State v. Mueller - supplemental opinion , 302 Neb. 51 ( 2019 )

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04/12/2019 08:08 AM CDT
- 51 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. MUELLER
Cite as 302 Neb. 51
State of Nebraska, appellee, v.
Zachary A. Mueller, appellant.
___ N.W.2d ___
Filed January 18, 2019. No. S-17-387.
supplemental opinion
Appeal from the District Court for Morrill County: Leo P.
Dobrovolny, Judge. Supplemental opinion: Former opinion
modified. Motion for rehearing overruled.
Sarah P. Newell, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by the
appellant, Zachary A. Mueller, concerning our opinion in State
v. Mueller.1 We overrule the motion, but we modify the opinion
as follows:
In the statement of facts section, we withdraw the word “no”
in the second sentence in the 16th paragraph and substitute the
word “another” in the quotation.2
1
State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
2
Id. at 786, 920 N.W.2d at 432.
- 52 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. MUELLER
Cite as 302 Neb. 51
In the analysis section, we withdraw the fifth paragraph3
under the subheading “Venue Instruction” and substitute the
following:
We note that although Mueller argued that the court
should have given a venue instruction based on § 29‑1306,
he did not actually tender such an instruction, and that
therefore, to the extent Mueller asserts on appeal that the
court erred when it refused a requested instruction, under
the applicable standards set forth above, we do not ordi-
narily review whether the “tendered instruction” was a
correct statement of the law or whether it was warranted
by the evidence. See State v. Swindle, 300 Neb. 734,
915 N.W.2d 795 (2018). Here, we can review whether
the venue instruction the court actually gave was proper
under the circumstances; a consideration of whether the
instruction should have included the content of § 29‑1306
is an incidental part of that analysis.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.
Freudenberg, J., not participating.
3
Id. at 791, 920 N.W.2d at 435.