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State of Nebraska, appellee, v.

Steven R. Braesch, appel

___ N.W.2d ___

Filed March 4, 2016. No. S-14-1091.

1. Jury Trials: Waiver: Appeal and Error. An appellate court reviews a 

trial court’s ruling on a request to withdraw a defendant’s waiver of a 

jury trial for abuse of discretion.

2. Motions for New Trial: Appeal and Error. An appellate court 

reviews a trial court’s order denying a motion for a new trial for abuse 

of discretion.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when 

a judge, within the effective limits of authorized judicial power, elects 

to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial 

right or a just result in matters submitted for disposition through a judicial system.

4. Jury Trials: Waiver. Whether to waive a jury trial is a basic trial decision for which the defendant has the ultimate authority.

5. ____: ____. To waive the right to trial by jury, a defendant must be 

advised of the right to a jury trial, must personally waive that right, 

and must do so either in writing or in open court for the record. And a 

defendant must waive the right to a jury trial knowingly, intelligently, 

and voluntarily.

6. Judges. A defendant has the right to an impartial judge but does not 

have the right to have his or her case heard before any particular judge.

7. Jury Trials: Waiver. After a defendant validly waives his or her right to 

a jury trial, the defendant has no absolute right to withdraw the waiver. 

Whether to permit a defendant to withdraw a valid waiver of the right to 

a jury trial falls within the trial court’s discretion.

8. ____: ____. Absent a showing of good cause for a delay, a trial court 

does not abuse its discretion in overruling a motion to withdraw a 

waiver of a jury trial that is not made until the eve of trial.

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

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9. Jury Trials: Waiver: Appeal and Error. Absent plain error, when a 

party knows of a circumstance that purportedly affected the party’s decision to validly waive a jury trial but does not raise the matter until after 

the trial, an appellate court will not consider a challenge on appeal to a 

trial court’s refusal to grant a new trial on that ground.

10. Trial: Expert Witnesses: Appeal and Error. Whether a trial court can 

decide that an expert opinion is unreliable after admitting it into evidence is a procedural issue that an appellate court decides de novo.

11. ____: ____: ____. An appellate court reviews a trial court’s ruling to 

admit or exclude an expert’s testimony for abuse of discretion.

12. Trial: Expert Witnesses. Before admitting expert opinion testimony 

under Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2008), a 

trial court must determine whether the expert’s knowledge, skill, experience, training, and education qualify the witness as an expert.

13. ____: ____. Under the framework established by Daubert v. Merrell 

Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 

2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 

N.W.2d 862 (2001), if an expert’s opinion involves scientific or specialized knowledge, a trial court must determine whether the reasoning 

or methodology underlying the testimony is valid (reliable). It must 

also determine whether that reasoning or methodology can be properly 

applied to the facts in issue.

14. ____: ____. The requirements of Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 

(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 

862 (2001), do not preclude a court presiding over a bench trial from 

admitting an expert’s opinion subject to the court’s later determination 

that the opinion is unreliable and should not be credited.

15. Expert Witnesses. To be admissible, an expert’s opinion must be based 

on good grounds, not mere subjective belief or unsupported speculation.

16. Trial: Expert Witnesses. A trial court should not require absolute certainty in an expert’s opinion, but it has discretion to exclude expert testimony if an analytical gap between the data and the proffered opinion 

is too great.

17. ____: ____. A trial court can consider several nonexclusive factors in 

determining the reliability of an expert’s opinion: (1) whether a theory 

or technique can be (and has been) tested; (2) whether it has been 

subjected to peer review and publication; (3) whether, in respect to a 

particular technique, there is a high known or potential rate of error; (4) 

whether there are standards controlling the technique’s operation; and 

(5) whether the theory or technique enjoys general acceptance within a 

relevant scientific community.
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18. Expert Witnesses. Absent evidence that an expert’s testimony grows 

out of the expert’s own prelitigation research or that an expert’s research 

has been subjected to peer review, experts must show that they reached 

their opinions by following an accepted method or procedure as it is 

practiced by others in their field.

19. Evidence: Appeal and Error. When reviewing the sufficiency of the 

evidence to support a conviction, the relevant question for an appellate 

court is whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Appeal from the District Court for Sarpy County: Max

Kelch, Judge. Affirmed

James Martin Davis, of Davis Law Office, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, Cassel, a

Connolly,

I. SUMMARY

On July 13, 2013, the appellant, Steven R. Braesch, shot and 

killed his father, William Braesch (William), in the sight of 

Braesch’s three nieces. The State claimed his three nieces were 

within the line of fire. After a bench trial, the court convicted 

Braesch of first degree murder, using a firearm to commit a 

felony, and three counts of negligent child abuse. In a motion 

for a new trial, he claimed that the reassignment of his bench 

trial to a new judge was an irregularity in the proceedings. 

Braesch contends that the court erred in failing to conclude 

that his waiver of a jury trial was invalid because he would 

not have waived this right with any other judge presiding. 

Additionally, Braesch argues that the court erred in excluding 

his expert’s opinion regarding his mental state when he killed 

William and finding the evidence sufficient to support his first 

degree murder conviction.

Finding no reversible error, we affirm.
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II. BACKGROUND

Braesch’s mother, Virginia Braesch (Virginia), testified that 

Braesch moved away from home in the 1990’s but moved back 

into his parents’ home in Gretna, Nebraska, about a year or 

two before the murder. He was staying in the basement. About 

6 weeks before the murder, Braesch had told Virginia that he 

had AIDS. She said that “off and on,” he would lie in bed sick, 

“like depression or something,” but that he would also “be 

really high and all happy.” She and William had decided to ask 

him to move out because of his moods. She knew that Braesch 

took many medications, because they were delivered to the 

house or would come in the mail. She also went with him to 

Mexico so that he could buy injectable steroids.

On July 13, 2013, William and Virginia’s three granddaughters, Braesch’s nieces, were at the house for a visit. The oldest 

one was age 7, and the younger twins were age 5. Virginia said 

that Braesch had been sick in bed for 6 days and appeared to be 

depressed. When Virginia took her granddaughters to the basement to trim their hair, Braesch came out of his room angry 

about the noise. After Virginia took the girls back upstairs, 

Braesch scared her by cornering her in the bathroom and yelling at her. She walked out of the house and met William in the 

garage. She asked William to call the 911 emergency dispatch 

service, but he did not. That confrontation occurred at about 

10:30 a.m. Virginia and William took their granddaughters to a 

wedding and reception later that day and did not return home 

until about 7:30 p.m.

Virginia began putting some groceries away and making a 

salad in the kitchen, while William went to change clothes to 

finish some chores. From where Virginia was working in the 

kitchen, she could see into the dining room and an enclosed 

porch that was attached to and mostly open to the back dining 

room wall. As William was headed to the garage door off the 

enclosed porch, Braesch came up from the basement stairs off 

the dining room. William told Braesch that he wanted him to 

move out of the house within 30 days. Virginia said there was 
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no physical conflict and Braesch never said a word. She said 

that Braesch went downstairs to “cool off” and that William 

just looked at her and shook his head. Braesch immediately 

came back up from the basement with a gun; Virginia said 

he reappeared in a matter of seconds. He shot William while 

William was standing beside the garage door in the enclosed 

porch. The granddaughters were sitting in a hot tub less than 

10 feet from a sliding glass door on the back wall of the 

enclosed porch.

Virginia did not see a gun because it happened so quickly. 

But she heard a gunshot and saw that William was in pain. She 

ran through the living room and out the front door. She got in 

their car and locked the doors because by then, she could see 

Braesch on the front deck. He did not have a gun then, but he 

“didn’t look right” to her. She drove to a neighbor’s house and 

asked him to call 911. Within a few minutes, the neighbor led 

sheriff’s officers to the house and saw Braesch sitting outside 

with his three nieces beside him. Braesch complied with the 

officers’ commands and was arrested without incident.

One of the granddaughters testified. While she was in the 

hot tub, she could see through the sliding glass door and saw 

Braesch shooting William. She said that they were yelling 

at each other about moving and that then Braesch pushed 

William down and started shooting him. She saw William 

on the ground beside the sliding glass door. After waiting a 

few minutes, she climbed over him to look for Virginia in the 

house. She did not see Virginia in the house when Braesch was 

shooting William.

Officers found a lever-action, .22-caliber rifle on the dining 

room table and William’s body beside the sliding glass door. 

“Lever action” means that after every shot, “the action of the 

rifle has to be manually cycled in order to eject the spent cartridge and feed a new one into the chamber.” But numerous 

rounds can be fired in a matter of seconds.

Crime scene investigators found seven shell casings: one in 

the dining room and the rest on or around William’s body in 
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the enclosed porch area. The parties stipulated that the casings 

were fired from the gun that the officers found. An investigator who attended the autopsy testified that she collected five 

bullets or bullet fragments from five different areas of the 

body: the abdomen, the right collarbone, the lower spine, the 

right frontal lobe of the brain, and two from the left scalp. The 

autopsy report stated that the scalp wounds had gray-black particulate material around the entrances, indicating that William 

was shot in the head from close range.

1. Evidence of Braesc

Mental State Fro

Telephone Ca

After officers arrested Braesch, he made two telephone calls 

from jail that an officer recorded. On July 19, 2013, 6 days 

after the homicide, Braesch called Virginia. During the conversation, he discussed an insanity defense and told her that 

“there was nothing premeditated” about the homicide. This 

colloquy followed:

Virginia: No. Well, there was. You know what they’re 

going to say?

Braesch: But Mom, before that day, before 5 minutes 

before it happened, before 2 minutes before it happened, I 

never gave it a thought—of killing dad.

Virginia: Never?

Braesch: Never.

Virginia: Never have you?

Braesch: I have. Once before, like 6 months ago. Six 

months ago, yeah. . . . But 6 months ago, I didn’t even 

know how to load a gun.

In a telephone call to a friend on July 22, 2013, Braesch 

again denied killing William with premeditation:

Everybody is saying that first degree murder will be 

pretty tough to— There was honestly nothing premeditated about this. My mom and I were arguing and my dad 

got in the middle of it. And he was in the wrong place at 
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the wrong time. I mean I didn’t go to work on Wednesday, 

Thursday, Friday. I was feeling really lousy.

But later in the conversation, Braesch admitted to going downstairs to get a loaded gun:

The thing is, the gun, the gun was loaded. We always 

keep that gun loaded to kill the cats. . . . I ran downstairs, I grabbed the gun that was loaded. It took seconds. 

I didn’t— They think that I loaded the gun, which is 

not true . . . . There shouldn’t be any indication of that. 

Because it’s not true . . . .

2. Court’s Find

At the close of the State’s evidence, the court overruled 

Braesch’s motion for a directed verdict. During the court’s findings from the bench after the trial, it concluded that Braesch’s 

expert’s opinion of his mental state when he killed William 

was not credible. It found Braesch guilty of the charged crimes. 

Later, it overruled Braesch’s motion for a new trial. It rejected 

his arguments that his waiver of a jury trial was invalid and 

that the evidence was insufficient to support his convictions 

on the charges of first degree murder and the three counts of 

negligent child abuse.

After issuing this order, the court sentenced Braesch to life 

imprisonment for the murder conviction; 10 years’ imprisonment for the use of a firearm conviction, to be served consecutively to the life imprisonment sentence; and aggregate concurrent sentences of 1 year’s imprisonment for the negligent child 

abuse convictions, to be served consecutively to the 10-year 

sentence for use of a firearm.

III. ASSIGNMENTS OF ERROR

Braesch assigns that the court erred in (1) failing to conclude that he did not voluntarily and intelligently waive his 

right to a jury trial or consent to a trial before Judge Max 

Kelch; (2) excluding his expert witness’ opinion that his bipolar symptoms, combined with his recent history of abusing 
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several substances, interfered with his ability to form volitional intent; and (3) failing to find that the evidence was 

insufficient to prove beyond a reasonable doubt that he killed 

William with deliberate and premeditated malice.

IV. ANALYSIS

1. Reassignment of the Case

New Judge Was Not a Denial

Braesch’s Right to a Jury Tr

or an Abuse of Discre

(a) Additional Facts

As relevant to the issues raised on appeal, Braesch sought 

a new trial for two reasons: (1) The evidence was insufficient to support the first degree murder conviction, and (2) 

an irregularity in the proceedings occurred. In support of his 

irregularity claim, Braesch alleged that he had waived his 

right to a jury trial, believing that the trial judge would be 

Judge William B. Zastera. Instead, his case was reassigned 

to Judge Kelch. Braesch claimed that because of confusion 

over who would be the assigned judge, he could not move to 

withdraw his plea and “was therefore prevented from a having 

a fair trial.”

The court allowed the parties to submit affidavits regarding 

the alleged irregularity in the proceedings. One of Braesch’s 

trial attorneys, who had withdrawn from representing Braesch 

before the motion for a new trial was heard, stated in an affidavit that Judge Zastera’s assignment to Braesch’s case was an 

important consideration in advising him to waive his right to a 

jury trial.

The record shows that Braesch waived his right to a jury 

trial on April 10, 2014. Judge Zastera set the trial date for 

July 15. But on June 23, Judge Kelch was assigned to a pretrial hearing because Judge Zastera had a medical emergency. 

At the June 24 hearing, Judge Kelch informed the parties 

that because of Judge Zastera’s medical emergency, the case 

had been transferred to him. Braesch and his two attorneys 
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were present at this hearing. At some unstated time, the parties had a conference with Judges Kelch and Zastera about 

Judge Zastera’s possibly still hearing the case. But on July 

2, Braesch’s attorney “was again informed” that Judge Kelch 

would preside.

Braesch did not move to withdraw his plea before the bench 

trial began on July 15, 2014, with Judge Kelch presiding. 

Braesch stated that he thought the case would be reassigned 

to Judge Zastera when he returned to the bench and did not 

learn until the day before his trial that Judge Zastera was ill 

again. Braesch said that he would not have waived his right 

to a jury trial if he had known Judge Kelch would preside and 

that he waived his right solely because he believed that Judge 

Zastera would preside. Braesch’s trial attorney stated that this 

sequence of events unfairly limited the time Braesch had to 

consider the procedural complexities of asking the court to 

withdraw his waiver and decide whether to do so.

Judge Kelch concluded that Braesch had failed to show any 

prejudice resulting from the transfer. Instead, he concluded that 

Braesch’s desire for a particular judge was only an attempt to 

gain a tactical advantage and not a reason to grant a new trial. 

He further concluded that Braesch had failed to show a valid 

reason for not moving to vacate the waiver.

(b) Parties’ Contentions

Braesch contends that it would be naive not to recognize that 

a defendant’s decision whether to waive a jury trial is influenced by the judge assigned to his case. So he argues that the 

last-minute reassignment of his case to a judge with whom he 

was unfamiliar should be a sufficient reason to conclude that 

he did not freely, voluntarily, and intelligently waive his right 

to a jury trial.

The State argues that a motion for a new trial is not the 

proper vehicle for attempting to withdraw a waiver of a jury 

trial. Because Braesch did not claim he would not have waived 

his right to a jury trial unless Judge Zastera presided until after 
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he was convicted, the State argues that he had waived any challenge to the validity of his plea on this ground.

(c) Standard of Review

[1-3] We review a trial court’s ruling on a request to withdraw a defendant’s waiver of a jury trial for abuse of discretion.1

 We also review a trial court’s order denying a motion 

for a new trial for abuse of discretion.2 A judicial abuse of 

discretion exists when a judge, within the effective limits of 

authorized judicial power, elects to act or refrain from acting, 

but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or 

a just result in matters submitted for disposition through a 

judicial system.3

(d) Analysis

[4,5] Whether to waive a jury trial is a basic trial decision 

for which the defendant has the ultimate authority.4 To waive 

the right to trial by jury, a defendant must be advised of the 

right to a jury trial, must personally waive that right, and must 

do so either in writing or in open court for the record.5 And a 

defendant must waive the right to a jury trial knowingly, intelligently, and voluntarily.6

[6] But Braesch cites no authority for his implicit argument 

that a defendant’s waiver of a jury trial is ineffective if the 

defendant is not informed that his or her case could be reassigned to a different judge. To the contrary, we have held that a 

1 See, State v. Zemunski, 230 Neb. 613, 433 N.W.2d 170 (1988); State v. 

Kaba, 217 Neb. 81, 349 N.W.2d 627 (1984).

2 See, State v. Tolbert, 288 Neb. 732, 851 N.W.2d 74 (2014); State v. 

Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).

3 State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).

4 See State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).

5 State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).

6 See State v. Journey, 207 Neb. 717, 301 N.W.2d 82 (1981).
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defendant has the right to an impartial judge but does not have 

the right to have his or her case heard before any particular 

judge.7 Braesch did not claim that Judge Kelch was biased, and 

he does not argue on appeal that the reassignment prejudiced 

him. Nor does the court’s colloquy with Braesch show that 

Judge Zastera led Braesch to believe his bench trial would be 

heard only by him if he waived a jury trial.8 We have reviewed 

Braesch’s waiver of his right to a jury trial and conclude that 

it was valid.

[7] After a defendant validly waives his or her right to a 

jury trial, the defendant has no absolute right to withdraw the 

waiver. Whether to permit a defendant to withdraw a valid 

waiver of the right to a jury trial falls within the trial court’s 

discretion.9

[8] Some of our cases illustrate that absent a showing of 

good cause for a delay, a trial court does not abuse its discretion in overruling a motion to withdraw a waiver of a jury trial 

that is not made until the eve of trial.10 And many courts have 

held that a request to withdraw a valid waiver of a jury trial 

after a trial has commenced is ordinarily untimely.11

But we have not set an absolute time limit for a defendant 

to request a withdrawal of his or her waiver. And our decision 

in State v. Halsey12 suggests that in limited circumstances, such 

a request might be appropriate after a trial commences. But 

even in Halsey, we found no abuse of discretion in the court’s 

denial of a new trial. We reached this decision in part because 

the defendant did not move to withdraw his waiver of a jury 

7 See State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007).

8 See Fitzgerald v. Withrow, 292 F.3d 500 (6th Cir. 2002).

9 See Zemunski, supra note 1.

10 See, Kaba, supra note 1; Sutton v. State, 163 Neb. 524, 80 N.W.2d 475 

(1957).

11 See 3 Charles E. Torcia, Wharton’s Criminal Procedure § 389 (13th ed. 

1991) (citing cases).

12 State v. Halsey, 232 Neb. 658, 441 N.W.2d 877 (1989).
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trial or ask for a mistrial until after the trial—instead of when 

he first became aware of the claimed circumstance that supported his motion to withdraw the waiver.

We recognize that an assigned judge is a factor that defense 

attorneys may take into consideration when advising their clients whether they should waive a jury trial.13 But we need not 

consider the circumstances under which a change in the presiding judge could warrant allowing a defendant to withdraw 

a waiver of the right to a jury trial. Braesch has not shown 

good cause for not moving to withdraw his waiver before the 

trial began.

As stated, Judge Kelch first informed Braesch and his 

attorneys that the case had been reassigned to him 21 days 

before the trial was scheduled to begin. Thirteen days before 

trial, Braesch’s attorney was again informed that Judge Kelch 

would preside. Even if Braesch mistakenly thought that his 

case might still be reassigned to Judge Zastera again, his attorney knew otherwise. And his attorney did not allege that she 

failed to discuss this information with Braesch. Braesch admits 

that he minimally knew the day before trial that Judge Zastera 

would not preside. Yet, he did nothing to timely assert a claim 

that he would not have agreed to waive his right to a jury trial 

with any judge presiding besides Judge Zastera.

[9] We have often held that a party who knows of judicial 

conduct that is purportedly improper cannot gamble on a favorable result without raising the matter and then complain that 

the claimed error caused an unfavorable outcome.14 The same 

reasoning applies here. Absent plain error, when a party knows 

of a circumstance that purportedly affected the party’s decision 

to validly waive a jury trial but does not raise the matter until 

after the trial, we will not consider a challenge on appeal to 

a trial court’s refusal to grant a new trial on that ground. The 

13 6 Wayne R. LaFave et al., Criminal Procedure § 22.1(h) (4th ed. 2015).

14 See, e.g., State v. Schreiner, 276 Neb. 393, 418, 754 N.W.2d 742, 762 

(2008).
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court’s refusal to grant a new trial because of the reassignment 

of judges was not plain error.

2. Court Did Not Err in Con

That Braesch’s Expert’s O

Was Unreliable at t

Close of Evide

(a) Additional Facts

Braesch’s only witness was Kirk Newring, Ph.D., a psychologist. Newring testified as an expert about Braesch’s mental state on the day of the murder. Newring based his opinion 

on his review of the following information: (1) sheriff officer 

reports, including statements of the witnesses and officers; (2) 

the coroner and autopsy reports; (3) interviews with Braesch, 

Virginia, the principal of the high school that Braesch attended 

25 years earlier, and Braesch’s work supervisor; (4) pharmacy 

records of Braesch’s prescribed medications; and (5) Braesch’s 

requests for leave from work.

Newring spoke to Braesch in jail in May 2014 for about 2 

hours, and he advised Braesch that if he made any incriminating statements, Newring might have to disclose them. He 

relied in part on Braesch’s statements that while in jail, he had 

been prescribed Depakote, a mood stabilizer, and was subject 

to suicide precautions. But he did not review any jail records 

to confirm the prescription, to learn why it was prescribed, or 

to review Braesch’s conduct in jail. Newring said he did not 

perform any psychological testing because it was so long after 

the homicide that testing might not have been informative of 

Braesch’s mental state on the day of the killing. He did not 

contact any of Braesch’s health care providers or counselors 

because he did not have permission to do so. He stated that 

Braesch had worked for the same employer for 15 years, had 

been a supervisor, and was considered a good employee—apart 

from some attendance problems. If a mental health care provider approved his request for leave, he was approved to take 

leave for depression.
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Newring opined, within a reasonable degree of psychological certainty, that Braesch “met [the] diagnostic criteria” for 

bipolar I disorder, for substance abuse disorders, and for an 

anxiety disorder. When Newring was asked if he had an opinion whether Braesch’s ability to form volitional intent on July 

13, 2013, was compromised, the State objected and moved to 

voir dire. Newring confirmed that his opinion of Braesch’s 

mental state was based in part on Braesch’s voluntary use of 

the following substances in the weeks leading up to the homicide: Xanax, methamphetamine, alcohol, cocaine, and marijuana. The State then moved to exclude his opinion.

The State argued that to the extent Newring relied on 

Braesch’s voluntary use of intoxicating substances, his opinion was invalid under Neb. Rev. Stat. § 29-122 (Cum. Supp. 

2014). Apart from limited exceptions, that statute excludes 

evidence of intoxication as a defense to a criminal charge or 

to show that a defendant did not have the requisite mental 

state. Additionally, the State argued that because Newring 

did not have a juris doctorate, he lacked the qualifications 

to opine about legal conclusions. Braesch responded that 

Newring was not giving a legal opinion and that Newring’s 

opinion about Braesch’s substance abuse was only part of 

his diagnosis.

The court concluded that § 29-122 did not permit a voluntary intoxication defense and that no exception applied. It also 

concluded that Braesch had failed to show Newring had any 

understanding of the legal meaning of intent. But it permitted 

Braesch to reframe his question to exclude any reference to 

voluntary intoxication.

Newring then testified that he had prepared separate opinions on the effect of Braesch’s mental health disorders on his 

intent. He said that his primary concern was Braesch’s bipolar 

I disorder and believed that Braesch’s substance abuse was 

caused by his bipolar I disorder. When asked for his opinion 

regarding the impact of Braesch’s bipolar I disorder on his 

volitional intent, the State again objected and asked to voir 
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dire. Newring conceded that his opinion was partially based 

on Braesch’s impaired decisionmaking and that his substance 

abuse was a possible contributing factor. He conceded that he 

did not have a toxicology report to verify Braesch’s statements 

about the substances he had allegedly ingested and that his 

opinion about Braesch’s substance abuse disorders rested on 

Braesch’s self-reporting.

The State renewed its statutory and foundation objections. 

The court overruled the objections, concluding that the issue 

was whether to give any weight and credibility to Newring’s 

opinions, an issue that it would decide at the end of the 

trial. Newring then opined that “separate and distinct” from 

Braesch’s abuse of drugs, his bipolar I disorder “limited his 

ability to effectively regulate his behavior on that day; that he 

was experiencing bipolar symptoms, and that limited his ability to make good decisions that day.” Newring further stated 

that with Braesch’s reported substance abuse, his impaired 

decisionmaking “would have been even worse,” but that “even 

without the substance abuse, [his] opinion would probably be 

the same.”

(b) Court’s Findings

In closing argument, Braesch’s attorney argued that the evidence showed only a sudden quarrel homicide. The next day, 

the court stated its findings from the bench.

The court stated that Newring was certainly qualified to 

perform mental health examinations. But it concluded that 

Newring’s opinion regarding Braesch’s ability to form the 

intent to kill on the day of the homicide was not credible for 

several reasons.

First, the court noted that Newring’s opinion rested on 

Braesch’s self-reported problems and that Newring had not 

obtained Braesch’s medical records or other evidence to corroborate his statements. Second, Newring never explained 

how his mental health principles, even if they involved intent, 

related to requirements of Nebraska’s homicide statutes. Third, 
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Newring did not explain the scientific methodology he used 

to retroactively diagnose Braesch’s mental health on the day 

of the homicide. Specifically, Newring did not explain how 

Braesch’s actions of retrieving a loaded rifle and shooting 

William five times without further confrontation showed 

Newring that Braesch was impaired by mental health problems. Nor did Newring attempt to reconcile Braesch’s homicidal conduct with evidence that he was not out of control 

immediately after killing William and was cooperative with 

law enforcement. Finally, Newring did not explain whether 

his methodology for determining that Braesch’s diagnosis was 

peer reviewed and how the underlying principles applied to 

the facts of the case.

(c) Parties’ Contentions

Braesch contends that the court erred in excluding Newring’s 

opinion of how Braesch’s bipolar I and anxiety disorders, 

combined with his recent substance abuse, had affected his 

mental state on the day of the homicide. He argues that the 

Legislature’s enactment of § 29-122 in 2011 did not change 

the common law on whether intoxication is relevant to show 

a defendant did not form specific intent to commit a crime. 

So he contends that his expert properly considered the combined effect of his bipolar disorder and substance abuse. He 

contends that the court further erred in admitting Newring’s 

testimony but nonetheless concluding that his opinion was not 

credible. He argues that the court committed plain error by 

failing to consider evidence that it had already determined was 

admissible in its role as the gatekeeper of scientific or specialized evidence.

The State points out that Newring specifically stated that 

his opinion would be the same even without consideration 

of Braesch’s substance abuse. So it contends that Newring’s 

opinion regarding Braesch’s substance abuse added nothing to Newring’s opinion of Braesch’s mental state on the 

day of the homicide. The State contends that his opinion 
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regarding substance abuse lacked a sufficient factual basis 

because Newring did not state (1) what substances he 

believed Braesch had ingested or (2) how much he had 

ingested or when he had done so. Finally, the State contends 

that Newring’s opinion that Braesch’s substance abuse had 

impaired his decisionmaking was insufficient because the 

evidence showed that he was not wholly deprived of reason 

because of drug use.

(d) Standard of Review

[10,11] Whether a trial court can decide that an expert opinion is unreliable after admitting it into evidence is a procedural 

issue that we decide de novo.15 We review a trial court’s ruling to admit or exclude an expert’s testimony for abuse of 

discretion.16

(e) Analysis

(i) The Court Properly Determined the 

Expert’s Opinion Was Unreliable 

After Admitting His Testimony

We first address Braesch’s argument that under the Daubert/

Schafersman17 requirements, it was plain error for the trial 

judge, sitting as the fact finder, to reject an expert’s opinion as 

unreliable when it has already admitted the opinion into evidence. We disagree.

[12,13] Before admitting expert opinion testimony under 

Neb. Evid. R. 702,18 a trial court must determine whether the 

expert’s knowledge, skill, experience, training, and education 

15 See Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).

16 See, State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015); 

State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).

17 See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 

S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262 

Neb. 215, 631 N.W.2d 862 (2001).

18 See Neb. Rev. Stat. § 27-702 (Reissue 2008).
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qualify the witness as an expert.19 Under our Daubert/

Schafersman framework,20 if an expert’s opinion involves scientific or specialized knowledge, a trial court must determine 

whether the reasoning or methodology underlying the testimony is valid (reliable). It must also determine whether that 

reasoning or methodology can be properly applied to the facts 

in issue.21

But in a bench trial, a trial court is not required to conclusively determine whether an expert’s opinion is reliable 

before admitting the expert’s testimony. We have previously 

considered this issue. In Fickle v. State,

22 we determined that 

the trial court in a bench trial had not abdicated its gatekeeping function or abused its discretion in allowing an expert 

to testify, subject to the opponent’s opportunity to object to 

the testimony as necessary. We explained that a “trial court 

may not abdicate its gatekeeping duty . . . in a bench trial, 

but the court is afforded more flexibility in performing this 

function.”23 Other courts have similarly concluded that in a 

bench trial, a court has discretion to admit a qualified expert’s 

opinion even if its admissibility is questionable. The court 

can then decide after hearing further evidence whether the 

opinion meets reliability standards and should be credited in 

deciding disputed questions of fact.24 We cited some of these 

cases in Fickle.

19 See State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).

20 See State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014).

21 See id.

22 Fickle, supra note 15.

23 Id. at 1006, 735 N.W.2d at 770.

24 See, e.g., U.S. v. Brown, 279 F. Supp. 2d 1238 (S.D. Ala. 2003), affirmed

415 F.3d 1257 (11th Cir. 2005), citing Gonzales v. National Bd. of Medical 

Examiners, 225 F.3d 620 (6th Cir. 2000) (Gilman, J., dissenting); Ekotek 

Site PRP Committee v. Self, 1 F. Supp. 2d 1282 (D. Utah 1998); Bradley v. 

Brown, 852 F. Supp. 690 (N.D. Ind. 1994), affirmed 42 F.3d 434 (7th Cir. 

1994); City of Owensboro v. Adams, 136 S.W.3d 446 (Ky. 2004).
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[14] Here, the court reasonably concluded that Newring 

was qualified to testify as an expert on Braesch’s mental 

state. But requiring the parties to conduct a separate evidentiary hearing on the reliability of an expert’s opinion before 

allowing the expert to testify is unnecessary in a bench trial. 

In a bench trial, the court is not shielding the jury from unreliable evidence. Instead, the court must fulfill its gatekeeper 

duty and decide the ultimate issues of fact in the trial. So 

we now reiterate the rule applied in Fickle: The Daubert/

Schafersman requirements do not preclude a court presiding 

over a bench trial from admitting an expert’s opinion subject 

to the court’s later determination that the opinion is unreliable and should not be credited. Accordingly, the question is 

whether the court properly concluded that Newring’s opinion 

was not credible.

(ii) Expert’s Methodology 

Was Unreliable

As stated, Braesch contends that the court erred in excluding 

Newring’s opinion of how Braesch’s active bipolar I and anxiety disorders, combined with his recent substance abuse, had 

affected his mental state on the day of the homicide. But the 

record supports the State’s argument that Newring conceded 

that even without considering Braesch’s substance abuse, his 

opinion would be the same. According to Newring, Braesch’s 

substance abuse would have only contributed to the effects of 

his bipolar I disorder. So there are two primary questions: (1) 

whether Newring reliably opined that Braesch was experiencing bipolar I symptoms on the day of the homicide, which 

symptoms limited his ability to effectively regulate his behavior and make good decisions, and (2) whether the fact finder 

could have properly applied his reasoning and opinion to the 

facts of the case.25

25 See Herrera, supra note 20.
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[15,16] To be admissible, an expert’s opinion must be based 

on good grounds, not mere subjective belief or unsupported 

speculation.26 A trial court should not require absolute certainty 

in an expert’s opinion, but it has discretion to exclude expert 

testimony if an analytical gap between the data and the proffered opinion is too great.27

[17,18] A trial court can consider several nonexclusive factors in determining the reliability of an expert’s opinion: (1) 

whether a theory or technique can be (and has been) tested; (2) 

whether it has been subjected to peer review and publication; 

(3) whether, in respect to a particular technique, there is a high 

known or potential rate of error; (4) whether there are standards controlling the technique’s operation; and (5) whether 

the theory or technique enjoys general acceptance within a relevant scientific community.28 Absent evidence that an expert’s 

testimony grows out of the expert’s own prelitigation research 

or that an expert’s research has been subjected to peer review, 

experts must show that they reached their opinions by following an accepted method or procedure as it is practiced by others in their field.29

Regarding the reliability of Newring’s methodology, the 

court correctly concluded that the evidence failed to establish 

that Newring reliably determined that Braesch was experiencing the effects of bipolar I symptoms on the day of the 

homicide. Although Newring provided the sources of information that he relied on, he did not explain the information 

that he obtained from those sources which led to his opinion. 

For example, he did not state that any of the medications 

that Braesch was taking when he killed William were for a 

26 King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 

24 (2009).

27 See id.

28 See Casillas, supra note 19.

29 See King, supra note 26.
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bipolar I disorder, and he did not consult Braesch’s mental 

health care providers.

Newring also did not explain whether Braesch would have 

experienced the effects of his bipolar I disorder continually 

or whether any of the medications Braesch was taking would 

have diminished those symptoms. Most important, he did not 

explain what observable effects of a bipolar I disorder led 

him to believe that Braesch was experiencing those symptoms 

on the day of the homicide and how he knew that Braesch 

had a limited ability to regulate his behavior and make good 

decisions. And no methodology evidence established that subsequent psychological testing would have been irrelevant to 

whether Braesch was suffering from bipolar I disorder on the 

day of the killing.

These omissions are not insignificant when a person has 

been charged with murder. Because Newring had warned 

Braesch that he might have to report any incriminating statements, Braesch was unlikely to have reported an intent to 

kill William. And because Braesch had reason to falsify or 

exaggerate his bipolar symptoms on the day of the homicide, 

the court was justifiably concerned that Newring appeared to 

have primarily relied on Braesch’s self-reporting of symptoms. 

Finally, assuming that Newring followed an established methodology for retroactively diagnosing Braesch’s mental health 

disorders, he did not explain those methodologies or show 

whether they had been peer reviewed or followed by other 

professionals in his field.

We agree with the court that Braesch’s evidence failed to 

establish the reliability of Newring’s methodology in determining that Braesch was actively suffering from bipolar I 

symptoms on July 13, 2013. In sum, no evidence established 

a recognized methodology for retroactively diagnosing a bipolar I disorder. And assuming that a recognized methodology 

exists, Newring provided no specific data that supported his 

opinion. The court properly exercised its discretion in finding 

the analytical gap between the data and Newring’s opinion 
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was too great. As stated, the evidence of Braesch’s substance 

abuse was relevant only as a contributing factor to the symptoms of bipolar I disorder. So it would not have changed the 

court’s finding that the underlying bipolar diagnosis itself 

was unreliable.

(iii) Court Could Not Apply the 

Expert’s Opinion to the Facts

Regarding the court’s ability to apply Newring’s opinion 

and reasoning to the facts of the case, the defect is different 

but similarly serious. On appeal, Braesch argues that Newring 

was prepared to testify that Braesch’s substance abuse disorder, 

combined with his bipolar I and anxiety disorders, prevented 

him from forming the “premeditated volitional intent” required 

for first degree murder.30 But the record does not support 

this claim.

As stated, Newring testified that even without considering 

Braesch’s substance abuse, his opinion of Braesch’s mental 

state on the day of the homicide would have been the same. 

No offer of proof contradicted that statement. And Newring’s 

opinion was that Braesch’s bipolar I disorder limited his ability to make good decisions and effectively regulate his behavior on the day of the homicide. Newring did not opine that 

Braesch did not intend to kill William or that he could not 

have formed the specific intent to do so because of his bipolar 

I symptoms. Nor did he opine that Braesch’s bipolar I disorder 

prevented him from deliberating or premeditating the killing 

of William.

But to prove first degree murder, the State must show that 

a defendant killed another person purposely and did so with 

deliberate and premeditated malice.31 And to be applicable 

to these facts, Newring’s opinion needed to show whether 

30 Brief for appellant at 29.

31 See State v. Escamilla, 291 Neb. 181, 864 N.W.2d 376 (2015).
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Braesch could have deliberated and premeditated the killing as 

we have defined these terms.

Specifically, the deliberation element means not suddenly 

or rashly, and requires the State to prove that the defendant 

considered the probable consequences of his act before committing it.32 The premeditation element requires the State to 

prove that a defendant formed the intent to kill a victim before 

doing so, but no particular length of time for premeditation is 

required. It is sufficient if an intent to kill is formed before 

the act is committed and not simultaneously with the act 

that caused the death.33 But Newring’s opinion that Braesch’s 

bipolar I disorder limited his ability to effectively regulate his 

behavior was too vague to assist the fact finder in determining 

whether Braesch deliberated or premeditated the killing. The 

court did not err in concluding that Newring’s testimony failed 

to show how Braesch’s impaired decisionmaking, even if true, 

prevented him from forming the statutory mental state for first 

degree murder.

3. Evidence Was Sufficient to Prove

a Reasonable Doubt That Br

Killed William With Deliber

and Premeditated Mal

(a) Court’s Findings

In stating its findings from the bench, the court also set out 

its factual findings in determining that the State had met its 

burden to prove Braesch committed first degree murder beyond 

a reasonable doubt. It stated that despite removing himself 

from William’s presence by going to the basement, Braesch did 

not leave the house or stay in the basement. Instead, the court 

found that Braesch had admitted going to the basement to get 

a gun and that he had done so intentionally and purposefully 

to kill William. Braesch’s intent to kill William was shown by 

32 See id.

33 See id.
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evidence that upon coming up the stairs, he immediately shot 

William, and that he had then shot William five more times, 

including shooting him twice in the head at close range. The 

court stated, “One does not place a deadly weapon next to the 

human head and pull the trigger, cock the rifle and pull the 

trigger again without the intent to kill. Additionally, [Braesch] 

repeated this process at least five times . . . .” The court also 

found that Braesch was not out of control because he had not 

shot anyone else.

The court also concluded that the facts of the case did not 

show a sudden quarrel provocation that would cause a normal 

person to lose control. It concluded that Braesch had formed 

the intent and design to kill William, without legal justification, before doing so.

(b) Standard of Review

[19] When reviewing the sufficiency of the evidence to support a conviction, the relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.34

(c) Resolution

Braesch contends that even without considering his expert’s 

testimony, the evidence was insufficient to prove that he killed 

William with deliberate and premeditated malice. He argues 

that the evidence at most showed an impulsive, rash act. 

Under our standard of review, however, a rational fact finder 

could have found otherwise. This assignment of error is without merit.

V. CONCLUSION

We conclude that Braesch’s waiver of his right to a jury trial 

was valid despite the court’s later reassignment of Braesch’s 

34 State v. Irish, ante p. 513, 873 N.W.2d 161 (2016).
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bench trial from Judge Zastera to Judge Kelch. Although the 

court had discretion to consider his request to withdraw his 

jury trial waiver, Braesch has waived any challenge on appeal 

to the court’s ruling on this issue by not raising the matter until 

after the trial was over. Finding no plain error in the ruling, 

we affirm.

We conclude that in a bench trial, a trial court can properly 

admit an expert’s opinion but reserve ruling on its reliability 

until the close of evidence. Under that procedure, the court 

did not err in concluding that the opinion of Braesch’s psychological expert on his mental state the day he killed William 

was unreliable. The evidence failed to establish a recognized 

methodology for retroactively diagnosing Braesch’s mental 

health or identify the data upon which the expert relied. 

Additionally, the expert failed to explain how his diagnosis, 

even if reliable, related to the mental state required for first 

degree murder.

Finally, we conclude that the court did not err in concluding 

that the evidence was sufficient to prove beyond a reasonable 

doubt that Braesch killed William with deliberate and premeditated malice.

Affirme