State v. Merchant ( 2014 )

Nebraska Advance Sheets
STATE v. MERCHANT 439
Cite as 288 Neb. 439
to Tristar free and clear of all previous liens and encumbrances
as a matter of law and the SID’s special assessment liens did
not survive the transfer to Tristar. The SID did not meet its
burden of showing it had an enforceable interest that entitled it
to judgment, and the district court erred when it granted sum-
mary judgment in favor of the SID, entered orders accordingly,
and denied Tristar’s motion for summary judgment.
CONCLUSION
The treasurer tax deeds issued to Tristar pursuant to
§ 77-1837 and in compliance with § 77-1801 et seq. passed
title to Tristar free and clear of all previous liens and encum-
brances, including the special assessment liens of the SID. The
district court erred when it applied § 77-1902 from the judicial
foreclosure statutes to this case involving the treasurer tax deed
method and reached a contrary conclusion. We reverse the
order of the district court granting summary judgment to the
SID and denying Tristar’s motion for summary judgment, and
remand the cause with directions to enter judgment in favor of
Tristar on the SID’s complaint.
R eversed and remanded with directions.
State of Nebraska, appellee, v.
Thomas P. Merchant, appellant.
___ N.W.2d ___
Filed June 27, 2014. No. S-13-903.
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. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
3. Criminal Law: Directed Verdict. In a criminal case, a court can direct a
verdict only when there is a complete failure of evidence to establish an essen-
tial element of the crime charged or the evidence is so doubtful in character,
lacking probative value, that a finding of guilt based on such evidence cannot
be sustained.
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4. Directed Verdict. If there is any evidence which will sustain a finding for the
party against whom a motion for directed verdict is made, the case may not be
decided as a matter of law, and a verdict may not be directed.
5. Jury Instructions: Appeal and Error. All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
6. Jury Instructions: Proof: Appeal and Error. The appellant has the burden to
show that a questioned jury instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
7. Appeal and Error. Under the law-of-the-case doctrine, the holdings of an
appellate court on questions presented to it in reviewing proceedings of the
trial court become the law of the case; those holdings conclusively settle, for
purposes of that litigation, all matters ruled upon, either expressly or by neces-
sary implication.
8. Actions: Appeal and Error. The law-of-the-case doctrine operates to preclude
a reconsideration of substantially similar, if not identical, issues at successive
stages of the same suit or prosecution.
9. ____: ____. On appeal, the law-of-the-case doctrine is a rule of practice that
operates to direct an appellate court’s discretion, not to limit its power.
10. Motor Vehicles: Licenses and Permits: Words and Phrases. The definition
of a motor vehicle dealer under Neb. Rev. Stat. § 60-1401.26 (Reissue 2010)
entails three requirements. To be a motor vehicle dealer, a person must (1) not be
a bona fide consumer; (2) be actively and regularly engaged in selling, leasing
for a period of 30 or more days, or exchanging new or used motor vehicles; and
(3) buy, sell, exchange, cause the sale of, or offer or attempt to sell new or used
motor vehicles.
11. Motor Vehicles: Licenses and Permits. A person is subject to the licensure
requirement of Neb. Rev. Stat. § 60-1403.01(1) (Reissue 2010) as a motor vehicle
dealer only if all three requirements of Neb. Rev. Stat. § 60-1401.26 (Reissue
2010) are met.
12. Jury Instructions: Appeal and Error. A jury instruction that omits an element
of the offense from the jury’s determination is subject to harmless error review.
13. Verdicts: Appeal and Error. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict surely would have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
14. Criminal Law: Evidence: Double Jeopardy: New Trial: Appeal and Error.
Upon finding reversible error in a criminal trial, an appellate court must deter-
mine whether the total evidence admitted by the district court, erroneously or
not, was sufficient to sustain a guilty verdict. If it was not, then double jeopardy
forbids a remand for a new trial.
15. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
Nebraska Advance Sheets
STATE v. MERCHANT 441
Cite as 288 Neb. 439
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.
16. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is to say, when an issue should be decided as a
matter of law.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Reversed and remanded for a new trial.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
Thomas P. Merchant appeals his conviction, after a second
trial, for acting as a motor vehicle dealer, auction dealer,
motor vehicle salesperson, or dealer’s agent without the
required license under the Motor Vehicle Industry Regulation
Act.1 His first conviction was reversed by this court in State
v. Merchant (Merchant I)2 because of improperly admitted
evidence. Merchant now contends that the jury instructions
given at his second trial misstated the definition of motor
vehicle dealer. We agree. In order to qualify as a motor vehi-
cle dealer, a person must be actively and regularly engaged
in one of the statutory enumerated acts.3 But the instructions
given at Merchant’s second trial omitted this requirement
from the elements of the offense. We reverse, and remand for
a new trial.
1
Neb. Rev. Stat. § 60-1401 et seq. (Reissue 2010).
2
State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013).
3
See § 60-1401.26.
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BACKGROUND
The facts surrounding the charges against Merchant are
outlined in Merchant I. We briefly recite them here. Merchant
undertook a series of transactions with Nebraska Auto Auction,
Inc. (NAA), involving the sale and purchase of motor vehicles
on June 1, 2011. NAA is an automobile auction company that
facilitates sales and purchases between dealers. It holds a valid
Nebraska auction license, and by law, only licensed dealers can
participate in auctions held by NAA.
NAA requested a copy of Merchant’s motor vehicle dealer’s
license, but he never provided a copy. NAA reported Merchant
to the Nebraska Motor Vehicle Industry Licensing Board. After
determining that he did not possess a dealer’s license, the State
charged him with being an unlicensed dealer.
After a jury trial, Merchant was convicted. He appealed, and
we reversed his conviction and remanded the cause for a new
trial due to the improper admission of expert testimony.
In analyzing Merchant’s first trial, we also provided guid-
ance as to the jury instructions given by the district court. We
observed that the instructions correctly required the jury to
determine that Merchant was not a bona fide consumer, but
were incomplete for assuming that he was a motor vehicle
dealer. Merchant’s status as a motor vehicle dealer was an
essential element of the offense that was required to be deter-
mined by the jury. We therefore instructed the district court
to add an instruction charging the jury to determine whether
“Merchant bought, sold, exchanged, caused the sale of, or
offered or attempted to sell new or used motor vehicles on or
around June 1, 2011.”4
A second jury trial was held. The State presented evidence
that NAA facilitated transactions for Merchant involving the
sale and purchase of motor vehicles on two occasions in May
and June 2011. Specifically, the State’s evidence showed that
on June 1, NAA facilitated transactions in which Merchant
sold 10 or more vehicles and purchased 19 vehicles. The
State further established Merchant’s lack of a motor vehicle
dealer’s license. After the State rested, Merchant moved to
4
Merchant I, supra note 2, 285 Neb. at 471, 827 N.W.2d at 485.
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STATE v. MERCHANT 443
Cite as 288 Neb. 439
dismiss on the ground that the State had failed to prove a
prima facie case.
In arguing that the State had failed to prove a prima facie
case, Merchant cited to the definition of “[m]otor vehicle
dealer” as provided by § 60-1401.26. That section defines a
motor vehicle dealer as
any person, other than a bona fide consumer, actively
and regularly engaged in the act of selling, leasing for a
period of thirty or more days, or exchanging new or used
motor vehicles . . . who buys, sells, exchanges, causes
the sale of, or offers or attempts to sell new or used
motor vehicles.5
Because a motor vehicle dealer was defined as any person
“actively and regularly engaged” in one of the enumerated
acts, Merchant contended that there was insufficient evidence
to prove such active and regular engagement.
The district court overruled Merchant’s motion, finding that
his status as a motor vehicle dealer was a question of fact for
the jury and that the State had presented sufficient evidence to
submit the issue. The court then conducted the jury instruction
conference. The court’s jury instruction No. 3 as to the ele-
ments of the offense provided, in pertinent part:
Regarding the crime of Unlawful Sale or Purchase of
Motor Vehicle, the State must prove beyond a reasonable
doubt that:
1. . . . Merchant bought, sold, exchanged, caused the
sale of, or offered or attempted to sell new or used motor
vehicle; and
2. On the day he sold or purchased a motor vehicle
described in paragraph 1, . . . Merchant did not pos-
sess a valid Nebraska Motor Vehicle Dealer’s license,
Motor Vehicle Auction Dealer license, Motor Vehicle
Salesperson license, or Motor Vehicle Dealer’s Agent
license, and
3. Any one of the following:
a. . . . Merchant did not acquire the vehicle he sold or
purchased for use in business or for pleasure purposes, or
5
§ 60-1401.26.
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444 288 NEBRASKA REPORTS
b. the motor vehicle sold was not titled in . . . Merchant’s
name, or
c. the motor vehicle sold was not registered to . . .
Merchant in accordance with the laws of his resident
state, or
d. . . . Merchant sold more than eight registered motor
vehicles within a twelve month period;
and
4. . . . Merchant did so on or about June 1, 2011, in
Lancaster County, Nebraska.
When given the opportunity to object to the above instruc-
tion, Merchant requested that the district court give his pro-
posed instructions. The court declined to do so.
The jury returned a verdict finding Merchant guilty of the
unlawful sale or purchase of a motor vehicle. He was found
to be a habitual criminal and sentenced to imprisonment for a
minimum term of 12 years and a maximum term of 26 years.
Merchant timely appeals.
ASSIGNMENTS OF ERROR
Merchant assigns that the district court erred in (1) utilizing
instruction No. 3, rather than his proposed instructions, and (2)
overruling his motion for directed verdict.
STANDARD OF REVIEW
[1,2] Whether jury instructions are correct is a question
of law, which an appellate court resolves independently of
the lower court’s decision.6 Statutory interpretation presents a
question of law, for which an appellate court has an obligation
to reach an independent conclusion irrespective of the determi-
nation made by the court below.7
[3,4] In a criminal case, a court can direct a verdict only
when there is a complete failure of evidence to establish an
essential element of the crime charged or the evidence is so
doubtful in character, lacking probative value, that a finding
6
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).
7
State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
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Cite as 288 Neb. 439
of guilt based on such evidence cannot be sustained.8 If there
is any evidence which will sustain a finding for the party
against whom a motion for directed verdict is made, the case
may not be decided as a matter of law, and a verdict may not
be directed.9
ANALYSIS
Before addressing the merits of Merchant’s assignments
of error, we first review the licensure requirements under the
Motor Vehicle Industry Regulation Act. Section 60-1403.01(1)
provides that “[n]o person shall engage in the business as,
serve in the capacity of, or act as a motor vehicle . . . dealer,
salesperson, auction dealer, [or] dealer’s agent . . . in this state
without being licensed by the board under the Motor Vehicle
Industry Regulation Act.”
The State charged Merchant under § 60-1416, which states
that “[a]ny person acting as a motor vehicle dealer, . . . auction
dealer, motor vehicle . . . salesperson, [or] dealer’s agent . . .
without having first obtained the license provided in section
60-1406 is guilty of a Class IV felony . . . .”
The act provides definitions of the above persons subject
to the licensure requirement. The most significant to this
appeal is the definition of motor vehicle dealer, which has
been provided above. But it is relevant to note that a bona fide
consumer is expressly excluded from the definition of motor
vehicle dealer.10 Section 60-1401.07 defines a bona fide con-
sumer as
an owner of a motor vehicle . . . who has acquired such
vehicle for use in business or for pleasure purposes, who
has been granted a certificate of title on such motor vehi-
cle, . . . and who has registered such motor vehicle . . . all
in accordance with the laws of the residence of the owner,
except that no owner who sells more than eight registered
motor vehicles . . . within a twelve-month period shall
qualify as a bona fide consumer.
8
State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).
9
Id.
10
See § 60-1401.26.
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Three other definitions of persons subject to the licensure
requirement are also pertinent to our analysis. Because this
appeal does not involve motorcycles or trailers, we omit por-
tions of the definitions pertaining to those items. Similarly,
we omit language addressing multiple dealerships. Section
60-1401.11 defines “[d]ealer’s agent” as “a person who acts as
a buying agent for one or more motor vehicle dealers . . . .”
Section 60-1401.05 defines “[a]uction dealer” as “any person
engaged in the business of conducting an auction for the sale of
motor vehicles . . . .” And § 60-1401.27 defines “[m]otor vehi-
cle . . . salesperson” as “any person who, for a salary, commis-
sion, or compensation of any kind, is employed directly by [a]
licensed Nebraska motor vehicle dealer . . . to sell, purchase,
or exchange or to negotiate for the sale, purchase, or exchange
of motor vehicles . . . .”
Having reviewed the applicable law, we now turn to
Merchant’s first assignment of error regarding instruction
No. 3.
Instruction No. 3
[5,6] We first recall governing principles of law relating to
a claim of erroneous jury instructions. We have stated that 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.11
And the appellant has the burden to show that a questioned
jury instruction was prejudicial or otherwise adversely affected
a substantial right of the appellant.12
As noted above, in Merchant I, we found the instructions
given at Merchant’s first trial to be incomplete. In order to find
Merchant guilty, the instructions correctly required the jury to
determine that he was not a bona fide consumer, but assumed
that he qualified as a motor vehicle dealer. We therefore
directed the district court to add an instruction charging the
11
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
12
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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Cite as 288 Neb. 439
jury to determine whether “Merchant bought, sold, exchanged,
caused the sale of, or offered or attempted to sell new or used
motor vehicles on or around June 1, 2011.”13
In the present appeal, Merchant contends that we erred in
our analysis of the jury instructions in Merchant I. He argues
that the instruction we directed the district court to utilize
at his second trial (which was incorporated into instruction
No. 3) misstated the statutory definition of motor vehicle
dealer by failing to require that he be actively and regularly
engaged in one of the enumerated acts. Thus, he claims that
instruction No. 3 caused him prejudice by omitting a material
element of the offense.
[7,8] But we must first address the State’s argument that
Merchant is barred from challenging instruction No. 3. Although
not expressly acknowledged, the State implicitly relies upon
the law-of-the-case doctrine for its argument. Under the law-
of-the-case doctrine, the holdings of an appellate court on
questions presented to it in reviewing proceedings of the trial
court become the law of the case; those holdings conclusively
settle, for purposes of that litigation, all matters ruled upon,
either expressly or by necessary implication.14 The law-of-the-
case doctrine operates to preclude a reconsideration of substan-
tially similar, if not identical, issues at successive stages of the
same suit or prosecution.15
Merchant failed to move for rehearing from our analysis
of the jury instructions in Merchant I. Consequently, upon
remand, our findings as to the jury instructions became the law
of the case and conclusively settled the issue for purposes of all
subsequent stages of the prosecution. Thus, under the doctrine,
the district court lacked the ability to deviate from our findings
at Merchant’s second trial and was required to incorporate the
instruction we provided in Merchant I, notwithstanding any
claim of error that Merchant might raise.16
13
Merchant I, supra note 2, 285 Neb. at 471, 827 N.W.2d at 485.
14
State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
15
Id.
16
See State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).
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[9] We, however, are not so bound. On appeal, the law-of-
the-case doctrine is a rule of practice that operates to direct
an appellate court’s discretion, not to limit its power.17 And
we have recognized that the doctrine does not apply if consid-
erations of substantial justice suggest a reexamination of the
issue is warranted.18 Considerations of substantial justice are
present in this case.
[10,11] We agree that we erred in our analysis of the jury
instructions in Merchant I. The instruction we directed the
district court to incorporate into instruction No. 3 misstated the
statutory definition of motor vehicle dealer. The instruction we
provided omitted the “actively and regularly engaged” require-
ment of § 60-1401.26. Under that section, the definition of
motor vehicle dealer entails three requirements. To be a motor
vehicle dealer, a person must (1) not be a bona fide consumer;
(2) be actively and regularly engaged in selling, leasing for a
period of 30 or more days, or exchanging new or used motor
vehicles; and (3) buy, sell, exchange, cause the sale of, or offer
or attempt to sell new or used motor vehicles.19 A person is
subject to the licensure requirement of § 60-1403.01(1) as a
motor vehicle dealer only if all three of these requirements
are met.
Because Instruction No. 3 failed to charge the jury to deter-
mine whether Merchant was “actively and regularly engaged”
in one of the acts enumerated by § 60-1401.26, it omitted a
material element of the offense from the jury’s determination.
Such instructional error necessarily implicates considerations
of substantial justice, because it violates a defendant’s Sixth
Amendment guarantee to trial by jury.20
[12] But the omission of an element of the offense from the
jury’s determination is not a constitutional violation requiring
17
Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
18
See id.
19
See § 60-1401.26.
20
See, Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999); State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996), overruled on
other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
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automatic reversal. Such error is not structural—so affect-
ing the framework within which the trial proceeds that it
affects the entire trial process and renders it fundamentally
unfair.21 Rather, an instruction that omits an element of the
offense from the jury’s determination is subject to harmless
error review.22
[13] We have stated that harmless error review looks to the
basis on which the trier of fact actually rested its verdict; the
inquiry is not whether in a trial that occurred without the error
a guilty verdict surely would have been rendered, but, rather,
whether the actual guilty verdict rendered in the questioned
trial was surely unattributable to the error.23 Where a court can-
not conclude beyond a reasonable doubt that the jury verdict
would have been the same absent the error, it should not find
the error harmless.24
We do not find that the instructional error was harmless in
this case. That is, we cannot say beyond a reasonable doubt
that the jury would still have found Merchant guilty had it been
required to find that he was “actively and regularly engaged”
in one of the statutory enumerated acts. At Merchant’s second
trial, the State presented evidence that he undertook transac-
tions with NAA involving the sale and purchase of motor vehi-
cles on two separate occasions. Although one of these occa-
sions involved the sale and purchase of a significant number of
motor vehicles, we are unable to conclude beyond a reasonable
doubt that the jury would have found such transactions to con-
stitute active and regular engagement.
[14,15] Because the omission of the active and regular
engagement requirement from instruction No. 3 was not
harmless, it warrants reversal and remand for a new trial.
But Merchant argues that retrial is prohibited by the Double
Jeopardy Clause. With one minor exception, we disagree. Upon
finding reversible error in a criminal trial, an appellate court
21
See Neder, supra note 20.
22
See, id.; State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
23
Abram, supra note 22.
24
See Neder, supra note 20.
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450 288 NEBRASKA REPORTS
must determine whether the total evidence admitted by the dis-
trict court, erroneously or not, was sufficient to sustain a guilty
verdict.25 If it was not, then double jeopardy forbids a remand
for a new trial.26 When reviewing a criminal conviction for suf-
ficiency of the evidence to sustain the conviction, 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.27
Although we acknowledge that this is a close case, when
viewed in the light most favorable to the prosecution, we find
that the total evidence admitted by the district court was suf-
ficient to sustain a guilty verdict. The evidence received at
Merchant’s second trial established that he undertook trans-
actions with NAA involving the sale and purchase of motor
vehicles on two separate occasions within a 2-month period.
And the June 1, 2011, transaction involved the sale of approxi-
mately 10 vehicles and the purchase of 19 more. In our
view, this evidence was sufficient for a jury to conclude that
Merchant was actively and regularly engaged in the acts of
selling or exchanging new or used motor vehicles. Further,
this evidence established that Merchant was not a bona fide
consumer, because he sold more than eight motor vehicles
within a 12-month period.28 And because the State proved that
Merchant bought and sold motor vehicles without any of the
licenses set out in § 60-1406, there was sufficient evidence
from which the jury could find all of the elements of acting as
a motor vehicle dealer, motor vehicle salesperson, or dealer’s
agent without a license.
However, there was no evidence that Merchant was “engaged
in the business of conducting an auction for the sale of motor
vehicles.”29 The evidence showed that Merchant sold and
25
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
26
Id.
27
State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011).
28
See § 60-1401.07.
29
§ 60-1401.05 (defining “[a]uction dealer”).
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STATE v. MERCHANT 451
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purchased vehicles through an auction dealer, but not that he
was engaged in the business of conducting an auction. Thus,
upon remand, he cannot be retried for acting as an auction
dealer. This does not affect the other three alternatives for vio-
lation of § 60-1416, namely, acting as a motor vehicle dealer,
motor vehicle salesperson, or dealer’s agent.
Based upon our above analysis, we reverse the judgment
of conviction and remand the cause for a new trial. In doing
so, we wish to make clear that this decision is based upon
our own error in Merchant I. The district court did nothing
but faithfully follow our direction in instructing the jury at
Merchant’s second trial. Upon retrial, the district court should
craft an instruction charging the jury to determine whether
Merchant acted as a motor vehicle dealer, motor vehicle
salesperson, or dealer’s agent without having first obtained
the required license at the time he undertook the transactions
with NAA.
Characterizing the offense as an unlawful sale or purchase
of a motor vehicle is likely to cause confusion and render
the instructions unintelligible, because reference would be
required to a complicated series of statutes. Instead, the offense
could be described as acting as a motor vehicle dealer, motor
vehicle salesperson, or dealer’s agent without a license. The
State chose to charge Merchant with a single offense that can
be committed in more than one way. It may be feasible for
the trial judge to craft an elements instruction that begins by
charging the jury to determine whether Merchant acted (1) as
a motor vehicle dealer, motor vehicle salesperson, or dealer’s
agent; (2) without the appropriate license; (3) on or about June
1, 2011, in Lancaster County. The elements instruction could
then charge the jury on the statutory elements that the State
must prove beyond a reasonable doubt to show that Merchant
acted, respectively, as a motor vehicle dealer, motor vehicle
salesperson, or dealer’s agent. But the instructions must be
tailored to the evidence at the new trial. And they could vary
depending upon which one or more of the three ways of com-
mitting the offense could be supported by the evidence. We
decline to tie the hands of the trial judge in crafting an appro-
priate set of instructions.
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452 288 NEBRASKA REPORTS
Directed Verdict
[16] Merchant contends that the district court erred in over-
ruling his motion for directed verdict. Although the record does
not show that Merchant ever moved for a directed verdict, he
moved to dismiss after the close of the State’s case in chief.
And we have stated that a motion to dismiss for failure to
prove a prima facie case should be treated as a motion for a
directed verdict.30 A directed verdict is proper at the close of
all the evidence only when reasonable minds cannot differ and
can draw but one conclusion from the evidence, that is to say,
when an issue should be decided as a matter of law.31 And in
reviewing a criminal conviction, we view the evidence in the
light most favorable to the State.32
Merchant argues that the evidence presented at his sec-
ond trial was insufficient to establish that he was “actively
and regularly engaged” in one of the acts enumerated by
§ 60-1401.26. Based upon our above analysis, we disagree. As
we have already noted, although this is a close case, we view
the evidence of the transactions Merchant undertook with NAA
as being sufficient to support a finding that he was actively and
regularly engaged in the acts of selling or exchanging new or
used motor vehicles. Because Merchant limited his argument
to the definition of a motor vehicle dealer, we do not address
the motion insofar as it was addressed to the alternatives of
acting as a motor vehicle salesperson or a dealer’s agent. This
assignment of error is without merit.
CONCLUSION
Although we analyzed the jury instructions in this case
in Merchant I, we erred in instructing the district court as
to the statutory definition of motor vehicle dealer. Our error
resulted in a material element of the offense being omitted
from the jury’s determination and caused Merchant prejudice.
We reverse Merchant’s conviction for acting as a motor vehicle
30
See State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).
31
Id.
32
See State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).
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dealer, motor vehicle salesperson, dealer’s agent, or auction
dealer without the required license and remand the cause
for a new trial. Because there was no evidence to show that
Merchant was acting as an auction dealer, he cannot be retried
on that alternative means of committing the offense. Thus, the
new trial must be limited to the other three alternatives for
which Merchant was charged.
R eversed and remanded for a new trial.
Gary M. Lenz, appellee, v. Central Parking System
of Nebraska, I nc., and New H ampshire
Insurance Company, appellants.
___ N.W.2d ___
Filed June 27, 2014. No. S-13-930.
1. Workers’ Compensation: Appeal and Error. Regarding questions of law,
an appellate court in workers’ compensation cases is obligated to make its
own decisions.
2. Statutes. Statutory interpretation presents a question of law.
3. Workers’ Compensation: Limitations of Actions. Determining when the statute
of limitations starts under Neb. Rev. Stat. § 48-137 (Reissue 2010) presents a
question of law.
4. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the compensation court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in excess of its pow-
ers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
5. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When
judicial interpretation of a statute has not evoked a legislative amendment, it is
presumed that the Legislature has acquiesced in the court’s interpretation.
6. Workers’ Compensation. Disability as a basis for compensation under Neb.
Rev. Stat. § 48-121(3) (Reissue 2010) is determined by the loss of use of a body
member, not loss of earning power.
7. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
Appeal from the Workers’ Compensation Court: Thomas E.
Stine, Judge. Affirmed.