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04/23/2019 09:06 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
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                                                  STATE v. LOVING
                                                Cite as 27 Neb. App. 73




                                        State of Nebraska,         appellee, v.
                                         Jeffrey S. Loving,        appellant.
                                                    ___ N.W.2d ___

                                          Filed April 9, 2019.    No. A-18-112.

                1.	 Jury Instructions: Appeal and Error. Whether a jury instruction is
                    correct is a question of law, regarding which an appellate court is obli-
                    gated to reach a conclusion independent of the determination reached by
                    the trial court.
                2.	 Jury Instructions: Proof: Appeal and Error. The appellant has the
                    burden to show that the questioned instruction was prejudicial or other-
                    wise adversely affected a substantial right of the appellant.
                3.	 Trial: Courts: Homicide: Jury Instructions. A trial court is required to
                    give an instruction where there is any evidence which could be believed
                    by the trier of fact that the defendant committed manslaughter and
                    not murder.
                4.	 Homicide: Intent: Words and Phrases. A “sudden quarrel” is a legally
                    recognized and sufficient provocation which causes a reasonable person
                    to lose normal self-control; the question is whether there existed rea-
                    sonable and adequate provocation to excite one’s passion and obscure
                    and disturb one’s power of reasoning to the extent that one acted rashly
                    and from passion, without due deliberation and reflection, rather than
                    from judgment.
                5.	 Appeal and Error: Words and Phrases. Plain error exists where there
                    is error, plainly evident from the record but not complained of at trial,
                    which prejudicially affects a substantial right of the litigant and is of
                    such a nature that to leave it uncorrected would cause a miscarriage of
                    justice or result in damage to the integrity, reputation, and fairness of the
                    judicial process.
                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
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                            STATE v. LOVING
                          Cite as 27 Neb. App. 73

     from the jury an essential issue or element in the case are prejudi-
     cially erroneous.
 7.	 Double Jeopardy: Evidence: New Trial: Appeal and Error. The
     Double Jeopardy Clause does not forbid a retrial if the sum of all the
     evidence admitted by a trial court, whether erroneously or not, would
     have been sufficient to sustain a guilty verdict.

  Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Reversed and remanded for a new trial.
  Thomas C. Riley, Douglas County Public Defender, and
Leslie E. Cavanaugh for appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
   Moore, Chief Judge, and Pirtle and A rterburn, Judges.
   A rterburn, Judge.
                        INTRODUCTION
   Jeffrey S. Loving was convicted by a jury of murder in the
second degree and use of a deadly weapon to commit a felony.
The district court subsequently sentenced Loving to a total
of 110 to 130 years’ imprisonment. Loving appeals from his
convictions here. On appeal, Loving assigns numerous errors,
including that the district court erred by incorrectly instructing
the jury as to the elements of murder in the second degree.
Because we find merit to Loving’s assertion that the district
court erred in instructing the jury as to the elements of murder
in the second degree and because we find such error is not
harmless, we reverse Loving’s convictions and remand the
cause for a new trial.
                      BACKGROUND
  The State filed an information charging Loving with first
degree murder pursuant to Neb. Rev. Stat. § 28-303(1) (Reissue
2016) and with use of a deadly weapon to commit a felony
pursuant to Neb. Rev. Stat. § 28-1205(1) (Reissue 2016). The
charges against Loving stem from an incident which occurred
on July 7, 2016. Evidence adduced at trial revealed that at
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                         STATE v. LOVING
                       Cite as 27 Neb. App. 73

5:53 p.m., shots were fired near the intersection of 28th and
Laurel Avenues in Omaha, Nebraska. Approximately 3 minutes
after the shots were fired, the 911 emergency dispatch service
received a telephone call indicating that there was a shooting
victim located at a gas station a short distance from 28th and
Laurel Avenues.
   When police arrived at the gas station, they found Marshall
Washington in the front seat of a silver sport utility vehicle
(SUV) suffering from a gunshot wound to his right cheek.
Washington’s injuries were “‘not compatible with life.’” He
was pronounced dead at a hospital upon his arrival. At the gas
station, police also located the driver of the SUV, Theodore
Loving. Theodore told police that his nephew, Loving, had
shot at the vehicle as a result of a dispute they were having.
Theodore claimed that Loving owed him $3,000 for drugs he
had purchased. Loving was subsequently arrested and charged
with the murder of Washington.
   At trial, Loving admitted that he fired the shots at
Theodore’s SUV, which shots resulted in Washington’s death.
However, he claimed that he was justified in firing the shots
in defense of himself and his family, because he was afraid
that Theodore was going to kill him, his sister, and his sis-
ter’s children.
   The State disputed Loving’s claim of self-defense. It pre-
sented evidence to demonstrate that Loving was angry with,
and not afraid of, Theodore on the day of the shooting. The
State also presented evidence to show that Loving fired the
shots at Theodore’s SUV when it was moving away from him
and that after the shooting, Loving attempted to change his
appearance and avoid arrest.
   The State called Theodore to testify. Theodore testified that
he lives in California, but occasionally comes to Nebraska to
visit family, including Loving and Loving’s sister, Dynasti
Loving. Theodore explained that his relationship with Loving
and Dynasti was “nothing but love” and that he “always
went out of [his] way to help them.” When Theodore visited
Nebraska in 2012 or 2013, he helped supply Loving with a
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                         STATE v. LOVING
                       Cite as 27 Neb. App. 73

large quantity of marijuana. Specifically, Theodore testified
that on Loving’s behalf, he obtained 1 pound of marijuana
from his associates in Juarez, Mexico, and 1 pound of mari-
juana from his “friends in east Oakland.” Despite receiving the
2 pounds of marijuana, Loving refused to pay for it. Because
of Loving’s refusal, Theodore paid $3,000 of his own funds
to his associates in Mexico, because “you don’t want to mess
with the Juarez boys.” Theodore’s friends from Oakland were
never paid.
   In May 2016, Theodore returned to Nebraska for a visit.
When he arrived in Nebraska, Theodore had a “friendly”
conversation with Loving about the debt Loving owed to
Theodore’s friends in Oakland. Theodore testified that he was
not concerned about Loving’s repaying the $3,000 he owed
to Theodore; rather, he wanted Loving to repay Theodore’s
friends from Oakland. According to Theodore, Loving told
Theodore that he needed a few weeks to obtain the funds to
repay his debt. After Theodore’s conversation with Loving,
he continued to have contact with Loving, including pur-
chasing marijuana from Loving and spending time together
at Dynasti’s house. Theodore testified that everything was
“[f]ine” and “great” between him and Loving through the
beginning of July.
   In the first few days of July 2016, Theodore’s relationship
with Loving changed. Theodore testified that he observed
Loving to be spending a lot of money “partying,” so he brought
up again to Loving the drug debt. Testimony from Theodore
and Loving and evidence recovered from Loving’s cellular
telephone indicated that in the first few days of July, Theodore
and Loving exchanged numerous text messages and telephone
calls regarding Loving’s drug debt. Theodore sent Loving a text
message telling him he could “at least send $200 towards [his]
debt.” Loving replied to the message that he did not intend to
repay a 3-year-old debt. Loving also told Theodore to stop call-
ing him and threatened to go to Theodore’s girlfriend’s house
where Theodore was staying “to do something” to him. The
State presented evidence that around this same time, Loving
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                         STATE v. LOVING
                       Cite as 27 Neb. App. 73

sent a text message to Dynasti, stating, “‘He talking about he
on his way I’m going to smoke him.’”
   Theodore testified that based on Loving’s behavior, on July
5, 2016, he contacted a friend of his from Oakland named
“Mike.” Theodore gave this friend Loving’s telephone number
and told him that Loving lived with Dynasti. Text messages
recovered from Theodore’s cellular telephone indicate that
Theodore also instructed Mike what to say when he telephoned
Loving. Theodore also texted Mike at some point asking him if
he had called Loving yet. Ultimately, Mike telephoned Loving
sometime in early July and left him a voice mail message. On
the message, Mike mentioned Theodore’s name and threatened
violence against Loving, Dynasti, and everyone who lived in
Dynasti’s house, if Loving did not repay his debt. Specifically,
the voice mail message stated as follows:
      Your Uncle Theodore will get that money. I know you are
      at your sister’s house and I will come there if I have to
      and I will fuck both you all up. I am not going to leave
      nothing. Do you understand? So you best try to get that
      money as soon as you can and pass it to your blood or
      there will be some blood. And that is real ass talk. Now,
      if you got any sense, you better get my money or else I
      am going to [indecipherable] everybody in the house at
      your sister’s.
Theodore testified that he learned that Mike had left the mes-
sage after Dynasti contacted Theodore on July 7 and was upset
with him. Theodore then sent a text message to Mike, asking
him, “‘Why did you say my name?’”
   Also on July 7, 2016, Theodore learned through social media
that it was the birthday of his childhood friend, Washington,
who he had not seen in a number of years. Theodore also
learned that Washington was not in good health and was resid-
ing at a local nursing home. He went to visit Washington
for his birthday. Theodore and Washington left the nursing
home after eating dinner there so that Theodore could “show
[Washington] a good time on his birthday.” From the nursing
home, Theodore drove with Washington in the passenger seat
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                         STATE v. LOVING
                       Cite as 27 Neb. App. 73

of his SUV to the area of 30th and Crown Point Avenues to
obtain marijuana. Dynasti’s house is located at the intersection
of 28th and Crown Point Avenues. Theodore testified that he
was not “particularly heading to Dynasti’s” when he left the
nursing home.
   Theodore testified that when he approached Dynasti’s house
on Crown Point Avenue, he recognized someone, whose name
he did not know, who was parked in front of the house and
pulled up next to the person’s vehicle to ask him if he had any
marijuana to sell. While Theodore was stopped in front of the
house, Loving came to the front of the house from the back-
yard. Loving told Theodore, “‘You better get out of here before
something happens. Ya’ll weed days over here are over with.’”
Theodore then began to drive away from Dynasti’s house, tell-
ing Loving that he and Washington would just go around the
corner to buy marijuana.
   Theodore drove around the block, trying to get to a nearby
liquor store. He testified that he could not continue east on
Crown Point Avenue after leaving Dynasti’s house because
there was a schoolbus blocking his way. Theodore admitted
that this was the first time he had mentioned the schoolbus.
When Theodore’s SUV was near the intersection of 28th and
Laurel Avenues, which is located behind Dynasti’s house,
Theodore observed Loving running toward him from behind
Dynasti’s house. At this time, Theodore had slowed his SUV
down, but he did not stop. Loving then started shooting a gun
toward the SUV. Theodore believed Loving fired four shots.
Theodore quickly drove away from the area. He observed that
Washington had been shot and “knew it was bad.” Theodore
testified that he was not heading anywhere in particular and
that he ended up at a nearby gas station. He did not call 911
until he reached the gas station because his cellular telephone’s
“battery was dead.” Theodore testified that he did not threaten
Loving during their encounter on July 7, 2016. He also testified
that he did not have a gun.
   During the defense’s cross-examination of Theodore, he
admitted that although he spoke with numerous officers
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                         STATE v. LOVING
                       Cite as 27 Neb. App. 73

immediately after the shooting and had given a deposition prior
to trial, he had never before mentioned obtaining marijuana
for Loving from people located in Mexico and Oakland and,
thus, never mentioned Loving owed the people from Mexico
or Oakland any money. Instead, Theodore repeatedly told
police that Loving owed him money for marijuana and that
Theodore wanted it back. In fact, in Theodore’s text messages
to Loving from May through July 2016, he never mentioned
Loving owing anyone but Theodore money. In a telephone call
to his sister while he was in a police interview room, Theodore
stated that “‘all I want is my money.’” Theodore also told
police several times that he went to Dynasti’s house on July 7,
2016, in order “‘to settle this with Jeffrey.’” Theodore believed
that Loving was “dodging” him. Theodore did not mention
wanting to buy marijuana for Washington when he initially
spoke with police. Theodore told police that he did not even
smoke marijuana.
   During the defense’s cross-examination of Theodore, it pre-
sented evidence that prior to Theodore’s trial testimony, he had
denied knowing anything about Mike or about the threatening
message Mike had sent to Loving.
   Forensic investigators who inspected Theodore’s SUV after
the shooting located three bullets on its passenger side. One of
the bullets entered through the outside of the front passenger-
side door and was located inside that door. A second bullet was
located in the top molding of the rear passenger-side door. The
third bullet was located on the plastic trim on the bottom of the
passenger side between the front and rear doors. The three bul-
lets recovered from Theodore’s SUV and the bullet recovered
from Washington were all .40-caliber and were all fired from
the same gun.
   Both the front and rear passenger-side windows of Theodore’s
SUV were shattered during the shooting. The front passenger-
side window was made of clear or greenish-colored glass.
Glass matching that window was located on the east side of the
intersection of 28th and Laurel Avenues. The rear passenger-
side window was made of tinted glass. The glass appeared to
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                         STATE v. LOVING
                       Cite as 27 Neb. App. 73

be black in color. Glass matching the rear window was located
on Laurel Avenue, a few feet to the west of 28th Avenue. There
was no damage to the driver’s side of the SUV, the front of the
SUV, or the back of the SUV.
   Forensic investigators also recovered 12 casings from the
area of the shooting. Ten of these casings were found approxi-
mately halfway between Crown Point and Laurel Avenues on
28th Avenue. The casings were located near the curb on the
east side of the street. The other two casings were located
on the northeast corner of 28th and Crown Point Avenues,
across the street from Dynasti’s house. All of the casings were
from .40-caliber bullets and were fired from the same gun;
however, two of the casings were a different brand. Although
police searched the area thoroughly, they were unable to
locate a gun.
   The State also presented evidence regarding Loving’s actions
after the shooting to refute his claim of self-defense and defense
of others. The State called Kirk Carter, Loving’s friend, to tes-
tify. Carter testified that he was at Dynasti’s house at the time
of the shooting. In fact, Carter was in his vehicle in front of
Dynasti’s house when Theodore’s SUV pulled up next to him.
Carter indicated that he did not see who was in the SUV, but
he did observe Loving to gesture that the SUV should leave.
Carter indicated that the music playing in his vehicle was very
loud and that, as a result, he could not hear the exact words
exchanged between Loving and the person in the SUV. Carter
explained that after the SUV left, he saw Loving move to the
side of Dynasti’s house and then heard three or four “bangs”
from behind Dynasti’s house. Loving then got into Carter’s
vehicle and they drove away. Carter drove Loving to the house
of another of Loving’s friends. During the drive, Carter testi-
fied that he and Loving did not say much. However, Loving
did say, “‘He played with me.’” Carter and Loving smoked
marijuana in Carter’s vehicle, and then Carter left Loving at
his friend’s house.
   Later on the night of July 7, 2016, Loving’s girlfriend
picked up Loving from his friend’s house in a vehicle that she
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                         STATE v. LOVING
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had borrowed from a friend. Apparently, prior to picking up
Loving, she had driven to her friend’s house in her own vehicle
in order to borrow her friend’s vehicle so that she could go
look for Loving. The State presented evidence to demonstrate
that by the time Loving’s girlfriend picked up Loving, he had
changed his clothes from the clothes he was wearing at the
time of the shooting and had cut his hair much shorter than it
had been earlier that day.
   After Loving’s girlfriend picked up Loving, they returned to
the area of her friend’s home, presumably to return the friend’s
vehicle. However, when Loving and his girlfriend drove by,
they observed a number of police at the house. They attempted
to drive away from the house, but were ultimately stopped by
the police and Loving was arrested.
   After the State rested its case, Loving called Dynasti to tes-
tify in his defense. Dynasti essentially agreed with Theodore’s
testimony that Theodore had a good relationship with her
and Loving when Theodore first came to visit in May 2016.
Dynasti testified that she saw Theodore “[a]lmost every other
day” and that Theodore spent a lot of time with her and her
three children. Dynasti also testified that “sometimes” when
she was with Theodore, Loving was also present.
   Dynasti also agreed with Theodore’s testimony that the
relationship between Theodore, Loving, and herself changed in
July 2016. Dynasti described that Theodore’s attitude toward
her and Loving changed dramatically around July 1. She testi-
fied that Theodore became extremely upset after he observed
her and Loving spend a lot of money on a party they were plan-
ning for the Fourth of July holiday. Theodore demanded repay-
ment of Loving’s drug debt. Dynasti indicated that Theodore
and Loving’s relationship became so negative, she uninvited
Theodore and his girlfriend from the Fourth of July party. She
indicated that she rescinded the invitation partly because she
was concerned about Theodore’s being violent.
   Dynasti described the events of July 7, 2016, differently than
Theodore, however. On the morning of July 7, Dynasti was at
work when Loving and his girlfriend came to see her. Loving
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                         STATE v. LOVING
                       Cite as 27 Neb. App. 73

played the voice mail he received from Theodore’s friend,
Mike, for Dynasti. Upon hearing the voice mail, Dynasti
became very upset. She testified that she began to cry and that
Loving and his girlfriend also cried. Dynasti described feel-
ing very worried that something may happen to her children
and worried that everyone living in her house was going to be
killed. Dynasti indicated that in addition to feeling worried and
fearful, she also felt very angry and hurt.
   Dynasti planned on contacting an acquaintance who was a
police officer after she got home from work. In the meantime,
however, she forwarded a recording of the voice mail message
to Theodore and asked why he would have someone threaten
her and her family. Dynasti admitted that she appeared very
angry in her text messages to Theodore: “‘You little weak
faggot-ass bitch. You’re going to regret that you ever did that[.]
I don’t give a fuck about you. . . .’” “‘You don’t put no fear
in my heart . . . .’” Additionally, Dynasti texted Loving’s girl-
friend: “‘I want his bitch-ass to come to my house’” and “‘I’ll
do it my motherfucking-self.’”
   After work, Dynasti was at her house with her three
children. She testified that Loving and Carter were outside
of the house. Dynasti observed Theodore’s SUV pull up in
front of her house. She heard Loving scream at Theodore,
“‘Get the fuck out of here.’” Dynasti indicated that Loving
appeared to be afraid. He told her to get inside the house,
which frightened her. Dynasti heard Theodore yell back at
Loving. She testified that Theodore’s words caused her to
fear for her life and for Loving’s life. From inside the house,
she observed Theodore drive around the block. It appeared
to her that Theodore was going to turn onto 28th Avenue in
order to return to her house. She then saw Loving standing in
the middle of 28th Avenue and watched him fire three shots
toward Theodore’s SUV. Dynasti admitted that her testimony
was different than what she told the police immediately after
the shooting. She testified that she had told no one, includ-
ing Loving, that she saw and heard the shooting until a few
weeks before trial. On the day of the shooting, Dynasti told
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police that she did not even hear the gun shots. In addition,
she acted surprised when police informed her that Loving was
a suspect in the shooting.
   Loving also testified in his own defense. Loving testified
that he did not owe Theodore any money for a drug debt.
In May 2016, Theodore contacted Loving for the first time
in years. Loving testified that Theodore did not bring up
the drug debt during their conversation. After that telephone
call, Loving saw Theodore “[q]uite often” from May through
June. Loving indicated that during that time period, Theodore
often purchased marijuana from him. Loving testified that in
early July, his relationship with Theodore changed. Theodore
began discussing the purported drug debt. Loving indicated
that Theodore suddenly had a very different attitude toward
him and had a threatening demeanor.
   Loving testified that on the morning of July 7, 2016, he
listened to the voice mail message that had been left on his
cellular telephone by Loving’s friend, Mike. After hearing the
message, Loving felt “panicked,” fearful, and hurt. He testified
that he believed that the message was essentially a death threat
directed at him from Theodore. During his testimony, Loving
described what else had occurred on July 7, prior to the shoot-
ing. Loving testified that at some point, prior to the shooting,
he shaved his head, because he had “messed up” when “lin-
ing [his] hair up.” He also testified that prior to the shooting,
Carter came over to Dynasti’s house and they left the house
for a few minutes to go buy cigarettes at a nearby gas station.
When they returned, they pulled up in front of Dynasti’s house
and listened to music in the vehicle. Approximately 5 or 10
minutes later, Theodore pulled up in his SUV and stopped next
to Carter’s vehicle.
   Loving testified that when Theodore first stopped his SUV,
he was yelling something that Loving could not hear because
the music in Carter’s vehicle was too loud. When Loving got
out of Carter’s vehicle, he grabbed Carter’s gun and put it in
his pocket. Once outside of Carter’s vehicle, Loving could hear
that Theodore was yelling about the drug debt. Loving testified
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that Theodore shouted, “‘I want my motherfucking money.’”
Loving yelled at Theodore to leave. He then saw Theodore
point a gun at him from inside the SUV.
   Loving testified that once he saw Theodore with a gun, he
yelled at Dynasti to get inside of the house and he went on the
side of the house where he was outside of Theodore’s vantage
point. Loving indicated that once on the side of the house, he
continued to walk toward the backyard. Loving testified that he
then heard Carter say, “‘They’re coming back.’” Loving looked
up and saw Theodore’s SUV on the street behind Dynasti’s
house. He testified that Theodore was starting to turn north on
28th Avenue so as to return to Dynasti’s house. Loving stated
that Theodore stopped his SUV at the intersection of 28th
and Laurel Avenues and that Loving again observed Theodore
point a gun at him from inside the SUV. Loving believed that
Theodore planned to kill him, so he pulled Carter’s gun out
of his pocket and started to shoot at Theodore and his SUV.
Loving was unable to recall exactly how many times he shot;
however, he did testify that he shot until the gun was out of
bullets. He did testify that he did not intend to kill Theodore or
Washington, he just wanted to stop Theodore from returning to
Dynasti’s house.
   Loving testified that after the shooting, he intended to turn
himself in at the police station. He indicated that before he
did so, he wanted to go to his mother’s house. He also indi-
cated that he was fearful that police would shoot him if he
was arrested somewhere other than the police station. Loving
admitted that during recorded telephone calls from jail after his
arrest, he repeatedly denied any involvement with the shoot-
ing, rather than stating that he shot Theodore in self-defense.
In addition, Loving admitted that the first time he ever men-
tioned that Theodore had a gun on July 7, 2016, was during his
trial testimony.
   After hearing all the evidence, the jury rendered its verdict.
Although Loving was charged with first degree murder, the
jury convicted him of second degree murder, pursuant to a step
instruction given by the district court. The jury also convicted
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Loving of use of a deadly weapon to commit a felony. Loving
filed a motion for new trial, which the district court overruled.
The court subsequently sentenced Loving to 80 to 90 years’
imprisonment on his conviction for second degree murder and
30 to 40 years’ imprisonment on his conviction for use of a
deadly weapon to commit a felony.
   Loving appeals.

                 ASSIGNMENTS OF ERROR
   On appeal, Loving assigns five errors. He asserts, restated
and renumbered, that the district court erred in (1) overruling
his objection to “the racial makeup” of the jury; (2) not permit-
ting him to testify about “his fears of fights in jail” to counter
the State’s evidence that during jailhouse telephone calls, he
denied shooting Washington; (3) failing to properly instruct the
jury regarding the elements of second degree murder; and (4)
imposing excessive sentences. In addition, Loving argues that
there was insufficient evidence presented to prove that he did
not act in self-defense or defense of others when shooting at
Theodore’s SUV.

                   STANDARD OF REVIEW
   [1] Whether a jury instruction is correct is a question of law,
regarding which an appellate court is obligated to reach a con-
clusion independent of the determination reached by the trial
court. State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).

                          ANALYSIS
                       Jury Instructions
   Contained within the jury instructions in this case was
instruction No. 6, which delineated the elements of first degree
murder, second degree murder, and intentional manslaughter.
This step instruction also explained to the jury the manner in
which it was to consider whether Loving had committed each
crime. Because instruction No. 6 is so important to our disposi-
tion of this case, we quote it in its entirety:
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                  INSTRUCTION NO. 6
   Depending on the evidence, you may return one of sev-
eral possible verdicts for Count 1 of the Information. You
may find the Defendant:
   1. Guilty of Murder in the First Degree; or
   2. Guilty of Murder in the Second Degree; or
   3. Guilty of Intentional Manslaughter; or
   4. Not guilty.
                       ELEMENTS
   1. MURDER IN THE FIRST DEGREE
   The material elements which the State must prove by
evidence beyond a reasonable doubt in order to convict
the Defendant of the crime of Murder in the First Degree
under Count 1 of the Information are:
   1. That the Defendant on or [about] July 7, 2016, did
kill Marshall Washington Jr.;
   2. That the Defendant did so in Douglas County,
Nebraska;
   3. That the Defendant killed Marshall Washington Jr.
purposely and with deliberate and premeditated mal-
ice; and
   4. That the Defendant did not act in self-defense; and
   5. The Defendant did not act in defense of another.
   The State has the burden of proving beyond a reason-
able doubt each and every one of the foregoing material
elements of the crime of Murder in the First Degree.
   2. MURDER IN THE SECOND DEGREE
   The material elements which the State must prove by
evidence beyond a reasonable doubt in order to convict
the Defendant of the crime of Murder in the Second
Degree under Count 1 of the Information are:
   1. That the Defendant on or about July 7, 2016 did kill
Marshall Washington, Jr.;
   2. That the Defendant did so in Douglas County,
Nebraska;
   3. That the Defendant did so intentionally, but without
premeditation;
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   4. That the Defendant did not act in self-defense and;
   5. The Defendant did not act in defense of another.
   The State has the burden of proving beyond a reason-
able doubt each and every one of the foregoing material
elements of the crime of Murder in the Second Degree.
   3. INTENTIONAL MANSLAUGHTER
   The material elements which the State must prove by
evidence beyond a reasonable doubt in order to convict
the Defendant of the crime of Intentional Manslaughter
under Count 1 are:
   1. That the Defendant on or about July 7, 2016 did kill
Marshall Washington, Jr.; and
   2. That the Defendant did so in Douglas County,
Nebraska; and
   3. That the Defendant did so intentionally upon a sud-
den quarrel, without malice; and
   4. That the Defendant did not act in self-defense; and
   5. That the Defendant did not act in defense of another.
   The State has the burden of proving beyond a reason-
able doubt each and every one of the foregoing material
elements of the crime of Intentional Manslaughter.
                EFFECT OF FINDINGS
   You must separately consider in the following order
the crimes of Murder in the First Degree, Murder in the
Second Degree, and Intentional Manslaughter.
   For the crime of Murder in the First Degree, you must
decide whether the State proved each element beyond a
reasonable doubt. If the State did so prove each element,
then you must find Defendant guilty of Murder in the
First Degree and stop.
   If, however, you find that the State did not so prove,
then you must proceed to consider the next crime on the
list, Murder in the Second Degree. You must proceed in
this fashion to consider each of the crimes on the list,
in the manner described, until you find the Defendant
guilty of one of the crimes or find him not guilty of all
of them.
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                         STATE v. LOVING
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   Although at trial, neither Loving nor the State objected to
the language of instruction No. 6, Loving claims on appeal that
the instruction was not a correct statement of the law because it
failed to “include as an element of the crime [of murder in the
second degree], the necessary language that ‘the Defendant did
so without provocation of a sudden quarrel.’” Brief for appel-
lant at 30. Loving asserts that as a result of the omission from
the elements of murder in the second degree, the jury instruc-
tion constituted plain error which was prejudicial to him. In the
State’s brief on appeal, it “acknowledges” that instruction No.
6 was erroneous because it omitted from the list of elements
of murder in the second degree that Loving acted without the
provocation of a sudden quarrel. Brief for appellee at 26. In
addition, the State conceded during its oral argument that the
erroneous jury instruction amounted to plain error. However,
the State argues that this error is harmless.
   We agree with Loving and with the State that instruction No.
6 was not a correct statement of the law because it omitted a
necessary element of murder in the second degree. A similar
instruction to instruction No. 6 was given in State v. Smith,
282 Neb. 720, 806 N.W.2d 383 (2011), wherein Ronald Smith
was ultimately convicted of murder in the second degree. On
appeal, he argued that the step instruction given by the district
court deprived him of due process because it did not allow
the jury to consider whether his specific intent to kill was the
result of a sudden quarrel. The Nebraska Supreme Court agreed
with Smith’s contention. The court stated:
      [T]he step instruction given in this case was not a correct
      statement of the law. Specifically, the step instruction
      required the jury to convict on second degree murder if
      it found that Smith killed [the victim] intentionally, but
      it did not permit the jury to consider the alternative pos-
      sibility that the killing was intentional but provoked by a
      sudden quarrel, and therefore constituted manslaughter.
Id. at 734, 806 N.W.2d at 394.
   In this case, as in State v. Smith, supra, the jury instruc-
tions did not correctly instruct the jury as to the elements of
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murder in the second degree, in that the jury was not permitted
to consider whether Loving killed Washington as a result of a
sudden quarrel. The jury found beyond a reasonable doubt that
Loving intentionally killed Washington without premeditation
and, as a result, found Loving guilty of murder in the second
degree. Instruction No. 6 instructed the jury that if it found
Loving guilty of murder in the second degree, it was to stop
and not review the elements of intentional manslaughter. Thus,
the jury never considered whether Loving killed Washington
“upon a sudden quarrel,” which could have reduced Loving’s
conviction to manslaughter.
   [2] However, in order for us to reverse based on a defec-
tive jury instruction, the evidence must support the inclusion
of “upon a sudden quarrel” and the defendant must have been
prejudiced by the exclusion of that language. See State v.
McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). The appel-
lant has the burden to show that the questioned instruction was
prejudicial or otherwise adversely affected a substantial right
of the appellant. Id.
   [3] A trial court is required to give an instruction where
there is any evidence which could be believed by the trier of
fact that the defendant committed manslaughter and not mur-
der. Id. In the context of this case, Loving was prejudiced by
the erroneous jury instruction only if the jury could have rea-
sonably concluded on the evidence presented that his intent to
kill was the result of a sudden quarrel.
   [4] A “sudden quarrel” is a legally recognized and suf-
ficient provocation which causes a reasonable person to lose
normal self-control. State v. Trice, 286 Neb. 183, 835 N.W.2d
667 (2013). It does not necessarily mean an exchange of
angry words or an altercation contemporaneous with an unlaw-
ful killing and does not require a physical struggle or other
combative corporal contact between the defendant and the
victim. Id. The question is whether there existed reasonable
and adequate provocation to excite one’s passion and obscure
and disturb one’s power of reasoning to the extent that one
acted rashly and from passion, without due deliberation and
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reflection, rather than from judgment. Id. The test is an objec-
tive one. State v. McGuire, supra.
   In State v. Trice, supra, the Supreme Court considered
whether there was any evidence that De’Aris Trice’s intent
to kill was the result of a sudden quarrel. The evidence pre-
sented in that case indicated that Trice and his brother had
been involved in a “brawl” at an after-hours party. Id. at 191,
835 N.W.2d at 673. During that brawl, Trice fatally stabbed
the victim. Although witness accounts differed, the evidence
suggested that Trice got in the middle of a fight between
the victim and a third party. Testimony from Trice’s brother
indicated that after he and Trice got involved in the fight, the
victim swung a bottle in Trice’s direction. Trice later told his
brother that he stabbed the victim in order to protect the two
of them. After analyzing this evidence, the Supreme Court
stated, “We believe, all things considered, that a jury could
find that Trice acted upon a sudden quarrel. Certainly, the evi-
dence does not compel this conclusion; as we have stated, the
evidence in this regard is slight. But such a conclusion is at
least reasonably inferable.” Id. at 191-92, 835 N.W.2d at 673.
As a result of the court’s finding, it concluded that the court’s
failure to properly instruct the jury on the elements of murder
in the second degree constituted plain error.
   In a similar case, State v. Smith, 284 Neb. 636, 822 N.W.2d
401 (2012), the Supreme Court considered whether there was
any evidence of a sudden quarrel when William Smith shot at
the victim, who was running away from him. In that case, the
evidence revealed that Smith and the victim were involved in
an altercation outside of a bar. During that altercation, the vic-
tim punched Smith in the face. The victim and his friends then
left the scene, and Smith and his friend followed them. When
the other group of individuals stopped at a grocery store 5 or
10 minutes later, Smith yelled that he wanted to fight with the
victim. At least three or four of the victim’s friends joined in
the fight. Smith’s friend then fired his gun two or three times
in the air. As the victim and his friends were running away,
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Smith grabbed the gun from his friend and fired in the victim’s
direction. The Supreme Court found:
      From this evidence, a finder of fact could conclude that
      Smith was provoked when he was “jumped” by several
      persons in the parking lot and that as a result of this sud-
      den occurrence, he acted rashly and from passion, without
      due deliberation and reflection, rather than from judg-
      ment. Certainly this conclusion is not compelled by the
      evidence, but it is at least fairly inferable.
Id. at 645, 822 N.W.2d at 409.
   However, in State v. Smith, 282 Neb. 720, 806 N.W.2d
383 (2011), the Supreme Court determined that there was no
evidence of a sudden quarrel when Ronald Smith admitted to
arguing with the victim and in the course of that argument,
pushed the victim off of the bed and then held a pillow over
her face for 1 to 2 minutes. The Supreme Court found:
      From this, the jury could reasonably infer that Smith and
      [the victim] had been arguing and that Smith was angry.
      But there is no evidence explaining how or by whom the
      argument was started, its duration, or any specific words
      which were spoken or actions which were taken before
      [he] pushed [the victim] to the floor. And most impor-
      tantly, there is no evidence that [the victim] said or did
      anything which would have provoked a reasonable person
      in Smith’s position to push her from the bed and smother
      her with a pillow. In the absence of some provocation,
      a defendant’s anger with the victim is not sufficient to
      establish the requisite heat of passion. Nor does evidence
      of a string of prior arguments and a continuing dispute
      without any indication of some sort of instant incitement
      constitute a sufficient showing to warrant a voluntary
      manslaughter instruction.
Id. at 735, 806 N.W.2d at 395.
   In this case, there was evidence presented at trial which
suggested that the shooting of Washington was the result of a
continuing dispute between Loving and Theodore. Both Loving
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and Theodore testified that in the days preceding the shooting,
they had been arguing about a debt that Theodore believed
Loving owed to him. Additionally, there was evidence that on
the day of the shooting, there was “some sort of instant incite-
ment” in that Loving listened to a voice mail message which,
in his mind, was a threat against his life which had been initi-
ated by Theodore. See id. at 735, 806 N.W.2d at 395. Loving
testified that not more than a few hours after hearing this mes-
sage, Theodore arrived at the house of Loving’s sister, Dynasti;
demanded repayment of Loving’s debt; and pointed a gun at
Loving from inside his SUV. The two engaged in a screaming
match after which Loving went around the side of the house
to hide from Theodore. Loving testified that Theodore then
drove his vehicle around the block and appeared to be turning
back toward Dynasti’s house. Loving testified that Theodore
again pointed a gun at him and that as a result, Loving
fired his weapon. Loving’s testimony was corroborated in part
by Dynasti.
   During his testimony, Theodore disputed Loving’s account
of the events which occurred on the day of the shooting.
Specifically, he testified that there was no real argument
between Loving and himself on that day. He testified that he
went to Dynasti’s house in order to purchase marijuana, not to
collect on Loving’s debt. Theodore also indicated that he did
not threaten Loving during their encounter, nor did he ever
point a gun at Loving. In fact, Theodore insisted that he did
not have a gun at that time. Notably, however, Theodore’s tes-
timony appears to be different than the account he gave to the
police immediately after the shooting. At that time, Theodore
indicated that he had gone to Dynasti’s house to collect the
debt and that all he wanted was his money back.
   Although witness accounts of what occurred on July
7, 2016, differ somewhat, there is evidence in the record
which, if believed, indicates that Loving acted upon a sud-
den quarrel when he fired the shots at Theodore’s SUV and
killed Washington. A jury could reasonably find that Loving
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acted rashly and from passion, without due deliberation and
reflection, rather than from judgment, when he fired the shots
at Theodore’s SUV. As in State v. Trice, 286 Neb. 183, 835
N.W.2d 667 (2013), and State v. Smith, 284 Neb. 636, 822
N.W.2d 401 (2012), this finding is not compelled by the evi-
dence presented at trial, but it is at least plausible. However, the
evidence present herein does meet the test of some evidence of
a sudden quarrel set out by these cases. Unfortunately, because
the district court incorrectly instructed the jury regarding
the elements of murder in the second degree, the jury did
not have the opportunity to consider whether Loving killed
Washington as a result of a sudden quarrel. We therefore find
plain error.
   [5,6] Plain error exists where there is error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of the litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Trice, supra. Here,
although neither Loving nor the State objected to instruction
No. 6 at trial, it is clear that the instruction did not properly
instruct the jury regarding the interplay between murder in the
second degree and manslaughter. 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. State v. Smith, 284 Neb.
636, 822 N.W.2d 401 (2012). Because there was evidence
upon which a jury could have convicted Loving for intentional
manslaughter, the district court’s error was prejudicial. We
reverse Loving’s conviction for murder in the second degree.
And, because Loving’s use of a deadly weapon conviction was
predicated on his conviction of an underlying felony, the use
of a weapon conviction must also be reversed. See State v.
Wilson, 247 Neb. 948, 530 N.W.2d 925 (1995), overruled on
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other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d
31 (1998).
                         Double Jeopardy
   [7] Having found reversible error, we must determine
whether the totality of the evidence was sufficient to sustain
Loving’s conviction. If it was not, then double jeopardy for-
bids a remand for a new trial. See State v. Trice, supra. But
the Double Jeopardy Clause does not forbid a retrial if the sum
of all the evidence admitted by a trial court, whether errone-
ously or not, would have been sufficient to sustain a guilty
verdict. Id.
   After reviewing the record, we conclude that the evidence at
trial was sufficient to support the jury’s verdict finding Loving
guilty of murder in the second degree and use of a deadly
weapon to commit a felony. Loving, himself, admitted to fir-
ing the shots which ultimately killed Washington. Although
Loving testified that he fired the shots in self-defense, based
on its verdict, the jury clearly rejected such an assertion. There
is evidence to support the jury’s determination. The location
of broken glass from the two passenger-side windows sug-
gests that Theodore’s SUV was moving away from Loving at
the time he fired the shots. In addition, Theodore testified that
he did not threaten Loving during their encounter on July 7,
2016, nor did he have a gun. There was also evidence which
suggested that after the shooting, Loving attempted to change
his appearance in order to evade arrest. Based upon this evi-
dence, we conclude that double jeopardy does not preclude
a remand of the cause for a new trial and that the State may
retry Loving on the second degree murder and manslaughter
charges, as well as the use of a deadly weapon to commit a
felony charge.
   We note that because the jury found Loving guilty of mur-
der in the second degree, it essentially acquitted him on the
charge of murder in the first degree. As a result, the State
is prohibited from retrying Loving on the charge of first
degree murder.
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                    Other Assigned Errors
   Because we are reversing Loving’s convictions and remand-
ing the cause for a new trial, we need not address his assertions
that the district court erred in overruling his objection to the
makeup of the jury or in imposing excessive sentences. During
oral argument, defense counsel specifically requested that we
review whether the district court erred in prohibiting Loving
from testifying, in detail, about why he denied any involve-
ment in Washington’s shooting while he was in jail awaiting
trial. Defense counsel stated that she believed this issue may
recur during a subsequent trial. We have reviewed the argu-
ment as to this issue which Loving made in his brief to this
court. In addition, we have carefully reviewed Loving’s testi-
mony in this regard. Ultimately, we conclude that our record
is insufficient to review this issue, because during the trial,
defense counsel failed to make an offer of proof as to what
Loving would have testified to had the court not sustained the
State’s objection. Moreover, we note that upon our remand,
this issue can be fully examined by the district court prior to a
new trial upon the filing of a proper motion in limine.
                        CONCLUSION
   We find plain error in the step instruction given regarding
the elements of murder in the second degree and manslaugh-
ter. We also find that this error was prejudicial to Loving
because it prevented the jury from considering whether Loving
killed Washington as a result of a sudden quarrel. We reverse
Loving’s convictions and remand the cause for a new trial.
                   R eversed and remanded for a new trial.
