State v. Mueller - supplemental opinion

302 Neb. 51, 921 N.W.2d 584

• Court: Nebraska Supreme Court
• Decided: January 18, 2019
• Docket: S-17-387
• Status: Published

Opinion

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

In the analysis section, we withdraw the fifth paragraph 3 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 ordinarily 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.

1 State v. Mueller, 301 Neb. 778 , 920 N.W.2d 424 (2018).

2 Id. at 786 , 920 N.W.2d at 432 .

3 Id. at 791 , 920 N.W.2d at 435 .