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STATE V. ESCH

Cite as 315 Neb. 482

State of Nebraska, appellee, v. 

Trenton R. Esch, appellant.

___ N.W.2d ___

Filed December 1, 2023. No. S-22-855.

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. ____: ____. 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.

3. ____: ____. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal 

absent plain error indicative of a probable miscarriage of justice.

4. Effectiveness of Counsel: Appeal and Error. An appellate court 

resolves claims of ineffective assistance of counsel on direct appeal 

only where the record is sufficient to conclusively determine whether 

trial counsel did or did not provide effective assistance and whether 

the defendant was or was not prejudiced by counsel’s alleged deficient 

performance as matters of law.

5. ____: ____. An ineffective assistance of counsel claim will not be 

addressed on direct appeal if it requires an evidentiary hearing.

6. Effectiveness of Counsel: Proof: Appeal and Error. When reviewing 

an ineffective assistance of counsel claim on direct appeal, the question is whether the record affirmatively shows that the defendant’s trial 

counsel’s performance was deficient and that the deficient performance 

actually prejudiced the defendant’s defense.

7. Effectiveness of Counsel: Proof. A court may examine performance 

and prejudice in any order and need not examine both prongs if a 

defendant fails to demonstrate either.

8. Criminal Law: Jury Instructions. When there is an applicable instruction in the Nebraska Jury Instructions, the court should usually give 

that instruction to the jury in a criminal case.

Nebraska Supreme Court Online Library

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

12/01/2023 09:08 AM CST
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9. Constitutional Law: Jury Instructions: Proof. So long as the court 

instructs the jury on the necessity that the defendant’s guilt be proved 

beyond a reasonable doubt, the U.S. Constitution does not require that 

any particular form of words be used in advising the jury of the government’s burden of proof. Rather, taken as a whole, the instructions must 

correctly convey the concept of reasonable doubt to the jury.

10. Jury Instructions: Presumptions. It is presumed that a jury followed 

the instructions given in arriving at its verdict, and unless it affirmatively appears to the contrary, it cannot be said that such instructions 

were disregarded.

11. Criminal Law: Intoxication: Proof. Neb. Rev. Stat. § 29‐122 (Reissue 

2016) redefined the mental state elements of all subjective criminal 

offenses in Nebraska to provide for an objective inquiry: whether the 

State proved circumstances surrounding the offense that would otherwise establish the requisite mental state “but for” the defendant’s voluntary intoxication.

12. Criminal Law: Rules of Evidence: Other Acts. In a criminal case, 

Neb. Rev. Stat. § 27‐404(1) (Cum. Supp. 2022) operates as a broad 

exclusionary rule of relevant evidence that speaks to a criminal defendant’s propensity to have committed the crime or crimes charged.

13. Rules of Evidence: Other Acts. Neb. Rev. Stat. § 27‐404(2) (Cum. 

Supp. 2022) operates as an inclusionary rule of evidence that provides 

that evidence that raises a propensity inference is admissible for other 

proper purposes, including proof of motive, intent, preparation, or 

absence of mistake or accident.

14. Criminal Law: Rules of Evidence: Other Acts: Trial: Proof. While 

evidence is not an “other act” under Neb. Rev. Stat. § 27‐404(2) (Cum. 

Supp. 2022) when it only tends to logically prove an element of the 

crime charged, proof of another distinct substantive act is admissible 

in a criminal prosecution when there is some legal connection between 

the two upon which it can be said that one tends to establish the other 

or some essential fact in issue.

15. Rules of Evidence: Records. Under Neb. Rev. Stat. § 27‐404(3) (Cum. 

Supp. 2022), a proponent of evidence offered pursuant to § 27‐404(2), 

upon objection to its admissibility, is required to state on the record the 

specific purpose or purposes for which the evidence is being offered, 

and the trial court must similarly state, on the record, the purpose or 

purposes for which such evidence is received.

16. Criminal Law: Rules of Evidence: Other Acts: Proof: Jury 

Instructions. Neb. Rev. Stat. § 27‐404(3) (Cum. Supp. 2022) provides that in criminal cases, before the admission of evidence under 

§ 27‐404(2), the prosecution must prove to the court, outside the presence of any jury, by clear and convincing evidence that the accused 
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committed the crime, wrong, or act. When admissible, upon a party’s 

request, the trial court must instruct the jury as to the specific purposes 

for which the evidence was received.

17. Homicide: Words and Phrases. For a killing to occur upon a sudden 

quarrel, the defendant must have actually lost self‐control and in conditions that would cause a reasonable person to lose normal self‐control.

18. Motions for Mistrial: Motions to Strike: Appeal and Error. Error 

cannot ordinarily be predicated on the failure to grant a mistrial if an 

objection or motion to strike the improper material is sustained and the 

jury is admonished to disregard such material.

Appeal from the District Court for Custer County: Karin L. 

Noakes, Judge. Affirmed.

Mark E. Rappl, of Naylor & Rappl Law Office, for appellant.

Michael T. Hilgers, Attorney General, and Nathan A. Liss 

for appellee.

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

and Papik, JJ., and Pirtle, Chief Judge.

Heavican, C.J.

I. INTRODUCTION

Trenton R. Esch appeals from his convictions and sentences 

after a trial by jury for first degree murder, 1 use of a deadly 

weapon to commit a felony, 2 and possession of a deadly 

weapon by a prohibited person. 3 Esch received a life sentence 

for his conviction of first degree murder and consecutive 

sentences of 45 to 50 years’ imprisonment for his use and 

possession of a deadly weapon. 4 Because of the life sentence 

imposed by the district court, this appeal was directly filed 

with this court. 5

1 Neb. Rev. Stat. § 28‐303 (Reissue 2016).

2 Neb. Rev. Stat. § 28‐1205 (Reissue 2016).

3 Neb. Rev. Stat. § 28‐1206 (Cum. Supp. 2022).

4 See Neb. Rev. Stat. § 28‐105 (Cum. Supp. 2022).

5 See Neb. Rev. Stat. § 24‐1106(1) (Cum. Supp. 2022).
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II. BACKGROUND

Esch’s charges arose from the death of Esch’s stepmother 

after Esch discharged a firearm at her on July 11, 2020. Esch 

was 44 years old.

It was undisputed at trial that Esch’s stepmother was shot 

multiple times when Esch emptied the magazine of a .22‐caliber 

target pistol at her. The sole issue at trial was the grade of 

homicide Esch committed: whether Esch shot his stepmother 

purposely and with deliberate and premeditated malice (first 

degree murder) 6; intentionally, but without premeditation (second degree murder) 7; or without malice upon a sudden quarrel 

(manslaughter). 8 We recount the evidence presented to the jury 

of events particularly relevant to this issue.

Shortly after Esch was born, his parents divorced, which 

the record suggests was related to his father’s alcoholism. His 

father later remarried and became sober. Esch’s father lived 

and farmed in Broken Bow, Nebraska. As a child, Esch spent 

every other weekend with his father and his paternal grandparents on his grandparents’ neighboring farm. His relationship 

with his stepmother was strained, and Esch felt that she did 

not like him and bullied him and his father.

After Esch graduated from high school, he forewent attending college and assisted his aging grandfather in running his 

grandparents’ farm for a decade until his grandfather died in 

2004. Esch then took over the farming operation and cared 

for his grandmother. Esch’s grandmother, his father, and Esch 

discussed the farm’s future on a couple of occasions. After 

these discussions, Esch’s grandmother deeded the farm to 

Esch’s father, and there was at least some consideration that 

6 See § 28‐303.

7 See Neb. Rev. Stat. § 28‐304 (Reissue 2016).

8 See Neb. Rev. Stat. § 28‐305 (Reissue 2016). See, also, State v. Smith, 282 

Neb. 720, 806 N.W.2d 383 (2011), overruling State v. Jones, 245 Neb. 

821, 515 N.W.2d 654 (1994); State v. Pettit, 233 Neb. 436, 445 N.W.2d 

890 (1989).
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Esch would later inherit the farm. Esch’s stepmother was 

present for one of those discussions.

In 2007, Esch’s grandmother broke her hip and was moved 

into a nursing home. Esch moved into his grandparents’ house 

and continued running the farming operation. Shortly thereafter, Esch’s father deeded some of the farmland to him. His 

grandmother passed away in 2011.

In 2012, Esch was convicted of felony criminal mischief 9

and sentenced to 20 to 36 months’ incarceration. 10 While Esch 

was incarcerated, his father committed suicide, for which 

Esch blamed his stepmother’s bullying. After his father’s 

death, Esch learned that his father had disinherited him in a 

2010 will, and his stepmother became the owner of his grandparents’ house and farm. Esch believed his stepmother bullied 

his father into removing Esch from the will.

Esch completed his sentence in 2015 and resumed farming 

the land his father deeded him. But Esch’s stepmother did not 

let him return to his grandparents’ home and deeded some of 

the property to Esch’s half sisters. Thereafter, Esch filed a civil 

suit alleging that his grandmother established a constructive 

trust and that Esch’s father held the property for his benefit. 

That suit was ultimately unsuccessful.

While the civil suit was pending, Esch’s stepmother and 

half sisters sought harassment protection orders, alleging that 

Esch was harassing them with phone calls and text messages. 

The harassment protection orders were granted, and Esch was 

ordered to have no contact with them.

Esch later violated the harassment protection orders when 

he texted one of his half sisters, “hope your husband shows 

up at the fair this year to help with the calves,” because at 

the fair the year before the son’s calf “drug him all over the 

fairgrounds,” as well as when Esch later called his stepmother 

about an upcoming suicide walk. Esch was convicted of the 

9 Neb. Rev. Stat. § 28‐519 (Reissue 2016).

10 See State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015).
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violations and sentenced to county jail for a total of 180 days. 

He completed serving the sentences in March 2020.

On the evening of July 11, 2020, Esch stopped at a gas station. A witness who knew Esch testified that Esch was “probably pretty intoxicated” because he observed Esch stumble 

when pumping gas and Esch’s speech was slurred when conversing. The witness testified that after the two exchanged 

pleasantries, Esch stated, “I’m thinking about fuckin’ somebody up.” However, a police report reflects that the witness 

told law enforcement that Esch asked him, “Have you ever 

felt like kicking somebody’s ass?” The witness testified that he 

was caught off guard by the comment, but then remembered 

an incident at work 2 days prior, where a customer “kind of 

ticked me off,” so the witness responded, “[Y]es, I feel like 

that sometimes.”

In his defense, Esch testified that his question was in reference to a driver who had almost caused a collision with Esch’s 

vehicle. Esch further testified that he then went to visit his 

stepmother to offer to purchase his grandparents’ farm in disregard of the harassment protection orders. When he arrived 

at his stepmother’s home, he knocked on the front door and 

proceeded to enter. His stepmother “got up and started yelling 

and ran towards [him].” Esch attempted to calm her down but 

was unsuccessful. When she said, “[Y]ou’re acting—or you 

are crazy like your dad,” Esch said that “turned the switch” 

and he snapped.

Two of Esch’s stepmother’s grandchildren were in the home. 

Her grandson testified that “[Esch] came in and he said, I’ve 

had enough. My grandma said, get out, and then he went up 

to her and shot her.” He was 9 years old at the time. Video 

evidence showed that Esch was in the home for approximately 

30 seconds.

The jury found Esch guilty of first degree murder, as well 

as of use of a deadly weapon to commit a felony and possession of a deadly weapon by a prohibited person, both of 

which Esch admitted to the jury at trial that he was guilty of 
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committing. Additional trial facts are set forth below as specifically relevant to Esch’s assignments of error.

III. ASSIGNMENTS OF ERROR

Esch assigns, restated, that the district court erred in its 

instructions to the jury on (1) the State’s burden of proof and 

(2) intoxication and that (3) his trial counsel was ineffective for 

failing to object to those instructions. In addition, Esch assigns 

that his trial counsel was ineffective for failing to (4) object to 

improperly admitted evidence under Neb. Rev. Stat. § 27‐404 

(Cum. Supp. 2022) of Esch’s prior conviction and evidence 

related to the harassment protection orders and move for 

a mistrial when that evidence was admitted, (5) adequately 

argue that he acted under the provocation of a sudden quarrel, 

(6) move for a mistrial based on improper witness testimony, 

(7) retain an expert to conduct a psychological evaluation of 

him, and (8) adequately discuss trial strategy with him.

IV. STANDARD OF REVIEW

[1‐3] Whether jury instructions are correct is a question of 

law, which an appellate court resolves independently of the 

lower court’s decision. 11 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. 12 Failure to object to a jury instruction 

after it has been submitted to counsel for review precludes 

raising an objection on appeal absent plain error indicative of 

a probable miscarriage of justice. 13

[4,5] An appellate court resolves claims of ineffective assistance of counsel on direct appeal only where the record is 

11 State v. Brennauer, 314 Neb. 782, 993 N.W.2d 305 (2023).

12 Id.

13 State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015). See State v. 

Lee, 304 Neb. 252, 934 N.W.2d 145 (2019). Cf. Burgo v. State, 26 Neb. 

639, 42 N.W. 701 (1889).
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sufficient to conclusively determine whether trial counsel did 

or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient 

performance as matters of law. 14 An ineffective assistance 

of counsel claim will not be addressed on direct appeal if it 

requires an evidentiary hearing. 15

[6,7] When reviewing an ineffective assistance of counsel 

claim on direct appeal, the question is whether the record affirmatively shows that the defendant’s trial counsel’s performance 

was deficient and that the deficient performance actually prejudiced the defendant’s defense. 16 A court may examine performance and prejudice in any order and need not examine both 

prongs if a defendant fails to demonstrate either. 17

To show deficient performance, the defendant must show 

that counsel’s performance did not equal that of a lawyer with 

ordinary training and skill in criminal law. 18 To show prejudice, the defendant must demonstrate a reasonable probability 

that, but for counsel’s deficient performance, the result of the 

proceeding would have been different. 19 A reasonable probability is a probability sufficient to undermine confidence in the 

outcome. 20 Ultimately, “‘the Constitution guarantees criminal 

defendants only a fair trial and a competent attorney.’” 21

14 See, State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023); State v. 

Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022). See, also, Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

15 Id.

16 See State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023). See, also, 

Strickland v. Washington, supra note 14.

17 State v. Mabior, supra note 14.

18 See State v. Wheeler, supra note 16. See, also, Strickland v. Washington, 

supra note 14.

19 Id.

20 Id.

21 State v. Sanders, 289 Neb. 335, 342, 855 N.W.2d 350, 356 (2014) (quoting 

Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982)).
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V. ANALYSIS

1. Jury Instructions

Esch first assigns that the district court erred in its instructions to the jury on the State’s burden of proof and intoxication. Relatedly, Esch also assigns that his trial counsel was 

ineffective for failing to object to these two instructions.

We conclude that these assignments fail because there is no 

plain error indicative of a probable miscarriage of justice and 

that his counsel was not ineffective in failing to object.

(a) Reasonable Doubt Instruction

Esch contends that the district court’s step instruction on 

first degree murder, second degree murder, and manslaughter 

resulted in plain error indicative of a probable miscarriage 

of justice because the court failed to properly instruct that 

the burden was on the State to prove beyond a reasonable 

doubt all the requisite elements of an offense in order to 

find him guilty. In addition, Esch assigns that his counsel 

provided ineffective assistance by failing to object to the 

step instruction.

The district court’s step instruction stated that “[d]epending on the evidence, you may return one of several possible 

verdicts,” which included guilty of murder in the first degree, 

guilty of murder in the second degree, guilty of manslaughter, or not guilty. The separate sections of the instruction for 

both first degree murder and second degree murder began by 

stating: “The elements which the State must prove beyond a 

reasonable doubt in order to convict [Esch of murder] are,” 

followed by the elements of each offense. After instructing 

the jury on the elements of each degree of homicide, the step 

instruction stated the following:

You must separately consider in the following order 

the crimes of Murder in the First Degree, Murder in the 

Second Degree, and Manslaughter. For Murder in the First 

Degree, you must decide whether the State proved each 
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element beyond a reasonable doubt. If the State did so 

prove each element, then you must find [Esch] guilty of 

Murder in the First Degree and stop. If you find that the 

State did not so prove, then you must proceed to consider 

the next crime in the list, Murder in the Second Degree. 

You must proceed in this fashion to consider each of the 

crimes in sequence until you find [Esch] guilty of one of 

the crimes or find him not guilty of all of them.

[8] We note that the step instruction is in accordance with the 

pattern instruction contained in the Nebraska Jury Instructions. 22

When there is an applicable instruction in the Nebraska Jury 

Instructions, the court should usually give that instruction to the 

jury in a criminal case. 23

However, Esch points us to the following language included 

in the instructions for the two weapons offenses but not 

included in the step instruction: “The burden of proof is 

always on the State to prove beyond a reasonable doubt all 

of the material elements of the crime charged, and this burden never shifts.” Esch asserts that because this language was 

included in the weapons offense instructions, when the instructions are read as a whole, the exclusion of this language from 

the step instruction “gives the impression” that the burden of 

proof did shift to Esch and “mis[led] the jury into believing 

that [Esch] ha[d] a burden to disprove the elements outlined in 

[the step instruction].” 24

[9] We disagree that the instruction caused any confusion for 

the jury. We have recognized:

“[S]o long as the court instructs the jury on the necessity 

that the defendant’s guilt be proved beyond a reasonable 

doubt, . . . the [U.S.] Constitution does not require that 

any particular form of words be used in advising the jury 

22 See NJI2d Crim. 3.5A.

23 State v. Brennauer, supra note 11.

24 Brief for appellant at 21.
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of the government’s burden of proof. . . . Rather, ‘taken 

as a whole, the instructions [must] correctly conve[y] the 

concept of reasonable doubt to the jury.’” 25

In reading the jury instructions as a whole, the instructions 

correctly conveyed the concept of reasonable doubt to the 

jury. In addition to the step instruction’s unambiguous statement that “the State must prove beyond a reasonable doubt” 

that Esch killed his stepmother “purposely” and “with deliberate and premeditated malice,” the jury received a separate 

instruction on the presumption of innocence, which stated: 

“[Esch] has pleaded not guilty. He is presumed to be innocent. 

That means you must find him not guilty unless and until you 

decide that the [S]tate has proved him guilty beyond a reasonable doubt.”

[10] It is presumed that a jury followed the instructions 

given in arriving at its verdict, and unless it affirmatively 

appears to the contrary, it cannot be said that such instructions were disregarded. 26 In finding Esch guilty of first degree 

murder, we presume that the jury followed the instructions and 

found that the State proved beyond a reasonable doubt that 

Esch killed his stepmother purposely and with deliberate and 

premeditated malice. 27

Moreover, in his closing argument, Esch’s trial counsel 

unequivocally established that “the issue in this case is that 

[the State must] prove that my client[,] beyond a reasonable 

doubt[,] is guilty because he premeditated this murder.” We 

observe that counsel reiterated this point numerous times in a 

variety of ways. We find no merit to Esch’s assertion that the 

jury instruction misled the jury into believing that Esch bore 

25 State v. Hinrichsen, 292 Neb. 611, 630, 877 N.W.2d 211, 225 (2016) 

(quoting Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 

583 (1994)) (emphasis omitted).

26 Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N.W. 744 (1900), overruled on 

other grounds, Callahan v. Prewitt, 143 Neb. 787, 13 N.W.2d 660 (1944).

27 Cf. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
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the burden to disprove the elements of first degree murder. We 

conclude that there was no plain error indicative of a probable 

miscarriage of justice.

For the same reasons, we determine that the record is sufficient to conclusively determine that Esch was not prejudiced 

by his counsel’s failure to object to the instructions regarding 

the State’s burden of proof.

(b) Intoxication Instruction

Esch also assigns that the district court erred in its instruction on intoxication, asserting the instruction resulted in plain 

error indicative of a probable miscarriage of justice, and that 

his counsel provided ineffective assistance by failing to object 

to the instruction. Before addressing Esch’s assignments of 

error, we first set forth some additional background related to 

the intoxication instruction.

(i) Additional Background

At trial, in addition to the witness’ testimony of Esch’s 

intoxication at the gas station set forth above, the State introduced testimony from law enforcement officers that Esch was 

intoxicated when he was apprehended, photographs of Esch’s 

residence containing innumerable empty liquor bottles, and 

testimony of Esch’s family members as to his habitual drunkenness. Esch also testified as to his history of alcohol abuse 

and his alcohol consumption on the date of the offense.

The State’s central theory of the case was that “perceived 

injustices” led Esch to kill his stepmother, “something that’s 

been brewing for years and years, truly a lifelong hatred.” 

However, an additional component of the State’s theory of the 

case was that Esch’s intoxication decreased his inhibitions and 

gave him “liquid courage” or “beer muscles”; thus, his intoxication “amplified” his intent to kill his stepmother.

In contrast, part of Esch’s defense theory was that his 

intoxication impaired his reasoning, which was relevant in two 

respects. First, Esch argued that many of his “stupid” behaviors 
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and decisions were explained by and due to his drunkenness. 

For example, Esch testified that had he been sober, he doubted 

whether he would have gone to his stepmother’s house to propose buying the farmland from her, but because he was intoxicated, doing so seemed reasonable to him at the time. Second, 

Esch argued that the evidence showed that his intoxication 

caused him to act impulsively, and because he was intoxicated 

on the date of the offense, Esch was acting impulsively and 

did not consider the probable consequences of shooting his 

stepmother; thus, he did not kill his stepmother with deliberate 

and premeditated malice.

In light of the substantial evidence adduced of Esch’s intoxication and in accordance with its affirmative duty, 28 the district 

court instructed the jury on intoxication. The instruction was 

given to the jury as set out below:

There has been evidence that [Esch] was intoxicated 

at the time that 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, 

drugs) that (he, she) could not have had the required 

intent. You may consider evidence of (alcohol, drug) use 

along with all the other evidence in deciding whether 

[Esch] had the required intent.

This instruction mirrors the pattern intoxication instruction 

found in the Nebraska Jury Instructions. 29

Even though, on appeal, the parties agree that the giving of 

the intoxication instruction was in error, neither party objected 

to the instruction at trial. Instead, after being provided with 

the instruction in advance, both parties affirmatively stated 

during a jury instruction conference that they had no objection to it.

28 See State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983).

29 See NJI2d Crim. 8.0. But see NJI2d Crim. 8.0, comment.
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The parties also affirmatively stated that they had no objections to the court’s “[d]efinitions” instruction, which defined 

the various terms related to the mental states of the offenses 

and, in particular, included a reference to intoxication in the 

definition of “sudden quarrel.” It stated in pertinent part:

“Purposely” means intentionally.

“Intentionally” means willfully or purposely, and not 

accidentally or involuntarily.

“Deliberate” means not suddenly or rashly, but doing 

an act after first considering the probable consequences. 

An act is not deliberate if it is the result of sudden quarrel 

provocation.

“Premeditation” means forming the intent to act before 

acting. 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 

the act.

“Malice” means intentionally doing a wrongful act 

without just cause or excuse.[ 30]

. . . .

“Sudden quarrel” means sufficient provocation which 

causes a reasonable person to lose normal self‐control. . 

. . The question is whether there existed reasonable and 

adequate provocation . . . . The test is an objective one. 

Qualities peculiar to the Defendant which render him 

or her particularly excitable, such as intoxication, are 

not considered.

During his closing argument, Esch’s counsel addressed these 

instructions in relation to the intoxication instruction:

One of the instructions that you’re going to get is on 

intoxication. Intoxication, incidentally, is not a defense. 

We’re not saying [Esch is] not guilty at all because he 

was drunk. Everybody in the world would get away 

with crimes if that was a legitimate defense. But what 

30 See NJI2d Crim. 4.0.
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the instruction is, it says that there’s been evidence that 

[Esch] was intoxicated at the time that the murder with 

which he’s charged was committed. Intoxication is a 

defense only when a person’s mental abilities were so far 

overcome by the alcohol, by the use of alcohol or drug, 

that he or she could not have had the required intent. You 

may consider evidence of the alcohol or drug use along 

with all the other evidence in deciding whether [Esch] 

had the required intent. And you know what screws up 

more people than alcohol in terms of their intent and their 

purpose in terms of what they’re going to do. Alcohol, 

you know, and first of all we know . . . that [Esch’s] 

father was an alcoholic. You know, it’s — and it’s a 

genetic disease. [His stepmother] and family said that 

[Esch is] an alcoholic. You heard the calls, you saw all 

the bottles, you saw the dozens of bourbon bottles and 

vodka bottles and lemonade bottles. There’s no question. 

The State can’t say anything to deter the fact that [Esch] 

drank to excess, particularly before this happened.

You know, again, alcohol is not a defense, but it’s 

relevant. Why? Because it was part and parcel of this 

story because it relates to premeditation. What does 

alcohol do? It impairs somebody’s ability to walk, or to 

talk, or to think. It removes somebody[‘s] inhibitions. 

It removes borders and boundaries. It clouds your judgment and impairs your ability to think clearly, to make 

good decisions, it fogs the brain. Doesn’t that go back 

to premeditation, to cogitate, to deliberate, to consider, 

and ponder attentively? [Esch] was screwed up. . . . You 

can’t ignore that, because you took an oath to follow 

the instructions. Was there premeditation? Was it — Did 

he deliberate? And what effect did that alcohol or drugs 

play on his ability to premeditate [in] this case? To meditate? Meditate takes a long time. Premeditation to think 

about it beforehand, and so how can you ignore the fact 
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that he’s on drugs? Again, that’s not getting him off scotfree. Please don’t think that. We’re just saying punish 

him — find him guilty for what he did do, and not for 

what he didn’t do.

You know, alcohol, again, is not an offense [sic], but it 

does fog that brain. You know that the evidence is pretty 

unequivocal. [Counsel further reviews related evidence.] 

And all of that, the alcohol as well as the drugs, is relevant to premeditation.

This is a one issue case. [Has the State] proved beyond 

a reasonable doubt? Have they removed all the doubt 

about what I’m talking about now? They’re relying on 

this motive. When you talk about, again, premeditation, 

deliberate, consider it to ponder, it’s like I say, they don’t 

just relate to murder, [but] what [do] they mean[. T]hey 

relate to what you jurors are going to have to do. How 

could a jury ponder and deliberate carefully, you know, 

if a juror is intoxicated? How is that any different? Now, 

you know if he [was] intoxicated or on drugs, you got 

your job to do. You’ve got to be clearheaded. If any of 

you were intoxicated or whatever when this case went 

to you, you [would] have a duty to re[c]use yourself, or 

we’d be excusing you, and you’ve violated your oath. It’s 

deliberate. Deliberate, and it’s in the language of the statutes. And that’s — Don’t be confused about this idea, the 

exception where, you know, you can form it in a second. 

We went through the list of what a truly first-degree murder case is. This is not one of them.

But in this case, use your examples with respect to[,] 

first of all, the term, deliberate, with respect to my client. And you know when — And when — Not just in 

terms of jurors being able to not, you have to have full 

senses to be able to deliberate, but you know, if my 

client was drunk and he came into court here to plead 

guilty, when somebody pleads guilty to a crime, they 
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have to do it knowingly, intentionally, and voluntarily. . 

. . But if my client comes in and is going to plead to 

the judge, [plead] guilty, and he’s drunk, they’re not 

going to accept the plea. Why? Because it’s not knowing, intelligent, voluntary. It’s not intentional. He’s not 

able to understand what’s going on. His faculties are 

impaired, so he can’t even enter [a] plea. You know, if 

he’s going to sign a contract and somebody knows that 

you’re — he’s intoxicated, you can’t do that, you know, 

and so that’s the effect [intoxication has] on people in 

terms of this.

(ii) Error in Instruction

On appeal, Esch contends that the district court’s intoxication instruction is an “obvious error” 31 and that “[t]here is no 

doubt” 32 that the instruction is an incorrect statement of law 

because it is not in accordance with Neb. Rev. Stat. § 29-122 

(Reissue 2016). The State takes a similar position and contends that Esch was “not entitled to an intoxication instruction since he did not satisfy the [involuntary intoxication] 

requirements of § 29-122.” 33

Section 29-122 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 [intoxication 

was involuntary].

Although the comment to the pattern instruction in the 

Nebraska Jury Instructions makes mention of § 29-122, it 

does not provide guidance on the statute’s effect. 34 Indeed, it 

31 Brief for appellant at 15.

32 Id. at 14.

33 Brief for appellee at 11.

34 See NJI2d Crim. 8.0, comment.
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was not until after the most recent revision to the pattern jury 

instructions that we first addressed the statute. 35

In Nebraska, it has long been recognized that “intoxication is not a justification or excuse for crime.” 36 In that way, 

intoxication has never been a defense to a criminal offense, 

and intoxication has never alleviated criminal responsibility. 

To the extent the pattern instruction suggests otherwise, it 

does not comport with our longstanding precedent and is an 

incorrect statement of law. However, it was long held that 

evidence of intoxication was relevant to a jury’s determination of whether a defendant had a specific intent such that 

a crime had been committed, or, where a crime consisting 

of degrees had been committed, to the jury’s determination 

of the degree of the crime. 37 In these situations, the defendant’s mental state at the time of the offense was a subjective 

inquiry, and evidence of intoxication was relevant to whether 

the State met its burden to prove an essential element of 

an offense. 38 The pattern instruction is also an incorrect 

statement of law to the extent that it fails to comport with 

this precedent.

[11] But in State v. Abejide, we held that “§ 29-122 is 

a ‘legislative judgment regarding the circumstances under 

which individuals may be held criminally responsible for 

35 See State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).

36 O’Grady v. State, 36 Neb. 320, 321, 54 N.W. 556, 556 (1893). See, State v. 

Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011); Tvrz v. State, 154 Neb. 641, 

48 N.W.2d 761 (1951); Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894); 

Carr v. State, 23 Neb. 749, 37 N.W. 630 (1888); Johnson v. Phifer, 6 Neb. 

401 (1877). See, also, State v. Brennauer, supra note 11; Schlencker v. 

The State, 9 Neb. 241, 1 N.W. 857 (1879), reversed on rehearing on other 

grounds 9 Neb. 300, 2 N.W. 710.

37 See id. 

38 See Smith v. The State, 4 Neb. 277 (1876). See, also, Kennison v. State, 80 

Neb. 688, 115 N.W. 289 (1908).
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their actions.’” 39 Thus, we interpreted § 29-122 as having 

redefined the mental state elements of all subjective criminal offenses in Nebraska to provide for an objective inquiry: 

whether the State proved circumstances surrounding the 

offense that would otherwise establish the requisite mental 

state “but for” the defendant’s voluntary intoxication. 40

Because the pattern instruction in the Nebraska Jury 

Instructions does not comport with our precedent and our 

interpretation of § 29-122, we expressly disapprove of its use. 

Yet, in Esch’s case, we conclude there is no indication of a 

probable miscarriage of justice caused by the instruction.

Esch asserts that although, “[a]t first glance,” the court’s 

instruction

had the potential to benefit, rather than prejudice, [Esch], 

after considering the jury instructions as a whole, the 

evidence presented at trial, and the arguments of [Esch’s] 

counsel at trial, [it] undoubtedly confused the jury and 

muddied the sole issue [it] needed to decide: [Esch’s] 

state of mind. 41

Conversely, the State argues that the instruction was indeed 

“beneficial” to Esch. 42 We agree that the court’s instruction 

was beneficial to Esch insofar as it allowed the jury to consider Esch’s intoxication in its determination of whether Esch 

subjectively killed his stepmother with deliberate and premeditated malice.

Esch’s argument of confusion regarding the court’s intoxication instruction is twofold. First, Esch argues his trial counsel 

created ambiguity and confusion with his closing argument. 

39 State v. Abejide, supra note 35, 293 Neb. at 700, 879 N.W.2d at 695 

(2016) (quoting Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013, 135 

L. Ed. 2d 361 (1996) (Ginsburg, J., concurring in judgment)). Cf. State 

v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018), modified on denial of

rehearing 302 Neb. 51, 921 N.W.2d 584 (2019).

40 See id.

41 Brief for appellant at 15-16.

42 Brief for appellee at 14.
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But we decline to attribute any error to the district court solely 

because of the actions of Esch’s trial counsel.

Esch also maintains that the jury was confused because 

of the reference to intoxication in the instruction defining 

“sudden quarrel.” Undisputedly, the definition of “sudden 

quarrel” given to the jury is a correct statement of law. 43

Whether a defendant committed manslaughter by sudden quarrel has always been an objective inquiry in Nebraska that 

requires reasonable and adequate provocation, 44 and intoxication has long been recognized as inadequate provocation as 

a matter of law. 45 We cannot conclude that the jury was confused by the court’s instructions that were consistent with our 

prior precedent.

Esch also contends that his trial counsel was deficient in 

failing to object to the district court’s intoxication instruction because the jury was confused when it was “bombarded 

with contradictory instructions and arguments regarding the 

requisite intent.” 46 Even assuming that Esch’s counsel’s closing argument is relevant to the inquiry of his counsel’s deficiency in failing to object to the court’s instruction, when that 

closing argument is reviewed in its entirety and the context 

of the evidence presented at trial, we find nothing causing 

jury confusion.

Despite some semantic differences, Esch’s closing argument was given in accordance with the court’s instruction. 

When viewing the entirety of the proceedings and recognizing 

that the points made in Esch’s closing argument were given 

in response to the evidence presented at trial and the State’s 

43 See, State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014); State v. 

Smith, 284 Neb. 636, 822 N.W.2d 401 (2012); State v. Cave, 240 Neb. 

783, 484 N.W.2d 458 (1992).

44 See, State v. Pettit, supra note 8; Braunie v. State, 105 Neb. 355, 180 N.W. 

567 (1920); Savary v. State, 62 Neb. 166, 87 N.W. 34 (1901). See, also, 

Lowe v. State, 110 Neb. 325, 193 N.W. 707 (1923).

45 See Carr v. State, supra note 36.

46 Brief for appellant at 23.
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closing argument, Esch’s trial counsel’s argument was clear 

and tracked the instruction given to the jury: That despite 

Esch’s intoxication, the evidence showed beyond a reasonable 

doubt that Esch was guilty of manslaughter by sudden quarrel, and in light of his intoxication, the State did not prove 

beyond a reasonable doubt that Esch killed his stepmother 

with deliberate and premeditated malice. As the State succinctly states in its brief:

[T]he record reflects that Esch’s trial counsel did competently focus on Esch’s intoxication level at the time of the 

offense, [and] while not a defense in and of itself, was 

relevant to whether he had the state of mind to be guilty 

of first degree murder, i.e., whether the offense was deliberate and premeditated. 47

We conclude that the record shows Esch’s trial counsel 

conclusively was not deficient in his failure to object to the 

instruction regarding intoxication.

2. Remaining Claims of Ineffective 

Assistance of Counsel

We now turn to Esch’s remaining claims of ineffective assistance of counsel.

(a) § 27-404 Evidence

[12-14] Esch assigns that his trial counsel was ineffective 

for failing to object to evidence he asserts was improperly 

admitted under § 27-404 and that his counsel was ineffective for failing to move for a mistrial when this evidence was 

introduced at trial. In a criminal case, § 27-404(1) operates as 

a broad exclusionary rule of relevant evidence that speaks to a 

criminal defendant’s propensity to have committed the crime 

or crimes charged. 48 Meanwhile, § 27-404(2) operates as an 

inclusionary rule of evidence that provides that evidence that 

47 Brief for appellee at 15.

48 State v. Wheeler, supra note 16.
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raises a propensity inference is admissible for other proper 

purposes, including proof of motive, intent, preparation, or 

absence of mistake or accident. 49 While evidence is not an 

“other act” under § 27-404(2) when it only tends to logically 

prove an element of the crime charged, proof of another distinct substantive act is admissible in a criminal prosecution 

when there is some legal connection between the two upon 

which it can be said that one tends to establish the other or 

some essential fact in issue. 50

[15,16] Under § 27-404(3), a proponent of evidence offered 

pursuant to § 27-404(2), upon objection to its admissibility, is required to state on the record the specific purpose or 

purposes for which the evidence is being offered, and the 

trial court must similarly state, on the record, the purpose or 

purposes for which such evidence is received. 51 In criminal 

cases, before the admission of such evidence, the prosecution 

must prove to the court, outside the presence of any jury, “‘by 

clear and convincing evidence that the accused committed 

the crime, wrong, or act.’” 52 When admissible, upon a party’s 

request, the trial court must instruct the jury as to the specific 

purposes for which the evidence was received. 53

Before trial, the State filed a motion to conduct a hearing 

pursuant to § 27-404(3). The State sought a preliminary determination regarding the admissibility of evidence of Esch’s 

incarceration for criminal mischief from 2012 to 2015, conversations he had with family members while incarcerated, 

and his 180-day incarceration for the violations of the harassment protection orders. The State asserted that it was going 

49 See State v. Wheeler, supra note 16.

50 See State v. Wheeler, supra note 16.

51 Id. Compare Neb. Rev. Stat. § 27-414 (Reissue 2016).

52 State v. Wheeler, supra note 16, 314 Neb. at 292, 989 N.W.2d at 737 

(quoting § 27-404(3)). See, also, 1993 Neb. Laws, L.B. 598.

53 State v. Wheeler, supra note 16. See Neb. Rev. Stat. § 27-105 (Reissue 

2016).
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to offer this evidence at trial to prove Esch’s motivation for 

the murder and that the murder was premeditated. The district court ruled that the evidence was admissible for those 

purposes. Although the court failed to specifically find on the 

record that the State proved by clear and convincing evidence 

that Esch committed the other acts, there is no dispute on 

appeal that he did so, as Esch admitted to their commission 

at trial.

Instead, on appeal, Esch takes issue with the fact that his 

counsel seemingly “was confused as to the exact nature and 

purpose of the [§ 27-404(3)] hearing” 54 and that he did not 

object to the admission of evidence of these prior bad acts at 

the preliminary hearing or trial. Esch contends that this evidence was not relevant to the issue of whether he killed his 

stepmother with deliberate and premeditated malice and that 

the lack of a limiting instruction “compound[ed] the prejudicial 

effect” of this evidence. 55 Accordingly, he asserts that “[t]he 

jury was left with the impression that [Esch] is a habitual lawbreaker, has a bad character, and therefore, must have gone to 

[his stepmother’s] home with the intent of killing her.” 56 Esch 

avers that “[t]he culmination of the admission of prejudicial 

evidence was prolific” and warranted a mistrial. 57

We find no merit in Esch’s assignments that his counsel was ineffective for failing to object to the admission 

of this evidence and move for a mistrial after the evidence 

was admitted. Despite Esch’s contention on appeal that this 

evidence was not relevant to his trial, the primary factual 

questions before the jury were whether Esch went to his stepmother’s home with the intent to kill her or whether he developed such intent after he arrived and whether it was upon a 

54 Brief for appellant at 24.

55 Id. at 26.

56 Id. at 26-27.

57 Id. at 27.
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sudden quarrel. The evidence was highly probative to that 

issue and was admissible under § 27-404. Further, although 

Esch now asserts on appeal that he was prejudiced by this 

evidence, most, if not all, evidence is intended to be prejudicial; it is only that evidence which is unduly prejudicial that 

is inadmissible. 58 There is nothing in the record that suggests 

the evidence was unduly prejudicial.

Moreover, the evidence was integral to his defense theory 

at trial. Esch’s primary argument that he presented to the 

jury was that the other acts showed that he was not a person who resorted to violent behaviors and his stepmother’s 

death was a result of a sudden quarrel due to Esch’s reaction to his stepmother’s treatment of his father’s suicide and 

their tempestuous relationship in light of the prior acts. The 

record affirmatively shows that his trial counsel utilized the 

evidence sufficiently and competently in presenting Esch’s 

case to the jury and was not ineffective for failing to object to 

its admission.

Even though his counsel did not request a limiting instruction, we cannot conclude that Esch’s trial counsel’s performance was deficient in this regard. Based on the defense’s theory of the case, it is reflective of a reasonable trial strategy. 

Nothing in the record suggests Esch’s right to a fair trial was 

compromised.

We conclude that the record is sufficient to conclusively 

determine that Esch’s trial counsel’s performance was neither 

deficient by failing to raise a § 27-404 objection to this evidence, nor deficient by failing to move for a mistrial when the 

evidence was presented to the jury.

(b) Sudden Quarrel

Esch argues that his trial counsel was ineffective by inadequately arguing that he acted under the provocation of a 

58 State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
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sudden quarrel. Esch asserts that his trial counsel “fail[ed] 

to present a coherent and legally cognizable theory of the 

defense.” 59 His primary issue is trial counsel’s focus on what 

he classifies as dictionary definitions of “sudden” and “quarrel” 

rather than the legal definition of “sudden quarrel” provided in 

the jury instructions. But Esch fails to show or explain how 

the defense was incoherent or not legally cognizable. Although 

Esch’s appellate counsel suggests that the case should have 

been argued differently and that trial counsel should have 

focused more on the reasonableness of the provocation, trial 

counsel’s argument displays a reasonable trial strategy.

[17] Moreover, the jury found Esch guilty of first degree 

murder, which required the jury to determine beyond a reasonable doubt that Esch killed his stepmother with deliberate 

and premeditated malice. For a killing to occur upon a sudden 

quarrel, the defendant must have actually lost self-control in 

conditions that would cause a reasonable person to lose normal 

self-control. 60 Deliberate and premeditated malice is incompatible with a finding that Esch lost self-control. 61 By proving that Esch killed with deliberate and premeditated malice, 

the State implicitly proved the absence of a sudden quarrel. 62

Accordingly, the record is sufficient to conclusively determine 

that Esch was not prejudiced by his trial counsel’s “sudden 

quarrel” argument.

(c) Mistrial

Esch contends that his counsel was ineffective for not moving for a mistrial after the following questioning of one of 

Esch’s half sisters by the State:

59 Brief for appellant at 30.

60 See, State v. Dubray, supra note 43; State v. Smith, supra note 43; State v. 

Cave, supra note 43.

61 See id.

62 See State v. Hinrichsen, supra note 25.
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Q So when [Esch] moved into the home place — or 

I’m sorry, the property that — you call it the Charlotte 

property —

A Yeah.

Q — when [Esch’s grandmother] moved to town, he 

was not the owner of the property?

A No.

Q And he wasn’t deeded the property?

A No.

Q Did he continue to live in that property from then 

until today?

A No.

Q Okay. When did — When did he stop living in that 

property?

A In, what was it, March, April of 2012 when he was 

arrested for shooting up the —

[Defense Counsel:] Objection.

A Until —

THE COURT: All right. Would you approach?

(Sidebar held off the record.)

THE COURT: All right. The objection is sustained. 

The last answer by the witness is stricken from the record 

and the jury is instructed to disregard that statement.

Q (By [the State]) Ma’am, Mr. Esch went to jail in 

2012, is that right, in the springtime?

A Yes.

Q Okay. And is that the reason he stopped living at that 

property?

A Yes.

A mistrial is properly granted in a criminal case where an 

event occurs during the course of a trial that is of such a nature 

that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial. 63

63 State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021); State v. Schmaltz, 

304 Neb. 74, 933 N.W.2d 435 (2019); State v. Kibbee, 284 Neb. 72, 815 

N.W.2d 872 (2012).
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Decisions regarding motions for mistrial are directed to the 

discretion of the trial court. 64 When attempting to prove error 

predicated on the failure to grant a mistrial, the defendant 

must prove the alleged error actually prejudiced him or her, 

rather than creating only the possibility of prejudice. 65

[18] Although the testimony that Esch’s criminal mischief 

offense involved a “shooting” may have been prejudicial 

to the defense, his counsel effectively objected to it, it was 

stricken, and the jury was immediately instructed to disregard 

the testimony. Error cannot ordinarily be predicated on the 

failure to grant a mistrial if an objection or motion to strike 

the improper material is sustained and the jury is admonished 

to disregard such material. 66 It is presumed that a jury followed the instructions given in arriving at its verdict, and 

unless it affirmatively appears to the contrary, it cannot be 

said that such instructions were disregarded. 67 Accordingly, 

even if his counsel was deficient for failing to move for a mistrial, Esch was not prejudiced to the level that compromises 

his right to a fair trial.

(d) Unaddressed Claims Due to 

Insufficient Record

There is no record to conclusively determine whether 

Esch’s counsel was deficient for failing to retain an expert 

to conduct a psychological evaluation on him or adequately 

discuss trial strategy with him, or assuming that counsel was 

deficient, whether Esch was or was not prejudiced by that 

deficiency. Therefore, we cannot address these assignments 

on direct appeal.

64 State v. Schmaltz, supra note 63.

65 See State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).

66 State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).

67 See Missouri P. R. Co. v. Fox, supra note 26.
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VI. CONCLUSION

Upon our review of the record, we conclude that the 

jury instructions do not constitute plain error indicative of a 

probable miscarriage of justice and that, apart from the two 

assignments of error that our record is insufficient to resolve, 

Esch’s trial counsel did not provide ineffective assistance. We 

therefore affirm.

Affirmed.

Freudenberg, J., not participating.

Miller-Lerman, J., concurring.

Although not demanded by the evidence and the appellate 

assignments of error, in an appropriate case, I believe the due 

process implications of the step instruction in a first degree 

murder case warrant revisiting, as elucidated in the dissent 

in State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016) 

(Connolly, J., dissenting; Miller-Lerman, J., joins).