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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. SERRAN

Cite as 32 Neb. App. 697

State of Nebraska, appellee, v. 

William S. Serrano, appellant.

___ N.W.3d ___

Filed March 12, 2024. No. A-23-367.

1. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most 

favorably to the State, is sufficient to support the conviction.

2. Appeal and Error. Consideration of plain error occurs at the discretion 

of an appellate court.

3. ____. Plain error may be found on appeal when an error unasserted or 

uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of the judicial process.

4. Criminal Attempt: Intent. Conduct is not to be considered a substantial step unless it is strongly corroborative of the defendant’s criminal 

intent.

5. Criminal Attempt. Whether a defendant’s conduct constitutes a substantial step toward the commission of a particular crime and is an 

attempt is generally a question of fact.

Appeal from the District Court for Kimball County: Derek 

C. Weimer, Judge. Affirmed in part, and in part vacated and 

remanded for resentencing.

Nebraska Supreme Court Online Library

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

03/12/2024 09:07 AM CDT
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. SERRAN

Cite as 32 Neb. App. 697

Timothy S. Noerrlinger and Kelly S. Breen, of Nebraska 

Commission on Public Advocacy, for appellant.

Michael T. Hilgers, Attorney General, and P. Christian 

Adamski for appellee.

Riedmann, Arterburn, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

William S. Serrano appeals from his convictions of manslaughter, two counts of attempted terroristic threats, and possession of a firearm during the commission of a felony, following a jury trial in the district court for Kimball County. 

Serrano assigns that the district court erred in denying his 

motion for directed verdict on all charges for which he was 

convicted. Following our review, we affirm his convictions; 

however, because the district court committed plain error in 

its sentencing of Serrano for his convictions of manslaughter 

and attempted terroristic threats, we vacate those sentences and 

remand the cause for resentencing on those convictions only.

BACKGROUND

On December 31, 2021, Serrano was with friends when he 

discussed wanting to go to the home of his ex-wife, Sheena 

Erickson, with an AK-47 rifle and “shoot up” the house. 

On January 3, 2022, around 4:30 p.m., Serrano bought two 

“single shots” and a half pint of whiskey. Approximately an 

hour later, he purchased an additional half pint of whiskey. 

About 7:52 p.m., Serrano called Erickson, but she did not 

answer her phone. Erickson was at Shellie Pile’s home; Pile 

is the mother of Erickson’s boyfriend. About 2 minutes later, 

Erickson received a call from Serrano using Tessa Gehring’s 

phone; Gehring, the victim of the manslaughter charge, was 

Serrano’s girlfriend. Erickson and Serrano’s daughter answered 

Erickson’s phone, but she gave the phone back to Erickson 

after answering.
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STATE V. SERRAN

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Serrano began discussing custody issues with Erickson, 

because Serrano planned to move an hour away with the children. Initially, the conversation was calm, but after Erickson 

stated that she would just keep the children on the weekends 

rather than return to court on the custody issue, Serrano 

“started going off,” saying that Erickson was “a worthless 

mother.” Serrano sounded “[r]eally mean” and was speaking 

loudly. Serrano started screaming about Erickson’s boyfriend, 

and Pile, who could hear the conversation, began yelling at 

Serrano. Serrano told Pile, “I’ll come after you, too.” Because 

Serrano was yelling and screaming, Erickson hung up the 

phone. Serrano and Erickson’s daughter testified at trial and 

confirmed that Serrano and Pile were “screaming” and that 

Serrano’s voice sounded like he was “mad.”

Serrano and Erickson’s two sons were with Serrano that 

evening, and the older son testified that at some point, Serrano 

was on the phone arguing with someone, got mad, and threw 

the phone against the wall. The older son thought Serrano was 

talking to either a friend or to Erickson. After Serrano threw 

his phone, he asked Gehring for her phone. Serrano’s two 

sons then went to the family room and began playing a video 

game. Serrano came through the family room and went into 

the garage; Serrano had placed a “CO2 gun” in the waistband 

of his pants, had put on his coat, and had a camouflage backpack with him. The older son testified that Serrano said that 

“he got called out to the Army.” When Serrano came back 

into the house, he had a shotgun that “was opened” (bent 

back as though to load it), and he went back to his bedroom. 

From the family room, the older son heard several sounds; he 

heard Serrano yell at Gehring, “something snap,” Gehring say 

“ouch,” a noise like something fell on the ground, and shortly 

thereafter, a gunshot.

Serrano came out of the bedroom, took his sons into the 

garage, and called the 911 emergency dispatch service. When 

officers arrived on the scene, they saw Serrano, who was very 

distraught. Gehring was lying on the floor of the bedroom, 
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STATE V. SERRAN

Cite as 32 Neb. App. 697

deceased. A shotgun was on the bed, as was an empty box 

of ammunition shells. The camouflage backpack was on the 

floor, along with a set of keys. Inside the backpack were 23 

shotgun shells. An officer opened the shotgun, and a spent 

casing was released; DNA testing supported that Serrano was 

a contributor of DNA found on the shell. An autopsy confirmed that Gehring died from a single shotgun wound to the 

head. The shotgun at issue had a damaged trigger. Because of 

this, once the hammer was pulled back and engaged, the gun 

would fire upon release of the hammer without anyone pulling 

the trigger.

Serrano was charged with manslaughter, attempted first 

degree murder, two counts of attempted terroristic threats, and 

possession of a firearm during the commission of a felony. At 

the conclusion of the State’s case, Serrano made a motion for a 

directed verdict, which was denied. Serrano presented no evidence. A jury found Serrano not guilty of attempted first degree 

murder and guilty of all other charges. For his conviction of 

manslaughter, a Class IIA felony, Serrano was sentenced to 20 

to 20 years’ imprisonment. For each conviction of attempted 

terroristic threats, a Class IV felony, Serrano was sentenced to 

1 year’s imprisonment. For his conviction of possession of a 

firearm during the commission of a felony, a Class II felony, 

Serrano was sentenced to 10 to 20 years’ imprisonment. The 

sentences for manslaughter and possession of a firearm were 

to be served consecutively to each other, and Serrano received 

485 days’ credit for time served. Serrano appeals.

ASSIGNMENTS OF ERROR

Serrano assigns, reordered and restated, that the district 

court erred in denying his motion for a directed verdict on 

the attempted terroristic threats charges, because the State 

failed to prove he made any threats to commit a crime of 

violence with an intent to terrorize. He also assigns that the 

district court erred in denying his motion for a directed verdict on the manslaughter and possession of a firearm during 
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STATE V. SERRAN

Cite as 32 Neb. App. 697

the commission of a felony charges, because the State failed 

to prove a proximate cause between the alleged unlawful acts 

and the unintentional death.

STANDARD OF REVIEW

[1] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether 

the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, 

the standard is the same: In reviewing a criminal conviction, 

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, and a conviction will 

be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably 

to the State, is sufficient to support the conviction. State v. 

Samuels, 31 Neb. App. 918, 991 N.W.2d 900 (2023).

[2,3] Consideration of plain error occurs at the discretion of 

an appellate court. State v. Roth, 311 Neb. 1007, 977 N.W.2d 

221 (2022). Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from 

the record, prejudicially affects a litigant’s substantial right 

and, if uncorrected, would result in damage to the integrity, 

reputation, and fairness of the judicial process. Id.

ANALYSIS

Attempted Terroristic Threats.

Serrano assigns the district court erred in denying his motion 

for a directed verdict on the charges of attempted terroristic threats. He argues that although there was evidence that 

he was intoxicated and angry, there was no evidence that he 

made a threat of violence to Pile or Erickson. He argues that 

Erickson did not feel threatened and that his conduct in his 

own residence, more than 38 miles from Pile’s residence, 

did not amount to a substantial step toward terrorizing Pile 

or Erickson. We find the evidence was sufficient to support 

the convictions.
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STATE V. SERRAN

Cite as 32 Neb. App. 697

Serrano was charged with attempted terroristic threats. In 

order to convict him, the State needed to present evidence 

that Serrano intended to threaten Pile and Erickson with any 

crime of violence, with the intent to terrorize them, and that 

he engaged in conduct which constituted a substantial step in 

the course of conduct intended to culminate in his commission 

of the felony offense of terroristic threats and which strongly 

corroborated his intent to commit the crime of terroristic 

threats. See, Neb. Rev. Stat. § 28-201 (Cum. Supp. 2022); 

Neb. Rev. Stat. § 28-311.01 (Reissue 2016).

[4,5] Conduct is not to be considered a substantial step 

unless it is strongly corroborative of the defendant’s criminal 

intent. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). 

Whether a defendant’s conduct constitutes a substantial step 

toward the commission of a particular crime and is an attempt 

is generally a question of fact. Id. The Eighth Circuit has 

stated that “[a]n attempt exists when a defendant’s actions go 

‘beyond mere preparation; [are] necessary to the consummation of the crime; and . . . strongly corroborate [the defend

ant’s] criminal intent to [commit the predicate offense].’” U.S. 

v. Young, 613 F.3d 735, 742 (8th Cir. 2010). We have previously noted the difficulty in determining when a defendant’s 

disposition matures into an inchoate crime but have recognized 

that whether a defendant’s conduct constitutes a substantial 

step toward the commission of a crime such that it is an 

attempt is generally a question of fact. See State v. Pittman, 5 

Neb. App. 152, 556 N.W.2d 276 (1996).

In Pittman, we noted that the Model Penal Code provided 

examples of behavior of attempt, including “‘possession of 

materials to be employed in the commission of the crime, that 

are specially designed for such unlawful use or that can serve 

no lawful purpose of the actor under the circumstances’” and 

“‘possession, collection or fabrication of the materials to be 

employed in the commission of the crime, at or near the place 

contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under 
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STATE V. SERRAN

Cite as 32 Neb. App. 697

the circumstances.’” 5 Neb. App. at 167, 556 N.W.2d at 286, 

quoting Model Penal Code § 5.01(2) (1985).

Here, the evidence showed that a few days prior to the phone 

call, Serrano expressed his desire to “shoot up” Erickson’s 

home. While on the phone with Erickson, Serrano yelled 

angrily at her and told Pile he would “come after [her], too.” 

After the phone call ended, Serrano placed a “CO2 gun” in 

his waistband, put on his coat, and loaded a backpack with 

ammunition. He retrieved a shotgun and loaded it. Serrano 

cocked the shotgun, pulling back the hammer. Under these 

circumstances, a jury could conclude that possession of these 

materials served no lawful purpose and that Serrano was taking substantial steps, beyond mere preparation, that were to 

culminate in his driving to Pile’s home and at the very least 

threatening Pile and Erickson with a gun.

Viewing the events of that evening in the light most favorable to the State, we determine the evidence was sufficient for 

the jury to find that Serrano’s conduct strongly corroborated 

his intent to commit the crime of terroristic threats and that 

he took substantial steps toward the commission of that crime. 

The district court did not err in denying Serrano’s motion for 

directed verdict on the charges of attempted terroristic threats.

Manslaughter and Possession of Firearm.

Serrano assigns that the district court erred in denying his 

motion for a directed verdict on the manslaughter and weapons charges because the State failed to prove proximate cause 

between the alleged unlawful acts and the death in its prosecution for involuntary manslaughter. He articulates his argument 

as follows:

The State offered a novel theory which the [district] 

court apparently accepted that after the phone conversation with Erickson and Pile, thirty minutes and 38 miles 

apart, Serrano was still engaged in the unlawful acts of 

Attempted Terroristic Threats by retrieving and loading a shotgun, gathering shotgun shells and lying to his 
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STATE V. SERRAN

Cite as 32 Neb. App. 697

sons about “Army” duties before that shotgun misfired 

killing [Gehring]. The State’s theory ignores the necessity of proving proximate cause between alleged unlawful acts and the death in a prosecution for Involuntary 

Manslaughter.

Brief for appellant at 9.

Although Serrano phrases his argument in terms of proximate cause, we analyze it using the specific language of the 

relevant statutes. To convict Serrano of manslaughter, the 

State had to put forth evidence that Serrano caused Gehring’s 

death unintentionally while in the commission of an unlawful 

act. See Neb. Rev. Stat. § 28-305 (Reissue 2016). To convict 

Serrano of possession of a firearm during the commission of a 

felony, the State was required to adduce evidence that Serrano 

possessed a firearm during the commission of a felony. See 

Neb. Rev. Stat. § 28-1205 (Reissue 2016). In this case, the 

underlying unlawful act required under § 28-305 and the 

felony under § 28-1205 is the same: terroristic threats against 

Pile and/or Erickson.

Serrano argues that because he shot Gehring more than 30 

minutes after his conversation with Pile and Erickson and was 

more than 38 miles from their location, the shooting did not 

occur “while in the commission of an unlawful act” or “during 

the commission of a felony.” Serrano’s argument is premised 

on the idea that the attempted terroristic threats occurred only 

before and during the phone conversation. But, as addressed 

in our analysis of Serrano’s first assignment of error, the evidence, viewed in the light most favorable to the State, was that 

Serrano unintentionally killed Gehring by shooting her with 

the shotgun while taking substantial steps that would culminate 

in threatening Pile and Erickson with that shotgun. This was 

sufficient to support the convictions for manslaughter and possession of a firearm during the commission of a felony. The 

district court did not err in denying Serrano’s motion for a 

directed verdict on these charges.
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32 Nebraska Appellate Reports

STATE V. SERRAN

Cite as 32 Neb. App. 697

Serrano argues the State failed to show a proximate and 

causal relation between the alleged unlawful act and the unintentional death. Serrano directs us to case law explaining that 

criminal conduct is a proximate cause of an event, if the event 

in question would not have occurred but for that conduct, and 

that such conduct is not the proximate cause of the event if that 

event would have occurred without such conduct.

However, even viewing the evidence through this lens of 

proximate cause, we find no error. Gehring’s death would not 

have occurred but for Serrano’s acts involving the shotgun, 

which we have determined constituted a substantial step in his 

attempted terroristic threats toward Pile and Erickson. This 

assignment of error fails.

Plain Error in Sentencing.

We note a matter of plain error in the imposition of the sentences for Serrano’s convictions of manslaughter and attempted 

terroristic threats. For his conviction of manslaughter, a Class 

IIA felony, Serrano received a sentence of 20 to 20 years’ 

imprisonment. However, Neb. Rev. Stat. § 29-2204 (Cum. 

Supp. 2022) provides in part that when imposing a sentence 

for any class of felony other than a Class III, IIIA, or IV, the 

maximum term shall not be greater than the maximum limit 

provided by law. Section 29-2204 further provides that the 

minimum term shall be any term of years less than the maximum term imposed by the court or the minimum term shall be 

the minimum limit provided by law. Serrano received a term 

of 20 to 20 years’ imprisonment, and the minimum term is not 

less than the maximum term, nor is it the minimum provided 

by law. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). As 

such, the sentence imposed does not comply with § 29-2204. 

We vacate the sentence imposed for the conviction of manslaughter and remand the cause to the district court for resentencing on that count.

We also find plain error regarding the determinate sentences 

imposed for attempted terroristic threats. Attempted terroristic 
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STATE V. SERRAN

Cite as 32 Neb. App. 697

threats is a Class IV felony; here, the sentences for the Class 

IV felonies were imposed concurrently to sentences for a Class 

II and a Class IIA felony. With respect to a Class IV felony,

[f]or any sentence of imprisonment for a Class . . . IV 

felony . . . imposed consecutively or concurrently with 

. . . a sentence of imprisonment for a Class . . . II, or IIA 

felony, the court shall impose an indeterminate sentence 

within the applicable range in section 28-105 that does 

not include a period of post-release supervision, in accordance with the process set forth in section 29-2204.

Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016). Thus, here, 

the sentences for the Class IV felonies should have been indeterminate, because they were imposed consecutively or concurrently with sentences for a Class II and a Class IIA felony. We 

vacate the sentences imposed for the convictions of attempted 

terroristic threats and remand the cause to the district court for 

resentencing on those counts.

CONCLUSION

We find that the evidence was sufficient to support Serrano’s 

convictions and that the district court did not err in denying his 

motions for a directed verdict. However, because the district 

court erred by imposing the same term of years for the minimum and maximum term for the conviction of manslaughter 

and by imposing determinate sentences for the attempted terroristic threats convictions, we vacate those sentences and 

remand the cause to the district court for resentencing on those 

counts only.

Affirmed in part, and in part vacated

and remanded for resentencing.