State v. Mann , 925 N.W.2d 324 ( 2019 )


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    302 Nebraska R eports
    STATE v. MANN
    Cite as 
    302 Neb. 804
    State of Nebraska, appellee, v.
    Gary L. M ann, appellant.
    ___ N.W.2d ___
    Filed April 5, 2019.     No. S-18-333.
    1.	 Jury Instructions: Appeal and Error. When a party assigns as error
    the failure to give an unrequested jury instruction, an appellate court
    will review only for plain error.
    2.	 Appeal and Error. Plain error may be found on appeal when an error
    unasserted or uncomplained of at trial, but plainly evident from the
    record, prejudicially affects a litigant’s substantial right and, if uncor-
    rected, would result in damage to the integrity, reputation, and fairness
    of the judicial process.
    3.	 Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    4.	 Statutes. Statutory interpretation is a question of law.
    5.	 Criminal Law: Trial: Jury Instructions: Proof. In a criminal trial, the
    court in its instructions must delineate for the jury each material element
    the State is required to prove beyond a reasonable doubt to convict the
    defendant of the crime charged.
    6.	 Trial: Judges: Jury Instructions: Appeal and Error. It is the duty of
    a trial judge to instruct the jury on the pertinent law of the case, whether
    requested to do so or not, and an instruction or instructions which by
    the omission of certain elements have the effect of withdrawing from
    the jury an essential issue or element in the case are prejudicially
    erroneous.
    7.	 Jury Instructions. Jury instructions are not prejudicial if they, when
    taken as a whole, correctly state the law, are not misleading, and ade-
    quately cover the issues supported by the pleadings and the evidence.
    8.	 Criminal Law: Statutes: Legislature. In Nebraska, all crimes are statu-
    tory, and no act is criminal unless the Legislature has in express terms
    declared it to be so.
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    9.	 Criminal Law: Statutes. Penal statutes are considered in the context of
    the object sought to be accomplished, the evils and mischiefs sought to
    be remedied, and the purpose sought to be served.
    10.	 ____: ____. Effect must be given, if possible, to all parts of a penal
    statute; no sentence, clause, or word should be rejected as meaningless
    or superfluous if it can be avoided.
    11.	 Criminal Law: Due Process: Proof. Due process requires a prosecutor
    to prove beyond a reasonable doubt every fact necessary to constitute
    the crime charged.
    12.	 Constitutional Law: Due Process. The due process requirements of
    Nebraska’s Constitution are similar to those of the federal Constitution.
    13.	 Jury Instructions: Appeal and Error. A jury instruction that omits an
    element of a criminal offense from the jury’s determination is subject to
    harmless error review.
    14.	 Criminal Law: Statutes. Courts strictly construe criminal statutes.
    15.	 Constitutional Law: Criminal Law: Due Process: Presumptions:
    Proof. Under the Due Process Clause of the 14th Amendment to the
    U.S. Constitution and under the Nebraska Constitution, in a criminal
    prosecution, the State must prove every element of an offense beyond a
    reasonable doubt and may not shift the burden of proof to the defend­
    ant by presuming that element upon proof of the other elements of
    the offense.
    16.	 Criminal Law: Weapons: Intent. Under 
    Neb. Rev. Stat. § 28-1212.03
    (Reissue 2016), the absence of an intent to restore a firearm to the owner
    is a material element of the crime of possession of a stolen firearm.
    17.	 Verdicts: Juries: Appeal and Error. Harmless error review ultimately
    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 would surely have been rendered, but, rather, whether the
    actual guilty verdict rendered in the questioned trial was surely unattrib-
    utable to the error.
    18.	 Appeal and Error. An appellate court may, at its discretion, discuss
    issues unnecessary to the disposition of an appeal where those issues are
    likely to recur during further proceedings.
    19.	 Jury Instructions: Proof: Appeal and Error. In an appeal based on
    a claim of an erroneous jury instruction, the appellant has the burden
    to show that the questioned instruction was prejudicial or otherwise
    adversely affected a substantial right of the appellant.
    20.	 ____: ____: ____. To establish reversible error from a court’s refusal
    to give a requested instruction, an appellant has the burden to show
    that (1) the tendered instruction is a correct statement of the law, (2)
    the tendered instruction is warranted by the evidence, and (3) the
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    appellant was prejudiced by the court’s refusal to give the tendered
    instruction.
    21.	 Jury Instructions: Appeal and Error. It is not error for a trial court to
    refuse to give a party’s requested instruction where the substance of the
    requested instruction was covered in the instructions given.
    Appeal from the District Court for Lancaster County: Lori
    A. M aret, Judge. Reversed and remanded for a new trial.
    Joseph D. Nigro, Lancaster County Public Defender,
    Timothy M. Eppler, and Melissa Figueroa, Senior Certified
    Law Student, for appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    I. INTRODUCTION
    Gary L. Mann appeals from a conviction and sentence,
    pursuant to jury verdict, for possession of a stolen firearm
    in violation of 
    Neb. Rev. Stat. § 28-1212.03
     (Reissue 2016).
    The primary issue is whether the “intent to restore” clause of
    § 28-1212.03 is an essential element of the crime, such that the
    failure to so instruct was plain error. We conclude that it was
    and that the error was not harmless. We reverse, and remand
    for a new trial.
    II. BACKGROUND
    On February 26, 2017, Mann was living with his half
    brother, James Barnes. On that day, Barnes had asked Mann to
    move out of the house. In Barnes’ bedroom, Barnes kept a .40
    caliber pistol stored in a cloth gun case.
    A few hours later, Barnes received the following text mes-
    sage from Mann, “I am not at the house sorry I took your pistol
    with me you probably won’t get it back for a while I love you
    so much brother pray for my sins to be forgiven so I don’t
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    burn in hell.” Concerned that Mann might hurt himself, Barnes
    notified the Cass County sheriff’s office. That office, in turn,
    requested assistance from the Lincoln Police Department in
    locating Mann. Two Lincoln police officers responded, and one
    of them located Mann. After investigating and detaining Mann
    for several hours, one of the officers obtained a search warrant
    for Mann’s car. Upon searching the car, the officer found the
    firearm and another officer arrested Mann.
    The State filed an information charging Mann with posses-
    sion of a stolen firearm. Mann pled not guilty.
    At trial, Mann testified that when he took the firearm, he
    believed he had permission. He stated that “[a]bout a week
    prior” to the incident, Barnes had given him permission to
    use the firearm. Mann testified that he had intended to com-
    mit suicide and have the State return the firearm to Barnes.
    When asked about the firearm by one of the police officers,
    Mann denied having possession of the firearm, because he
    “had a bottle of Xanax in the center console directly next to
    the [firearm] and did not want to get in trouble for it.” During
    cross-examination, Mann admitted that when the police officer
    questioned him, it would have been the “perfect” opportunity
    to return the firearm. On redirect examination, he explained
    that he did not do so because “then [he] would have a nar-
    cotics charge.”
    At the formal jury instruction conference, Mann made sev-
    eral objections to the instructions. Mann first objected to
    instruction No. 3 (which included the “elements” instruction)
    and argued that the jury should be instructed on an affirmative
    defense. He proposed instructing the jury, “‘If you find that
    [Mann] possessed, received, or disposed of a firearm with the
    intent to restore to the owner,’ . . . that would be a defense.”
    The court overruled Mann’s objection and his request for the
    affirmative defense instruction. Later, Mann objected to the
    court’s definition of “stolen” in instruction No. 4 and argued
    that the definition should mimic 
    Neb. Rev. Stat. § 28-511
    (1)
    (Reissue 2016). Thus, he argued that instruction No. 4 should
    state that “‘stolen’ means ‘to take or exercise control over
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    movable property of another with the intent to deprive him or
    her thereof.’” The court overruled both his objection and his
    requested change.
    As given by the district court, the elements portion of
    instruction No. 3 stated:
    Regarding the crime of Possession of a Stolen Firearm,
    the elements of the State’s case are:
    1. That [Mann] did possess, receive, retain, or dispose
    of a stolen firearm, knowing that it had been stolen or
    believing it had been stolen; and
    2. That [Mann] did so on or about February 26, 2017,
    in Lancaster County, Nebraska.
    In the pertinent part of instruction No. 4, the jury was instructed,
    “‘Stolen’ means to have been taken without permission or
    authority, to deprive the owner thereof.”
    The jury found Mann guilty. The court sentenced Mann to 2
    to 6 years’ imprisonment.
    Mann filed a timely appeal, which we moved to our docket.1
    After oral argument, we requested supplemental briefing by
    the parties to address
    whether, in light of the State’s submission in [original]
    briefing that the phrase in . . . § 28-1212.03 . . . stating
    ‘unless the firearm is possessed, received, retained, or
    disposed of with intent to restore it to the owner’ is a
    material element of the offense and [Mann’s] adoption at
    oral argument of that submission, the failure to instruct
    the jury of this material element in Instruction No. 3 con-
    stituted plain error, and the reasoning flowing from that
    answer to a proper disposition of this appeal.
    The parties filed supplemental briefs, which we have considered.
    III. ASSIGNMENTS OF ERROR
    Mann assigns, restated and reordered, that (1) the jury
    instructions were prejudicial, (2) he received ineffective assist­
    ance of trial counsel, (3) the district court erred in admitting
    1
    
    Neb. Rev. Stat. § 24-1106
    (3) (Cum. Supp. 2018).
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    or precluding evidence that resulted in prejudice, and (4) the
    district court abused its discretion by imposing an exces-
    sive sentence.
    IV. STANDARD OF REVIEW
    [1,2] When a party assigns as error the failure to give an
    unrequested jury instruction, an appellate court will review
    only for plain error.2 Plain error may be found on appeal when
    an error unasserted or uncomplained of at trial, but plainly
    evident from the record, prejudicially affects a litigant’s sub-
    stantial right and, if uncorrected, would result in damage to the
    integrity, reputation, and fairness of the judicial process.3
    [3,4] Whether jury instructions are correct is a question of
    law, which an appellate court resolves independently of the
    lower court’s decision.4 Statutory interpretation is also a ques-
    tion of law.5
    V. ANALYSIS
    We begin by reciting the text of § 28-1212.03, because it is
    central to our decision. It states:
    Any person who possesses, receives, retains, or dis-
    poses of a stolen firearm knowing that it has been or
    believing that it has been stolen shall be guilty of a Class
    IIA felony unless the firearm is possessed, received,
    retained, or disposed of with intent to restore it to
    the owner.6
    We will refer to the emphasized wording as the “intent to
    restore clause.”
    We have not previously identified the essential elements of
    this statute. Consequently, in crafting the instructions here, the
    district court did not have the benefit of our guidance.
    2
    State v. Hinrichsen, 
    292 Neb. 611
    , 
    877 N.W.2d 211
     (2016).
    3
    State v. Thompson, 
    301 Neb. 472
    , 
    919 N.W.2d 122
     (2018).
    4
    State v. Mueller, 
    301 Neb. 778
    , 
    920 N.W.2d 424
     (2018).
    5
    See State v. Wal, ante p. 308, 
    923 N.W.2d 367
     (2019).
    6
    § 28-1212.03 (emphasis supplied).
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    In asserting that the jury instructions were prejudicially
    erroneous, Mann presents three arguments. First, the instruc-
    tions omitted an essential element of § 28-1212.03 by failing
    to instruct on the intent to restore clause. Second, the court
    refused his requested instruction on the statutory definition of
    “deprive.” Third, Mann contends that the court erroneously
    overruled his objection for the instruction of the statutory
    definition of “stolen.”
    1. Elements of § 28-1212.03
    (a) General Principles
    [5-7] We recall several familiar principles governing the
    duty to instruct a jury in a criminal case. In a criminal trial,
    the court in its instructions must delineate for the jury each
    material element the State is required to prove beyond a rea-
    sonable doubt to convict the defendant of the crime charged.7
    It is the duty of a trial judge to instruct the jury on the perti-
    nent law of the case, whether requested to do so or not, and
    an instruction or instructions which by the omission of certain
    elements have the effect of withdrawing from the jury an
    essential issue or element in the case are prejudicially errone-
    ous.8 Jury instructions are not prejudicial if they, when taken
    as a whole, correctly state the law, are not misleading, and
    adequately cover the issues supported by the pleadings and
    the evidence.9
    [8-10] To determine the elements of a crime, we look to
    the text of the statute. In Nebraska, all crimes are statutory,
    and no act is criminal unless the Legislature has in express
    terms declared it to be so.10 Penal statutes are considered in
    the context of the object sought to be accomplished, the evils
    and mischiefs sought to be remedied, and the purpose sought
    7
    State   v.   Tucker, 
    257 Neb. 496
    , 
    598 N.W.2d 742
     (1999).
    8
    State   v.   Rask, 
    294 Neb. 612
    , 
    883 N.W.2d 688
     (2016).
    9
    State   v.   Edwards, 
    286 Neb. 404
    , 
    837 N.W.2d 81
     (2013).
    10
    State   v.   Gozzola, 
    273 Neb. 309
    , 
    729 N.W.2d 87
     (2007).
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    to be served.11 Effect must be given, if possible, to all parts of
    a penal statute; no sentence, clause, or word should be rejected
    as meaningless or superfluous if it can be avoided.12
    [11,12] The omission of an essential element from the jury
    raises due process concerns. Due process requires a prosecutor
    to prove beyond a reasonable doubt every fact necessary to
    constitute the crime charged.13 The due process requirements
    of Nebraska’s Constitution are similar to those of the federal
    Constitution.14 The U.S. Supreme Court has held that the “Due
    Process Clause requires the prosecution to prove beyond a rea-
    sonable doubt all of the elements included in the definition of
    the offense of which the defendant is charged.”15
    [13] Yet, a jury instruction that omits an element of the
    offense from the jury’s determination is subject to harmless
    error review.16 With these principles in mind, we turn to the
    parties’ arguments.
    (b) Arguments of Parties
    In the district court, both parties took the position that
    the intent to restore clause was an affirmative defense. Thus,
    in Mann’s initial brief on appeal, he argued that the trial
    court should have instructed the jury regarding his affirma-
    tive defense.
    In its responsive brief, the State “submit[ted] that [the intent
    to restore clause] appears to be an element of the offense
    rather than an affirmative defense.”17 Noting the similarity of
    11
    Nebraska Account. & Disclosure Comm. v. Skinner, 
    288 Neb. 804
    , 
    853 N.W.2d 1
     (2014).
    12
    
    Id.
    13
    Hinrichsen, 
    supra note 2
    .
    14
    
    Id.
    15
    Patterson v. New York, 
    432 U.S. 197
    , 210, 
    97 S. Ct. 2319
    , 
    53 L. Ed. 2d 281
     (1977).
    16
    State v. Merchant, 
    288 Neb. 440
    , 
    848 N.W.2d 630
     (2014).
    17
    Brief for appellee at 16.
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    § 28-1212.03 to 
    Neb. Rev. Stat. § 28-517
     (Reissue 2016) and
    our decision in State v. Hubbard 18 determining that similar
    language was an element of the offense and not an affirmative
    defense, the State argued that it could “conceive of no reason
    to construe the [intent to restore clause] in § 28-1212.03 dif-
    ferently than the language in § 28-517.”19 This was particularly
    so, the State argued, because other statutes in the same chapter
    expressly provided for affirmative defenses. The State argued
    that instructions Nos. 3 and 4, when read together, properly
    instructed the jury on the elements of the offense.
    At oral argument, the State maintained its position that the
    intent to restore clause was a material element of the offense.
    And during the argument, Mann adopted the State’s view.
    After argument, as noted above, we requested supplemental
    briefing.
    Mann’s supplemental brief adhered to the State’s original
    position: The intent to restore clause was a material element
    of the offense. He argued the district court committed plain
    error when it failed to instruct on that element. Mann noted
    that although trial counsel incorrectly characterized the element
    as an affirmative defense, he clearly objected to the failure to
    include missing language in the jury instructions. Mann con-
    tended that by failing to include the element, the court shifted
    the burden of proof of a material element to him and made
    it impossible for him to meet that burden. Additionally, he
    reminded us that it was undisputed at oral argument that intent
    to restore is an element.
    The State’s supplemental brief “adhere[d] to its initial
    position.”20 However, it offered an “alternative interpretation”21
    suggesting that the placement of the intent to restore clause
    after the penalty language could mean that it was “fairly
    18
    State v. Hubbard, 
    267 Neb. 316
    , 
    673 N.W.2d 567
     (2004).
    19
    Brief for appellee at 17.
    20
    Supplemental brief for appellee at 1.
    21
    
    Id.
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    characterized as an affirmative defense.”22 But the State then
    argued that assuming that intent to restore was an essential
    element, the failure to include it in instruction No. 3 was not
    plain error. The State reasoned that the instructions, read as a
    whole, adequately covered the element. And even if they did
    not, the State next argued, the omission was harmless beyond
    a reasonable doubt, because the evidence would not support a
    finding that Mann intended to restore the firearm to Barnes.
    This followed, according to the State, because Mann intended
    to use the firearm to commit suicide and merely assumed that
    the State would return it to Barnes. The State reasoned that
    here, an intent to restore required the intent to “control the
    [firearm’s] disposition.”23
    (c) Material Element
    As stated above, in Nebraska all crimes are statutory, and we
    look to the text to define the elements. As the U.S. Supreme
    Court said in another context, “All that counts . . . are ‘the ele-
    ments of the statute of conviction.’”24
    [14] Courts strictly construe criminal statutes.25 We con-
    cluded in State v. Hubbard that the identical intent to restore
    clause in § 28-517 was an element of the offense.26 We rea-
    soned that because the statute was identical to the Model Penal
    Code27 and because the commentaries therein intended the
    clause to be an element, it was an element.
    In the State’s supplemental brief, it argued that intent to
    restore could be characterized as an affirmative defense. The
    22
    Id. at 2.
    23
    Id. at 3.
    24
    Mathis v. U.S., ___ U.S. ___, 
    136 S. Ct. 2243
    , 2251, 
    195 L. Ed. 2d 604
    (2016).
    25
    State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
     (2017).
    26
    See Hubbard, 
    supra note 18
    .
    27
    A.L.I., Model Penal Code and Commentaries § 223.6, comment 4(a)
    (1980).
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    State cited a proposition from State v. Minor 28: “‘In a criminal
    prosecution, if a negative is an essential element of the crime,
    and is “peculiarly within the knowledge of the defendant,”
    it devolves upon him to produce the evidence, and upon his
    failure to do so, the jury may properly infer that such evidence
    cannot be produced.’”
    But two problems are obvious. First, the proposition itself
    characterizes the “‘negative’” as an “‘essential element.’”29 If,
    as Minor says, the negative is an essential element, it cannot
    simultaneously be an affirmative defense. It is either one or the
    other. Here, the intent to restore clause is the “negative”; under
    Minor, it must be an essential element. Second, the State’s
    argument ignores a robust constitutional imperative.
    [15] Under the Due Process Clause of the 14th Amendment
    to the U.S. Constitution and under the Nebraska Constitution,
    in a criminal prosecution, the State must prove every element
    of an offense beyond a reasonable doubt and may not shift the
    burden of proof to the defendant by presuming that element
    upon proof of the other elements of the offense.30 In In re
    Winship,31 the U.S. Supreme Court pronounced that “the Due
    Process Clause protects the accused against conviction except
    upon proof beyond a reasonable doubt of every fact necessary
    to constitute the crime with which he is charged.” Later, in
    Mullaney v. Wilbur,32 the Court concluded that under Maine’s
    homicide law, the burden of proving that a killing occurred in
    the heat of passion in sudden provocation could not constitu-
    tionally be placed on the defendant. The Court reasoned that
    proving lack of heat of passion was similar to proving any
    other intent. “And although intent is typically considered a fact
    28
    State v. Minor, 
    188 Neb. 23
    , 26, 
    195 N.W.2d 155
    , 156-57 (1972).
    29
    
    Id. at 26
    , 
    195 N.W.2d at 156
    .
    30
    State v. Lester, 
    295 Neb. 878
    , 
    898 N.W.2d 299
     (2017).
    31
    In re Winship, 397 U.S 358, 364, 
    90 S. Ct. 1068
    , 25 L. Ed 2d 368 (1970).
    32
    Mullaney v. Wilbur, 
    421 U.S. 684
    , 
    95 S. Ct. 1881
    , 
    44 L. Ed. 2d 508
    (1975).
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    peculiarly within the knowledge of the defendant, this does
    not, as the Court has long recognized, justify shifting the bur-
    den to him.”33 This conclusion, we think, rules out the State’s
    argument premised on the quotation from Minor.
    [16] We are not persuaded by the State’s interpretation.
    According to the State, if a defendant possesses, receives,
    maintains, or disposes of a firearm, knowing or believing it
    has been stolen, then it is presumed the defendant did not have
    an intent to restore. But this is contrary to the plain language.
    We hold, as the State anticipated, that under § 28-1212.03,
    the absence of an intent to restore a firearm to the owner
    is a material element of the crime of possession of a stolen
    firearm.
    (d) Adequately Covered
    En route to its harmless error argument, the State submits
    that read together, instructions Nos. 3 and 4 properly instructed
    the jury regarding the elements of the offense. We disagree. We
    have quoted them above. We simply cannot discern the intent
    to restore element from the instructions given, and we do not
    read Hubbard 34 to dictate otherwise.
    The State relies on our statement in Hubbard that “[t]he use
    of the term ‘deprive’ encompassed a lack of intent to restore
    the property to the owners.”35 Because the definition of stolen
    in instruction No. 4 included the word “deprive,” the State
    argues, the instructions were sufficient to convey the lack of
    intent to restore.
    But in Hubbard, we addressed a claim that the information
    was deficient. There, we applied the rule that an informa-
    tion or complaint is sufficient unless it is so defective that
    by no construction can it be said to charge the offense of
    which the accused was convicted. Only in that context did
    33
    Id., 
    421 U.S. at 702
    .
    34
    Hubbard, 
    supra note 18
    .
    35
    
    Id. at 323
    , 673 N.W.2d at 575.
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    we characterize the term “deprive” as encompassing a lack of
    intent to restore the property to the owners. Here, we review
    jury instructions. The use of the word “deprive” in the defini-
    tion of “stolen” did not instruct the jury that the absence of
    an intent to restore the property was a material element of
    the crime.
    (e) Harmless Error
    Because the intent to restore clause was an element of
    the crime, the court should have instructed the jury on the
    element.36 It did not. The jury instructions omitted an essen-
    tial element.
    [17] Nonetheless, we must determine whether the omission
    was harmless error. Harmless error review ultimately 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 would surely have been rendered, but,
    rather, whether the actual guilty verdict rendered in the ques-
    tioned trial was surely unattributable to the error.37
    We cannot characterize this instructional error as harmless.
    That is, we cannot say beyond a reasonable doubt that the
    jury would still have found Mann guilty had it been required
    to find whether he possessed the firearm with the intent to
    restore it to the owner. As we concluded in State v. White,38
    “where the jury has not been instructed as to a material ele-
    ment of a crime, there is no verdict within the meaning of
    Neb. Const. art. I, § 11.” Consequently, there must be an
    actual jury finding of guilt and not appellate speculation of
    hypothetical jury actions. Mann presented evidence tending to
    show that, in the language of § 28-1212.03, he possessed the
    firearm “with intent to restore it” to Barnes, and we cannot
    36
    See Tucker, 
    supra note 7
    .
    37
    State v. Smith, ante p. 154, 
    922 N.W.2d 444
     (2019).
    38
    State v. White, 
    249 Neb. 381
    , 389, 
    543 N.W.2d 725
    , 731 (1996), overruled
    on other grounds, State v. Burlison, 
    255 Neb. 190
    , 
    583 N.W.2d 31
     (1998)).
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    conclude beyond a reasonable doubt that the jury would have
    disregarded this evidence if they had been instructed on all
    the material elements. We cannot conclude beyond a reason-
    able doubt that the jury would have found he lacked the intent
    to restore.
    And here, even though Mann did not object on the precise
    ground, the error prejudicially affected his substantial right and
    leaving it uncorrected would result in damage to the integrity,
    reputation, and fairness of the judicial process. Because the
    omission of the intent to restore clause was plainly erroneous
    and cannot be characterized as harmless, we must reverse the
    judgment and remand the cause for a new trial.
    Thus, typically, the elements of possession of a stolen
    firearm would consist of the following: (1) that the defendant
    did possess, receive, retain, or dispose of a stolen firearm; (2)
    that he did so knowing or believing the firearm was stolen;
    (3) that he did so on or about (date) in (county), Nebraska;
    and (4) that he did not possess, receive, retain, or dispose
    of the firearm with the intent to restore it to the owner. Of
    course, depending on the facts, it may be appropriate to alter
    the wording.
    [18] For the most part, we need not address Mann’s other
    assignments of error. But an appellate court may, at its discre-
    tion, discuss issues unnecessary to the disposition of an appeal
    where those issues are likely to recur during further proceed-
    ings.39 We briefly address two matters that, at least to some
    extent, may be likely to recur.
    2. Definition of Deprive
    Mann contends that the court erred in failing to define
    “deprive” in the jury instructions. As stated above, the dis-
    trict court included that word in its definition of “stolen.”
    Because the court failed to instruct the jury on the definition
    of “deprive” under 
    Neb. Rev. Stat. § 28-509
    (1) (Reissue 2016),
    39
    State v. Pangborn, 
    286 Neb. 363
    , 
    836 N.W.2d 790
     (2013).
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    Mann argues the instructions allowed the jury to embrace a
    broad definition that unduly prejudiced him. He argues that the
    term “deprive” alone is not sufficient to encompass the intent
    to restore element and ignores the substantial prejudice that
    occurred at trial.
    But we have already rejected the State’s argument that
    the use of the word “deprive” in the definition of “stolen”
    was sufficient to adequately instruct the jury on the missing
    material element from § 28-1212.03: the absence of an intent
    to restore the firearm to its owner. We anticipate that upon
    remand, the district court will instruct the jury regarding that
    element. In that sense, the question seems unlikely to recur
    on remand.
    Mann complains about a failure to define a word that appears
    nowhere in the operative statute. He relies upon the definition
    of “deprive” in § 28-509(1). But § 28-509 defines that term
    only “[a]s used in sections 28-509 to 28-518.” And this is
    not a prosecution for theft by receiving stolen property under
    § 28-517 (which would be within that range); rather, it arises
    under § 28-1212.03 for possession of a stolen firearm. Mann
    does not direct us to any case law holding that in a prosecution
    under § 28-1212.03, the trial court must instruct the jury on
    the definition of “deprive” under § 28-509(1). And because the
    language of § 28-1212.03 does not employ the word anywhere,
    the argument seems somewhat odd. Under these circumstances,
    we find no error.
    3. Definition of Stolen
    Mann argues that the court erred in overruling his objection
    to the definition of “stolen.” While on appeal he also com-
    plains that the court’s instruction should have reflected the
    language in § 28-509(8), he did not submit a proposed instruc-
    tion to that effect. At the district court’s instruction conference,
    Mann contended only that the definition of “stolen” should
    have mimicked the statutory language under § 28-511(1).
    Specifically, he requested that the jury be instructed that
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    “‘stolen’ means ‘to take or exercise control over movable
    property of another with the intent to deprive him or her
    thereof.’”40 On appeal, he argues that the district court erred
    in refusing that instruction.
    [19,20] In an appeal based on a claim of an erroneous jury
    instruction, the appellant has the burden to show that the
    questioned instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant.41 To establish
    reversible error from a court’s refusal to give a requested
    instruction, an appellant has the burden to show that (1) the
    tendered instruction is a correct statement of the law, (2) the
    tendered instruction is warranted by the evidence, and (3) the
    appellant was prejudiced by the court’s refusal to give the ten-
    dered instruction.42
    We are not persuaded that in the context of § 28-1212.03,
    Mann’s requested instruction was a correct statement of the
    law or was warranted by the evidence. “When employing a
    definition, whether alone, with the term defined, or as a sepa-
    rate definition, a judge should provide only that portion of the
    definition relevant to the facts of the particular case.”43 His
    instruction proposed the phrase “movable property of another,”
    but in this prosecution under § 28-1212.03, the only property
    involved was a firearm. Mann’s proposed instruction would
    have introduced language that easily could have confused
    the jury.
    [21] Moreover, we see no prejudice from the definition of
    “stolen” in instruction No. 4 or the refusal of Mann’s requested
    alternative. As given, instruction No. 4 defined “stolen” to
    “mean[] to have been taken without permission or author-
    ity, to deprive the owner thereof.” It is not error for a trial
    court to refuse to give a party’s requested instruction where
    40
    See § 28-511(1).
    41
    Mueller, 
    supra note 4
    .
    42
    
    Id.
    43
    NJI2d Crim., ch. 4, comment.
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    the substance of the requested instruction was covered in the
    instructions given.44 Mann does not explain how the difference
    between the instruction given and the one he requested actu-
    ally prejudiced him. And we can discern no obvious prejudice.
    In the absence of any showing of prejudice, it appears to us
    that the instruction of “stolen” given by the court adequately
    covered the substance of the requested statutory instruction.
    Therefore, we find no error.
    VI. CONCLUSION
    We conclude that the district court plainly erred in failing to
    instruct the jury on an essential element of the crime and that
    the error was not harmless and warrants reversal. Therefore,
    we reverse the judgment of the district court and remand the
    cause for a new trial.
    R eversed and remanded for a new trial.
    44
    State v. Banks, 
    278 Neb. 342
    , 
    771 N.W.2d 75
     (2009).