lesser included instruction in Nebraska

2025The State argues that Hall’s assigned errors either lack the required specificity as set forth in State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019), or have not been specifically assigned and specifically argued in order to be considered by this court, see State v. Ramos, 319 Neb. 511, 23 N.W.3d 640 (2025) (holding that only those issues specifically assigned and specifically argued on appeal will be considered by appel- late court).

2025The State argues that Hall’s assigned errors either lack the required specificity as set forth in State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019), or have not been specifically assigned and specifically argued in order to be considered by this court, see State v. Ramos, 319 Neb. 511, 23 N.W.3d 640 (2025) (holding that only those issues specifically assigned and specifically argued on appeal will be considered by appel- late court).

2025The State argues that Hall’s assigned errors either lack the required specificity as set forth in State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019), or have not been specifically assigned and specifically argued in order to be considered by this court, see State v. Ramos, 319 Neb. 511, 23 N.W.3d 640 (2025) (holding that only those issues specifically assigned and specifically argued on appeal will be considered by appel- late court).

2021Wood assigns that trial counsel was ineffective in (1) fail- ing to request a lesser-included instruction of attempted first degree sexual assault of a child, (2) “Failing to Investigate the Case Fully,” (3) presenting “Virtually No Evidence in Support of his Motion to Employ an Expert Witness and for Payment of the Same,” (4) failing to object to “Clearly Irrelevant and Unduly Prejudicial Testimony About DNA Testing Results with No Statistical Significance,” (5) failing to object to the biologist’s “Testimony” regarding the Y-STR DNA testing conducted by her supervisor, (6) offering exhibit 2

2016Although the court noted some inconsistency in the language used, it concluded that, in general, since the decision in McIntyre v. State, 116 Neb. 600 , 218 N.W. 401 (1928), the case law has been con- sistent that in nonhomicide cases, “a trial court must instruct on a lesser-included offense only if requested to do so.” State v. Smith, 284 Neb. at 651, 822 N.W.2d at 413.

2016Although the court noted some inconsistency in the language used, it concluded that, in general, since the decision in McIntyre v. State, 116 Neb. 600 , 218 N.W. 401 (1928), the case law has been con- sistent that in nonhomicide cases, “a trial court must instruct on a lesser-included offense only if requested to do so.” State v. Smith, 284 Neb. at 651, 822 N.W.2d at 413.

2005“The intent with which an act is committed may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.” State v. Parks, 253 Neb. at 949 , 573 N.W.2d at 460 .

2005“The intent with which an act is committed may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.” State v. Parks, 253 Neb. at 949 , 573 N.W.2d at 460 .

2001However, we concluded that the record was insufficient to determine the second prong of the test utilized to determine whether a lesser-included instruction could have been given, i.e., whether “the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.” Id. at 664 , 573 N.W.2d at 405 .

2001However, we concluded that the record was insufficient to determine the second prong of the test utilized to determine whether a lesser-included instruction could have been given, i.e., whether “the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.” Id. at 664 , 573 N.W.2d at 405 .