lesser offense instruction in Nebraska

2024Citing State v. Al-Zubaidy, 263 Neb. 595 , 641 N.W.2d 362 (2002), the Court noted: Where the prosecution has offered uncontroverted evidence on an element necessary for conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction. 305 Neb. at 414-415 .

2024Citing State v. Al-Zubaidy, 263 Neb. 595 , 641 N.W.2d 362 (2002), the Court noted: Where the prosecution has offered uncontroverted evidence on an element necessary for conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction. 305 Neb. at 414-415 .

2021We have stated: “Where the prosecution has offered uncontroverted evi- dence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some - 462 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440 evidence to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction.” State v. Stabler, 305 Neb. 415, 424-25 , 940 N.W.2d 572, 580 (2020).

2020We noted: Where the prosecution has offered uncontroverted evi- dence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence 9 Id. at 41. 10 State v. Oliveira-Coutinho, 304 Neb. 147 , 933 N.W.2d 825 (2019). 11 State v. Al-Zubaidy, 263 Neb. 595 , 641 N.W.2d 362 (2002). - 425 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. STABLER Cite as 305 Neb. 415 to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction. 12 Here, the evidenc

2019State v. Draganescu, 276 Neb. 448 , 755 N.W.2d 57 (2008).

2019State v. Draganescu, 276 Neb. 448 , 755 N.W.2d 57 (2008).

2006Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” (Emphasis in original.) Beck v. Alabama, 447 U.S. 625, 634 , 100 S. Ct. 2382 , 65 L.

2006Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” (Emphasis in original.) Beck v. Alabama, 447 U.S. 625, 634 , 100 S. Ct. 2382 , 65 L.

2002State v. Howard, 253 Neb. 523 , 571 N.W.2d 308 (1997).

2002State v. Howard, 253 Neb. 523 , 571 N.W.2d 308 (1997).

2001State v. Johnson, 261 Neb. 1001 , 627 N.W.2d 753 (2001); State v. Becerra, supra. Moreover, if the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater offense but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction.

2001State v. Johnson, 261 Neb. 1001 , 627 N.W.2d 753 (2001); State v. Becerra, supra. Moreover, if the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater offense but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction.

2001State v. Bjorklund, 258 Neb. 432 , 604 N.W.2d 169 (2000); State v. Parks, 253 Neb. 939 , 573 N.W.2d 453 (1998).

2001State v. Bjorklund, 258 Neb. 432 , 604 N.W.2d 169 (2000); State v. Parks, 253 Neb. 939 , 573 N.W.2d 453 (1998).

2001Id.

2001State v. Bjorklund, 258 Neb. 432 , 604 N.W.2d 169 (2000); State v. Parks, 253 Neb. 939 , 573 N.W.2d 453 (1998).

2001State v. Bjorklund, 258 Neb. 432 , 604 N.W.2d 169 (2000); State v. Parks, 253 Neb. 939 , 573 N.W.2d 453 (1998).

2001State v. Johnson, supra; State v. Becerra, supra. In State v. Johnson , the court said that “‘[t]o possess a narcotic drug means to have actual control, care, and management of, and not a passing control, fleeting and shadowy in its nature.’ ” 261 Neb. at 1010, 627 N.W.2d at 761 , quoting State v. Coca, 216 Neb. 76 , 341 N.W.2d 606 (1983).

2001State v. Johnson, supra; State v. Becerra, supra. In State v. Johnson , the court said that “‘[t]o possess a narcotic drug means to have actual control, care, and management of, and not a passing control, fleeting and shadowy in its nature.’ ” 261 Neb. at 1010, 627 N.W.2d at 761 , quoting State v. Coca, 216 Neb. 76 , 341 N.W.2d 606 (1983).

2000State v. Parks, supra; State v. Huebner, 245 Neb. 341 , 513 N.W.2d 284 (1994), questioned on other grounds, State v. Morris, 251 Neb. 23 , 554 N.W.2d 627 (1996).

2000State v. Parks, supra; State v. Huebner, 245 Neb. 341 , 513 N.W.2d 284 (1994), questioned on other grounds, State v. Morris, 251 Neb. 23 , 554 N.W.2d 627 (1996).

2000State v. Parks, supra; State v. Huebner, 245 Neb. 341 , 513 N.W.2d 284 (1994), questioned on other grounds, State v. Morris, 251 Neb. 23 , 554 N.W.2d 627 (1996).

2000State v. Parks, supra; State v. Huebner, 245 Neb. 341 , 513 N.W.2d 284 (1994), questioned on other grounds, State v. Morris, 251 Neb. 23 , 554 N.W.2d 627 (1996).

1994“Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he wishes to have the benefit of a lesser offense instruction.” State v. Tamburano, 201 Neb. at 707 , 271 N.W.2d at 474 , quoting State v. McDonald, 312 Minn. 320 , 251 N.W.2d 705 (1977).

1994“Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he wishes to have the benefit of a lesser offense instruction.” State v. Tamburano, 201 Neb. at 707 , 271 N.W.2d at 474 , quoting State v. McDonald, 312 Minn. 320 , 251 N.W.2d 705 (1977).

1994“Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he wishes to have the benefit of a lesser offense instruction.” State v. Tamburano, 201 Neb. at 707 , 271 N.W.2d at 474 , quoting State v. McDonald, 312 Minn. 320 , 251 N.W.2d 705 (1977).

1994“Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he wishes to have the benefit of a lesser offense instruction.” State v. Tamburano, 201 Neb. at 707 , 271 N.W.2d at 474 , quoting State v. McDonald, 312 Minn. 320 , 251 N.W.2d 705 (1977).

1978The Minnesota court, in explaining the application of the rule, quotes with favor Barnett, The Lesser-Included Offense Doctrine, 5 Conn. Law Rev., p. 255: ‘‘Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he wishes to have the benefit of a lesser offense instruction.” As for the type of evidence which would require the lesser charge, Barnett goes on to say that: ‘‘The controverted evidence to dis

1978The Minnesota court, in explaining the application of the rule, quotes with favor Barnett, The Lesser-Included Offense Doctrine, 5 Conn. Law Rev., p. 255: ‘‘Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he wishes to have the benefit of a lesser offense instruction.” As for the type of evidence which would require the lesser charge, Barnett goes on to say that: ‘‘The controverted evidence to dis

1978App. 3d 442 , 373 N. E. 2d 809 , for an apparent rejection of it.