Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/05/2019 09:08 AM CDT




                                                         - 51 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                  STATE v. MUELLER
                                                   Cite as 302 Neb. 51




                                        State of Nebraska, appellee, v.
                                        Zachary A. Mueller, appellant.
                                                    ___ N.W.2d ___

                                         Filed January 18, 2019.   No. S-17-387.

                                              supplemental opinion

                 Appeal from the District Court for Morrill County: Leo P.
               Dobrovolny, Judge. Supplemental opinion: Former opinion
               modified. Motion for rehearing overruled.
                 Sarah P. Newell, of Nebraska Commission on Public
               Advocacy, for appellant.
                  Douglas J. Peterson, Attorney General, and Stacy M. Foust
               for appellee.
                 Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke, and
               Papik, JJ.
                  Per Curiam.
                  This case is before us on a motion for rehearing filed by the
               appellant, Zachary A. Mueller, concerning our opinion in State
               v. Mueller.1 We overrule the motion, but we modify the opinion
               as follows:
                  In the statement of facts section, we withdraw the word “no”
               in the second sentence in the 16th paragraph and substitute the
               word “another” in the quotation.2

                1	
                     State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
                2	
                     Id. at 786, 920 N.W.2d at 432.
                                       - 52 -
                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                               STATE v. MUELLER
                                Cite as 302 Neb. 51

   In the analysis section, we withdraw the fifth paragraph3
under the subheading “Venue Instruction” and substitute the
following:
        We note that although Mueller argued that the court
     should have given a venue instruction based on § 29‑1306,
     he did not actually tender such an instruction, and that
     therefore, to the extent Mueller asserts on appeal that the
     court erred when it refused a requested instruction, under
     the applicable standards set forth above, we do not ordi-
     narily review whether the “tendered instruction” was a
     correct statement of the law or whether it was warranted
     by the evidence. See State v. Swindle, 300 Neb. 734,
     915 N.W.2d 795 (2018). Here, we can review whether
     the venue instruction the court actually gave was proper
     under the circumstances; a consideration of whether the
     instruction should have included the content of § 29‑1306
     is an incidental part of that analysis.
   The remainder of the opinion shall remain unmodified.
	Former opinion modified.
	Motion for rehearing overruled.
   Freudenberg, J., not participating.

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