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STATE v. MUELLER

Cite as 301 Neb. 778

State of Nebraska, appellee, v. 

Zachary A. Mueller, appellant.

___ N.W.2d ___

Filed December 7, 2018. No. S-17-387.

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. 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.

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. ____: ____. Whether a defendant is entitled to credit for time served 

and in what amount are questions of law, subject to appellate review 

independent of the lower court.

5. Jury Instructions: Proof: Appeal and Error. In an appeal based on 

a claim of an erroneous jury instruction, the appellant has the burden 

to show that the questioned instruction was prejudicial or otherwise 

adversely affected a substantial right of the appellant. All the jury 

instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues 

supported by the pleadings and the evidence, there is no prejudicial error 

necessitating reversal.

6. ____: ____: ____. 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 

Nebraska Supreme Court Online Library

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

02/15/2019 01:06 AM CST
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tendered instruction is warranted by the evidence, and (3) the appellant 

was prejudiced by the court’s refusal to give the tendered instruction.

7. Criminal Law: Venue: Proof: Waiver. Proof of venue is essential in 

a criminal prosecution, and in the absence of a defendant’s waiver by 

requesting a change of venue, the State has the burden to prove proper 

venue beyond a reasonable doubt.

8. Criminal Law: Statutes: Time. Statutes governing substantive matters 

in effect at the time of a crime govern, and not later enacted statutes. 

In contrast, procedural statutes in effect on the date of a hearing or proceeding govern, and not those in effect when the violation took place.

9. ____: ____: ____. A statute defining the elements of a crime is substantive, and the statute in effect at the time of the offense governs.

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.

13. ____. Because of the mandatory “shall” language used in Neb. Rev. 

Stat. § 83-1,106 (Reissue 2014), the statute mandates that credit for 

time served must be given for time spent in custody on a charge when a 

prison sentence is imposed for a conviction of such charge.

14. ____. Neb. Rev. Stat. § 83-1,106(4) (Reissue 2014) requires that credit 

for time served shall be given which has not otherwise been applied, and 

the import of this subsection is that all credit available due to presentence incarceration shall be applied, but only once.

15. ____. What matters in the credit for time served analysis is not whether 

the defendant was detained in Nebraska and awaiting trial and sentencing on Nebraska charges, but, rather, whether the defendant was forced 

to be in custody because of those charges.

Appeal from the District Court for Morrill County: Leo P. 

Dobrovolny, Judge. Affirmed as modified.
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Cite as 301 Neb. 778

Sarah P. Newell, of Nebraska Commission on Public 

Advocacy, for appellant.

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

for appellee.

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

Papik, JJ.

Miller-Lerman, J.

NATURE OF CASE

Zachary A. Mueller appeals his convictions and sentences 

in the district court for Morrill County for first degree murder, 

use of a deadly weapon to commit a felony, and possession of 

a deadly weapon by a prohibited person. With respect to his 

convictions, Mueller assigns various errors related to instructions that the court gave or refused to give and also contends 

that there was not sufficient evidence to support his conviction 

for first degree murder. With respect to his sentences, Mueller 

claims that the court imposed excessive sentences and failed to 

give him adequate credit for time served. We affirm Mueller’s 

convictions and his sentences, but we modify the sentencing 

order to reflect additional credit for time served.

STATEMENT OF FACTS

Mueller was charged with first degree murder and use of 

a deadly weapon to commit a felony in connection with the 

shooting death of Pedro Adrian Dominguez. Mueller was also 

charged with possession of a deadly weapon by a prohibited 

person based on his previous felony conviction.

The investigation that resulted in the charges against Mueller 

began on December 4, 2015, when the body of an unidentified male was discovered inside a barrel in rural Morrill 

County, Nebraska. The barrel containing the body was found 

in a creek underneath a bridge on County Road 104, east of 

Bayard, Nebraska, and northwest of Bridgeport, Nebraska. 

On December 8, the body was identified as being that of 

Dominguez based on fingerprints that had been taken from the 
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body during an autopsy. The autopsy revealed that Dominguez 

had died as the result of a single gunshot to the left side of the 

head. The entrance wound was located on the back left side of 

the head, and a bullet was recovered from the right temporal 

bone, just above the right ear inside the skull. The trajectory of 

the bullet was determined to be left to right, back to front, and 

downward. The doctor performing the autopsy could not determine whether the gunshot wound was immediately fatal or 

whether Dominguez had lived for a period of time after being 

shot. Toxicology reports indicated that Dominguez’ blood contained controlled substances, including methamphetamine and 

the active ingredient of marijuana.

On December 5, 2015, after the body had been discovered 

but before it had been identified, law enforcement officials 

issued a press release stating that an unidentified body had 

been found in a barrel on County Road 104. On December 7, 

officers responded to a report that a burned vehicle had been 

found near County Road 104 north of Bridgeport. The vehicle 

was a Volkswagen that had been completely burned. The passenger seat was missing from the vehicle. Because of the 

burned condition of the vehicle, officers were unable to find a 

vehicle identification number.

The investigation regarding the body in the barrel began to 

focus on Mueller after an acquaintance of Mueller’s reported 

to law enforcement on December 5, 2015, that in November, 

he had been visiting Mueller when Mueller asked him to help 

get the “locking ring” sealed on the top of a barrel. The witness stated that he had asked Mueller what was inside the barrel and that Mueller replied that he did not want to know. On 

December 7, investigators began talking with various witnesses 

connected with Mueller. Investigators obtained a search warrant 

for Mueller’s residence, which was located near Bridgeport. On 

December 8, they executed the search warrant. Items seized in 

the search of Mueller’s residence included a car seat and two 

Colorado license plates that appeared to have been burned. 

Investigators retrieved other burned items, including, inter alia, 
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clothing, a cell phone, and a pair of glasses. Testimony at trial 

indicated that Dominguez wore glasses but that no glasses had 

been found with the body in the barrel.

Dallas Schnell, one of the witnesses interviewed in the 

investigation, testified at trial that on or around December 

4, 2015, she had loaned her vehicle to Mueller and that in 

exchange, Mueller had left her a blue Volkswagen. Schnell 

used the Volkswagen while Mueller had her vehicle, and she 

noticed that the front passenger seat of the Volkswagen was 

missing. After hearing reports of the body found in the barrel, 

Schnell had conversations with Mueller, and afterward, she 

decided that in order to get her vehicle back from Mueller, 

she needed to get rid of the Volkswagen. On the evening of 

December 5, Schnell and a friend obtained gasoline and drove 

the Volkswagen to a country road outside of Bridgeport where 

they set the Volkswagen on fire. Schnell got her vehicle back 

a “[c]ouple weeks later” when the vehicle was impounded in 

Cheyenne, Wyoming, after Mueller had been arrested there.

The investigation led officers to believe that Felicia Talley 

had knowledge regarding Dominguez’ death. Talley had previously been in a relationship with Mueller, and the two had a 

daughter together who was born in 2008. The daughter had been 

adopted and was being raised by Mueller’s mother, Michelle 

Litke. Talley’s testimony at trial was generally as follows.

In November 2015, Talley was living in Greeley, Colorado, 

and she was in a relationship with Dominguez. Talley informed 

Mueller that she was coming to Bridgeport the weekend before 

Thanksgiving, and the two planned that they would visit their 

daughter. Dominguez accompanied Talley on the trip, and they 

drove his blue Volkswagen. Talley and Dominguez went to 

Mueller’s house, and there the three of them smoked methamphetamine that Talley and Dominguez had brought with them. 

Talley and Mueller later went to visit their daughter while 

Dominguez stayed at Mueller’s house. At that time, the daughter was at the home of Schnell, who lived near Litke. After that 

visit, Talley and Mueller returned to Mueller’s home.
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Later, Talley went to visit her daughter at Litke’s home. 

Mueller did not accompany her on this visit. Dominguez went 

with her but stayed outside in his car. During the visit, Talley 

and Dominguez went to a sandwich shop to get lunch for her 

daughter and for Litke. When Talley returned to Litke’s home, 

Litke told her that Mueller was “freaking out” and “trying to 

kill himself.” Litke thought that Talley might be able to calm 

him down, so Talley and Dominguez returned to Mueller’s 

house. Talley spoke with Mueller, and she did not think that he 

appeared to be “really going crazy.” Talley told Mueller that 

she and Dominguez were going to go away for a couple days 

and that if Mueller wanted to go with them, he could. Mueller 

eventually decided to go with them.

The three left Mueller’s house in the blue Volkswagen, with 

Talley driving, Dominguez in the passenger seat, and Mueller 

in the back seat. They drove through Bridgeport and headed 

in the direction of Kimball, Nebraska. Their ultimate destination was Evanston, Wyoming, where Talley’s best friend lived. 

Talley testified that she had been driving “probably about 

15 minutes” and that she was having a conversation with 

Dominguez when:

[A]ll of a sudden, “Boom!” And, I was like, what the 

hell? And, I looked over and there was [Dominguez] with 

a bullet in his head. And, he had blood coming out of the 

back of his head. And, [Mueller] is like, points the gun at 

me and says, give me a reason why I shouldn’t kill you, 

too, Bitch. And, I was like, I don’t know, maybe because 

we had a kid together, I don’t know. That’s what happened and then we got to Kimball.

Talley testified that during this time, Mueller kept calling her 

“Dallas.”

When Talley and Mueller reached Kimball, they stopped and 

bought gas at a station. They then kept driving to Cheyenne, 

Wyoming. Talley testified that Dominguez remained in the 

passenger seat the entire time that she was driving. She did not 

see any signs that he was alive after he had been shot. When 
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they reached Cheyenne, Talley was “driving aimlessly around” 

because she “didn’t know what to do.” Mueller became angry 

that she was driving aimlessly, and he told her to let him 

drive, so she did. Mueller drove around Cheyenne for some 

time, but Talley told him he needed to stop because he had 

difficulty driving a manual transmission and she thought he 

might get pulled over. Mueller told Talley that he wanted her 

to kill him, and he handed his gun to Talley, who was then 

in the back seat. Talley took out the clip and put the gun in 

her pocket and told Mueller he needed to pull over. When he 

pulled over and opened the back seat for her, Talley got out of 

the vehicle and ran to a truckstop. She spent some time inside 

the truckstop before she saw Mueller drive away. She then 

asked a truckdriver for a ride so she could get away from her 

“crazy ex.” When the truckdriver got close to Evanston, he 

dropped her off at a truckstop where she contacted her friend 

to pick her up.

Talley spent a few days in Evanston with her friend before 

returning to Greeley. Talley testified that she had the gun 

Mueller had given her for some time but that she eventually 

sold it for money and drugs. Talley was arrested and put in 

jail in Greeley on charges unrelated to this case. She was still 

incarcerated when law enforcement officers from Nebraska 

contacted her regarding the investigation into Dominguez’ 

death. Talley initially did not cooperate with investigators. She 

testified that she did not report Mueller’s shooting Dominguez 

to police because she was “raised not to be a snitch.” She 

stated that when she was 12 years old, she had witnessed her 

mother commit a murder and that her mother was convicted 

based in part on her testimony. She testified that her mother’s 

family blamed her for her mother’s conviction and that they 

disowned her and “always started problems with [her].”

On cross-examination, Mueller’s counsel questioned Talley 

regarding communications she had with acquaintances when 

she returned to Greeley after Dominguez had died. The general sense of the communications was that Talley told the 
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acquaintances that she and Dominguez were moving away but 

that she was back in Greeley and had methamphetamine she 

could sell.

During the defense presented by Mueller, the court received 

into evidence an agreement between Talley and the State to the 

effect that any statements made by Talley in connection with 

the investigation of Mueller or at Mueller’s trial would not 

be used against her in any criminal prosecution except for a 

prosecution for perjury or giving a false statement. The agreement was described as an agreement for use immunity, and it 

additionally provided that Talley would not be charged with 

disposing of the firearm used to kill Dominguez.

As further evidence in his defense, Mueller presented the 

testimony of Alexandria Montoya, who was imprisoned with 

Talley in the Morrill County jail while Talley was being held 

as a witness in this case. Montoya testified that she observed 

Talley giving herself a tattoo on her face using a staple that 

she had found. Montoya asked Talley what she was doing, and 

Talley said that she was giving herself a tattoo of a teardrop. 

Montoya testified that she understood the significance of a 

teardrop tattoo to mean that the person with the tattoo had 

killed someone. Montoya testified that Talley told her that 

she “had killed somebody . . . she had finished off that guy, 

Pedro.” Talley told Montoya that she “covered his face, his 

nose, and his mouth with her hand and so he stopped breathing.” Talley told Montoya she did it because she did not want 

to “let anything suffer and that if they were suffering, she 

should take them out.” Talley further told Montoya that the 

person to whom she had done this “was her boyfriend at the 

time” and that “they were having problems, something about 

that he owed money and she didn’t — he didn’t want to give 

her money and something in regards to her daughter.” Montoya 

testified that Talley told her that before she put her hand over 

the person’s mouth, someone else had shot him. She also testified that Talley told her that when this had happened, “they 

were out in the country, something like a farmhouse.” On 
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cross-examination by the State, Montoya testified that Talley 

told her that it was Mueller who had shot her boyfriend in the 

back of the head.

At the jury instruction conference in Mueller’s trial, Mueller 

requested an instruction regarding intoxication; the district 

court refused the instruction “based upon the evidence.” 

Mueller objected to the court’s proposed instruction defining 

premeditation for the reason that it included language that 

was not part of the statutory definition; the court overruled 

Mueller’s objection.

The court proposed an instruction regarding venue that was 

based in part on Neb. Rev. Stat. § 29-1301.02 (Reissue 2016), 

regarding crimes committed on moving means of transportation. Mueller initially stated that he had “no objection in 

regards to the definition of venue,” but he then suggested that 

Neb. Rev. Stat. § 29-1306 (Reissue 2016), regarding a “mortal 

blow” given in one county and the person stricken dying in 

another county or state, was the more appropriate venue statute 

under the facts of this case. He also noted that the court’s proposed instruction left out language from § 29-1301.02 referring 

to “an offense is committed in this state,” and argued that in 

this case, the offense was arguably not committed in this state. 

The court rejected Mueller’s argument and determined that it 

would give its proposed instruction, stating that the instruction 

was a correct statement of law and “to give any more is not 

necessary and . . . may be confusing.”

Mueller did not object to other instructions, including an 

instruction setting forth the elements of the offense of possession of a deadly weapon by a prohibited person. The case was 

submitted to the jury, and the jury found Mueller guilty of first 

degree murder, use of a deadly weapon to commit a felony, and 

possession of a deadly weapon by a prohibited person.

At the sentencing hearing, Mueller raised an issue regarding the amount of time he had served that should be credited against his sentence. Mueller presented evidence that 

an arrest warrant against him with regard to this case was 
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issued December 7, 2015, and that at that time he was being 

held in a jail in Wyoming based on local charges. Nebraska 

law enforcement officers placed a hold on Mueller, and on 

March 7, 2016, they were advised that Mueller was ready to 

be returned to Nebraska. At trial, the State argued that Mueller 

should be given credit for the 371 days he had served in prison 

in Nebraska after being returned from Wyoming. Mueller asked 

that he also be given credit for the additional 91 days that 

he had spent in jail in Wyoming after the arrest warrant was 

issued on December 7, 2015. As discussed below in our analysis, when Mueller was returned to Nebraska, there was no 

Wyoming sentence against which to credit the 91 days.

The district court sentenced Mueller to consecutive sentences of life imprisonment for first degree murder and of 20 to 

40 years’ imprisonment for each of the other two convictions. 

The court ordered that time served of 371 days be credited 

against his sentence for possession of a deadly weapon by a 

prohibited person. The court stated that it determined the correct credit to be the 371 days Mueller had spent in prison in 

Nebraska because “he was picked up and returned to Nebraska 

on the first possible day that he could be here while there was 

[sic] not charges pending and unresolved apparently in the 

State of Wyoming.”

Mueller appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Mueller claims that the district court erred when it (1) gave 

an erroneous instruction regarding venue and refused to give a 

more appropriate instruction, (2) overruled his objection to the 

instruction defining premeditation, (3) refused his proposed 

instruction regarding intoxication, and (4) gave an instruction 

regarding the elements of possession of a deadly weapon by 

a prohibited person that did not reflect a statutory amendment defining the offense enacted after the trial. Mueller also 

claims that there was insufficient evidence to support his 

conviction for first degree murder. He further claims that the 
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district court imposed excessive sentences and that it erred 

when it failed to give him credit for the 91 days that he spent 

in custody in Wyoming.

STANDARDS 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. Swindle, 300 Neb. 734, 915 N.W.2d 

795 (2018).

[2] 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. McCurdy, ante p. 343, 918 

N.W.2d 292 (2018).

[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, ante p. 228, 917 N.W.2d 895 (2018).

[4] Whether a defendant is entitled to credit for time served 

and in what amount are questions of law, subject to appellate 

review independent of the lower court. Id.

ANALYSIS

Standards Relating to Appellate 

Review of Jury Instructions.

In his first four assignments of error, Mueller claims that 

the court erred when it gave an erroneous jury instruction or 

refused to give a requested instruction. The following standards 

relate to our review of assignments of error regarding jury 

instructions given or refused.

[5] In an appeal based on a claim of an erroneous jury 

instruction, the appellant has the burden to show that the 
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questioned instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant. State v. Swindle, 

supra. All the jury instructions must be read together, and if, 

taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings 

and the evidence, there is no prejudicial error necessitating 

reversal. Id.

[6] 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. Id.

Venue Instruction.

Mueller first claims that the district court erred when it 

gave an instruction regarding venue that was not appropriate based on the facts of the case and refused to give a more 

appropriate instruction. We conclude that although the instruction given by the district court did not fully state the applicable law, given the evidence in this case, the instruction was 

not prejudicial.

[7] Under Neb. Rev. Stat. § 29-1301 (Reissue 2016), unless 

certain exceptions apply, all criminal cases are to be tried in 

the county where the offense was committed. We have stated 

that proof of venue is essential in a criminal prosecution 

and that, in the absence of a defendant’s waiver by requesting a change of venue, the State has the burden to prove 

proper venue beyond a reasonable doubt. State v. Dodson, 

250 Neb. 584, 550 N.W.2d 347 (1996), overruled on other 

grounds, State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999). 

Statutes related to § 29-1301, including §§ 29-1301.02 and 

29-1306, provide for how venue is determined in certain specific circumstances.

At trial, Mueller argued that the venue instruction proposed 

by the court was not appropriate under the circumstances of 

this case and he suggested that a different venue instruction 
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should be given. The instruction proposed by the court was 

generally based on § 29-1301.02, which provides:

When an offense is committed in this state, on board 

a vessel navigating a river, bay, slough, lake, or canal, 

or lying therein, in the prosecution of its voyage, or on 

a railroad train, or car, motor vehicle, common carrier 

transporting passengers, or on an aircraft prosecuting its 

trip, the accused may be tried in any county through, on, 

or over which the vessel, train, car, motor vehicle, common carrier, or aircraft passes in the course of its voyage or trip, or in the county in which the voyage or trip 

terminates.

The court’s proposed instruction regarding venue read as 

follows:

Venue for the crimes charged is Morrill County, 

Nebraska if the acts constituting the crime(s) occurred in 

Morrill County, Nebraska or, if the offense(s) was/were 

committed in a vehicle or motor vehicle and the vehicle or 

motor vehicle passed through, on, or over Morrill County, 

or the trip terminated in Morrill County, Nebraska.

(Emphasis supplied.)

Mueller argued that instead of the proposed venue instruction based on § 29-1301.02, the court should give an instruction based on § 29-1306, which provides:

If any person shall give any mortal blow or administer 

any poison to another, in any county within this state, 

with intent to kill, and the party so stricken or poisoned 

thereof shall die in any other county or state, the person 

giving such mortal blow or administering such poison 

may be tried and convicted of murder or manslaughter, as 

the case may be, in the county where such mortal blow 

was given or poison administered.

Mueller argued that § 29-1306 was better suited to the circumstances of this case than § 29-1301.02, because § 29-1306 is 

specific to homicide cases. Mueller also noted that the portion 

of the court’s venue instruction related to an offense committed 
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during a motor vehicle trip omitted the opening phrase of 

§ 29-1301.02, which requires that the offense was committed 

in this state.

We note that although Mueller argued that the court should 

have given a venue instruction based on § 29-1306, he did 

not actually tender such an instruction, and that therefore, to 

the extent Mueller asserts on appeal that the court erred when 

it refused a requested instruction, under the applicable standards set forth above, we cannot review whether the “tendered 

instruction” was a correct statement of the law or whether it 

was warranted by the evidence. See State v. Swindle, 300 Neb. 

734, 915 N.W.2d 795 (2018). However, we can review whether 

the venue instruction the court actually gave was proper under 

the circumstances; a consideration of whether the instruction 

should have included the content of § 29-1306 is an incidental 

part of that analysis.

In this appeal, Mueller has the burden to show that the 

venue instruction given by the court was prejudicial or otherwise adversely affected his substantial right, and in making 

this determination, we read all the jury instructions together 

and consider whether, taken as a whole, they correctly state the 

law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence. See State v. Swindle, 

supra. Based on these standards, we conclude that the venue 

instruction given by the court did not constitute prejudicial 

error requiring reversal.

The instruction generally stated venue in Morrill County 

was proper if either (1) the acts constituting the offense 

occurred in Morrill County or (2) the offense occurred during a motor vehicle trip that passed through or terminated in 

Morrill County. The part of the instruction regarding an offense 

occurring during a motor vehicle trip was an accurate, if not 

a complete, recitation of the statute. Although the instruction 

identified venue as “Morrill County, Nebraska,” as Mueller 

notes, the instruction did not fully recite the statute, because 

it left off the part of § 29-1301.02 that said the offense had to 
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have been “committed in this state.” But we do not think that 

this omission constituted prejudicial error in this case.

Talley’s testimony was the main direct evidence regarding whether Mueller shot Dominguez and the location where 

the shooting occurred. Talley testified that the shooting in the 

motor vehicle occurred about 15 minutes after she, Mueller, and 

Dominguez left Bridgeport and were headed toward Kimball. 

The State had earlier presented testimony by the chief deputy 

of the Morrill County sheriff’s office, regarding Highway 88, 

which ran south from Bridgeport in the direction of Kimball. 

The deputy testified that approximately 25 miles of Highway 

88 along that route were in Morrill County before the route 

crossed into an adjacent county which was still in Nebraska. 

Based on this testimony, the inference regarding where the 

shooting occurred would be that it occurred in Morrill County 

or possibly in the adjacent Nebraska county.

Although Talley’s testimony may have been uncertain as to 

the specific county in which the shooting occurred, her testimony was clear that the shooting happened en route between 

Bridgeport and Kimball. Therefore, although there may have 

been different reasonable inferences regarding the specific 

county in which the shooting occurred, the only reasonable 

inference from Talley’s testimony to the effect that the shooting occurred after they left Bridgeport but before they reached 

Kimball was that the shooting occurred in Nebraska. There 

was no other evidence from which one could reasonably find 

that Mueller shot Dominguez in Wyoming or anywhere outside 

Nebraska. Because a state location issue was not presented 

by the evidence, the trial court’s omission of the portion of 

§ 29-1306 to the effect that the offense occurred in Nebraska 

did not constitute prejudicial error requiring reversal.

Mueller’s argument that an instruction based on § 29-1306 

would have been more appropriate is also not availing. Under 

§ 29-1306, venue is established in the county in which the 

person is shot, and § 29-1306 addresses a situation in which a 

person is shot in one county but dies in a different county or a 
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different state. In the present case, in order to establish venue 

in Morrill County under § 29-1306, it would need to be shown 

that Dominguez was shot in Morrill County. The instruction 

given by the court did instruct that venue was in Morrill county 

if, inter alia, “the acts constituting the crime(s) occurred in 

Morrill County.” We do not read § 29-1306 as adding a new 

requirement that venue is established in the county in which 

the victim is shot; instead, we read it as clarifying that the act 

constituting the crime is the shooting and that venue remains 

in the county where the shooting occurred whether the victim 

died in that county or in another county or state. By including 

the word “if” before the remaining substance of its instruction, 

the court effectively gave the jury the opportunity to decide if 

the State had carried its burden of establishing venue in Morrill 

County. Adding the content of § 29-1306 was unnecessary and 

would have confused the jury. Mueller was not prejudiced by 

the omission of the substance of § 29-1306.

We conclude that the court’s venue instruction, based in part 

on § 29-1301.02, reflected the correct law, was not misleading, 

and adequately covered the issues supported by the pleadings 

and the evidence in this case. We conclude that the venue 

instruction given by the court did not constitute prejudicial 

error requiring reversal.

Premeditation Instruction.

Mueller next claims that the district court erred when it 

gave an instruction that he asserts incorrectly defined premeditation. We conclude that the instruction was consistent with 

our prior case law and was not erroneous.

The court’s instruction regarding premeditation stated, 

“Premeditation means to form a design to do something 

before it is done. The time needed for premeditation may be 

so short as to be instantaneous provided that the intent to act 

is formed before the act and not simultaneously with it.” When 

this instruction was proposed, Mueller did not oppose the first 

sentence, which was based on the definition of premeditation 

in Neb. Rev. Stat. § 28-302(3) (Reissue 2016). Instead, he 
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specifically objected to the second sentence on the basis that 

it was not part of the statutory definition of “premeditation.”

The second sentence of the instruction given in this case is 

based on NJI2d Crim. 4.0. In State v. Custer, 292 Neb. 88, 871 

N.W.2d 243 (2015), and State v. Taylor, 282 Neb. 297, 803 

N.W.2d 746 (2011), we rejected a challenge comparable to that 

which Mueller raises in this case. Mueller acknowledges this 

precedent but asks us to overrule it. He argues the language 

of the second sentence comes from case law that preceded the 

statutory definition adopted by the Legislature in § 28-302(3) 

and that by approving the instruction, this court violates “the 

separation of powers clause and basic principles of statutory 

interpretation.” Brief for appellant at 22.

We addressed these arguments in Custer, wherein we reasoned that “a court’s proper role is to interpret statutes and 

clarify their meaning” and that the premeditation instruction 

given in that case “interprets and clarifies the statutory definition; it does not change or contradict the statutory definition.” 

292 Neb. at 105, 871 N.W.2d at 257. Our reasoning in Custer

applies to the instant case, and we continue to believe it is a 

prudent approach to statutory interpretation. We see no reason to overrule our precedent, and we therefore conclude that 

the district court did not err when it gave the premeditation 

instruction in this case.

Intoxication Instruction.

Mueller also claims that the district court erred when it 

refused his proposed instruction regarding intoxication. We 

reject this assignment of error.

Mueller requested the following instruction regarding 

intoxication:

There has been evidence that [Mueller] was intoxicated 

or under the influence of drugs at the time of the murder 

with which he is charged was committed.

Intoxication is a defense only when a person’s mental 

abilities were so far overcome by the use of alcohol and/ 

or drugs that he could not have had the required intent of 
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deliberation and/ or premeditation. You may consider evidence of alcohol and/ or drug use with all other evidence 

in deciding whether [Mueller] had the required intent.

The district court refused the instruction “based upon the 

evidence.”

Mueller acknowledges the existence of Neb. Rev. Stat. 

§ 29-122 (Reissue 2016), which provides:

A person who is intoxicated is criminally responsible 

for his or her conduct. Intoxication is not a defense to 

any criminal offense and shall not be taken into consideration in determining the existence of a mental state that 

is an element of the criminal offense unless the defendant 

proves, by clear and convincing evidence, that he or she 

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.

In the present case, there was no evidence that Mueller did not 

know that what he had ingested was an intoxicating substance 

or that Mueller’s ingestion of an intoxicating substance was 

not voluntary. However, Mueller argues that the application of 

§ 29-122 in this case violated his constitutional rights, because 

it relieved the State of its burden to prove the requisite mental 

state beyond a reasonable doubt. We do not agree.

We note first that Mueller did not raise a constitutional challenge to § 29-122 below. But in any event, we further note 

that we rejected the same challenge that Mueller argues in 

this appeal in State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 

(2016). In Abejide, we determined that “[b]y removing voluntary intoxication from consideration of whether the defendant 

had the required mental state, § 29-122 redefines the circumstances under which the requisite mental state may be found 

but it does not relieve the State of its burden to prove the 

requisite mental state.” 293 Neb. at 700, 879 N.W.2d at 695. In 

reaching this determination, we relied on Montana v. Egelhoff, 

518 U.S. 37, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996).
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Mueller acknowledges Abejide, but asserts that we misread 

Egelhoff and urges us to overrule Abejide. We decline to do so. 

Mueller contends that § 29-122 limits the admissibility of otherwise relevant evidence and that such limitation would not be 

acceptable under Egelhoff. Contrary to Mueller’s assertion, upon 

reexamination, we believe that we correctly reasoned in Abejide

that “similar to the statute at issue in Egelhoff, supra, § 29-122 

is a ‘legislative judgment regarding the circumstances under 

which individuals may be held criminally responsible for their 

actions.’” 293 Neb. at 700, 879 N.W.2d at 695. As such, it does 

not limit the admissibility of otherwise relevant evidence. And, 

in fact, in this case, evidence was admitted regarding Mueller’s 

being under the influence of methamphetamine at the time of 

the shooting.

Mueller’s proposed instruction did not correctly state the 

law under § 29-122, and there was no evidence that would 

warrant an instruction regarding involuntary intoxication under 

§ 29-122. Here, as in Abejide, because the defendant presented 

no evidence that his intoxication was involuntary, we need not 

consider whether § 29-122 may constitutionally require “clear 

and convincing evidence” that intoxication was involuntary or 

whether § 29-122 may constitutionality require the defendant 

to bear the burden of persuasion on the issue of involuntary 

intoxication.

In this case, the only issue involving intoxication is whether 

the district court erred when it refused to give Mueller’s 

requested instruction. As discussed above, Mueller’s requested 

instruction on intoxication did not correctly state the law under 

§ 29-122. For this and other reasons, Mueller has not shown 

that the district court’s refusal to give his proposed instruction 

was reversible error.

Possession of a Deadly Weapon by a 

Prohibited Person Instruction.

Although he did not object to the instruction at trial, Mueller 

claims on appeal that the district court erred when it gave an 

instruction setting forth the elements of possession of a deadly 
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weapon by a prohibited person. We find Mueller’s challenge to 

be without merit.

Mueller recognizes that the instruction given by the district 

court was consistent with the statutory definition of possession 

of a deadly weapon by a prohibited person set forth in Neb. 

Rev. Stat. § 28-1206 (Reissue 2016), which was in effect in 

2015, the time the offense charged in this case was committed. However, he notes that the Legislature made amendments 

to § 28-1206 that went into effect on May 10, 2017, after 

Mueller’s trial and sentencing in this case. Mueller argues that 

the amendments changed the elements of the crime with which 

he was charged and that he should have been given the benefit 

of those amendments.

[8] We have stated that statutes governing substantive matters in effect at the time of a crime govern, and not later 

enacted statutes. State v. Galindo, 278 Neb. 599, 774 N.W.2d 

190 (2009). We have further stated that, in contrast, procedural 

statutes in effect on the date of a hearing or proceeding govern, 

and not those in effect when the violation took place. Id. We 

have elucidated the distinction between substantive and procedural statutes as follows:

A change in law will be deemed to affect matters of 

substance where it increases the punishment or changes 

the ingredients of the offense or the ultimate facts necessary to establish guilt. In other words, a rule is substantive 

if it alters the range of conduct or the class of persons 

that the law punishes. In contrast, rules that regulate only 

the manner of determining a defendant’s culpability are 

procedural.

State v. Galindo, 278 Neb. at 614-15, 774 N.W.2d at 210 

(emphasis in original).

[9] Based on this reasoning, a statute defining the elements 

of a crime is substantive and the statute in effect at the time 

of the offense governs. Therefore, in the present case, the version of § 28-1206 that was in effect on the date of the charged 

offense governs and amendments to the statute pertaining to 
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possession of a deadly weapon by a prohibited person that 

were enacted after Mueller’s trial do not apply. We conclude 

that the district court did not err when it instructed the jury 

using the elements set forth in the statute that was in effect at 

the time the charged offense was committed.

Sufficiency of Evidence to Support 

Conviction for First Degree Murder.

Mueller claims that there was not sufficient evidence to 

support his conviction for first degree murder. He specifically argues that there was significant evidence that pointed to 

Talley, rather than Mueller, as being the murderer and that even 

if the jury could find that Mueller killed Dominguez, there was 

not sufficient evidence to prove that he had done so purposely 

and with deliberate and premeditated malice. We conclude that 

there was sufficient evidence to support the conviction.

With regard to his argument that there was significant evidence that Talley killed Dominguez, Mueller refers to evidence 

of allegedly inculpatory statements Talley made in text messages and social media communications to friends as well as 

the statements she made to Montoya in the Morrill County 

jail. Mueller generally argues that such evidence indicates that 

Talley and Dominguez had relationship problems when they 

were in Bridgeport and that after Dominguez was killed, Talley 

was concerned that she would be in trouble in connection with 

his death. Mueller also emphasizes Montoya’s testimony to the 

effect that Talley said she had killed her boyfriend by putting 

her hand over his mouth to stop his breathing and end his suffering after he had been shot.

The jury was able to consider the evidence that Mueller contends implicated Talley as being Dominguez’ killer and could 

reasonably have determined that such competing evidence 

did not diminish its view that the State had proved Mueller 

guilty beyond a reasonable doubt. The evidence highlighted by 

Mueller could show that Talley was concerned she would be in 

trouble as an accomplice to the murder, which does not negate 

Mueller’s involvement in the death of Dominguez. To the extent 
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Montoya testified that Talley said she had killed Dominguez by 

stopping his breathing, Montoya further testified that Talley 

had said that she had done so after Mueller shot Dominguez 

and that her actions were intended to stop Dominguez’ suffering. The autopsy evidence indicated that Dominguez died as a 

result of the gunshot wound, and therefore, the jury could find 

that Mueller caused Dominguez’ death even if it believed that 

Talley’s actions may have hastened his death.

Mueller further contends that even if the jury found that 

he had shot Dominguez, it could not have found that he did 

so purposely and with deliberate and premeditated malice. He 

argues that a finding of premeditation is not consistent with 

Talley’s testimony that Mueller shot Dominguez “very suddenly and seemingly out-of-the-blue.” Brief for appellant at 

41. Mueller also argues that there was evidence that he was 

showing signs of paranoia as a result of being under the influence of methamphetamine and that such condition prevented 

him from forming the requisite intent.

We have reviewed the record and determine that the jury 

could have found the requisite intent despite the evidence to 

which Mueller directs our attention. Talley’s testimony that 

the shooting was “sudden” could reasonably be understood 

as happening suddenly from her perspective, because she was 

not aware of what Mueller may have been thinking or deliberating prior to shooting Dominguez. Talley did not testify 

regarding any sudden quarrel or other event that could have 

caused Mueller to shoot without deliberation or premeditation. 

Instead, she testified that immediately prior to the shooting, 

she was having a conversation with Dominguez while Mueller 

was in the back seat. Talley further testified that after shooting Dominguez, Mueller pointed the gun at her and asked 

her to give a reason he should not shoot her also. Based on 

Talley’s description, the jury could reasonably have found 

that Mueller was acting purposely and deliberately and had 

premeditated the murder, even if only for a short time before 

taking such action.
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The jury could also reasonably have found that Mueller 

had the requisite intent despite evidence that he was under the 

influence of methamphetamine and showing what lay people 

described as signs of paranoia. As discussed above in connection with Mueller’s requested instruction on intoxication, 

under § 29-122, voluntary intoxication is not to be taken into 

consideration in determining the existence of a mental state 

that is an element of the criminal offense. Furthermore, there 

was evidence of Mueller’s actions and statements at the time of 

the shooting and thereafter that indicated that he was not acting entirely without reason and that he could have formed the 

requisite intent to kill.

We conclude that there was sufficient evidence to support 

Mueller’s conviction for first degree murder.

Excessive Sentences.

Mueller claims that the district court imposed excessive 

sentences. Mueller acknowledges that his conviction for first 

degree murder required a mandatory life sentence and that 

his sentence for use of a deadly weapon to commit a felony 

was statutorily required to be served consecutively to his life 

sentence. He therefore focuses his arguments on the length of 

his sentence for use and the consecutive sentence for possession of a deadly weapon by a prohibited person. We conclude 

that the district court did not abuse its discretion when it sentenced Mueller.

Use of a deadly weapon to commit a felony is a Class IC 

felony under Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016), 

and possession of a deadly weapon by a prohibited person is a 

Class ID felony under § 28-1206(3)(b). Under Neb. Rev. Stat. 

§ 28-105 (Reissue 2016), a Class IC felony is subject to a sentence of imprisonment for a mandatory minimum of 5 years 

and a maximum of 50 years, and a Class ID felony is subject 

to a sentence of imprisonment for a mandatory minimum of 3 

years and a maximum of 50 years. Therefore, Mueller’s sentences were within statutory limits and we review his sentencing for an abuse of discretion by the district court.
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[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. Leahy, ante p. 228, 917 N.W.2d 895 (2018). 

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 

and attitude and all the facts and circumstances surrounding the 

defendant’s life. Id.

Mueller generally argues that because he was already subject to a mandatory life sentence for first degree murder and a 

mandatorily consecutive sentence for the use conviction, it was 

excessive to add another consecutive and lengthy sentence of 

imprisonment for the possession of a deadly weapon conviction. He argues that the court did not give adequate weight 

to his individual circumstances, particularly his history of 

substance abuse which resulted from the influence of an uncle 

who was heavily involved in drugs and the lack of a relationship with his father. He also argues that his substance abuse 

mitigates the present offenses, as well as the previous offenses 

in his criminal history, because substance abuse caused him to 

act impulsively.

At the sentencing, the court stated that it had reviewed 

Mueller’s presentence report and had considered all the required 

factors for sentencing. The record does not indicate that the 

court considered any improper factors. The State notes that 

Mueller’s criminal record indicates a history of violence and 

that testing showed him to be at a very high risk to reoffend. 
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Mueller’s argument that his substance abuse caused him to act 

impulsively carries less weight considering that, as discussed 

above, the evidence in this case supported the finding that his 

actions were deliberate and premeditated. Furthermore, the 

sentences at issue relate to his use and possession convictions 

and the evidence does not indicate that he acted impulsively 

in using or possessing the firearm in this case. We further note 

that Mueller’s minimum sentence of 20 years for each conviction is in the middle of the statutory range and that it was 

within the court’s discretion to order the sentence for possession to be served consecutively. See State v. Leahy, supra.

We conclude that the district court did not abuse its discretion in imposing consecutive sentences of imprisonment for 20 

to 40 years for the use and possession convictions.

Credit for Time Served in Wyoming.

Finally, Mueller claims that the district court erred when it 

failed to give him credit against his sentences for time he served 

in Wyoming. The State concedes, and we agree, that Mueller 

should have been given credit for an additional 91 days.

The evidence presented at the sentencing hearing was that 

an arrest warrant had been issued against Mueller with regard 

to this case on December 7, 2015. At that time, he was being 

held in a jail in Wyoming based on charges that arose in 

Wyoming. Nebraska law enforcement officers placed a hold on 

Mueller, and on March 7, 2016, they were advised that Mueller 

was available to be returned to Nebraska.

In the district court, Mueller asked that he be given credit 

for the additional 91 days that he had spent in jail in Wyoming 

after the arrest warrant was issued on December 7, 2015, in 

addition to the 371 days he had served in prison in Nebraska 

after being returned from Wyoming. The court ordered that 

time served of 371 days be credited against Mueller’s sentence 

for possession of a deadly weapon by a prohibited person. But 

the court did not give credit for the 91 days in the Wyoming 

jail, stating that Mueller had been “picked up and returned to 
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Nebraska on the first possible day that he could be here while 

there was [sic] not charges pending and unresolved apparently 

in the State of Wyoming.”

Neb. Rev. Stat. § 83-1,106 (Reissue 2014) provides in relevant part:

(1) Credit against the maximum term and any minimum term shall be given to an offender for time spent 

in custody as a result of the criminal charge for which a 

prison sentence is imposed or as a result of the conduct 

on which such a charge is based. This shall specifically 

include, but shall not be limited to, time spent in custody 

prior to trial, during trial, pending sentence, pending 

the resolution of an appeal, and prior to delivery of the 

offender to the custody of the Department of Correctional 

Services, the county board of corrections, or, in counties 

which do not have a county board of corrections, the 

county sheriff.

. . . .

(4) If the offender is arrested on one charge and prosecuted on another charge growing out of conduct which 

occurred prior to his or her arrest, credit against the 

maximum term and any minimum term of any sentence 

resulting from such prosecution shall be given for all time 

spent in custody under the former charge which has not 

been credited against another sentence.

[13-15] We have stated that because of the mandatory 

“shall” language used in § 83-1,106, the statute mandates that 

credit for time served must be given for time spent in custody 

on a charge when a prison sentence is imposed for a conviction of such charge. State v. Banes, 268 Neb. 805, 688 N.W.2d 

594 (2004). We further stated in Banes that § 83-1,106(4) 

was to be read “as requiring that such credit shall be given 

which has not otherwise been applied, and the import of 

this subsection is that all credit available due to presentence 

incarceration shall be applied, but only once.” 268 Neb. at 

811, 688 N.W.2d at 599. We also recently stated that “what 
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matters in the credit for time served analysis is not whether 

[the defendant] was detained in Nebraska and awaiting trial 

and sentencing on Nebraska charges, but, rather, whether 

[the defendant] was forced to be in custody because of those 

charges.” State v. Leahy, ante p. 228, 235, 917 N.W.2d 895, 

900-01 (2018) (emphasis in original). Given the existence of 

the arrest warrant and the hold placed on Mueller, we determine that he was forced to be in custody because of those 

charges. See id.

Mueller states in his brief on appeal that the Wyoming 

charges were dismissed without his time spent in custody being 

credited against any sentence in Wyoming. The State does 

not dispute this and notes that although the record on appeal 

does not explicitly reflect that the Wyoming charges were 

dismissed, the presentence report contains a court order from 

Wyoming stating that Mueller was being released on his own 

recognizance in order to “return to Nebraska to resolve pending charges there.”

Contrary to its position at trial, the State now asserts that 

because the 91 days Mueller spent in custody in Wyoming had 

not been credited against any sentence imposed in Wyoming at 

the time Mueller was sentenced on the present convictions in 

Nebraska, the district court should have applied credit for the 

91 days against one of his sentences in this case. We agree with 

the State’s concession.

After Nebraska law enforcement officers placed a hold 

on Mueller on December 7, 2015, he was held in custody in 

Wyoming for 91 days. Section 83-1,106(4) required that he 

be given credit for that time, but only once. If Mueller had 

been given credit for that time against a sentence imposed 

in Wyoming, it would not be available for credit against his 

Nebraska sentences. But the Wyoming order noted by the State 

indicated that at the time he was returned to Nebraska, he had 

not been sentenced in Wyoming, and that therefore, there was 

no Wyoming sentence against which the time served could 

be credited.
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In view of the above, the district court should have credited the 91 days Mueller spent in jail in Wyoming against one 

of Mueller’s Nebraska sentences. Because the court credited 

the 371 days Mueller spent in prison in Nebraska against his 

sentence for possession of a deadly weapon by a prohibited 

person, it is clear that the district court intended that credit be 

given against that charge. We therefore conclude that the sentencing order should be modified to state that Mueller’s sentence for possession of a deadly weapon by a prohibited person 

should be credited for time served in the amount of 462 days 

rather than the 371 days ordered by the district court.

CONCLUSION

Having rejected Mueller’s assignments of error related to 

jury instructions and sufficiency of the evidence, we affirm his 

convictions for first degree murder, use of a deadly weapon 

to commit a felony, and possession of a deadly weapon by 

a prohibited person. We reject Mueller’s claim that his sentences were excessive, but we agree that the district court 

erred when it did not give him credit for 91 days of time 

served in Wyoming. We therefore affirm Mueller’s sentences, 

but the sentencing order shall be modified to state that he be 

given credit for time served in the amount of 462 days against 

his sentence for possession of a deadly weapon by a prohibited person.

Affirmed as modified.

Freudenberg, J., not participating.