                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. BIGELOW


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                               SHANNON D. BIGELOW, APPELLANT.


                            Filed January 22, 2019.    No. A-18-006.


       Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge.
Affirmed.
       Mark E. Rappl for appellant.
        Douglas J. Peterson, Attorney General, Melissa R. Vincent, and Derek T. Bral, Senior
Certified Law Student, for appellee.


       RIEDMANN, BISHOP, and WELCH, Judges.
       RIEDMANN, Judge.
                                      I. INTRODUCTION
        Shannon D. Bigelow appeals his conviction of third degree assault on an officer. He claims
that the district court for Lancaster County erred in refusing to instruct the jury on his insanity
defense and in instructing the jury on involuntary intoxication. He also claims he received
ineffective assistance of counsel in three respects. Finding no merit to the arguments raised on
appeal, we affirm.
                                       II. BACKGROUND
       In July 2016, Bigelow was admitted to a hospital in Lincoln after taking methamphetamine
and exhibiting bizarre behavior at his home. At the hospital Bigelow was agitated, restless, and
pacing his room, so nurses injected him with three medications, Haldol, Ativan, and Benadryl to



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relax him. Bigelow, however, became more agitated, and left his hospital room and began pacing
around the emergency room. After security was called, Bigelow approached the nurses’ station
and was told by Lincoln Police Officer Eric Messersmith to leave the area. Bigelow then punched
Messersmith in the face, took him to the ground, and punched him several more times as he reached
for Messersmith’s gun. Bigelow then fled the emergency room where he was subsequently
arrested.
         In August 2016, the State charged Bigelow with third degree assault on an officer in
violation of Neb. Rev. Stat. § 28-931 (Reissue 2016), a Class IIIA felony. The State filed an
amended information, adding a habitual criminal enhancement pursuant to Neb. Rev. Stat.
§ 29-2221 (Reissue 2016). Bigelow subsequently filed a notice of intent to rely on insanity defense.
A competency evaluation was performed on Bigelow and it was determined that he was competent
to stand trial.
         A jury trial was held in November 2017. Because Bigelow’s assigned errors focus
primarily on his mental state at the time of the offense, our recitation of the evidence presented at
trial will center on that issue. To demonstrate that he was sufficiently impaired at the time of the
offense to support an insanity defense, Bigelow presented the testimony of Dr. Klaus Hartmann.
Hartmann interviewed Bigelow in January 2017 to determine if Bigelow was sane at the time of
the assault in July 2016. Hartmann testified that based on that initial information, he believed that
Bigelow was insane at the time of the assault. Hartmann ultimately opined that the combination of
Haldol, Ativan, and Benadryl had an intoxicating effect on Bigelow, and was the cause of his
impairment.
         Hartmann further testified that prior to the assault in July 2016, Bigelow had been admitted
to hospitals and crisis centers several times in response to his drug use and mental health.
Additionally, Hartmann indicated than on previous occasions, Bigelow had been diagnosed with
varying mental health disorders, including: schizophrenia, psychosis not otherwise specified, and
drug abuse. However, Hartmann testified that, although Bigelow was impaired at the time of the
assault, his impairment was the result of the medications he received at the hospital, and not the
result of a mental disease or defect. Moreover, Hartmann asserted that Bigelow’s impairment was
not the result of the methamphetamine which Bigelow had ingested prior to being admitted to the
hospital.
         At the close of Bigelow’s evidence, the State requested the district court to find that
Bigelow was not entitled to an insanity instruction. The district court agreed, stating that Bigelow
had not made a prima facie case that he was insane due to a mental disease or defect, as required
by Nebraska law. At the jury instruction conference, the court rejected the insanity instruction
proposed by the defense and included instead an involuntary intoxication instruction to which
neither party objected.
         The jury subsequently found Bigelow guilty of third degree assault on an officer. The
district court found that there was sufficient evidence demonstrating that Bigelow was a habitual
criminal under § 29-2221, and sentenced him to a mandatory minimum of 10 years in prison and
a maximum of 12 years. Bigelow timely appealed.




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                                  III. ASSIGNMENTS OF ERROR
        Bigelow assigns, restated, that the district court erred when it (1) refused to give the jury
an insanity instruction and (2) issued an involuntary intoxication instruction. He also assigns that
he received ineffective assistance of counsel.
                                   IV. STANDARD OF REVIEW
        Whether jury instructions given by a trial court are correct is a question of law. State v.
Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011). To establish reversible error for 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 tendered instruction. Id.
        Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017). In
reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides
only questions of law: Are the undisputed facts contained within the record sufficient to
conclusively determine whether counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient performance? Id.
                                            V. ANALYSIS
                                      1. INSANITY INSTRUCTION
        In his first assigned error, Bigelow asserts that the district court erred in refusing to instruct
the jury on insanity. We disagree because an insanity instruction was not warranted by the
evidence.
        The record of the jury instruction conference shows that Bigelow offered a proposed
insanity instruction and a copy is included in our record. Specifically, Bigelow’s proposed
instruction mirrored the language of NJI2d Crim. 7.0 and listed the elements of the defense as
follows:
                 (1) That Shannon D. Bigelow had a mental disease, defect or disorder at the time
        of the acts charged; and
                 (2) That this mental disease, defect or disorder impaired his mental capacity to such
        an extent that either:
                 (i) He did not understand the nature and consequences of what he was doing; or
                 (ii) He did not know the difference between right and wrong with respect to what
        he was doing.

        The insanity defense developed early at common law, and the M’Naghten rule
(M’Naghten’s Case, (1843) 8 Eng. Rep. 718, 10 Cl. & Fin. 2000) is one of the most common
definitions of insanity. State v. Hotz, supra. Generally speaking, the M’Naghten rule requires that
a defendant not know the nature and quality of his or her actions, as well as not know that what he
or she was doing was wrong. Id.




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        As set out in NJI2d Crim. 7.0, the two requirements for the insanity defense are that (1) the
defendant had a mental disease or defect at the time of the crime and (2) that this mental disease
or defect impacted the defendant’s ability to understand the nature and consequences of what he
was doing or the difference between right and wrong. While the insanity defense itself is a product
of common law, the procedural aspects of the insanity defense are set out in Neb. Rev. Stat.
§ 29-2203 (Reissue 2016). State v. Hotz, supra. That statute also places the burden for proving
insanity on the defendant. § 29-2203.
        Here, the record indicates that Bigelow’s impairment at the time of the offense was caused
by the drugs administered at the hospital, and was not the result of a mental disease or defect.
Hartmann testified that Bigelow’s behavior was solely the result of the medications Bigelow
received at the hospital. Specifically, the following exchanges occurred during the State’s
cross-examination of Hartmann:
                [State’s attorney:] Because according to what you’ve said today, it was the effect
        of the drugs on Mr. Bigelow that was an impairment and that was what caused him to act
        the way he did? Yes.
                Q. Not a mental disease, defect, or disorder, correct?
                A. Yes.

Hartmann further opined:
              [State’s attorney:] But your opinion is that Mr. Bigelow was suffering impairment
      from the three drugs he was given by the hospital, correct?
              A. Yes.
              Q. Not that he was suffering from a mental disease that impaired his mental capacity
      to the extent he did not understand the nature and consequences of what he was doing,
      correct?
              A. I attribute his conduct to the effect of the injections that he was given.
              Q. So the answer is yes?
              A. Yes.
              Q. And your opinion is not that he was suffering from the mental disease to the
      extent that he did not know the difference between right and wrong with respect to what
      he was doing, it was the impairment due to the three drugs, correct?
              A. Yes.

         Bigelow contends that Hartmann testified that his impairment was caused by “the three
medications he was administered at the hospital and his underlying mental illness.” Brief for
appellant at 9-10 (emphasis in original). However, Hartmann stated that this was his opinion when
he first formed it during his evaluation of January 23, 2017. He later clarified that once he received
additional information, his initial opinion changed. Based upon the above quoted testimony, it is
clear that Hartmann’s opinion at the time of trial was that Bigelow’s impairment at the time of the
offense was not the result of a mental disease or defect. Therefore, the evidence did not warrant an
insanity instruction.




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        A trial court need not instruct the jury on an issue where the facts do not justify such an
instruction. Farmers Mut. Ins. Co. v. Kment, 265 Neb. 655, 658 N.W.2d 662 (2003). Although
Bigelow argues on appeal that he suffered from schizophrenia, and therefore had a mental disease
or defect which warranted an insanity instruction, the evidence did not support a finding that this
mental disease impacted his ability to understand the nature and consequences of what he was
doing or the difference between right and wrong. The fact that a defendant has some form of mental
illness or defect does not by itself establish insanity. State v. Harms, 263 Neb. 814, 643 N.W.2d
359 (2002), modified, 264 Neb. 654, 650 N.W.2d 481 (2002). Hartmann testified unequivocally
that, while Bigelow was impaired at the time of the offense, his impairment was the result of the
drug injection he received at the hospital. The district court did not err in refusing to instruct the
jury on insanity.
        Because we find that the evidence did not warrant an insanity instruction, we do not address
Bigelow’s argument that an insanity instruction was legally available to him.
                           2. INVOLUNTARY INTOXICATION INSTRUCTION
         In his second assigned error, Bigelow asserts that the district court erred in instructing the
jury on involuntary intoxication. We disagree.
         The purpose of a jury instruction is to furnish guidance to the jury in its deliberations and
to aid the jury in arriving at a proper verdict. Nguyen v. Rezac, 256 Neb. 458, 590 N.W.2d 375
(1999). A jury instruction should clearly and concisely state the issues of fact and the principles of
law which are necessary for the jury to accomplish its purpose. Id. A trial court, whether requested
to do so or not, has a duty to instruct the jury on issues presented by the pleadings and the evidence.
Id. If the instructions given, which are taken as a whole, correctly state the law, are not misleading,
and adequately cover the issues submissible to a jury, there is no prejudicial error concerning the
instructions and necessitating a reversal. First Nat. Bank North Platte v. Cardenas, 299 Neb. 497,
909 N.W.2d 79 (2018).
         Here, the district court properly instructed the jury on involuntary intoxication. Instruction
No. V, in relevant part, provided:
                 There has been evidence that the defendant was intoxicated at the time that the
         crime with which he is charged was committed.
                 Voluntary intoxication is not a defense to the crime charged. You may not consider
         his voluntary intoxication in determining whether he had the required intent to commit the
         crime charged.
                 Evidence that Mr. Bigelow was involuntarily intoxicated may be taken into
         consideration if he proves by clear and convincing evidence that he did not:
                 (1) know that it was an intoxicating substance when he or she ingested, inhaled,
         injected, or absorbed the substance causing the intoxication; or
                 (2) ingest, inhale, inject, or absorb the intoxicating substance voluntarily.
                 Such involuntary intoxication is a defense only when a person’s mental abilities
         were so far overcome by the involuntary intoxication that he could not have had the
         required intent.




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        First, we note that Bigelow did not object to the involuntary intoxication instruction during
the jury instruction conference. Failure to object to a jury instruction after it has been submitted to
counsel for review precludes raising an objection on appeal absent plain error. State v. Hinrichsen,
292 Neb. 611, 877 N.W.2d 211 (2016).
        Because Bigelow did not object to the involuntary intoxication instruction when offered by
the district court, we review only for plain error and find none. Nebraska has codified its
intoxication defense in Neb. Rev. Stat. § 29-122 (Reissue 2016):
                A person who is intoxicated is criminally responsible for his or her conduct.
        Intoxication is not a defense to any criminal offense and shall not be taken into
        consideration in determining the existence of a mental state that is an element of the
        criminal offense unless the defendant proves, by clear and convincing evidence, that he or
        she did not (1) know that it was an intoxicating substance when he or she ingested, inhaled,
        injected or absorbed the substance causing the intoxication or (2) ingest, inhale, inject or
        absorb the intoxicating substance voluntarily.

        Thus, the involuntary intoxication instruction was an accurate statement of the involuntary
intoxication defense in Nebraska. The district court instructed the jury that, while voluntary
intoxication is not a defense to the offense Bigelow was charged with, the jury could consider
whether Bigelow was involuntarily intoxicated, and therefore, did not have the required intent for
the assault. Further, the district court accurately informed the jury that the burden was on Bigelow
to demonstrate that he was involuntarily intoxicated by clear and convincing evidence, which
§ 29-122 mandated.
        Bigelow argues that there was not enough evidence to support an involuntary intoxication
instruction, but his argument is not supported by the record. Hartmann testified that the three
medications Bigelow received at the hospital had an intoxicating effect on Bigelow, which
impaired his judgment. Thus, there was sufficient evidence for the court to instruct the jury on
involuntary intoxication, regardless of the fact that neither party requested the court to do so.
Moreover, Bigelow’s argument that the involuntary intoxication instruction was improper because
the district court did not define “intoxicating substance” is meritless. Brief for appellant at 20.
Jurors are accepted because they are men and women of common sense and have a common
understanding of words ordinarily used in our language. In instructing a jury, the trial court is not
required to define language commonly used and generally understood. State v. Duncan, 293 Neb.
359, 878 N.W.2d 363 (2016).
        The evidence presented to the jury indicated that Bigelow was injected with three
medications intended to sedate him, therefore, those three medications were the only possible
“intoxicating substance” that Bigelow could have received. The district court did not need to define
“intoxicating substance” for the jury based on the evidence presented.
        We find no plain error in the district court’s involuntary intoxication instruction because
the instruction was warranted by the evidence and was an accurate statement of Nebraska law.




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                             3. INEFFECTIVE ASSISTANCE OF COUNSEL
        In his third assigned error, Bigelow asserts that he received ineffective assistance of
counsel during his trial. Bigelow argues that his trial counsel was ineffective in failing to call
material witnesses, failing to preserve a constitutional challenge to the district court’s involuntary
intoxication instruction, and in failing to adequately argue his insanity defense. We disagree.
        To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel’s
performance was deficient and that this deficient performance actually prejudiced his or her
defense. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015). A claim of ineffective assistance
of counsel need not be dismissed merely because it is made on direct appeal. Id. The determining
factor is whether the record is sufficient to adequately review the question. Id. When the claim is
raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant
must make specific allegations of the conduct that he or she claims constitutes deficient
performance by trial counsel. Id.
        Appellate courts have generally reached ineffective assistance of counsel claims on direct
appeal only in those instances where it was clear from the record that such claims were without
merit or in the rare cases where trial counsel’s error was so egregious and resulted in such a high
level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was
a fundamentally unfair trial. Id. An ineffective assistance of counsel claim made on direct appeal
can be found to be without merit if the record establishes that trial counsel’s performance was not
deficient or that the appellant could not establish prejudice. Id.
                               (a) Failure to Call Material Witnesses
        Bigelow first argues that he received ineffective assistance of counsel because his attorney
did not call material witnesses who could have testified regarding his mental health history and his
behavior leading up to this incident. These witnesses included Bigelow’s wife, his sister-in-law,
and a family friend. However, the record does not include any information as to the substance of
these witnesses’ potential testimony. Thus, the record is insufficient to adequately address this
claim; therefore, we decline to do so.
                         (b) Failure to Preserve Constitutional Challenge
        Bigelow next argues that he received ineffective assistance of counsel because his attorney
did not properly preserve a constitutional challenge to the court’s involuntary intoxication
instruction. He points out that on two occasions, the Nebraska Supreme Court has left open the
question of whether § 29-122 is constitutional because it places the burden upon the defendant to
prove involuntary intoxication by clear and convincing evidence. See, State v. Abejide, 293 Neb.
687, 879 N.W.2d 684 (2016); State v. Dubray, 289 Neb 208, 854 N.W.2d 584 (2014). In light of
these two cases, Bigelow asserts his counsel was ineffective for failing to raise the issue. However,
in State v. Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014), the Supreme Court held that counsel
could not be found deficient for failing to raise a novel constitutional challenge. Bigelow asserts
that because the constitutionality of the statute has been previously raised, the principle enunciated
in Sanders is inapplicable. We disagree.



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        In order to prevail on a constitutional claim of ineffective assistance of counsel, Bigelow
needed to show that counsel’s performance was deficient and that such deficient performance
prejudiced his defense. See Strickland v. Washington, supra. But Bigelow’s claim of ineffective
assistance of counsel fails the first prong of the test because counsel’s performance could not be
found to be deficient for failing to raise a novel constitutional challenge. Counsel is not required
to anticipate changes in the law. See State v. Sanders, supra. At the time of Bigelow’s trial, there
was no published decision finding § 29-122 unconstitutional. Therefore, we determine that counsel
was not ineffective for failing to raise a constitutional challenge to the involuntary intoxication
instruction.
                         (c) Failure to Adequately Argue Insanity Defense
        Finally, Bigelow asserts that his trial counsel was ineffective by failing to adequately argue
the applicability of temporary insanity in the context of involuntary intoxication. Bigelow further
argues that his counsel was deficient in creating a clear record regarding the connection between
involuntary intoxication and insanity. We find no merit to this argument.
        Bigelow’s attorney presented evidence regarding the intoxicating effect that the
medications Bigelow received at the hospital had on him, and how those medications impaired his
judgment. Further, Bigelow’s attorney not only argued that the medications Bigelow received put
him in a state of temporary insanity to the court, but his attorney also presented a proposed insanity
jury instruction, which was overruled by the court. We find the record sufficient to establish that
Bigelow’s counsel adequately argued the applicability of temporary insanity in the context of
involuntary intoxication, but the judge ruled against him. An unfavorable result does not, by itself,
support a claim of ineffective assistance of counsel. State v. Sims, 244 Neb. 771, 509 N.W.2d 6
(1993).
                                        VI. CONCLUSION
        We conclude that the district court did not err in refusing to issue an insanity instruction or
in giving an involuntary intoxication instruction. We further find that the record negates Bigelow’s
ineffective assistance of counsel claims as they relate to the constitutionality of § 29-122 and
counsel’s efforts to tie involuntary intoxication to the insanity defense. The record is insufficient
to address his remaining ineffective assistance of counsel claim.
                                                                                           AFFIRMED.




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