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State of Nebraska, appellee, v. 

Alan E. Stack, appellant.

___ N.W.2d ___

Filed November 13, 2020. No. S-19-833.

1. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. 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.

2. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact 

on the issue of insanity will not be disturbed unless there is insufficient 

evidence to support such a finding.

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

by the trial court.

4. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A 

defendant who moves for dismissal or a directed verdict at the close of 

the evidence in the State’s case in chief in a criminal prosecution and 

who, when the court overrules the dismissal or directed verdict motion, 

proceeds with trial and introduces evidence, waives the appellate right 

to challenge correctness in the trial court’s overruling the motion for 

dismissal or a directed verdict but may still challenge the sufficiency of 

the evidence.

5. Homicide: Intent. Both second degree murder and voluntary manslaughter involve intentional killing; they are differentiated only by the 

presence or absence of the sudden quarrel provocation.

6. Homicide: Words and Phrases. A sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to 

lose normal self-control.

Nebraska Supreme Court Online Library

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

12/04/2020 09:11 AM CST
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7. Homicide: Intent. It is not the provocation alone that reduces the 

grade of the crime, but, rather, the sudden happening or occurrence of 

the provocation so as to render the mind incapable of reflection and 

obscure the reason so that the elements necessary to constitute murder 

are absent.

8. Homicide: Words and Phrases. A sudden quarrel 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.

9. Insanity: Proof. The insanity defense requires proof that (1) the defend

ant had a mental disease or defect at the time of the crime and (2) the 

defendant did not know or understand the nature and consequences of 

his or her actions or that he or she did not know the difference between 

right and wrong.

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

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

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

principles in determining the sentence to be imposed.

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

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

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

amount of violence involved in the commission of the crime.

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

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Affirmed.

Gregory A. Pivovar, and, on brief, John P. Hascall, Deputy 

Sarpy County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

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

Papik, and Freudenberg, JJ.
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Papik, J.

Alan E. Stack appeals his convictions and sentences for 

second degree murder and use of a deadly weapon to commit a 

felony. Circumstantial evidence presented at Stack’s bench trial 

linked him to the murder of a woman with whom he lived. In 

this appeal, Stack challenges the sufficiency of the evidence 

and the district court’s finding that the evidence supported a 

conviction of second degree murder, rather than sudden quarrel manslaughter. He also claims that the district court erred in 

rejecting his insanity defense and imposed excessive sentences. 

Finding no merit to Stack’s contentions, we affirm.

I. BACKGROUND

1. Procedural Overview

On November 16, 2017, family members found Beverley 

Diane Bauermeister dead in her home. Severe head trauma was 

evident. Bauermeister’s elderly mother was in another room, 

alive but immobile. Stack, a heavy drinker, was living with 

Bauermeister and her mother at the time of Bauermeister’s 

death.

Stack was ultimately charged with second degree murder; 

abuse of a vulnerable or senior adult; and use of a deadly 

weapon, other than a firearm, to commit a felony. Stack filed a 

notice of intent to rely on the insanity defense. He claimed that 

a mental defect impaired his mental capacity so that he did not 

understand the nature and consequences of his actions and that 

he did not have the ability to form the requisite intent.

At the subsequent bench trial, the State presented circumstantial evidence that tied Stack to the crimes charged. At the 

close of the State’s case, Stack made a motion to dismiss all 

counts, which the district court overruled. Stack proceeded to 

present evidence in his defense, including testimony in support 

of his insanity defense. The State presented additional evidence 

opposing Stack’s defense.

Once the parties rested, the district court ruled that there 

was insufficient evidence to find that Stack was either insane 

or could not form the specific intent to commit the crimes 
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alleged. It convicted Stack of second degree murder and use 

of a deadly weapon to commit a felony, but it acquitted him of 

the abuse charge. Following a sentencing hearing, the district 

court sentenced Stack to consecutive terms of 80 years’ to life 

imprisonment for second degree murder and 40 to 50 years’ 

imprisonment for use of a deadly weapon to commit a felony. 

Stack now appeals.

2. Circumstantial Evidence at Trial

(a) Crime Scene and Stack’s Arrest

Stack and Bauermeister had been living together for more 

than 15 years but were not in a dating relationship at the time 

relevant to this case. By all accounts, Stack was an alcoholic.

Stack and Bauermeister shared a trailer home with 

Bauermeister’s 90-year-old mother. Bauermeister’s mother was 

wheelchair-bound, was unable to get out of bed on her own, 

and could not take care of her own basic needs.

Bauermeister’s daughter testified that she and Bauermeister 

communicated daily, but Bauermeister did not respond to her 

daughter’s attempts to reach her after they had a disagreement on November 8, 2017. On November 16, Bauermeister’s 

daughter and brother discovered Bauermeister deceased on 

her living room floor. They found Bauermeister’s mother in 

a bedroom, lying on her hospital bed in her own urine and 

feces. Bauermeister’s mother was admitted to a hospital due to 

severe dehydration.

When law enforcement searched the residence, they 

observed that Bauermeister had severe head trauma, blood 

around her hair, yellow brain matter in her hair, and brown 

hair strands in her hand and on the carpet near her. The scene 

was processed for DNA and blood evidence. There was blood 

spatter in the living room area and additional possible blood 

evidence between the living room and Stack’s bedroom. On 

the floor of Stack’s bedroom, officers located a “Crosman 66 

Powermaster BB rifle[/pellet gun],” .177 caliber, with a sight 

near the tip of the gun barrel. A gray or silver pellet was in 

the clip of the gun. A detective who investigated the scene 
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testified that he observed what appeared to be dried bloodstains and brain matter on areas of the gun.

The same day Bauermeister’s body was discovered, law 

enforcement took Stack into custody. They located him parked 

in Bauermeister’s truck, which he sometimes drove. The officer who transported Stack to the station testified that he could 

smell the strong odor of an alcoholic beverage coming from 

Stack. At the station, Stack’s clothing was collected. In photo

graphs taken shortly after his arrest, Stack appears to have 

brown hair.

(b) Autopsy

Dr. Michelle Elieff, a general and forensic pathologist, conducted an autopsy of Bauermeister’s body on November 17, 

2017. Based on the decomposition of the body, Elieff estimated that Bauermeister had been deceased for days, perhaps 

up to a week. Elieff identified the cause of death as extensive 

blunt force head injuries and two penetrating wounds to the 

head. The extensive blunt force injuries included multiple skull 

fractures and multiple scalp lacerations. Regarding the penetrating wounds, Elieff explained they were “what we refer to 

as missile wounds; they are a type of gunshot wound that are 

resulting from small projectiles, pellet-type projectiles.” Elieff 

recovered a missile projectile, consistent with a pellet, from 

behind Bauermeister’s right eye.

Elieff opined that the right angle or rectangular component 

on the sight of the pellet gun found in Stack’s bedroom could 

be consistent with Bauermeister’s pattern injuries. She also 

opined that the circular tip of the barrel of the gun could have 

caused the injuries.

(c) Electronic Evidence

Upon Stack’s arrest, Bauermeister’s cell phone was found 

in her truck and later processed. There were 41 missed calls 

between November 14 and 16, 2017. The last four outgoing 

calls occurred between November 10 and 13. Twenty-seven 

text messages were received between November 9 and 16, 
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but it could not be determined who had viewed the messages. 

The last outgoing text message occurred on November 8. The 

last message from Bauermeister’s social media account was 

also sent on November 8.

During the search of the crime scene, officers seized a laptop computer from Stack’s bedroom. A “Skype” account on the 

laptop bore the username “Al Stack.” The laptop showed multiple internet searches on November 7, 2017, for the make and 

model of pellet gun found in Stack’s bedroom, a “Crosman 66 

Powermaster BB rifle[/pellet gun],” .177 caliber. On November 

8, there were various searches for iterations of whether a 

.177 caliber pellet can penetrate a human skull. The next day, 

there were multiple searches inquiring about various methods 

of suicide, among them were searches for “[i]s it possible 

to kill yourself with a pellet gun” and “kill yourself with a 

pellet gun.” Nearly 2 hours after the last of these searches, 

there were searches for “can a .177 cal. penetrate a human 

skull” and “can a .177 cal. 66 powermaster penetrate a human 

skull.” On November 10, at 9:22 p.m., a search was made 

for “decomposition of a human body timeline.” Searches for 

“what gets supplied for you in jail and prison” and “are socks 

and under[wear] provided in jail or prison” were made on the 

morning of November 12.

Based upon the history on the cell phone and the laptop, 

along with the crime scene, the detective who processed the 

electronic evidence opined that Bauermeister was killed on or 

about November 10, 2017.

(d) DNA Evidence

Forensic DNA analyst Mellissa Helligso tested numerous 

items for the presence of blood and for DNA. She used buccal 

swabs from Stack and Bauermeister for DNA comparison.

Helligso observed what appeared to be bloodstains on the 

front and back of Stack’s pants, but she only tested a swab 

from one 2-inch long stain. That swab tested positive for 

blood. It generated a DNA mixture from two individuals. 

Bauermeister was not excluded as a major contributor. The 
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probability of an unrelated individual matching the major 

DNA profile, given that Bauermeister expressed the profile, 

was 1 in 1.08 nonillion, which Helligso testified “is 30 zeros.” 

Stack was not excluded as a partial profile contributor. The 

probability of an unrelated individual matching the partial 

profile, given that Stack expressed such a profile, was 1 in 

1.66 billion.

Also positive for blood were swabs from Stack’s left shoe, 

which had a few areas of visible blood; from various areas 

of the pellet gun; and from Bauermeister’s fingernails and 

her cell phone. DNA testing showed that Bauermeister was 

not excluded as the source. The probability of an unrelated 

individual matching the DNA profile, given that Bauermeister 

expressed such a profile, was 1 in 1.08 nonillion.

Helligso tested a swab from various textured areas of the 

gun for “touch DNA” contributed by skin cells. The swab generated a DNA profile from a mixture of two individuals. Stack 

and Bauermeister were not excluded as contributors. As to 

Stack, the probability of an unrelated individual matching the 

DNA profile, given that Stack expressed such a profile, was 1 

in 36.3 sextillion. Regarding Bauermeister, the probability of 

an unrelated individual matching the DNA profile, given that 

Bauermeister expressed such a profile, was 1 in 17.9 quintillion. Helligso testified that she cannot know when DNA was 

deposited on an item and that she has found touch DNA on an 

item up to 2 years after it has been handled by a person.

Helligso attempted to test a brown hair strand found in 

Bauermeister’s hand, but she could not obtain a DNA profile 

from the root area. And she did not have the capability in her 

laboratory to test the remainder of the strand for a different 

form of DNA.

(e) Jailhouse Recordings

While incarcerated for the present offenses, Stack spoke 

to his brother. A recording of their conversation was received 

as evidence. In the conversation, Stack told his brother about 
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his relationship with Bauermeister and his limited memory of 

the days surrounding her death:

Stack’s brother: So you just don’t even remember what 

happened . . . ?

Stack: No, I remember a couple of days before, I mean, 

how irritated I was getting and drunk because that was 

the only thing that would calm me down . . . . [T]here’s 

not much I can say, I mean, I can say how evil and 

mean [Bauermeister] was to me for a long period of time 

because that’s what I remember from before, but I don’t 

remember damn near probably five days. I just don’t.

Stack’s brother: Well, I would assume you were 

hammered.

Stack: Yeah I was drinking over a case of beer and I 

went back to booze too. I was drinking booze.

. . . .

Stack: . . . [T]he night they found me in the parking lot. 

They arrested me.

. . . .

Stack’s brother: So what did you do for those days?

Stack: I don’t remember. I just drunk, drank. I don’t 

remember. I drank and drove around. I didn’t eat anything. I was, I was upset. I don’t know. I remember, 

I don’t know what I really remember. It seems like I 

remember at one point I knew I was gonna be dead or 

something because I went back home and seen, seen the 

house and I had to just stay drunk.

. . . .

Stack’s brother: . . . I mean, um, I get, I get that you 

blacked out, um, but you said you went, you actually, 

after you had done it there was a point in time when you 

went back there?

Stack: I’m a, I slightly remember it, yeah, because I 

knew I had to leave, get outta there and I don’t remember 

how long it was that I was driving around in the truck 

before they found me . . . I didn’t have no clue where 
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I was. All I know is I was drinking booze and beer constantly, not eating and that’s all I can explain.

Minutes later in the conversation, Stack continued:

[T]o me, that’s not me. I obviously fucking lost it or 

something. I don’t know. I know I was drinking hard and 

I know I was fed up a long time before that. It got to 

that point. I know that, I remember that much. For me to 

believe everything or what actually happened, I just don’t 

know, and I don’t even really want to talk about it now.

. . . .

Stack’s brother: . . . [I]f you’re hammered and you 

do what apparently it looks like you did, I don’t think it 

makes you any less guilty.

Stack: No, I don’t think it does either. . . .

. . . I mean I did want to be alone. That’s what I was 

thinking weeks, weeks before. I started to get real drunk 

again I was and I did want to be alone, I did want to 

be alone. I didn’t want to listen to her mouth anymore. 

I remember thinking things like that but that’s not, that 

hasn’t got anything to do with it. I don’t. But that’s, I 

mean that’s why I was in no hurry to call anybody anyway because I didn’t want to sit here and try to explain 

shit to everybody that I don’t even understand myself.

The district court also received a recording of a telephone 

conversation Stack had with his sister while in jail awaiting 

trial for the present offenses:

Stack: They pulled some shit off of my computer or 

somethin’ I think is what they’re sayin’. They don’t, they 

don’t know what I was doin’ with it. I don’t even know 

what they . . . . But I know what I looked up on the computer. I was looking up suicides and I was looking up 

what I could shoot with my BB gun and stuff like that. I 

know that’s what I looked up because that was before I 

went on a drinking rampage[.]

. . . .

Stack’s sister: But you remember searching stuff 

like that?
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Stack: Mm. . . hm . . . that was before I went off 

the reservation.

Stack’s sister: Yeah, okay, alright, mm, ok so you do 

remember that so I don’t know do you think maybe you 

did a search on something else that you don’t remember?

Stack: It’s possible. I mean I don’t know about that. I 

mean I remember what I did do as far as, you know as far 

as suicide I know I did do that because I remember that 

because . . . .

Stack’s sister: Okay.

Stack: I was the one who wanted out. I wasn’t going to 

do anything about her.

3. Testimony Relevant to 

Insanity Defense

(a) Testimony of Dr. Terry Davis

In support of his insanity defense, Stack presented the 

testimony of Dr. Terry Davis, a board-certified forensic and 

addiction psychiatrist. Davis interviewed Stack in March 2018 

and performed a mental status examination. He also reviewed 

Stack’s medical record from an emergency room visit on 

November 17, 2017; information from Bauermeister’s family; police reports; and a transcript of a recorded conversation 

between Stack and his brother.

Davis diagnosed Stack with a mild neurocognitive disorder 

and a severe level of alcohol use disorder. Davis testified that 

in Stack’s evaluation and the records he reviewed, Stack consistently said that he did not remember killing Bauermeister, 

but he had brief memories from being in “his” truck on 

November 16, 2017, and speaking to an officer.

Davis testified about other statements Stack made in the 

evaluation that were received for the limited purpose of diagnosis, not the truth of the matter asserted. Stack informed Davis 

that he drank “constantly” before he was arrested and that he 

drank beer daily. He also stated that he drank hard liquor but 

switched to beer primarily after he developed pancreatitis. He 
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said that he did not have much of a memory of 1 or 2 months 

prior to Bauermeister’s death because of his alcohol use.

Davis testified that severe alcohol use disorder can impair 

one’s cognitive functioning on a permanent basis. Davis 

explained that an individual who drinks a large amount of 

alcohol may experience a blackout, or a period of “anterograde 

amnesia,” and may not form lasting memories of what occurred 

during the blackout period. He testified that immediate and 

short-term memory are impaired during an alcoholic blackout. 

According to Davis, the blood alcohol concentration range 

for a blackout varies from person to person, but the range is 

typically between “.20 and .30 on the milligram percent scale.” 

Davis observed that Stack’s medical record from several hours 

after his arrest showed that his blood alcohol content was .119. 

And Stack reported that he previously experienced blackouts. 

Davis testified that Stack is more at risk for a blackout because 

of his mild neurocognitive disorder, but that the disorder itself 

would not cause a blackout.

It was Davis’ opinion that, assuming Stack killed 

Bauermeister and did not have a memory of killing her, Stack 

was unable to form the specific intent to kill because he experienced an alcoholic blackout resulting from a combination of 

his alcohol ingestion and his alcohol-induced mild neurocognitive disorder. Again assuming that Stack killed Bauermeister, 

Davis opined that he suffered at that time from a mental disease or defect, specifically an alcohol-induced mild neurocognitive disorder. Further, as a result of that disorder, in combination with his consumption of alcohol, Stack experienced an 

alcoholic blackout, which caused him to be unable to know and 

understand the nature and consequences of his actions.

Davis opined that Stack’s substance-induced mild neurocognitive disorder alone did not mean that Stack could not 

form the intent to kill Bauermeister, nor did it alone cause 

him not to know the nature and consequences of his actions. 

He explained that Stack’s voluntary ingestion of alcohol was 

necessary to cause the blackout that, in combination with the 
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mild neurocognitive disorder, was the basis of Davis’ opinions 

on intent and insanity.

(b) Testimony of Klaus Hartmann 

and Mindy Abel

Dr. Klaus Hartmann, a board-certified forensic psychiatrist, 

evaluated Stack in December 2018 and reviewed the same 

or similar information as Davis, along with Davis’ report. 

Dr. Mindy Abel, a clinical psychologist, was present for 

Hartmann’s interview with Stack and conducted diagnostic 

testing. Hartmann testified that he disagreed with the method 

Davis used to diagnose Stack with mild neurocognitive disorder. Using a different method, Hartmann and Abel concluded 

that Stack did not have a neurocognitive disorder because 

he was able to remember the events leading up to and after 

Bauermeister’s death. Hartmann testified that even people with 

mild neurocognitive disorders should know the consequences 

of their actions and appreciate what they are doing. Hartmann 

and Abel recognized that Stack had a history of blackouts. But 

Hartmann testified that someone who suffers from an alcoholic 

blackout knows and understands the consequences of their 

actions. Hartmann opined that Stack was not insane when 

Bauermeister was killed.

4. Sentencing

After rejecting Stack’s insanity defense and finding him 

guilty of second degree murder and use of a deadly weapon 

to commit a felony, the district court ordered a presentence 

investigation report. It then conducted a sentencing hearing 

at which victim impact statements were received and the parties presented arguments. Considering the customary factors, 

the presentence investigation report, the victim impact statements, and the parties’ arguments, the district court sentenced 

Stack within statutory limits. It imposed consecutive terms of 

80 years’ to life imprisonment for second degree murder and 

40 to 50 years’ imprisonment for use of a deadly weapon to 

commit a felony.
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II. ASSIGNMENTS OF ERROR

Stack assigns that the district court erred in (1) declining 

to direct a verdict and finding the evidence sufficient to support the verdicts; (2) determining that the evidence supported 

a finding of second degree murder rather than manslaughter; 

(3) overruling his insanity defense; and (4) imposing excessive sentences.

III. STANDARD OF REVIEW

[1] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. 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. State v. Martinez, 306 Neb. 516, 

946 N.W.2d 445 (2020).

[2] The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence 

to support such a finding. State v. France, 279 Neb. 49, 776 

N.W.2d 510 (2009).

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

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d 

895 (2018).

IV. ANALYSIS

1. Sufficiency of Evidence

We begin with Stack’s challenge to the sufficiency of the 

evidence. He argues that he was entitled to a directed verdict; 

that the circumstantial evidence in this case warrants a different standard of review; that the evidence does not support a 

conviction for second degree murder; and that if the district 
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court convicted him of any homicide offense, it should have 

been sudden quarrel manslaughter. As we will explain, these 

claims lack merit.

(a) Directed Verdict

[4] Stack asserts that the district court erred by declining to 

grant a directed verdict in response to the motion to dismiss 

he made at the close of the State’s case. But Stack waived 

this argument. The record shows that after Stack’s motion was 

denied, he put on evidence in his defense. A defendant who 

moves for dismissal or a directed verdict at the close of the 

evidence in the State’s case in chief in a criminal prosecution 

and who, when the court overrules the dismissal or directed 

verdict motion, proceeds with trial and introduces evidence, 

waives the appellate right to challenge correctness in the trial 

court’s overruling the motion for dismissal or a directed verdict 

but may still challenge the sufficiency of the evidence. State v. 

Vann, 306 Neb. 91, 944 N.W.2d 503 (2020). We therefore consider only Stack’s assertion that the evidence as a whole was 

insufficient to support his convictions.

(b) Standard of Review

Because the standard of review defines our view of the 

evidence, we consider it before turning to the facts of this 

case. In arguing that the evidence was insufficient, Stack asks 

us to return to a standard of review that we have long since 

abandoned.

It is well established that in reviewing a criminal conviction 

for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard 

is the same: An appellate court does not resolve conflicts in 

the evidence, pass on the credibility of witnesses, or reweigh 

the evidence; such matters are for the finder of fact. 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 
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of the crime beyond a reasonable doubt. State v. Martinez, 

306 Neb. 516, 946 N.W.2d 445 (2020).

Stack acknowledges the controlling standard of review, but 

he adds that “there are situations that just require this Court to 

take a different view of circumstantial evidence cases.” Brief 

for appellant at 21. Stack suggests that we apply the “accused’s 

rule,” which provides that when two equal presumptions from 

circumstantial evidence—one in favor of innocence and the 

other in favor of guilt—are presented, a presumption in favor 

of innocence is to be preferred and applied. See State v. Pierce, 

248 Neb. 536, 537 N.W.2d 323 (1995). For support, he cites 

some federal circuit courts that have applied a similar rule. 

See, e.g., U.S. v. Glenn, 312 F.3d 58 (2d Cir. 2002) (if evidence 

viewed in light most favorable to verdict gives equal or nearly 

equal circumstantial support to theory of guilt and theory 

of innocence of crime charged, appellate court must reverse 

conviction); U.S. v. Flores-Rivera, 56 F.3d 319 (1st Cir. 1995) 

(same). But see, e.g., U.S. v. Vargas-Ocampo, 747 F.3d 299 

(5th Cir. 2014) (abandoning rule).

Based on the evidence here, we have doubts that an application of the accused’s rule would lead to a finding of insufficient evidence. But we need not resolve that issue, because 

we decline Stack’s invitation to resurrect a rule that we have 

repeatedly rejected.

Prior to 1981, this court applied the accused’s rule when 

reviewing circumstantial evidence. See State v. Pierce, supra. 

But observing various reasons why circumstantial evidence 

should be treated the same as direct evidence, we abandoned 

the accused’s rule in State v. Buchanan, 210 Neb. 20, 312 

N.W.2d 684 (1981). In Buchanan, we held that one accused 

of a crime may be convicted on the basis of circumstantial 

evidence if, taken as a whole, the evidence establishes guilt 

beyond a reasonable doubt, and we disclaimed any requirement that the State disprove every hypothesis but that of guilt. 

Over the years, we have briefly veered from this approach, 

only to steer definitively back to it and place circumstantial 
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evidence on equal footing with direct evidence. See, State v. 

Skalberg, 247 Neb. 150, 526 N.W.2d 67 (1995), overruled, 

State v. Pierce, supra; State v. Dawson, 240 Neb. 89, 480 

N.W.2d 700 (1992), abrogated, State v. Pierce, supra; State 

v. Trimble, 220 Neb. 639, 371 N.W.2d 302 (1985), overruled, 

State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991), disapproved on other grounds, Victor v. Nebraska, 511 U.S. 1, 

114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994). Most recently, in 

State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016), this 

court thoroughly recounted the demise of the accused’s rule in 

Nebraska and again rejected the suggestion that it should be 

applied. And in light of our jurisprudence on the matter, we see 

no reason to apply the accused’s rule here.

(c) Circumstantial Evidence Supports 

Stack’s Convictions

With our well-established standard of review in mind, we 

now determine whether there was sufficient evidence to support Stack’s convictions for second degree murder and use 

of a deadly weapon to commit a felony. Stack challenges the 

sufficiency of the evidence on two bases. First, he argues that 

the evidence did not prove that he was the person who killed 

Bauermeister or that his pellet gun, which he does not dispute 

is a deadly weapon other than a firearm, was used to kill her. 

Second, he argues in the alternative that the district court 

should have convicted him of voluntary sudden quarrel manslaughter, rather than second degree murder. But both of these 

arguments fail.

[5] To prove second degree murder, a felony offense, the 

State was required to show beyond a reasonable doubt that 

Stack caused Bauermeister’s death “intentionally, but without premeditation.” See Neb. Rev. Stat. § 28-304 (Reissue 

2016). Voluntary manslaughter, also a felony, is a lesser degree 

offense, not a lesser-included offense, of second degree murder. See State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012). 

That is, it is possible to commit second degree murder without committing voluntary manslaughter. See id. Both second 
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degree murder and voluntary manslaughter involve intentional 

killing; they are differentiated only by the presence or absence 

of the sudden quarrel provocation. State v. Smith, supra (where 

there is evidence that killing occurred intentionally without 

premeditation and that defendant acted under provocation of 

sudden quarrel, fact finder has option of conviction of second 

degree murder or voluntary manslaughter depending on resolution regarding sudden quarrel provocation.) See, also, Neb. 

Rev. Stat. § 28-305(1) (Reissue 2016).

In disputing the theory that he committed second degree 

murder by killing Bauermeister with his pellet gun, Stack 

takes a selective view of the evidence, focuses on other possible explanations for Bauermeister’s death, and characterizes 

the investigation as incomplete. In essence, Stack contends 

that the State failed to disprove every hypothesis, other than 

Stack’s guilt, that could be drawn from the circumstantial 

evidence. And according to Stack, even if the evidence did 

show that he killed Bauermeister with his pellet gun intentionally and without premeditation, evidence of multiple blows 

demonstrated that a sudden quarrel occurred and that voluntary manslaughter was the proper conviction. To support this 

position, Stack further cites a lack of evidence about recent 

fighting or animosity between Stack and Bauermeister and 

a lack of evidence conclusively showing when the internet 

searches occurred in relation to Bauermeister’s death. That 

is, Stack suggests that the circumstantial evidence supports 

the presumption that a sudden quarrel occurred to the same 

extent that it supports the opposite conclusion and that we 

should resolve the matter in favor of the less onerous offense. 

However, as explained above, whether arguing that he did 

not kill Bauermeister or that he did so upon a sudden quarrel, 

Stack depends on an improper standard of review. Viewing 

the evidence in the light most favorable to the prosecution, 

as our standard of review requires, a rational trier of fact 

could have found beyond a reasonable doubt that Stack used 

his pellet gun, a deadly weapon other than a firearm, to kill 
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Bauermeister intentionally, but without premeditation and not 

upon a sudden quarrel.

The State presented circumstantial evidence that Stack, 

without premeditation, intentionally killed Bauermeister with 

his pellet gun. The record shows that over time, Stack had 

become irritated with Bauermeister and wanted to be alone. 

Bauermeister was found on November 16, 2017, in the residence she and Stack shared, dead due to blunt force head 

trauma from multiple blows and multiple missile injuries, both 

consistent with a pellet gun Stack owned. Testing showed 

an extremely high probability that blood found on the pellet 

gun was Bauermeister’s and that touch DNA on the weapon 

belonged to Stack. In Bauermeister’s hand and on the floor 

nearby were strands of brown hair, like Stack’s. Stack was 

apprehended with Bauermeister’s cell phone, which had blood 

on it that was most likely Bauermeister’s. Testing of two spots 

among multiple bloodstains revealed an extremely high probability that Bauermeister’s blood was on the pants and one of 

the shoes Stack was wearing when he was arrested. Stack’s 

computer reflected that from November 7 through 9, the days 

before Bauermeister’s estimated date of death, there were internet searches regarding whether a pellet gun could kill someone, 

among searches for suicide methods. In postarrest statements 

to his sister, Stack admitted to conducting internet searches 

related to suicide and what he could shoot with his pellet gun. 

On November 10, there was a search for “decomposition of a 

human body timeline,” followed by searches inquiring what 

items are provided in prison. In a conversation after his arrest, 

Stack did not contradict his brother’s suggestion that Stack had 

killed Bauermeister and confirmed that he was at the crime 

scene after her death.

[6-8] Furthermore, upon our review of the record, we see 

no evidence of a sudden quarrel. A sudden quarrel is a legally 

recognized and sufficient provocation which causes a reasonable person to lose normal self-control. State v. Smith, 284 

Neb. 636, 822 N.W.2d 401 (2012). It is not the provocation 

alone that reduces the grade of the crime, but, rather, the 
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sudden happening or occurrence of the provocation so as to 

render the mind incapable of reflection and obscure the reason so that the elements necessary to constitute murder are 

absent. Id. Although there was evidence that Stack was irritated with Bauermeister, in the absence of some provocation, a 

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

the requisite heat of passion. State v. Smith, 282 Neb. 720, 

806 N.W.2d 383 (2011). And the fact that Stack may have 

been intoxicated is not a proper consideration in determining 

whether the killing arose from a sudden quarrel. See State v. 

Smith, 284 Neb. 636, 822 N.W.2d 401 (2012). Further, contrary 

to Stack’s suggestion, a sudden quarrel 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.

In sum, under the proper standard of review, we conclude 

the evidence was sufficient to support Stack’s convictions.

2. Insanity Defense

Any person prosecuted for an offense may plead that he or 

she is not responsible by reason of insanity at the time of the 

offense. Neb. Rev. Stat. § 29-2203(1) (Reissue 2016). A successful insanity defense would be dispositive in Stack’s favor, 

regardless of the evidence that he killed Bauermeister with 

a deadly weapon. See State v. Bigelow, 303 Neb. 729, 931 

N.W.2d 842 (2019) (successful insanity defense operates as 

complete defense). Therefore, even though the evidence was 

sufficient to prove the elements of second degree murder and 

use of a deadly weapon other than a firearm to commit a felony, we must address Stack’s claim that the district court erred 

by finding that he had failed to prove he was legally insane at 

the time he committed those offenses.

[9] Generally, under Nebraska’s common-law definition, 

the insanity defense requires proof that (1) the defendant 

had a mental disease or defect at the time of the crime and 

(2) the defendant did not know or understand the nature and 
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consequences of his or her actions or that he or she did not 

know the difference between right and wrong. Id. The defend

ant carries the burden to prove the defense by a preponderance 

of the evidence. See § 29-2203(1). The verdict of the finder of 

fact on the issue of insanity will not be disturbed unless there is 

insufficient evidence to support such a finding. State v. France, 

279 Neb. 49, 776 N.W.2d 510 (2009).

To support his insanity defense, Stack relies on the testimony 

of Davis, who opined that Stack had a mild neurocognitive disorder and that as a result of such mental disease or defect in 

combination with his alcohol consumption, Stack experienced 

an alcoholic blackout, which caused him to be unable to know 

and understand the nature and consequences of his actions. 

However, as the State points out, under § 29-2203(4), “insanity 

does not include any temporary condition that was proximately 

caused by the voluntary ingestion . . . of intoxicating liquor.” 

Pursuant to this statute, the State argues, Stack was not legally 

insane under Davis’ opinion because it was based on Stack’s 

experiencing a blackout, a temporary condition caused by 

voluntary alcohol consumption. Stack contends that because 

voluntary intoxication was not the sole basis for Davis’ opinion 

that he was insane, Stack is not precluded from the benefit of 

the insanity defense. Although we have discussed the relationship between intoxication and insanity, we have not, since 

the adoption of § 29-2203(4), considered whether voluntary 

intoxication in combination with a mental disease or defect 

can be the basis for a successful insanity defense. See, State v. 

Bigelow, supra; State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 

(2011). And based on the record in this case, we need not do 

so today.

Here, even if the State’s argument concerning voluntary 

intoxication is set to the side, there was sufficient evidence 

that Stack did not fulfill a crucial element of legal insanity: 

a mental disease or defect. As mentioned, Stack’s expert, 

Davis, opined that Stack had a mental disease or defect in the 

form of a mild neurocognitive disorder. However, the State’s 

experts, Hartmann and Abel, disagreed. Their diagnostic 
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testing showed that Stack did not suffer from a mild neurocognitive disorder. Thus, Davis’ opinion on the issue of legal 

insanity was in direct conflict with the evidence presented 

by the State, and it was the province of the district court to 

resolve that conflict. See State v. Martinez, 306 Neb. 516, 946 

N.W.2d 445 (2020) (appellate court does not resolve conflicts 

in evidence, pass on credibility of witnesses, or reweigh evidence; such matters are for finder of fact). Given the opinions 

of Hartmann and Abel, the record contained sufficient evidence 

for the district court to conclude that Stack was not legally 

insane at the time of Bauermeister’s murder. Stack’s assertion 

to the contrary lacks merit.

3. Excessive Sentences

Lastly, Stack contends that his sentences were excessive. 

He does not and cannot dispute that he was sentenced within 

statutory limits. Instead, Stack argues that the sentences do not 

fit the crime or him as an offender. He points out that given 

his age, he will effectively have no opportunity for parole for 

crimes that he characterizes as not especially depraved and 

heinous. He also cites his limited criminal record and his poor 

health as mitigating factors. We are not persuaded.

[10-12] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether a sentencing court abused its discretion in 

considering and applying the relevant factors as well as any 

applicable legal principles in determining the sentence to be 

imposed. State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). 

In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2) 

mentality, (3) education and experience, (4) social and cultural 

background, (5) past criminal record or record of law-abiding 

conduct, and (6) motivation for the offense, as well as (7) the 

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

in the commission of the crime. Id. The appropriateness of a 

sentence is necessarily a subjective judgment and includes the 

sentencing judge’s observation of the defendant’s demeanor 
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and attitude and all the facts and circumstances surrounding 

the defendant’s life. Id.

According to the record, the district court considered 

the familiar factors above, along with other information in 

the presentence investigation report and evidence received at 

the sentencing hearing. Thus, it took into account the factors 

Stack says justified a lesser penalty along with other factors. 

Those other factors included the particularly violent nature 

of Bauermeister’s murder and the circumstances surrounding 

it. Based on the record in this case and the relevant considerations, we conclude that the district court did not abuse its 

discretion in sentencing Stack.

V. CONCLUSION

Finding no merit to the errors assigned and argued by Stack, 

we affirm.

Affirmed.