defense. Dynasti essentially agreed with Theodore’s 

testimony that Theodore had a good relationship with her 

and Loving when Theodore first came to visit in May 2016. 

Dynasti testified that she saw Theodore “[a]lmost every other 

day” and that Theodore spent a lot of time with her and her 

three children. Dynasti also testified that “sometimes” when 

she was with Theodore, Loving was also present.

Dynasti also agreed with Theodore’s testimony that the 

relationship between Theodore, Loving, and herself changed in 

July 2016. Dynasti described that Theodore’s attitude toward 

her and Loving changed dramatically around July 1. She testified that Theodore became extremely upset after he observed 

her and Loving spend a lot of money on a party they were planning for the Fourth of July holiday. Theodore demanded repayment of Loving’s drug debt. Dynasti indicated that Theodore 

and Loving’s relationship became so negative, she uninvited 

Theodore and his girlfriend from the Fourth of July party. She 

indicated that she rescinded the invitation partly because she 

was concerned about Theodore’s being violent.

Dynasti described the events of July 7, 2016, differently than 

Theodore, however. On the morning of July 7, Dynasti was at 

work when Loving and his girlfriend came to see her. Loving 
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played the voice mail he received from Theodore’s friend, 

Mike, for Dynasti. Upon hearing the voice mail, Dynasti 

became very upset. She testified that she began to cry and that 

Loving and his girlfriend also cried. Dynasti described feeling very worried that something may happen to her children 

and worried that everyone living in her house was going to be 

killed. Dynasti indicated that in addition to feeling worried and 

fearful, she also felt very angry and hurt.

Dynasti planned on contacting an acquaintance who was a 

police officer after she got home from work. In the meantime, 

however, she forwarded a recording of the voice mail message 

to Theodore and asked why he would have someone threaten 

her and her family. Dynasti admitted that she appeared very 

angry in her text messages to Theodore: “‘You little weak 

faggot-ass bitch. You’re going to regret that you ever did that[.] 

I don’t give a fuck about you. . . .’” “‘You don’t put no fear 

in my heart . . . .’” Additionally, Dynasti texted Loving’s girlfriend: “‘I want his bitch-ass to come to my house’” and “‘I’ll 

do it my motherfucking-self.’”

After work, Dynasti was at her house with her three 

children. She testified that Loving and Carter were outside 

of the house. Dynasti observed Theodore’s SUV pull up in 

front of her house. She heard Loving scream at Theodore, 

“‘Get the fuck out of here.’” Dynasti indicated that Loving 

appeared to be afraid. He told her to get inside the house, 

which frightened her. Dynasti heard Theodore yell back at 

Loving. She testified that Theodore’s words caused her to 

fear for her life and for Loving’s life. From inside the house, 

she observed Theodore drive around the block. It appeared 

to her that Theodore was going to turn onto 28th Avenue in 

order to return to her house. She then saw Loving standing in 

the middle of 28th Avenue and watched him fire three shots 

toward Theodore’s SUV. Dynasti admitted that her testimony 

was different than what she told the police immediately after 

the shooting. She testified that she had told no one, including Loving, that she saw and heard the shooting until a few 

weeks before trial. On the day of the shooting, Dynasti told 
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police that she did not even hear the gun shots. In addition, 

she acted surprised when police informed her that Loving was 

a suspect in the shooting.

Loving also testified in his own defense. Loving testified 

that he did not owe Theodore any money for a drug debt. 

In May 2016, Theodore contacted Loving for the first time 

in years. Loving testified that Theodore did not bring up 

the drug debt during their conversation. After that telephone 

call, Loving saw Theodore “[q]uite often” from May through 

June. Loving indicated that during that time period, Theodore 

often purchased marijuana from him. Loving testified that in 

early July, his relationship with Theodore changed. Theodore 

began discussing the purported drug debt. Loving indicated 

that Theodore suddenly had a very different attitude toward 

him and had a threatening demeanor.

Loving testified that on the morning of July 7, 2016, he 

listened to the voice mail message that had been left on his 

cellular telephone by Loving’s friend, Mike. After hearing the 

message, Loving felt “panicked,” fearful, and hurt. He testified 

that he believed that the message was essentially a death threat 

directed at him from Theodore. During his testimony, Loving 

described what else had occurred on July 7, prior to the shooting. Loving testified that at some point, prior to the shooting, 

he shaved his head, because he had “messed up” when “lining [his] hair up.” He also testified that prior to the shooting, 

Carter came over to Dynasti’s house and they left the house 

for a few minutes to go buy cigarettes at a nearby gas station. 

When they returned, they pulled up in front of Dynasti’s house 

and listened to music in the vehicle. Approximately 5 or 10 

minutes later, Theodore pulled up in his SUV and stopped next 

to Carter’s vehicle.

Loving testified that when Theodore first stopped his SUV, 

he was yelling something that Loving could not hear because 

the music in Carter’s vehicle was too loud. When Loving got 

out of Carter’s vehicle, he grabbed Carter’s gun and put it in 

his pocket. Once outside of Carter’s vehicle, Loving could hear 

that Theodore was yelling about the drug debt. Loving testified 
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that Theodore shouted, “‘I want my motherfucking money.’” 

Loving yelled at Theodore to leave. He then saw Theodore 

point a gun at him from inside the SUV.

Loving testified that once he saw Theodore with a gun, he 

yelled at Dynasti to get inside of the house and he went on the 

side of the house where he was outside of Theodore’s vantage 

point. Loving indicated that once on the side of the house, he 

continued to walk toward the backyard. Loving testified that he 

then heard Carter say, “‘They’re coming back.’” Loving looked 

up and saw Theodore’s SUV on the street behind Dynasti’s 

house. He testified that Theodore was starting to turn north on 

28th Avenue so as to return to Dynasti’s house. Loving stated 

that Theodore stopped his SUV at the intersection of 28th 

and Laurel Avenues and that Loving again observed Theodore 

point a gun at him from inside the SUV. Loving believed that 

Theodore planned to kill him, so he pulled Carter’s gun out 

of his pocket and started to shoot at Theodore and his SUV. 

Loving was unable to recall exactly how many times he shot; 

however, he did testify that he shot until the gun was out of 

bullets. He did testify that he did not intend to kill Theodore or 

Washington, he just wanted to stop Theodore from returning to 

Dynasti’s house.

Loving testified that after the shooting, he intended to turn 

himself in at the police station. He indicated that before he 

did so, he wanted to go to his mother’s house. He also indicated that he was fearful that police would shoot him if he 

was arrested somewhere other than the police station. Loving 

admitted that during recorded telephone calls from jail after his 

arrest, he repeatedly denied any involvement with the shooting, rather than stating that he shot Theodore in self-defense. 

In addition, Loving admitted that the first time he ever mentioned that Theodore had a gun on July 7, 2016, was during his 

trial testimony.

After hearing all the evidence, the jury rendered its verdict. 

Although Loving was charged with first degree murder, the 

jury convicted him of second degree murder, pursuant to a step 

instruction given by the district court. The jury also convicted 
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Loving of use of a deadly weapon to commit a felony. Loving 

filed a motion for new trial, which the district court overruled. 

The court subsequently sentenced Loving to 80 to 90 years’ 

imprisonment on his conviction for second degree murder and 

30 to 40 years’ imprisonment on his conviction for use of a 

deadly weapon to commit a felony.

Loving appeals.

ASSIGNMENTS OF ERROR

On appeal, Loving assigns five errors. He asserts, restated 

and renumbered, that the district court erred in (1) overruling 

his objection to “the racial makeup” of the jury; (2) not permitting him to testify about “his fears of fights in jail” to counter 

the State’s evidence that during jailhouse telephone calls, he 

denied shooting Washington; (3) failing to properly instruct the 

jury regarding the elements of second degree murder; and (4) 

imposing excessive sentences. In addition, Loving argues that 

there was insufficient evidence presented to prove that he did 

not act in self-defense or defense of others when shooting at 

Theodore’s SUV.

STANDARD OF REVIEW

[1] Whether a jury instruction is correct is a question of law, 

regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial 

court. State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).

ANALYSIS

Jury Instructions

Contained within the jury instructions in this case was 

instruction No. 6, which delineated the elements of first degree 

murder, second degree murder, and intentional manslaughter. 

This step instruction also explained to the jury the manner in 

which it was to consider whether Loving had committed each 

crime. Because instruction No. 6 is so important to our disposition of this case, we quote it in its entirety:
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INSTRUCTION NO. 6

Depending on the evidence, you may return one of several possible verdicts for Count 1 of the Information. You 

may find the Defendant:

1. Guilty of Murder in the First Degree; or

2. Guilty of Murder in the Second Degree; or

3. Guilty of Intentional Manslaughter; or

4. Not guilty.

ELEMENTS

1. MURDER IN THE FIRST DEGREE

The material elements which the State must prove by 

evidence beyond a reasonable doubt in order to convict 

the Defendant of the crime of Murder in the First Degree 

under Count 1 of the Information are:

1. That the Defendant on or [about] July 7, 2016, did 

kill Marshall Washington Jr.;

2. That the Defendant did so in Douglas County, 

Nebraska;

3. That the Defendant killed Marshall Washington Jr. 

purposely and with deliberate and premeditated malice; and

4. That the Defendant did not act in self-defense; and

5. The Defendant did not act in defense of another.

The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material 

elements of the crime of Murder in the First Degree.

2. MURDER IN THE SECOND DEGREE

The material elements which the State must prove by 

evidence beyond a reasonable doubt in order to convict 

the Defendant of the crime of Murder in the Second 

Degree under Count 1 of the Information are:

1. That the Defendant on or about July 7, 2016 did kill 

Marshall Washington, Jr.;

2. That the Defendant did so in Douglas County, 

Nebraska;

3. That the Defendant did so intentionally, but without 

premeditation;
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4. That the Defendant did not act in self-defense and;

5. The Defendant did not act in defense of another.

The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material 

elements of the crime of Murder in the Second Degree.

3. INTENTIONAL MANSLAUGHTER

The material elements which the State must prove by 

evidence beyond a reasonable doubt in order to convict 

the Defendant of the crime of Intentional Manslaughter 

under Count 1 are:

1. That the Defendant on or about July 7, 2016 did kill 

Marshall Washington, Jr.; and

2. That the Defendant did so in Douglas County, 

Nebraska; and

3. That the Defendant did so intentionally upon a sudden quarrel, without malice; and

4. That the Defendant did not act in self-defense; and

5. That the Defendant did not act in defense of another.

The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material 

elements of the crime of Intentional Manslaughter.

EFFECT OF FINDINGS

You must separately consider in the following order 

the crimes of Murder in the First Degree, Murder in the 

Second Degree, and Intentional Manslaughter.

For the crime of Murder in the First Degree, you must 

decide whether the State proved each element beyond a 

reasonable doubt. If the State did so prove each element, 

then you must find Defendant guilty of Murder in the 

First Degree and stop.

If, however, you find that the State did not so prove, 

then you must proceed to consider the next crime on the 

list, Murder in the Second Degree. You must proceed in 

this fashion to consider each of the crimes on the list, 

in the manner described, until you find the Defendant 

guilty of one of the crimes or find him not guilty of all 

of them.
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Cite as 27 Neb. App. 73

Although at trial, neither Loving nor the State objected to 

the language of instruction No. 6, Loving claims on appeal that 

the instruction was not a correct statement of the law because it 

failed to “include as an element of the crime [of murder in the 

second degree], the necessary language that ‘the Defendant did 

so without provocation of a sudden quarrel.’” Brief for appellant at 30. Loving asserts that as a result of the omission from 

the elements of murder in the second degree, the jury instruction constituted plain error which was prejudicial to him. In the 

State’s brief on appeal, it “acknowledges” that instruction No. 

6 was erroneous because it omitted from the list of elements 

of murder in the second degree that Loving acted without the 

provocation of a sudden quarrel. Brief for appellee at 26. In 

addition, the State conceded during its oral argument that the 

erroneous jury instruction amounted to plain error. However, 

the State argues that this error is harmless.

We agree with Loving and with the State that instruction No. 

6 was not a correct statement of the law because it omitted a 

necessary element of murder in the second degree. A similar 

instruction to instruction No. 6 was given in State v. Smith, 

282 Neb. 720, 806 N.W.2d 383 (2011), wherein Ronald Smith 

was ultimately convicted of murder in the second degree. On 

appeal, he argued that the step instruction given by the district 

court deprived him of due process because it did not allow 

the jury to consider whether his specific intent to kill was the 

result of a sudden quarrel. The Nebraska Supreme Court agreed 

with Smith’s contention. The court stated:

[T]he step instruction given in this case was not a correct 

statement of the law. Specifically, the step instruction 

required the jury to convict on second degree murder if 

it found that Smith killed [the victim] intentionally, but 

it did not permit the jury to consider the alternative possibility that the killing was intentional but provoked by a 

sudden quarrel, and therefore constituted manslaughter.

Id. at 734, 806 N.W.2d at 394.

In this case, as in State v. Smith, supra, the jury instructions did not correctly instruct the jury as to the elements of 
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murder in the second degree, in that the jury was not permitted 

to consider whether Loving killed Washington as a result of a 

sudden quarrel. The jury found beyond a reasonable doubt that 

Loving intentionally killed Washington without premeditation 

and, as a result, found Loving guilty of murder in the second 

degree. Instruction No. 6 instructed the jury that if it found 

Loving guilty of murder in the second degree, it was to stop 

and not review the elements of intentional manslaughter. Thus, 

the jury never considered whether Loving killed Washington 

“upon a sudden quarrel,” which could have reduced Loving’s 

conviction to manslaughter.

[2] However, in order for us to reverse based on a defective jury instruction, the evidence must support the inclusion 

of “upon a sudden quarrel” and the defendant must have been 

prejudiced by the exclusion of that language. See State v. 

McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). The appellant has the burden to show that the questioned instruction was 

prejudicial or otherwise adversely affected a substantial right 

of the appellant. Id.

[3] A trial court is required to give an instruction where 

there is any evidence which could be believed by the trier of 

fact that the defendant committed manslaughter and not murder. Id. In the context of this case, Loving was prejudiced by 

the erroneous jury instruction only if the jury could have reasonably concluded on the evidence presented that his intent to 

kill was the result of a sudden quarrel.

[4] A “sudden quarrel” is a legally recognized and sufficient provocation which causes a reasonable person to lose 

normal self-control. State v. Trice, 286 Neb. 183, 835 N.W.2d 

667 (2013). It does not necessarily mean an exchange of 

angry words or an altercation contemporaneous with an unlawful killing and does not require a physical struggle or other 

combative corporal contact between the defendant and the 

victim. Id. The question is whether there existed reasonable 

and adequate provocation to excite one’s passion and obscure 

and disturb one’s power of reasoning to the extent that one 

acted rashly and from passion, without due deliberation and 
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reflection, rather than from judgment. Id. The test is an objective one. State v. McGuire, supra.

In State v. Trice, supra, the Supreme Court considered 

whether there was any evidence that De’Aris Trice’s intent 

to kill was the result of a sudden quarrel. The evidence presented in that case indicated that Trice and his brother had 

been involved in a “brawl” at an after-hours party. Id. at 191, 

835 N.W.2d at 673. During that brawl, Trice fatally stabbed 

the victim. Although witness accounts differed, the evidence 

suggested that Trice got in the middle of a fight between 

the victim and a third party. Testimony from Trice’s brother 

indicated that after he and Trice got involved in the fight, the 

victim swung a bottle in Trice’s direction. Trice later told his 

brother that he stabbed the victim in order to protect the two 

of them. After analyzing this evidence, the Supreme Court 

stated, “We believe, all things considered, that a jury could 

find that Trice acted upon a sudden quarrel. Certainly, the evidence does not compel this conclusion; as we have stated, the 

evidence in this regard is slight. But such a conclusion is at 

least reasonably inferable.” Id. at 191-92, 835 N.W.2d at 673. 

As a result of the court’s finding, it concluded that the court’s 

failure to properly instruct the jury on the elements of murder 

in the second degree constituted plain error.

In a similar case, State v. Smith, 284 Neb. 636, 822 N.W.2d 

401 (2012), the Supreme Court considered whether there was 

any evidence of a sudden quarrel when William Smith shot at 

the victim, who was running away from him. In that case, the 

evidence revealed that Smith and the victim were involved in 

an altercation outside of a bar. During that altercation, the victim punched Smith in the face. The victim and his friends then 

left the scene, and Smith and his friend followed them. When 

the other group of individuals stopped at a grocery store 5 or 

10 minutes later, Smith yelled that he wanted to fight with the 

victim. At least three or four of the victim’s friends joined in 

the fight. Smith’s friend then fired his gun two or three times 

in the air. As the victim and his friends were running away, 
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Smith grabbed the gun from his friend and fired in the victim’s 

direction. The Supreme Court found:

From this evidence, a finder of fact could conclude that 

Smith was provoked when he was “jumped” by several 

persons in the parking lot and that as a result of this sudden occurrence, he acted rashly and from passion, without 

due deliberation and reflection, rather than from judgment. Certainly this conclusion is not compelled by the 

evidence, but it is at least fairly inferable.

Id. at 645, 822 N.W.2d at 409.

However, in State v. Smith, 282 Neb. 720, 806 N.W.2d 

383 (2011), the Supreme Court determined that there was no 

evidence of a sudden quarrel when Ronald Smith admitted to 

arguing with the victim and in the course of that argument, 

pushed the victim off of the bed and then held a pillow over 

her face for 1 to 2 minutes. The Supreme Court found:

From this, the jury could reasonably infer that Smith and 

[the victim] had been arguing and that Smith was angry. 

But there is no evidence explaining how or by whom the 

argument was started, its duration, or any specific words 

which were spoken or actions which were taken before 

[he] pushed [the victim] to the floor. And most importantly, there is no evidence that [the victim] said or did 

anything which would have provoked a reasonable person 

in Smith’s position to push her from the bed and smother 

her with a pillow. In the absence of some provocation, 

a defendant’s anger with the victim is not sufficient to 

establish the requisite heat of passion. Nor does evidence 

of a string of prior arguments and a continuing dispute 

without any indication of some sort of instant incitement 

constitute a sufficient showing to warrant a voluntary 

manslaughter instruction.

Id. at 735, 806 N.W.2d at 395.

In this case, there was evidence presented at trial which 

suggested that the shooting of Washington was the result of a 

continuing dispute between Loving and Theodore. Both Loving 
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and Theodore testified that in the days preceding the shooting, 

they had been arguing about a debt that Theodore believed 

Loving owed to him. Additionally, there was evidence that on 

the day of the shooting, there was “some sort of instant incitement” in that Loving listened to a voice mail message which, 

in his mind, was a threat against his life which had been initiated by Theodore. See id. at 735, 806 N.W.2d at 395. Loving 

testified that not more than a few hours after hearing this message, Theodore arrived at the house of Loving’s sister, Dynasti; 

demanded repayment of Loving’s debt; and pointed a gun at 

Loving from inside his SUV. The two engaged in a screaming 

match after which Loving went around the side of the house 

to hide from Theodore. Loving testified that Theodore then 

drove his vehicle around the block and appeared to be turning 

back toward Dynasti’s house. Loving testified that Theodore 

again pointed a gun at him and that as a result, Loving 

fired his weapon. Loving’s testimony was corroborated in part 

by Dynasti.

During his testimony, Theodore disputed Loving’s account 

of the events which occurred on the day of the shooting. 

Specifically, he testified that there was no real argument 

between Loving and himself on that day. He testified that he 

went to Dynasti’s house in order to purchase marijuana, not to 

collect on Loving’s debt. Theodore also indicated that he did 

not threaten Loving during their encounter, nor did he ever 

point a gun at Loving. In fact, Theodore insisted that he did 

not have a gun at that time. Notably, however, Theodore’s testimony appears to be different than the account he gave to the 

police immediately after the shooting. At that time, Theodore 

indicated that he had gone to Dynasti’s house to collect the 

debt and that all he wanted was his money back.

Although witness accounts of what occurred on July 

7, 2016, differ somewhat, there is evidence in the record 

which, if believed, indicates that Loving acted upon a sudden quarrel when he fired the shots at Theodore’s SUV and 

killed Washington. A jury could reasonably find that Loving 
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STATE v. LOVING

Cite as 27 Neb. App. 73

acted rashly and from passion, without due deliberation and 

reflection, rather than from judgment, when he fired the shots 

at Theodore’s SUV. As in State v. Trice, 286 Neb. 183, 835 

N.W.2d 667 (2013), and State v. Smith, 284 Neb. 636, 822 

N.W.2d 401 (2012), this finding is not compelled by the evidence presented at trial, but it is at least plausible. However, the 

evidence present herein does meet the test of some evidence of 

a sudden quarrel set out by these cases. Unfortunately, because 

the district court incorrectly instructed the jury regarding 

the elements of murder in the second degree, the jury did 

not have the opportunity to consider whether Loving killed 

Washington as a result of a sudden quarrel. We therefore find 

plain error.

[5,6] Plain error exists where there is error, plainly evident 

from the record but not complained of at trial, which prejudicially affects a substantial right of the litigant and is of such a 

nature that to leave it uncorrected would cause a miscarriage 

of justice or result in damage to the integrity, reputation, and 

fairness of the judicial process. State v. Trice, supra. Here, 

although neither Loving nor the State objected to instruction 

No. 6 at trial, it is clear that the instruction did not properly 

instruct the jury regarding the interplay between murder in the 

second degree and manslaughter. It is the duty of a trial judge 

to instruct the jury on the pertinent law of the case, whether 

requested to do so or not, and an instruction or instructions 

which by the omission of certain elements have the effect of 

withdrawing from the jury an essential issue or element in 

the case are prejudicially erroneous. State v. Smith, 284 Neb. 

636, 822 N.W.2d 401 (2012). Because there was evidence 

upon which a jury could have convicted Loving for intentional 

manslaughter, the district court’s error was prejudicial. We 

reverse Loving’s conviction for murder in the second degree. 

And, because Loving’s use of a deadly weapon conviction was 

predicated on his conviction of an underlying felony, the use 

of a weapon conviction must also be reversed. See State v. 

Wilson, 247 Neb. 948, 530 N.W.2d 925 (1995), overruled on 
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other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 

31 (1998).

Double Jeopardy

[7] Having found reversible error, we must determine 

whether the totality of the evidence was sufficient to sustain 

Loving’s conviction. If it was not, then double jeopardy forbids a remand for a new trial. See State v. Trice, supra. But 

the Double Jeopardy Clause does not forbid a retrial if the sum 

of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty 

verdict. Id.

After reviewing the record, we conclude that the evidence at 

trial was sufficient to support the jury’s verdict finding Loving 

guilty of murder in the second degree and use of a deadly 

weapon to commit a felony. Loving, himself, admitted to firing the shots which ultimately killed Washington. Although 

Loving testified that he fired the shots in self-defense, based 

on its verdict, the jury clearly rejected such an assertion. There 

is evidence to support the jury’s determination. The location 

of broken glass from the two passenger-side windows suggests that Theodore’s SUV was moving away from Loving at 

the time he fired the shots. In addition, Theodore testified that 

he did not threaten Loving during their encounter on July 7, 

2016, nor did he have a gun. There was also evidence which 

suggested that after the shooting, Loving attempted to change 

his appearance in order to evade arrest. Based upon this evidence, we conclude that double jeopardy does not preclude 

a remand of the cause for a new trial and that the State may 

retry Loving on the second degree murder and manslaughter 

charges, as well as the use of a deadly weapon to commit a 

felony charge.

We note that because the jury found Loving guilty of murder in the second degree, it essentially acquitted him on the 

charge of murder in the first degree. As a result, the State 

is prohibited from retrying Loving on the charge of first 

degree murder.
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STATE v. LOVING

Cite as 27 Neb. App. 73

Other Assigned Errors

Because we are reversing Loving’s convictions and remanding the cause for a new trial, we need not address his assertions 

that the district court erred in overruling his objection to the 

makeup of the jury or in imposing excessive sentences. During 

oral argument, defense counsel specifically requested that we 

review whether the district court erred in prohibiting Loving 

from testifying, in detail, about why he denied any involvement in Washington’s shooting while he was in jail awaiting 

trial. Defense counsel stated that she believed this issue may 

recur during a subsequent trial. We have reviewed the argument as to this issue which Loving made in his brief to this 

court. In addition, we have carefully reviewed Loving’s testimony in this regard. Ultimately, we conclude that our record 

is insufficient to review this issue, because during the trial, 

defense counsel failed to make an offer of proof as to what 

Loving would have testified to had the court not sustained the 

State’s objection. Moreover, we note that upon our remand, 

this issue can be fully examined by the district court prior to a 

new trial upon the filing of a proper motion in limine.

CONCLUSION

We find plain error in the step instruction given regarding 

the elements of murder in the second degree and manslaughter. We also find that this error was prejudicial to Loving 

because it prevented the jury from considering whether Loving 

killed Washington as a result of a sudden quarrel. We reverse 

Loving’s convictions and remand the cause for a new trial.

Reversed and remanded for a new trial.