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State of Nebraska, appellee, v.

Marcus M. Escamilla, appella

___ N.W.2d ___

Filed June 19, 2015. No. S-14-698.

1. Criminal Law: 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.

2. ____: ____: ____. The relevant question when an appellate court 

reviews a sufficiency of the evidence claim 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. Intent: Words and Phrases. Deliberate means not suddenly, not rashly, 

and requires that the defendant considered the probable consequences 

of his or her act before doing the act.

4. Homicide: Intent: Time: Words and Phrases. The term “premeditated” means to have formed a design to commit an act before it is 

done. One kills with premeditated malice if, before the act causing the 

death occurs, one has formed the intent or determined to kill the victim 

without legal justification. No particular length of time for premeditation 

is required, provided that the intent to kill is formed before the act is 

committed and not simultaneously with the act that caused the death.

5. Homicide: Intent: Time. The time required to establish premeditation 

may be of the shortest possible duration and may be so short that it is 

instantaneous, and the design or purpose to kill may be formed upon 

premeditation and deliberation at any moment before the homicide 

is committed.

6. Homicide: Intent: Circumstantial Evidence: Proof. Deliberation and 

premeditation may be proved circumstantially.
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7. Homicide: Intent: Weapons. Intent to kill may be inferred from 

deliberate use of a deadly weapon in a manner reasonably likely to 

cause death.

8. Convictions: Evidence: Proof: Appeal and Error. The law imposes a 

heavy burden on a defendant who claims on appeal that the evidence is 

insufficient to support a conviction.

Appeal from the District Court for Douglas County: James T

Gleason, Judge. Affirmed

Alan G. Stoler, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Wright, Connolly, Stephan, McCormack, Mill

and Cassel, JJ

Miller-Lerman,

NATURE OF CASE

Following a jury trial, Marcus M. Escamilla was convicted 

in the district court for Douglas County of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. Escamilla 

appeals, claiming as his only assignment of error that there 

was insufficient evidence of premeditation to convict him of 

first degree murder. Because the record contains sufficient evidence to support the jury’s verdict, we affirm his convictions 

and sentences.

STATEMENT OF FACTS

Escamilla was convicted of first degree murder, use of 

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

deadly weapon by a prohibited person in connection with the 

2013 shooting death of Kenneth Gunia. He was sentenced to 

life imprisonment for his conviction of first degree murder, 

5 years’ imprisonment for his conviction of use of a deadly 

weapon to commit a felony, and 3 years’ imprisonment for 

his conviction of possession of a deadly weapon by a prohibited person. Escamilla’s sentences were ordered to be served 
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consecutively to each other, and he was given credit for 414 

days of time served.

Evidence at trial generally indicated that on the night of 

April 16, 2013, Escamilla drove with Michele Willcoxon to an 

apartment complex located on 24th Street in Omaha, Nebraska, 

in order to meet up with Gunia. When they arrived at the apartments, Escamilla got out of Willcoxon’s black sport utility 

vehicle (SUV) and met Gunia in the parking lot. They talked 

outside Gunia’s car for a brief time before they both got into 

Gunia’s car, where Escamilla shot and killed Gunia. Escamilla 

then walked back to Willcoxon’s SUV, and she drove Escamilla 

back to his residence.

Escamilla was charged on July 17, 2013, with first degree 

murder in alternative theories of premeditated murder and 

felony murder, use of a firearm to commit a felony, and possession of a deadly weapon by a prohibited person. A jury trial 

was held May 6 through 9, 2014.

At trial, Willcoxon testified for the State. She said that at the 

time of Gunia’s death, she knew Escamilla and Janella Marks, 

who lived with Escamilla, and that she had become recently 

acquainted with Gunia. Willcoxon testified that at the time, 

she was using methamphetamine “[a]ll the time,” and that part 

of her relationship with Gunia was based on the use and sale 

of methamphetamine. On April 15, 2013, Willcoxon “fronted” 

Gunia some methamphetamine, and at the end of the day on 

April 15, Gunia owed Willcoxon $275 to $300.

Sometime in the early evening on April 16, 2013, Willcoxon 

went to the residence of Escamilla and Marks in order to use 

methamphetamine with Marks. Willcoxon testified that while 

she was with Marks, she was waiting for Gunia to call her to 

let her know that he had the money he owed her. Willcoxon 

told Marks that she had heard that Gunia was going to rob her. 

Escamilla heard this conversation, and Willcoxon testified that 

he told her “not to worry about it. He [Escamilla] would say 

something to him [Gunia].”

Sometime later that evening, Willcoxon left the residence 

of Escamilla and Marks in her SUV and she agreed to give 
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Escamilla a ride. Willcoxon testified that Escamilla was wearing a black sweater over a white T-shirt, black pants, black 

shoes, and a black hat.

Willcoxon and Escamilla drove to a few places, and during that time, Gunia texted Willcoxon and they arranged to 

meet at the apartment complex on 24th Street. Willcoxon and 

Escamilla arrived at the apartment complex at approximately 

10 p.m., and when they got there, Willcoxon did not see Gunia 

right away, so she circled the parking lot a couple of times. 

When Willcoxon and Escamilla saw Gunia walking to his 

car, Escamilla got out of the SUV and walked toward Gunia. 

As Escamilla approached Gunia, Willcoxon heard Gunia say, 

“What? What? What did I do?” as he backed up against the 

driver’s-side door of his car.

Willcoxon circled her SUV around the parking lot another 

time before parking. When she parked, Willcoxon saw Gunia 

sitting in the driver’s side of his car and Escamilla squatting 

down next to the driver’s-side door. Willcoxon testified that 

she did not constantly watch the activity going on between 

Escamilla and Gunia, but that at some point, she looked over 

and saw Escamilla in the driver’s seat and Gunia in the passenger seat of Gunia’s car. Willcoxon testified that she did 

not hear anything come from the car, but that at some point, 

Escamilla “jogged” back to her SUV and said they needed to 

go. Escamilla got in the passenger side of Willcoxon’s SUV, 

and she drove them back to Escamilla’s residence.

On the way to Escamilla’s residence, Escamilla told 

Willcoxon that he had shot Gunia. Willcoxon testified that 

Escamilla stated, “‘I shot that fool.’” When asked to describe 

Escamilla’s demeanor when he said that, Willcoxon stated that 

“[h]e was okay with it. He was hyped up.” Willcoxon testified that when Escamilla told her about what had occurred in 

Gunia’s car, “[h]e kind of chuckled” and stated that Gunia 

“kept asking — saying that he just want[ed] to go upstairs to 

his kids.”

Willcoxon stated that after they arrived at Escamilla’s residence, she stayed for approximately 10 minutes before going 
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home. Willcoxon testified that she did not see Escamilla with 

a gun that night, but she stated that he was wearing loosefitting clothing.

The State also called Thomas Williams to testify at trial. 

At the time of Escamilla’s trial, there was a charge of criminal intent to distribute methamphetamine pending against 

Williams, and Williams was incarcerated at the Douglas County 

Correctional Center. Williams testified that he was acquainted 

with Escamilla through Escamilla’s girlfriend, Marks, because 

Williams was friends with Marks’ father.

Sometime after Williams was incarcerated, Escamilla was 

placed in the same unit at the Douglas County Correctional 

Center where Williams was placed, and Escamilla started 

talking to Williams. In connection with the death of Gunia, 

Escamilla asked Williams if he had ever heard “a gun pop 

in a car” and stated that he might be in trouble. Williams 

asked why, and Escamilla stated that he had “‘killed a fool.’” 

Escamilla said he had killed Gunia inside a car in front of the 

residence of Gunia’s girlfriend off of 24th Street. Escamilla 

told Williams that “since the gun was pushed uptight [sic] 

against him [Gunia], it was just like a whoosh inside the car.” 

He also told Williams that he had “the piece up on [Gunia] 

so good . . . that it wasn’t like a loud pop, bang. It was like a 

whoosh. Like an air — like an air release or something in the 

car.” Williams testified that Escamilla indicated that he held 

the gun up to Gunia’s abdominal area. Escamilla told Williams 

that after he shot Gunia, he “casually got out of [Gunia’s] car,” 

walking back to the SUV in which he had arrived, and he and 

Willcoxon drove away.

Amanda Wickersham, Gunia’s girlfriend at the time of his 

death, was called to testify. At the time of Gunia’s death, 

Wickersham and her two children were living in the apartment complex at the 24th Street location, and Gunia sometimes stayed at her apartment. Wickersham stated that she 

was aware of Gunia’s drug use and that it had caused problems between them. Wickersham testified that on the night 

of Gunia’s murder, April 16, 2013, Gunia had made dinner 
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and spent time with her children. After dinner, Wickersham 

lay down because she was not feeling well. Gunia lay down 

next to her for a little while, then he got up and left the room. 

After a while, Wickersham realized Gunia had not returned 

to the room, so she got up to look for him. Gunia was not 

in the apartment, but his coat was still there, so Wickersham 

called him.

Wickersham testified that when she dialed Gunia’s cell 

phone number, the call was answered, but she did not actually 

converse with Gunia. She stated that she heard a man’s voice 

who was not Gunia and that it sounded like there was “some 

kind of argument or tussle going on.” She ended the call. 

Because she assumed there was something wrong, she went 

downstairs. When she got downstairs, she saw a man walking away from where Gunia’s car was parked. She described 

the man as white or light skinned, wearing dark clothing, and 

between 5 feet 7 inches and 6 feet tall. Wickersham watched 

the man get into a dark SUV and leave.

Wickersham testified that she then ran to Gunia’s car, where 

she found Gunia in the front passenger seat. Wickersham 

stated that the passenger car door was open, and Gunia’s 

legs were outside the car. Wickersham nudged Gunia, and he 

reacted, so Wickersham called the 911 emergency dispatch 

service. Wickersham testified that there appeared to be a burn 

hole in Gunia’s shirt on the left side of his abdominal area, 

but that she was “too scared to lift the shirt up to see what 

was underneath it.” While she was waiting for the police to 

arrive, Wickersham stated that Gunia was unable to speak, but 

that he had “reach[ed] out” to her.

Lisa Stafford, Wickersham’s neighbor at the apartment 

complex, was then called to testify. She stated that on the 

night of Gunia’s murder, she was home studying. At approximately 10 p.m., Stafford was smoking a cigarette near her 

bedroom window that overlooked the apartment complex’s 

parking lot. She observed two men in the parking lot near a 

white car, one wearing a white shirt and the other dressed in 

black. Stafford stated that the two men were standing “really 
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close to each other,” which Stafford found to be “odd,” so she 

watched them. Stafford described the man dressed in black 

as approximately 5 feet 7 inches tall and light skinned, either 

“white or Hispanic or native.”

Stafford stated that she thought the man dressed in black 

was trying to make the man in the white shirt get into the 

driver’s side of the white car. Specifically, she testified that 

Escamilla’s conduct was aggressive and that “there was no 

way for the guy in the white shirt to go [anywhere] but into the 

car.” Stafford stated she believed the man in the white shirt was 

nervous or drunk based on his body language. She stated that 

he was “kind of jittery or shaky or not fully stable.” Stafford 

turned away for a moment, and when she looked back out the 

window, the two men were in the car. She heard a “pop” and a 

man’s scream. She then observed the man dressed in black get 

out of the driver’s side of the white car and walk across the 

parking lot to a black SUV. He got in the passenger side of the 

black SUV, and it drove away.

Stafford testified that she left her apartment and went downstairs to the white car, where she encountered Wickersham. She 

saw the man in the white shirt in the front passenger seat in the 

car. She stated that his white shirt appeared to be black on the 

side of his body. Stafford reached into the car to see if the man 

had a pulse; he then “took a big gasp of air . . . like he was 

trying to breathe.” Stafford was there when the police arrived, 

and she gave a statement to the police that night.

The State then called Savannah Sharpe to testify. Sharpe 

stated that she met Gunia at a drug rehabilitation center in 

2011. Sharpe stated that in April 2013, Gunia would call 

her every night to check on her and her children. On April 

16, Sharpe was having a telephone conversation with Gunia 

at approximately 10 p.m., and Sharpe testified that her conversation with Gunia stopped when she heard another man 

approach Gunia, but that Sharpe stayed on the open line. 

Sharpe testified that she could hear the conversation between 

the two men and that during the conversation, Gunia’s tone 

changed from confident to “more of a plea.” Sharpe then 
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heard a sound as if the cell phone had been dropped or 

stepped on, which she described as sounding like “pow pow 

pow.” Sharpe testified that after hearing the noises, she heard 

Gunia breathing and making a gurgling sound. After some 

time, Sharpe heard two women’s voices and then sirens 

before the call was disconnected. Sharpe testified that the 

next morning, she learned that there had been a homicide at 

the apartment complex, so she called the police to report what 

she had heard.

Marks, Escamilla’s girlfriend, also testified. She stated that 

in April 2013, she was living with Escamilla and knew Gunia 

through her father. Marks testified that at that time, she was 

using methamphetamine daily. On April 16, Willcoxon came 

to the residence of Escamilla and Marks to talk to Escamilla 

and, at some point, they left together. Marks testified that 

later that night, Escamilla returned to their residence with 

Willcoxon, and that after Willcoxon left, Escamilla told Marks 

that “he shot somebody.” Marks testified that on that night, 

Escamilla was wearing all black and had a gun tucked into 

the waistband of his pants. Marks stated that after Willcoxon 

left, Escamilla placed the gun in a hole in the ceiling of 

their bedroom.

Marks stated that on the morning of April 17, 2013, U.S. 

marshals arrived at the residence of Escamilla and Marks. 

Marks testified that Escamilla told another person in the residence to retrieve the gun from the hole in the ceiling and to 

hide it in the wall of the shower in the basement bathroom. 

The U.S. marshals arrested Escamilla, and they searched the 

residence, but they did not find the gun. Marks found the 

gun after the marshals left, and she returned it to the hole in 

the ceiling.

Marks testified that Escamilla called her from jail soon 

after he was arrested and that he asked her to get rid of some 

clothes he had left in their bathroom. Marks told Escamilla she 

got rid of them, but, in actuality, she did not because she could 

not find the clothes. Marks testified that in their telephone 

conversation, Escamilla told her to sell his “car” so Marks 
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would have some money. Marks testified that at the time, 

Escamilla did not own a car and that by “car,” he meant the 

gun. Marks sold the gun.

The State called Dr. Michelle Elieff, a general and forensic 

pathologist, to testify, and Dr. Elieff stated that she performed 

the autopsy on Gunia. She testified that Gunia had suffered 

a single gunshot wound, with an entrance wound in his left 

lower abdomen and an exit wound in his back. Dr. Elieff 

stated that the entrance wound had a ring of soot around it 

and that “[t]he ring of soot indicates a close range of fire. 

Inches perhaps.”

The State rested, and Escamilla presented no evidence in 

his defense. At the close of evidence, Escamilla moved to 

dismiss the three counts against him and, specifically, the 

State’s theory of felony murder. The State conceded that it did 

not present evidence with regard to the felony murder theory 

and requested that the court not instruct the jury as to felony 

murder. The court granted the motion to dismiss the theory 

of felony murder, and it did not instruct the jury as to felony 

murder; however, the court overruled Escamilla’s motion with 

respect to the theory of premeditated murder and the other two 

counts, i.e., use of a deadly weapon to commit a felony and 

possession of a deadly weapon by a prohibited person. The 

jury was given a step instruction stating that Escamilla could 

be found guilty of first degree murder, second degree murder, 

intentional manslaughter, or unintentional manslaughter, or 

found not guilty.

Escamilla was convicted of first degree murder, use of a 

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

weapon by a prohibited person. Escamilla moved for a new 

trial, which the district court overruled. After a sentencing 

hearing, the district court filed an order on August 4, 2014, 

sentencing Escamilla to life imprisonment for his conviction 

of first degree murder, 5 years’ imprisonment for his conviction of use of a deadly weapon to commit a felony, and 

3 years’ imprisonment for his conviction of possession of a 

deadly weapon by a prohibited person. Escamilla’s sentences 
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were ordered to be served consecutively to one another, and 

Escamilla was given credit for 414 days of time served.

Escamilla appeals.

ASSIGNMENT OF ERROR

Escamilla contends that there was insufficient evidence 

of premeditation to support his conviction for first degree 

murder.

STANDARDS OF REVIEW

[1,2] 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. See State v. Hale, 290 

Neb. 70, 858 N.W.2d 543 (2015). 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. See, id.; State v. Juranek, 287 

Neb. 846, 844 N.W.2d 791 (2014).

ANALYSIS

Escamilla asserts that the evidence adduced at trial was 

insufficient to support a conviction of first degree murder. 

Escamilla specifically contends that the evidence was insufficient to support a finding that the killing was done with 

deliberate and premeditated malice. Contrary to Escamilla’s 

argument, we determine that there is sufficient evidence in the 

record to support the jury’s verdict, and we therefore find no 

merit to this assignment of error.

Escamilla stands convicted of premeditated murder, which 

in Nebraska is a form of murder in the first degree. Pursuant 

to Neb. Rev. Stat. § 28-303 (Reissue 2008), a person commits this form of murder in the first degree if he or she kills 

another person purposely and with deliberate and premeditated malice. We have summarized the three elements which 
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the State must prove beyond a reasonable doubt to obtain a 

conviction for first degree murder as follows: The defendant 

(1) killed another person, (2) did so purposely, and (3) did so 

with deliberate and premeditated malice. State v. Morgan, 286 

Neb. 556, 837 N.W.2d 543 (2013); State v. Watt, 285 Neb. 

647, 832 N.W.2d 459 (2013). A question of premeditation is 

for the jury to decide. State v. Watt, supra.

[3-5] With respect to the element of “deliberate and premeditated malice,” our cases commonly look to the facts 

showing the planning of a murder and the manner in which 

the murder was carried out. Regarding planning we have 

stated:

“‘Deliberate means not suddenly, not rashly, and 

requires that the defendant considered the probable consequences of his or her act before doing the act. . . . 

The term “premeditated” means to have formed a design 

to commit an act before it is done. . . . One kills with 

premeditated malice if, before the act causing the death 

occurs, one has formed the intent or determined to kill 

the victim without legal justification. . . . No particular 

length of time for premeditation is required, provided 

that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the 

death. . . .’”

Id. at 659, 832 N.W.2d at 474, quoting State v. Nolan, 283 

Neb. 50, 807 N.W.2d 520 (2012). The time required to establish premeditation may be of the shortest possible duration 

and may be so short that it is instantaneous, and the design 

or purpose to kill may be formed upon premeditation and 

deliberation at any moment before the homicide is committed. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011). 

Whether premeditation exists depends on numerous facts 

about “how and what the defendant did prior to the actual 

killing which show he was engaged in activity directed 

toward the killing, that is, planning activity.” 2 Wayne R. 

LaFave, Substantive Criminal Law § 14.7(a) at 480 (2d ed. 

2003) (emphasis in original).
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Regarding the method of a murder, we have observed that 

the manner or fashion in which the injury is inflicted may 

show a deliberate act and hence serve as evidence to support 

a finding of premeditation. See State v. Watt, 285 Neb. at 659, 

832 N.W.2d at 474 (stating that “the act of shooting an individual in the manner described by the witnesses in this case 

is inherently a deliberate act”); State v. Nolan, 283 Neb. at 

74, 807 N.W.2d at 541 (stating that “[t]he act of shooting an 

individual, at least in the fashion described by [a witness], is 

inherently a deliberate act”). Other sources are in accord. See, 

e.g., 40A Am. Jur. 2d Homicide § 448 (2008) (stating that finding of premeditation may be supported by nature and number 

of victim’s wounds or use of deadly weapon upon unarmed 

victim). Other courts agree that the manner of the murder can 

serve as evidence of premeditation. Thus, it has been stated 

that the fact finder may look to “facts about the nature of the 

killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must 

have intentionally killed according to a preconceived design.” 

State v. Clark, 739 N.W.2d 412, 422 (Minn. 2007) (emphasis 

in original), quoting State v. Moore, 481 N.W.2d 355 (Minn. 

1992). See, also, 2 LaFave, supra.

[6] In a criminal case, the evidence upon which a jury may 

rely in making its findings may be direct, circumstantial, or 

a combination thereof. See State v. Hale, 290 Neb. 70, 858 

N.W.2d 543 (2015). Deliberation and premeditation may be 

proved circumstantially. State v. Beers, 201 Neb. 714, 271 

N.W.2d 842 (1978). In State v. Kofoed, 283 Neb. 767, 788-89, 

817 N.W.2d 225, 242 (2012), we stated that “circumstantial 

evidence is not inherently less probative than direct evidence. 

In finding a defendant guilty beyond a reasonable doubt, a fact 

finder may rely upon circumstantial evidence and the inferences that may be drawn therefrom.” It has been observed that 

premeditation may be established by circumstantial evidence, 

including the nature of the defendant’s conduct before and 

after the killing. See 40A Am. Jur. 2d, supra.
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Given the foregoing principles and remembering that on 

appeal after conviction, the evidence is viewed in a light most 

favorable to the State, we determine that there is sufficient 

evidence in this record to support the jury’s finding beyond a 

reasonable doubt that Escamilla killed Gunia with deliberate 

and premeditated malice.

Although no one testified directly that they saw Escamilla 

arrive at the meeting with Gunia with a gun, the overwhelming evidence in the case shows that Escamilla brought a gun 

to the event. Further, there is no indication that Gunia had a 

gun. Willcoxon testified that when Escamilla first approached 

Gunia in the parking lot, Gunia backed up against the driver’sside door of his car and said, “What? What? What did I do?” 

A juror could infer from Gunia’s reaction that Gunia saw that 

Escamilla was approaching him with a gun. Willcoxon testified that after Escamilla got out of Gunia’s car and returned 

to her SUV, Escamilla told her, “‘I shot that fool.’” Williams 

testified that Escamilla told him that he had “‘killed a fool’” 

inside of a car. Marks testified that after Escamilla returned 

to their residence on the night of the shooting, Escamilla told 

her he had shot somebody, and that he then pulled a gun out 

of the waistband of his pants and hid it. Thus, there is considerable evidence that Escamilla arrived at the meeting with 

Gunia with a gun and that over the course of their encounter, 

if not before, Escamilla formed a design to kill Gunia with no 

legal justification.

Stafford, the neighbor of Gunia’s girlfriend, Wickersham, 

testified that she observed Escamilla and Gunia in the parking lot the night of the shooting. She stated that Escamilla’s 

conduct was aggressive and that “there was no way for [Gunia] 

to go [anywhere] but into the car.” Stafford also testified that 

Gunia appeared to be nervous or drunk. After Stafford heard 

a “pop” and a man’s scream, she observed Escamilla get out 

of the driver’s side of Gunia’s car and walk to Willcoxon’s 

SUV. The evidence indicates that when Escamilla shot Gunia, 

Escamilla was in the driver’s seat of Gunia’s car and Gunia 

was in the passenger seat. Based on this placement and other 
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evidence, a juror could infer that Escamilla was in control 

of the situation by forcing Gunia to get into the driver’s side 

of his car and to slide across to the passenger side, while 

Escamilla sat in the driver’s seat. Escamilla’s control of the 

situation indicates a deliberate plan unfolding that is indicative 

of premeditation.

Sharpe testified that she was on the telephone with Gunia the 

night of the shooting. She stated that when she heard another 

man, Escamilla, approach Gunia, her conversation with Gunia 

stopped, but that she stayed on the open line and overheard 

the conversation between the two men. Sharpe testified that 

during that conversation, Gunia’s tone shifted from confident 

to “more of a plea.” She then heard a sound as though the cell 

phone had been dropped and a “pow pow pow.” After those 

noises, Sharpe heard what she described as Gunia’s struggling 

to breathe.

As stated above, no particular length of time for premeditation is required, provided that the intent to kill is formed 

before the act is committed and not simultaneously with the 

act that caused the death. State v. Watt, 285 Neb. 647, 832 

N.W.2d 459 (2013). Furthermore, the time required to establish premeditation may be of the shortest possible duration 

and may be so short that it is instantaneous, and the design 

or purpose to kill may be formed upon premeditation and 

deliberation at any moment before the homicide is committed. 

State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011). The 

jury could infer from the testimony of Willcoxon, Williams, 

Marks, Stafford, and Sharpe that Escamilla’s plan was unfolding and that Escamilla had sufficient time to form an intent 

to kill prior to shooting Gunia, and these facts would establish premeditation.

[7] A rational juror could also find that the manner in which 

Escamilla killed Gunia, i.e., the placement of the gun at close 

range to Gunia’s torso, indicates a deliberate and premeditated 

killing with malice. With respect to the nature or manner of 

killing, it has been stated that “what is required [to show 

premeditation] is evidence (usually based upon examination 
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of the victim’s body) showing that the wounds were deliberately placed at vital areas of the body.” 2 Wayne R. LaFave, 

Substantive Criminal Law § 14.7(a) at 481 (2d ed. 2003). The 

Virginia Supreme Court has recognized that the placement of a 

gun that is used to shoot a victim may indicate premeditation. 

See Stewart v. Com., 245 Va. 222, 427 S.E.2d 394 (1993). In 

Stewart, the Virginia Supreme Court stated that “evidence that 

a weapon was placed against a victim’s head when the fatal 

shot was fired . . . is sufficient alone to support a finding that 

‘the shot was fired deliberately and with premeditation.’” Id. 

at 240, 427 S.E.2d at 406, quoting Townes v. Commonwealth, 

234 Va. 307, 362 S.E.2d 650 (1987). Similarly, we have previously stated that intent to kill may be inferred from deliberate 

use of a deadly weapon in a manner reasonably likely to cause 

death. State v. Watt, supra. See, also, State v. Iromuanya, 272 

Neb. 178, 719 N.W.2d 263 (2006); State v. Gunther, 271 Neb. 

874, 716 N.W.2d 691 (2006).

The evidence shows that Escamilla shot Gunia on the left 

side of Gunia’s abdomen from a close range. The shot was to 

the torso and was a “through-and-through wound,” perforating 

the aorta. Dr. Elieff testified that the entrance wound from the 

bullet on Gunia’s abdomen indicated that the shot was fired 

from inches away. Dr. Elieff observed a ring of soot around 

the wound. Furthermore, Williams testified that Escamilla told 

him that “the gun was pushed uptight [sic] against [Gunia]” 

and that “the piece was up on [Gunia] so good . . . that it 

wasn’t like a loud pop, bang. It was like a whoosh.” Based 

upon this evidence, a rational juror could infer Escamilla had 

formed the intent to kill from the deliberate use of a deadly 

weapon in a manner reasonably likely to cause death. See State 

v. Watt, supra.

The evidence also indicates that Escamilla was calm immediately after he killed Gunia. Calmness immediately after a 

killing has sometimes been associated with premeditation. 

See 40A Am. Jur. 2d Homicide § 448 (2008). Williams testified that after Escamilla shot Gunia, Escamilla “casually got 

out of the car” in which he had just shot Gunia and walked 
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291 Nebraska Report

STATE v. ESCAMILLA

Cite as 291 Neb. 181

back to Willcoxon’s SUV, and they drove away. Willcoxon 

testified that as she and Escamilla were driving away from the 

scene, Escamilla told her, “‘I shot that fool,’” and Willcoxon 

said that Escamilla’s behavior showed that he “was okay with 

it.” She also testified that when Escamilla told her what had 

occurred in Gunia’s car, “[h]e kind of chuckled.”

[8] The law imposes a heavy burden on a defendant who 

claims on appeal that the evidence is insufficient to support a 

conviction. See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 

(2012). Faced with the trial record to which we have referred 

above, we determine that Escamilla has not carried that burden. Given the evidence, we determine that a rational trier of 

fact could reasonably infer that Escamilla formed an intent to 

deliberately kill Gunia before committing the homicide and, 

therefore, could have found beyond a reasonable doubt that 

Escamilla killed purposely and with deliberate and premeditated malice. The evidence is therefore sufficient to support 

entry of the jury’s verdict of first degree murder.

CONCLUSION

We conclude that the evidence is sufficient to support 

Escamilla’s convictions, and we find no merit to his assignment of error on appeal. Therefore, we affirm the judgment of 

the district court.

Affirme

Heavican, C.J., not participatin