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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. VALADEZ

Cite as 313 Neb. 902

State of Nebraska, appellant, v. 

Luis A. Valadez, appellee.

___ N.W.2d ___

Filed March 31, 2023. No. S-22-026.

Appeal from the District Court for Sarpy County: Nathan 

B. Cox, Judge. Appeal dismissed.

Gage R. Cobb, Deputy Sarpy County Attorney, for appellant.

James K. McGough, of McGoughLaw, P.C., L.L.O., for 

appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

The State initiated this exception proceeding following 

a trial in which Luis A. Valadez was acquitted of use of a 

weapon to commit a felony and second degree assault. While 

conceding that we lack the power to undo the acquittal, the 

State asks us to nonetheless find that the district court should 

not have provided the jury with instructions on self-defense 

and defense of property. We find that the issues presented are 

not appropriate for resolution in this exception proceeding and 

therefore dismiss the appeal.

BACKGROUND

The charges arose from an incident outside Valadez’ home 

in the very early morning hours of April 22, 2020. At that 

time, Valadez saw a vehicle stop in front of his house. When 

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03/31/2023 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. VALADEZ

Cite as 313 Neb. 902

two people exited and began trying to open doors to vehicles 

owned by Valadez and his neighbor, Valadez grabbed a pocketknife and went outside. Valadez yelled at the trespassers and 

later engaged in a physical struggle with one of them in the 

street. That struggle eventually made its way to the vehicle in 

which the individuals had arrived. There, according to Valadez, 

he saw both individuals “reach towards the center console,” at 

which point he “pushed away with both hands.”

The vehicle then proceeded a few blocks down the road 

before crashing. The driver was found dead. An autopsy later 

revealed that the cause of death was a stab wound to the chest. 

The State initially charged Valadez with manslaughter and use 

of a weapon to commit a felony but later amended the manslaughter charge to second degree assault.

Valadez testified in his own defense at trial. Relevant to 

the issues presented here, he testified on direct examination 

that he did not have any intention of hurting or killing anyone, that he did not remember he had his knife in his hand 

when he pushed away, and that he did not even know that his 

knife contacted anyone. On cross-examination, he testified 

that he did not make a “conscious choice” to “push off,” but 

instead that his actions were “involuntary” and that “it was 

an accident.”

At a jury instructions conference after the close of evidence, 

the State objected to the district court’s instructing the jury 

on self-defense and defense of property. The district court 

instructed the jury on both affirmative defenses.

The jury acquitted Valadez on both counts.

The State applied for leave to docket an exception proceeding. See Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2022). The 

Nebraska Court of Appeals granted the application, and we 

subsequently moved the case to our docket.

ASSIGNMENTS OF ERROR

The State assigns that the district court erred in instructing 

the jury on self-defense and defense of property.
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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. VALADEZ

Cite as 313 Neb. 902

ANALYSIS

The State offers multiple reasons why the jury should not 

have been instructed on self-defense or defense of property. 

With respect to self-defense, it contends that such an instruction was unwarranted because the evidence showed that 

Valadez was the initial aggressor and because Valadez testified 

that his actions were unintentional. With respect to defense of 

property, it contends that the instruction should not have been 

given because there was no evidence showing an attempt to 

dispossess Valadez of his property or a felonious theft for purposes of Neb. Rev. Stat. § 28-1411(6) (Reissue 2016). Having 

considered these arguments, we conclude that the application 

for leave to docket an exception proceeding should not have 

been sustained.

There is no dispute in this case that Valadez was “placed 

legally in jeopardy” in the district court, for purposes of Neb. 

Rev. Stat. § 29-2316 (Reissue 2016), and, consequently, we 

have no power to alter the district court’s judgment. See State 

v. Larkins, 276 Neb. 603, 755 N.W.2d 813 (2008). The most 

we can do is provide guidance that may be of assistance in 

future cases. See State v. Stanko, 304 Neb. 675, 936 N.W.2d 

353 (2019). We have recognized, however, that some exception 

proceedings do not present us with an opportunity to provide 

such guidance and therefore are properly dismissed.

For example, in Larkins, supra, we dismissed an exception 

proceeding that asked us to determine whether a district court 

erred by dismissing witness tampering charges for insufficient 

evidence. We noted that the only issue presented was whether 

“the inferences that could reasonably be drawn from the evidence would have been sufficient to sustain a conviction.” Id.

at 604, 755 N.W.2d at 815. We observed that this issue was 

“limited to the facts of [the] case,” that no statutory interpretation was required, and that there was no “other issue . . . on 

which a decision would be helpful in future cases.” Id.

Here, the State contends that, given the evidence in this 

record, established legal principles precluded the district 
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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. VALADEZ

Cite as 313 Neb. 902

court from instructing the jury on self-defense and defense 

of property. The State correctly points out that we have precedent holding that a defendant who is the initial aggressor is 

not entitled to a self-defense instruction. See State v. Eagle 

Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978). See, also, 

State v. Miller, 281 Neb. 343, 347, 798 N.W.2d 827, 830-

31 (2011) (“Eagle Thunder thus stands for the rule that a 

defendant who is the initial aggressor is not entitled to a selfdefense instruction”). It also observes, again correctly, that we 

have precedent holding that a self-defense instruction is warranted only when the use of force at issue is purposeful. See, 

State v. Brown, 220 Neb. 849, 374 N.W.2d 28 (1985); State 

v. Canby, 217 Neb. 461, 348 N.W.2d 900 (1984). Finally, the 

State accurately notes that, by statute, use of deadly force is 

justifiable in the defense of property only under certain enumerated circumstances. See § 28-1411(6).

Valadez does not challenge the legal principles upon which 

the State relies. And, while the State may disagree with the 

district court’s decision to provide the instructions at issue, 

the State does not direct us to anything in the record tending to show that the district court questioned or ignored those 

principles. Instead, it appears the district court—rightly or 

wrongly—concluded that even when those principles were 

considered, the instructions were warranted given the evidence 

introduced at trial. Further, as the State emphasized at oral 

argument, the facts of the case are “unique.”

In other words, all that we could do is review the district 

court’s application of settled law to a set of unique facts. Such 

a determination would necessarily be, in the words of Larkins, 

“limited to the facts of this case.” 276 Neb. at 604, 755 N.W.2d 

at 815. Because we can discern no issue “on which a decision 

would be helpful in future cases,” id., we find that the appeal 

should be dismissed.

CONCLUSION

For the reasons discussed herein, we dismiss the appeal.

Appeal dismissed.