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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. BIGELOW

Cite as 303 Neb. 729

State of Nebraska, appellant, v

Shannon D. Bigelow, app

___ N.W.2d ___

Filed July 19, 2019. No. S-18-006.

1. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

2. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

3. Insanity: Proof. 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 consequences of 

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

right and wrong.

4. Jury Instructions. Jury instructions are not prejudicial if, when taken as 

a whole, they correctly state the law, are not misleading, and adequately 

cover the issues supported by the pleadings and the evidence.

Petition for further review from the Court of Appeals, 

Riedmann, Bishop, and Welch, Judges, on appeal thereto

the District Court for Lancaster County, Kevin R. McM

Judge. Judgment of Court of Appeals affirmed.

Mark E. Rappl for appellant.

Douglas J. Peterson, Attorney General, Melissa R. Vincent, 

and Derek T. Bral, Senior Certified Law Student, for appellee.

Nebraska Supreme Court Online Library

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

07/25/2019 01:05 AM CDT
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303 Nebraska Report

STATE v. BIGELOW

Cite as 303 Neb. 729

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Miller-Lerman,

NATURE OF CASE

After ingesting methamphetamine, Shannon D. Bigelow 

was in a hospital emergency room, where hospital personnel administered medications which, instead of relaxing him 

caused him to become agitated, whereupon he assaulted an 

officer. We granted Bigelow’s petition for further review of the 

decision of the Nebraska Court of Appeals which affirmed his 

conviction in the district court for Lancaster County for third 

degree assault on an officer. On further review, Bigelow raises 

issues regarding jury instructions refused and given on the 

defenses of insanity and intoxication.

We agree with the Court of Appeals that the district court did 

not err when it refused Bigelow’s proposed insanity defense 

instruction and instead gave an instruction regarding both voluntary and involuntary intoxication. We affirm.

STATEMENT OF FACTS

The charge against Bigelow arose from an incident which 

occurred in July 2016 when he was admitted to a hospital after 

he ingested methamphetamine and exhibited bizarre behavior. Bigelow became agitated and restless at the hospital, so 

nurses injected him with three medications—Haldol, Ativan, 

and Benadryl—which were intended to relax him. However, 

Bigelow became more agitated, left his room, and began pacing around the emergency room. After personnel called for 

security, an off-duty police officer working for hospital security arrived and told Bigelow that he needed to leave the emergency room. Bigelow punched the officer in the face, “took 

him to the ground,” and punched the officer several more times 

while reaching for the officer’s gun. He then fled the emergency room, pursued by the security officer.

A sheriff’s deputy responding to an emergency dispatch 

saw Bigelow running out the doors of the emergency room 
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Cite as 303 Neb. 729

followed by the security officer. The deputy pointed his Taser 

at Bigelow and told him to stop and get on the ground. 

Bigelow immediately stopped running and complied with the 

deputy’s command to get on the ground. Bigelow also immediately complied with subsequent orders to roll over and put 

his hands behind his back. The deputy testified at trial that 

Bigelow was “completely compliant,” that he did not resist and 

was not aggressive but instead was “[t]he opposite,” and that 

he was compliant with other police officers who arrived and 

helped complete the capture.

Bigelow was arrested, and the State charged him with third 

degree assault on an officer in violation of Neb. Rev. Stat. 

§ 28-931 (Reissue 2016). The State later amended the information to allege that Bigelow was a habitual criminal.

Prior to trial, Bigelow filed a notice of intent to rely on 

an insanity defense. After a competency evaluation, the court 

determined that Bigelow was competent to stand trial.

In his defense at trial, Bigelow called Dr. Klaus Hartmann 

as a witness. Hartmann had conducted an evaluation in January 

2017 to determine whether Bigelow was insane at the time 

of the incident in July 2016. Although Hartmann noted that 

at times prior to the incident, Bigelow had been diagnosed 

with various mental disorders, including schizophrenia, the 

general thrust of Hartmann’s testimony was that he attributed 

Bigelow’s behavior in the emergency room to the effects of 

the three drugs given to him at the hospital. Hartmann also 

testified that the methamphetamine Bigelow had ingested prior 

to being admitted to the hospital would have made him “more 

energized,” but Hartmann disagreed with an evaluation by 

another doctor who concluded that the assault was “precipitated by the voluntary use of amphetamine.” When asked to 

opine on whether Bigelow knew what he was doing when the 

assault took place, Hartmann opined that “he was sufficiently 

impaired by the effects of these medicines that he did not 

know what he was doing.” When asked whether the effect 

of the three drugs could be described as “some sort of either 
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STATE v. BIGELOW

Cite as 303 Neb. 729

a mental disease or defect or disorder,” Hartmann declined 

to use one of those terms and instead described the effect as 

“a temporary drug-induced impairment.” Hartmann had also 

described the effect of the three drugs as being “almost like 

[Bigelow] had been drinking alcohol excessively and he was 

not in a position to control his actions and be in full possession 

of his faculties.”

During his cross-examination by the State, Hartmann testified that it was “the three drugs [Bigelow] was given at the 

hospital” and “[n]ot the methamphetamine” that had “caused 

his problems” at the time of the assault. At the end of the 

cross-examination, the State specifically asked Hartmann, 

“And your opinion is not that he was suffering from the mental disease to the extent that he did not know the difference 

between right and wrong with respect to what he was doing, it 

was the impairment due to the three drugs, correct?” Hartman 

replied, “Yes.”

After Bigelow rested his case, the State moved the court 

for an order that Bigelow would not be entitled to submit an 

insanity defense to the jury. The State noted Hartman’s testimony that it was not mental disease that caused Bigelow’s 

behavior and that instead, he was impaired due to the drugs 

he had been given. Bigelow argued in response that “the mental disorder was essentially an involuntary intoxication . . . 

caused by the three drugs.” The court found that Bigelow’s 

evidence did not present a prima facie case for the insanity 

defense and granted the State’s motion. In connection with 

the ruling, the court commented that it thought Bigelow’s 

evidence showed both voluntary and involuntary intoxication 

but not the mental disease, defect, or disorder necessary for an 

insanity defense. The court also stated its understanding that 

insanity required a permanent “diagnosed mental condition, 

not a temporary intoxication” caused by “externally applied 

chemical” agents.

At the jury instruction conference, Bigelow objected to the 

court’s draft instruction regarding the elements of the crime 
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STATE v. BIGELOW

Cite as 303 Neb. 729

charged; he instead proposed an instruction that incorporated 

the insanity defense. The language of the proposed instruction 

regarding the insanity defense followed NJI2d Crim. 7.0 and 

set forth the elements of the defense as being that Bigelow 

“had a mental disease, defect or disorder” that “impaired his 

mental capacity” such that he either “did not understand the 

nature and consequences of what he was doing” or “did not 

know the difference between right and wrong with respect to 

what he was doing.” The court overruled Bigelow’s objection to its draft instruction, and it refused Bigelow’s proposed 

insanity instruction on the basis that the evidence did not 

justify it.

The court gave an intoxication instruction, including both 

voluntary and involuntary intoxication, to which neither the 

State nor Bigelow objected. The intoxication instruction is set 

forth in full in our analysis below.

The jury found Bigelow guilty of third degree assault on an 

officer. The court entered judgment based on the verdict, and 

it later found Bigelow to be a habitual criminal. The court sentenced Bigelow to imprisonment for a mandatory minimum of 

10 years and a maximum of 12 years.

Bigelow appealed his conviction to the Court of Appeals. He 

claimed that the district court erred when it (1) refused his proposed insanity defense instruction and (2) gave the intoxication 

instruction. Bigelow also set forth certain claims of ineffective assistance of counsel, each of which the Court of Appeals 

found to be either refuted by the record or not capable of 

review on direct appeal; Bigelow does not seek further review 

of the ineffective assistance claims, and they are not further 

discussed herein.

The Court of Appeals rejected Bigelow’s assignments of 

error regarding the instructions and affirmed Bigelow’s conviction. State v. Bigelow, No. A-18-006, 2019 WL 286641 

(Neb. App. Jan. 22, 2019) (selected for posting to court website). Regarding the proposed insanity instruction, the Court 

of Appeals agreed with the district court’s determination that 
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STATE v. BIGELOW

Cite as 303 Neb. 729

the evidence did not support an insanity defense. The Court of 

Appeals noted Hartmann’s testimony that it was not a mental 

disease, defect, or disorder that caused Bigelow to act the way 

he did but instead that he was suffering impairment from the 

three drugs he had been given at the hospital.

Regarding the intoxication instruction, the Court of Appeals 

noted that Bigelow had not objected to the instruction and it 

therefore reviewed the instruction only for plain error. The 

Court of Appeals cited Neb. Rev. Stat. § 29-122 (Reissue 2016) 

and determined that the instruction given by the district court 

“was an accurate statement of the involuntary intoxication 

defense in Nebraska,” because the instruction tracked the provisions of § 29-122. State v. Bigelow, 2019 WL 286641 at *4. 

The Court of Appeals further determined that the evidence supported the intoxication instruction, because there was evidence 

that Bigelow was injected with three drugs and Hartmann testified that those drugs had an intoxicating effect on Bigelow and 

impaired his judgment.

We granted Bigelow’s petition for further review.

ASSIGNMENT OF ERROR

Bigelow claims that the Court of Appeals erred when it concluded that the evidence did not support an insanity instruction.

STANDARD OF REVIEW

[1] Whether jury instructions are correct is a question of 

law, which an appellate court resolves independently of the 

lower court’s decision. State v. Mann, 302 Neb. 804, 925 

N.W.2d 324 (2019).

ANALYSIS

Bigelow claims on further review that the Court of Appeals 

erred when it determined that the evidence did not support an 

insanity instruction and concluded that the district court had 

correctly refused his proposed instruction. He generally contends that under Nebraska law, involuntary intoxication can 
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STATE v. BIGELOW

Cite as 303 Neb. 729

support an insanity defense. He specifically contends that the 

evidence he presented regarding the effect of the three drugs 

given to him at the hospital caused him to be involuntarily 

intoxicated which, in turn, resulted in legal insanity, thus supporting an insanity defense instruction.

[2] To establish reversible error from a court’s refusal to 

give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

refusal to give the tendered instruction. State v. Mann, supra. 

In the present case, the Court of Appeals determined that there 

was no reversible error because Bigelow’s tendered insanity 

instruction was not warranted by the evidence; the Court of 

Appeals therefore did not need to determine whether the tendered instruction correctly stated the law.

As noted, Bigelow contends that evidence of his involuntary intoxication supported an insanity defense. He argues 

that although case law such as State v. Hotz, 281 Neb. 260, 

795 N.W.2d 645 (2011), and statutes such as § 29-122 and 

Neb. Rev. Stat. § 29-2203(4) (Reissue 2016) establish that 

the insanity defense is not available in cases involving a 

temporary condition resulting from voluntary intoxication, 

we have not addressed whether the insanity defense is available when the defendant’s mental state is altered by involuntary intoxication.

In order to address Bigelow’s argument, we first review 

Nebraska law relating to the insanity defense, the intoxication defense, and the interplay of the two. We then consider 

whether, based on such law, an insanity instruction was warranted based on the evidence in this case. Thereafter, we 

consider whether an intoxication instruction was warranted 

instead of an insanity instruction and, if so, whether the 

intoxication instruction given by the district court in this case 

was appropriate.
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303 Nebraska Report

STATE v. BIGELOW

Cite as 303 Neb. 729

Insanity Defense and Intoxication Defense 

Developed in Nebraska Common Law 

and Are Controlled to Some 

Extent by Statute.

Bigelow’s arguments raise issues regarding the insanity 

defense, the intoxication defense, and the interplay of the two. 

The two defenses have developed in Nebraska as separate 

defenses which operate distinctly, and each defense applies to a 

different circumstance. However, our case law has recognized 

a degree of intersection between the two concepts.

[3] In Nebraska, as a general matter, the insanity defense 

and the intoxication defense were each developed by case law. 

The two developed to address different issues, and they operate in distinct ways. 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 consequences of his or her actions or that he or 

she did not know the difference between right and wrong. See 

State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017). As it 

developed under common law in Nebraska, the intoxication 

defense required that “the defendant must not have become 

intoxicated to commit the crime and, because of the intoxication, must have been rendered wholly deprived of reason. 

The excessive intoxication must support a conclusion that the 

defendant lacked the specific intent to commit the charged 

crime.” State v. Dubray, 289 Neb. 208, 239, 854 N.W.2d 584, 

611-12 (2014).

The two defenses operate in different ways. Although a successful insanity defense operates as a complete defense to the 

offense, the intoxication defense does not and instead is treated 

as a factor the jury may consider when determining whether 

the defendant had the requisite mental state. We stated in State 

v. Hotz, 281 Neb. 260, 270, 795 N.W.2d 645, 653 (2011), 

“[i]n Nebraska, the intoxication defense has been available to 

a defendant under common law almost as long as the insanity 
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STATE v. BIGELOW

Cite as 303 Neb. 729

defense.” However, we described the intoxication defense as 

not being a “justification or excuse for a crime,” but as a factor 

that could be “considered to negate specific intent.” Id. As we 

noted in State v. Hood, 301 Neb. 207, 217, 917 N.W.2d 880, 

889 (2018), with regard to an intoxication defense:

In State v. Vosler, [216 Neb. 461, 345 N.W.2d 806 

(1984),] we noted that “although there is but one type of 

insanity which will support a finding of not guilty or not 

responsible by reason of insanity, there are a variety of 

mental conditions which bear upon the ability to form a 

specific intent.”

We stated in State v. Dubray, 289 Neb. at 239, 854 N.W.2d at 

611-12, that “[u]nder Nebraska common law, intoxication is 

not a justification or excuse for a crime, but it may be considered to negate specific intent.”

In past cases, most notably in State v. Hotz, supra, we have 

recognized some interplay between intoxication and insanity. 

Bigelow notes case law such as Hotz and the Legislature’s 

amendment of § 29-2203, which amendment became effective 

after we filed our decision in Hotz, to include subsection (4) 

which provides, “For purposes of this section, insanity does not 

include any temporary condition that was proximately caused 

by the voluntary ingestion, inhalation, injection, or absorption 

of intoxicating liquor, any drug or other mentally debilitating 

substance, or any combination thereof.” See 2011 Neb. Laws, 

L.B. 100, § 2. Bigelow relies on such case law and the specific references in § 29-2203(4) to a “temporary” condition 

caused by “voluntary” intoxication to argue that Nebraska law 

recognizes an insanity defense based on either a temporary 

condition caused by involuntary intoxication or a permanent 

condition caused by long-term alcohol or drug use. However, 

as discussed further below, we need not examine this precedent 

or determine the effect of § 29-2203(4) on such precedent in 

the present case. The evidence presented by Bigelow does 

not establish that his condition at the time of the incident was 

“insanity” as defined in our case law, regardless of whether the 
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condition was temporary or permanent or whether the condition was caused by voluntary or involuntary intoxication.

Having reviewed the current state of Nebraska law on the 

insanity defense and the intoxication defense, we apply the law 

to the specifics of the present case.

District Court and Court of Appeals Correctly 

Concluded That Evidence in This Case 

Did Not Support Insanity Defense 

Instruction Proposed by Bigelow.

Applying the law just discussed, we note that in order to 

support an insanity defense, regardless of the cause of the 

insanity, a mental disease or defect must be shown. The evidence presented by Bigelow did not show that Bigelow suffered from such disorders.

Contrary to Bigelow’s arguments, Hartmann’s testimony 

did not support a finding of insanity caused by involuntary 

intoxication. Hartmann testified that Bigelow’s behavior in 

the emergency room was caused by the “effect” of the three 

drugs given to him at the hospital. However, Hartmann did 

not characterize such “effect” as “insanity,” because he did not 

testify that the intoxication caused a mental disease or defect. 

Hartmann did not accept that description when defense counsel 

posed a question using the language of “mental disease, defect 

or disorder,” and he instead referred to the “effects” of the 

drugs. On cross-examination, when the State posited that it was 

not mental disease that caused Bigelow’s behavior but instead 

“impairment due to the three drugs,” Hartman agreed. Neither 

“effects” of drugs nor “impairment” caused by drugs establishes the mental disease or defect required in the law to support an insanity defense. Without evidence linking intoxication 

to a mental disease or defect or disorder, there is no evidence 

to support an insanity defense. Although Hartmann’s testimony 

attributing Bigelow’s behavior to the effects of the three drugs 

or impairment caused by the three drugs was sufficient to support an involuntary intoxication defense, it did not support an 
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STATE v. BIGELOW

Cite as 303 Neb. 729

insanity defense. We therefore agree with the Court of Appeals 

that the district court did not err when it refused Bigelow’s 

proposed insanity instruction, because it was not supported by 

the evidence.

Evidence Supported Intoxication Instruction.

As the district court noted, there was evidence in this case 

of both voluntary intoxication, caused by Bigelow’s use of 

methamphetamine, and involuntary intoxication, caused by the 

three drugs given to him at the hospital. The court therefore 

gave an intoxication instruction that addressed both voluntary 

and involuntary intoxication. We agree with the district court 

and Court of Appeals that an intoxication instruction was warranted by the evidence.

Regarding the district court’s determination that there was 

evidence of involuntary intoxication in this case, we do not 

appear to have addressed whether use of prescribed medication or drugs given by medical personnel can be considered 

involuntary intoxication. We note that other jurisdictions have 

determined that one type of “involuntary intoxication is when 

the substance was taken pursuant to medical advice.” 2 Wayne 

R. LaFave, Substantive Criminal Law § 9.5(g) at 69-70, n.65 

(3d ed. 2018) (citing cases). But see People v. McMillen, 2011 

IL App (1st) 100366, 961 N.E.2d 400, 356 Ill. Dec. 304 (2011) 

(stating that defendant’s intoxication due to unexpected interaction between prescription medicine and voluntarily ingested 

cocaine did not render defendant involuntarily intoxicated). We 

believe that under § 29-122, use of medically advised drugs 

could be involuntary intoxication if the defendant did not know 

the intoxicating effect of the drug or did not voluntarily take 

the drug.

From the evidence in this case, the jury could have found 

Bigelow’s behavior in the emergency room was caused by 

his voluntary ingestion of methamphetamine before he was 

brought to the hospital or by an interaction of the drugs given 

at the hospital with the methamphetamine he had voluntarily 
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ingested. In contrast, based on Hartmann’s testimony, the jury 

could have found that his behavior was caused solely by the 

effect of the three drugs given to him at the hospital, in which 

case, Bigelow was involuntarily intoxicated. Finally, based on 

evidence such as the deputy sheriff’s testimony that shortly 

after assaulting the security officer, Bigelow was “completely 

compliant” with the deputy sheriff’s show of force, the jury 

could have determined that neither the methamphetamine nor 

the three drugs given at the hospital had affected Bigelow to 

the point that he did not have the mental ability to consciously 

form the requisite intent when he assaulted the security officer 

minutes earlier.

Because each of these findings was cognizable under 

Nebraska law and because each finding could be supported 

by the evidence, it was proper for the court to instruct the 

jury on these options. It is appropriate for a court to instruct 

on alternate theories if each is supported by the evidence. By 

its verdict of guilty, the jury determined that either Bigelow’s 

behavior was caused by his voluntary use of methamphetamine 

or, if his behavior was caused by involuntary intoxication, his 

mental state was not affected by any of the substances to the 

point that he could not form the requisite intent.

In sum, we conclude that based on the evidence in this case, 

the district court did not err when it refused Bigelow’s proposed insanity instruction and did not err when it instead gave 

an instruction on intoxication.

Intoxication Instruction Given by District Court 

Correctly Stated Law, Was Not Misleading, and 

Adequately Covered Intoxication Issues 

Supported by Evidence in This Case.

Because it does not appear that since the enactment of 

§ 29-122 in 2011 we have considered an appeal in a case in 

which there was evidence that supported giving an involuntary 

intoxication instruction, we take this opportunity to review 

the intoxication instruction given in this case to consider how 
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STATE v. BIGELOW

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issues of intoxication should be presented to a jury in light of 

§ 29-122.

In cases we have decided since the enactment of § 29-122 

in which the defendant had sought an intoxication instruction, 

we have determined that the case involved only evidence of 

voluntary intoxication and that therefore, the court below correctly refused to instruct on an intoxication defense. See, State 

v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018); State v. 

Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016). In addition, 

we have not had the opportunity to consider the propriety of a 

court’s instruction in light of § 29-122 when there is evidence 

of involuntary intoxication and, as in this case, evidence of 

both voluntary and involuntary intoxication.

The district court in this case gave the following instruction 

regarding intoxication:

There has been evidence that [Bigelow] was intoxicated at the time that the crime with which he is charged 

was committed.

Voluntary intoxication is not a defense to the crime 

charged. You may not consider his voluntary intoxication 

in determining whether he had the required intent to commit the crime charged.

Evidence that . . . Bigelow was involuntarily intoxicated may be taken into consideration if he proves by 

clear and convincing evidence that he did not:

(1) know that it was an intoxicating substance when 

he or she ingested, inhaled, injected, or absorbed the substance causing the intoxication; or

(2) ingest, inhale, inject, or absorb the intoxicating substance voluntarily.

Such involuntary intoxication is a defense only when a 

person’s mental abilities were so far overcome by the 

involuntary intoxication that he could not have had the 

required intent.

In this case . . . Bigelow has the burden of proving 

involuntary intoxication by clear and convincing evidence.
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Clear and convincing evidence means evidence that 

produces a firm belief or conviction about the fact to be 

proved. Clear and convincing evidence means more than 

the greater weight of the evidence and less than proof 

beyond a reasonable doubt.

[4] We have stated that jury instructions are not prejudicial 

if, when taken as a whole, they correctly state the law, are not 

misleading, and adequately cover the issues supported by the 

pleadings and the evidence. State v. Mann, 302 Neb. 804, 925 

N.W.2d 324 (2019). Under these standards, we conclude the 

intoxication instruction given by the court in this case correctly stated the law as set forth in § 29-122, by stating that 

voluntary intoxication is not a defense; that intoxication could 

be considered in connection with the required mental state if 

such intoxication is shown to be involuntary, consistent with 

§ 29-122; and that Bigelow had the burden to show by clear 

and convincing evidence that he was involuntarily intoxicated. 

We further determine that the instruction was not misleading 

and that it adequately covered the issues relating to intoxication that were supported by the pleadings and evidence in 

this case.

CONCLUSION

We conclude that the Court of Appeals was correct when 

it concluded that the district court did not err when it refused 

Bigelow’s proposed insanity defense instruction. We further 

conclude that the evidence in this case did support an instruction regarding both voluntary and involuntary intoxication 

and that the intoxication instruction given by the district court 

in this case correctly stated the law, was not misleading, and 

adequately covered the issues relating to intoxication that were 

supported by the pleadings and evidence. We therefore affirm 

the decision of the Court of Appeals which affirmed Bigelow’s 

conviction for third degree assault on an officer.

Affirmed