State v. Haynie

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www.nebraska.gov/apps-courts-epub/
08/16/2024 09:10 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        317 Nebraska Reports
                                                   STATE V. HAYNIE
                                                   Cite as 

                                        State of Nebraska, appellee, v.
                                         Jmaun D. Haynie, appellant.
                                                     ___ N.W.3d ___

                                          Filed August 16, 2024.   No. S-23-342.

                 1. Motions for Mistrial: Appeal and Error. An appellate court will not
                    disturb a trial court’s decision whether to grant a motion for mistrial
                    unless the trial court has abused its discretion.
                 2. Jury Instructions: Appeal and Error. Whether jury instructions are
                    correct is a question of law, which an appellate court resolves indepen-
                    dently of the lower court’s decision.
                 3. Convictions: Evidence: Appeal and Error. In reviewing a criminal
                    conviction for sufficiency of the evidence, whether the evidence is
                    direct, circumstantial, or a combination thereof, the standard is the same:
                    An appellate court does not resolve conflicts in the evidence, pass on
                    the credibility of witnesses, or reweigh the evidence; such matters are
                    for the finder of fact. The relevant question is whether, after viewing the
                    evidence in the light most favorable to the prosecution, any rational trier
                    of fact could have found the essential elements of the crime beyond a
                    reasonable doubt.
                 4. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
                    a criminal case where an event occurs during the course of trial which
                    is of such a nature that its damaging effect cannot be removed by proper
                    admonition or instruction to the jury and thus prevents a fair trial.
                 5. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
                    cated on the failure to grant a mistrial, the defendant must prove that the
                    alleged error actually prejudiced him or her, rather than creating only the
                    possibility of prejudice.
                 6. Jury Instructions: Proof: Appeal and Error. To establish reversible
                    error from a court’s refusal to give a requested jury instruction, an
                    appellant has the burden to show that (1) the tendered instruction is a
                    correct statement of the law, (2) the tendered instruction was warranted
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                               STATE V. HAYNIE
                               Cite as 

       by the evidence, and (3) the appellant was prejudiced by the court’s
       failure to give the requested instruction.
 7.    Jury Instructions: Appeal and Error. It is not error for a trial court to
       refuse to give a party’s requested instruction where the substance of the
       requested instruction was covered in the instructions given.
 8.    Criminal Law: Jury Instructions. When there is an applicable instruc-
       tion in the Nebraska Jury Instructions, the court should usually give that
       instruction to the jury in a criminal case.
 9.    Jury Instructions. An instruction which does not correctly state the law
       or which is likely to confuse or mislead the jury should not be given.
10.    Homicide: Intent: Presumptions. The critical difference between fel-
       ony murder and premeditated first degree murder is that the underlying
       felony takes the place of the intent to kill, or premeditated malice, and
       the purpose to kill is conclusively presumed from the criminal intent
       required for the underlying felony.
11.    Criminal Law: Aiding and Abetting: Intent: Liability. When a crime
       requires the existence of a particular intent, an alleged aider or abet-
       tor can be held criminally liable as a principal if it is shown that the
       aider and abettor knew that the perpetrator of the act possessed the
       required intent or that the aider and abettor himself or herself possessed
       such intent.
12.    Criminal Law: Evidence: Intent. The intent with which an act is com-
       mitted is a mental process and may be inferred from the words and acts
       of the defendant and from the circumstances surrounding the incident.

  Appeal from the District Court for Douglas County, James
M. Masteller, Judge. Affirmed.
  Thomas C. Riley, Douglas County Public Defender, and
Leslie E. Cavanaugh for appellant.
  Michael T. Hilgers, Attorney General, and P. Christian
Adamski for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
      Funke, J.
                    INTRODUCTION
  Jmaun D. Haynie appeals his convictions in the district
court for Douglas County, Nebraska, of first degree murder,
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                                 STATE V. HAYNIE
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second degree assault, and two counts of use of a firearm to
commit a felony. Haynie argues that the district court should
have granted a mistrial due to an “outburst” by the mother of
one of the victims, coupled with a spectator’s wearing a T-shirt
memorializing the same victim. 1 Haynie also argues that the
district court was required to poll the jurors about whether
the display of the T-shirt affected their ability to be impartial
and admonish them to disregard such displays. In addition,
Haynie argues that his proposed jury instruction about aiding
and abetting should have been given and that the evidence was
insufficient to support his murder conviction. Finding no error,
we affirm.

                        BACKGROUND
                   Shootings in Connection
                        With Drug Deal
   On September 12, 2021, law enforcement officers respond-
ing to a 911 emergency service dispatch call found Franco
Vasquez and Haley Grim inside Grim’s vehicle in a parking lot
in Omaha, Nebraska. Both had been shot. Vasquez was pro-
nounced dead at the scene, but Grim survived.
   Officers at the scene also found bags of marijuana in and
around the vehicle and elsewhere in the parking lot. In addi-
tion, a digital scale of the type commonly used in drug sales
was found near one of the bags of marijuana.
   Law enforcement also discovered a firearm magazine, two
fired cartridge casings, and a bullet inside the vehicle. Based
in part on this evidence, it was ultimately determined that two
firearms were fired inside the vehicle.

                 Evidence Linking Haynie
                       to Shootings
   Grim’s and Vasquez’ cell phones were recovered from
the vehicle. Vasquez’ phone included text messages between
1
    Brief for appellant at 14.
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Vasquez and a phone number belonging to Haynie sent on the
day of the shootings. In those messages, Vasquez made com-
ments that officers understood to mean that he had marijuana
for sale. Haynie responded with an apparent inquiry about the
price and eventually agreed to buy 1½ pounds of marijuana
from Vasquez for $3,600. Haynie later texted Vasquez that he
was waiting in the parking lot. Vasquez replied that he had
returned to his residence to retrieve the marijuana, but that he
would be there soon. Vasquez then asked whether Haynie had
the money. Haynie, in turn, asked if Vasquez wanted to see the
money to which Vasquez responded that he did not.
   Evidence of Haynie’s DNA was also discovered on the
vehicle.

                     Criminal Charges
   Haynie was arrested approximately 2 weeks after the shoot-
ings and charged with first degree murder in the death of
Vasquez, second degree assault in the shooting of Grim, and
two counts of use of a firearm to commit a felony. The murder
charge alleged that Haynie killed Vasquez with deliberate or
premediated malice or killed him during the perpetration of or
while attempting to perpetrate a robbery. The parties refer to
the theory that Vasquez was killed during a robbery as “felony
murder,” and we adopt that shorthand here.
   Haynie pled not guilty to each count, and the matter pro-
ceeded to trial.

                      Testimony at Trial
   The trial included testimony from 16 witnesses and over 200
exhibits. Some evidence adduced at trial was set forth above.
Other evidence is summarized below. Yet other evidence is
discussed later in the opinion as it relates to the arguments
on appeal.
   The surviving victim, Grim, was a key witness for the
State and the primary source of information regarding the
events of September 12, 2021. Grim testified that earlier that
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day, she drove Vasquez around Omaha for several drug deals
involving small amounts of marijuana. Grim testified that
Vasquez conducted those sales in his usual manner, which
was “through the window” of the vehicle and without having
buyers get into the vehicle. Grim also testified that later on
September 12, she was with Vasquez in his residence and saw
him measure out an unusually large quantity of marijuana.
   According to Grim, she then drove Vasquez to the parking
lot where they were to meet Haynie. Grim testified that once
in the parking lot, a man came over to her vehicle and got
into the back seat behind Vasquez. Grim testified that this felt
“weird, because that’s not how it usually goes.” Grim testified
that this man then signaled to another man, who came over to
the vehicle and got into the back seat behind her. Subsequently,
the first man was identified as Haynie and the second man as
Izayah Mapp. On appeal, Haynie does not dispute that he was
one of the men who entered the vehicle.
   Grim testified that Vasquez showed the men a bag contain-
ing the marijuana and asked for the money. Grim testified that
both men then pulled out guns. Grim testified that the man
identified as Haynie told Vasquez, “‘Don’t make me shoot you
in front of her,’” and that both men “started reaching forward,
trying to pull for the bag.” Grim testified that Vasquez directed
her to “‘[d]rive.’” Grim testified that while she drove, the
man identified as Mapp grabbed the back of her clothing and
“started hitting [her] with the bottom of his gun.” Grim testi-
fied that the vehicle crashed into a pole and that she looked at
Vasquez to discover “he had blood all over him and he wasn’t
really breathing.” Grim testified that the men left, but that she
did not see them leave. According to Grim, neither she nor
Vasquez had a gun.
   An officer with the Omaha Police Department testified
about social media messages exchanged between Haynie and
his girlfriend. In one message, sent approximately 1½ hours
after the shootings, Haynie stated that he “‘fucked up and
[was] scared.’” Several days later, after officers took a DNA
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sample from him, Haynie sent another message stating that
“[t]hey caught me.” Thereafter, Haynie sent a message stating
that he was considering “‘tryna hit another L.’” The officer
testified that “L” was short for “lick,” or robbery, and that he
understood Haynie to be stating that he was contemplating
another robbery.

              Allegedly Prejudicial Incidents
                         During Trial
   While witnesses were testifying during the trial, there were
two separate incidents that Haynie claims prejudiced him. First,
Vasquez’ mother was heard making “remarks” from the gallery
before she left the courtroom. The judge and counsel for the
parties heard her speaking, but apparently not her actual words.
However, Haynie’s family members reported to counsel that as
Vasquez’ mother was exiting the courtroom, she “threatened to
shoot them . . . in the face.” The judge also observed that the
door slammed as the mother left, but that the door “sometimes
slam[med] unintentionally.”
   Based on this incident, Haynie’s counsel asked the district
court, outside the presence of the jury, to “excuse” Vasquez’
mother from the remainder of the trial. Counsel for the State
responded that Vasquez’ mother would likely want to continue
to attend. The court prohibited Vasquez’ mother from return-
ing that day and required that she “have a conversation” with
the court to ensure there were not “any repeats” if she wanted
to attend in the future. The court also instructed the deputies
to escort out of the courtroom anyone whom they heard or
observed to be making comments and not allow them to reenter
that day.
   Later the same day, Haynie’s counsel observed a person
crying in the front row of the gallery who, upon removing
her coat, wore a T-shirt with Vasquez’ “picture” on it, as well
as words like “‘In Memory’” or “‘Rest in Peace, Franco
Vasquez.’” Outside the presence of the jury, Haynie’s counsel
argued that because this was the second such incident and he
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“[didn’t] know what the jurors have seen,” a mistrial was war-
ranted based on the “potential undue influence” of Vasquez’
family on the jurors. The State countered that a mistrial was
“not necessary” because there was no evidence that the jurors
saw the T-shirt or that there was any prejudice. The State also
indicated that it “advised” the person wearing the T-shirt after
the T-shirt was brought to the State’s attention.
   The district court overruled the motion for a mistrial but
instructed the deputies to exclude persons wearing memorial
T-shirts or buttons. The court did not address the incidents
with the jury when the jury returned. However, when the mat-
ter was subsequently submitted to the jury, the jurors were
instructed “not [to] allow sympathy or prejudice to influence
[their] verdict.”

              Jury Instructions and Convictions
   At a jury instruction conference, the parties and the court
discussed, among other things, the language regarding aid-
ing and abetting. The district court proposed the following
instruction:
         The [d]efendant can be guilty of a crime even though
      he personally did not commit every act involved in the
      crime so long as he aided someone else to commit it. The
      [d]efendant aided someone else if:
         (1) The [d]efendant intentionally encouraged or inten-
      tionally helped another person to commit the crime; and
         (2) The [d]efendant intended that the crime be com-
      mitted; or the [d]efendant knew that the other person
      intended to commit the crime; and
         (3) The crime in fact was committed by that other
      person.
         The [d]efendant can be guilty of Murder in the First
      Degree (Felony Murder) if he is guilty of robbery as an
      aider and a death resulted during the course of commit-
      ting the robbery.
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                             STATE V. HAYNIE
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   Haynie asked that language be added to the instruction
“from” State v. Ramsay 2 and State v. Warrack. 3 Haynie’s pro-
posed language would have stated that “[e]vidence of mere
presence, acquiescence, or silence is not enough to sustain the
State’s burden of proving guilt beyond a reasonable doubt.”
The State objected to this language because it was not included
in the Nebraska Jury Instructions, among other things. The
district court declined to include the proposed language, and
the case was submitted to the jury with the language regarding
aiding and abetting quoted above.
   The jury unanimously voted to convict Haynie on all counts.

                  Sentencing and Appeal
   Following the jury verdicts, Haynie was sentenced to con-
secutive terms of life imprisonment for first degree murder,
10 to 20 years’ imprisonment for assault, and 15 to 25 years’
imprisonment for each count of use of a firearm to commit
a felony.
   Haynie timely appealed his convictions and sentences.
Because he was sentenced to life imprisonment on the mur-
der conviction, Haynie’s appeal was docketed directly in this
court as provided by 

(1) (Cum.
Supp. 2022).

                 ASSIGNMENTS OF ERROR
   Haynie, assigns, restated, that the district court erred in
(1) denying his motion for mistrial after the incidents with
Vasquez’ mother and the T-shirt, (2) not polling the jurors
to determine whether the display of the T-shirt affected
their ability to be impartial and not admonishing them to
disregard that display, and (3) failing to give the proposed
jury instruction regarding aiding and abetting. Haynie also
2
    State v. Ramsay, 

, 

 (1999).
3
    State v. Warrack, 

, 

 (2014), disapproved
    on other grounds, State v. Filholm, 

, 

 (2014).
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assigns, restated, that the evidence was insufficient to support
his murder conviction.

                   STANDARD OF REVIEW
   [1] An appellate court will not disturb a trial court’s decision
whether to grant a motion for mistrial unless the trial court has
abused its discretion. 4
   [2] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. 5
   [3] In reviewing a criminal conviction for sufficiency of the
evidence, whether the evidence is direct, circumstantial, or a
combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. 6 The relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. 7
                           ANALYSIS
               No Error in Denying Motion
                          for Mistrial
   Haynie’s first assignment of error concerns the denial of
his motion for a mistrial based on the “outburst” by Vasquez’
mother and the T-shirt memorializing Vasquez. 8 Haynie sug-
gests that under State v. Iromuanya, 9 such conduct was “inher-
ently prejudicial” to his right to a fair trial or posed an
4
  State v. Vaughn, 

, 

 (2023). See, also, State v.
  Garcia, 

, 

 (2023).
5
  State v. Npimnee, 

, 

 (2024).
6
  

7
  

8
  Brief for appellant at 14.
9
  State v. Iromuanya, 

, 

 (2011).
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“unacceptable threat of impermissible factors coming into
play” in the jury’s verdict. 10 Haynie claims that the “display of
rage” by Vasquez’ mother, coupled with the T-shirt’s “appeal
[for] sympathy,” “could well” have influenced the jury verdicts
against him. 11 The State counters that there is no evidence that
the jurors observed the “outburst” or the T-shirt. The State also
argues that both occurrences were of short duration and were
promptly remedied by the district court.
   [4,5] A mistrial is properly granted in a criminal case where
an event occurs during the course of trial which is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial. 12 Decisions regarding motions for mistrial are directed
to the discretion of the trial court. 13 To prove error predicated
on the failure to grant a mistrial, the defendant must prove
that the alleged error actually prejudiced him or her, rather
than creating only the possibility of prejudice. 14
   Haynie failed to meet that burden because he failed to
show he was actually prejudiced by the displays. 15 The record
indicates that both incidents occurred while witnesses for
the State were testifying, and the jurors were presumably
present. However, there is nothing indicating that any juror
10
   Brief for appellant at 14 (internal quotation marks omitted) (quoting
   Iromuanya, supra note 9).
11
   Brief for appellant at 15.
12
   

.
13
   State v. Esch, 

, 

 (2023). See, also, 

 (deference to trial court’s rulings on motions for mistrial
   and for new trial stems in part from recognition that trial judge is better
   situated than reviewing court to pass on questions of witness credibility
   and circumstances and atmosphere of trial).
14
   

.
15
   Cf., Hammond v. Commonwealth, 

 (Ky. 2016) (“[s]ince
   we cannot conclude with any assurance of accuracy that any jurors
   actually saw the messages, we cannot say that Appellant suffered actual
   prejudice”); Wright v. State, 

, 

 (2003) (similar).
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observed the “outburst” or T-shirt or heard the threat. Instead,
the record shows only that (1) counsel for the parties and the
judge heard Vasquez’ mother making “remarks,” but could
not make out what she said; (2) Haynie’s family informed
his counsel that as Vasquez’ mother left the courtroom, she
threatened to shoot them in the face; and (3) one of Haynie’s
attorneys observed a spectator crying in the front row of the
gallery who, upon taking off her coat, wore a T-shirt memo-
rializing Vasquez. That is the extent of the record as to the
“outburst” and T-shirt.
   Haynie’s suggestion that even absent evidence of actual
prejudice, the conduct here should nonetheless be seen as
“inherently prejudicial” or as posing an “unacceptable risk”
of prejudice is similarly unavailing under Iromuanya. 16 The
defendant in Iromuanya sought postconviction relief in part
on the ground that his trial counsel was ineffective in fail-
ing to timely object to the victims’ family members wearing
memorial buttons and demand an immediate ruling on his
objection or a mistrial. In discussing that claim, we observed
that “‘certain procedures, such as compelling the defendant
to attend trial in visible shackles, gagged, or in recogniz-
able prison clothing, [are] “inherently prejudicial” to the
defendant’s right to a fair trial.’” 17 However, we also made
clear that spectator conduct is “not per se inherently prejudi-
cial” because it is “not on the same level as state-sponsored
procedures.” 18
   Instead, we explained that other courts had adopted an
“‘unacceptable risk’” standard for spectator conduct and had
concluded that wearing buttons or T-shirts “did not pose
an unacceptable threat to a fair trial, especially when they
were worn for only a short period and the trial court stopped
16
   See Iromuanya, supra note 9.
17
   Id. at 825, 806 N.W.2d at 430 (quoting Holbrook v. Flynn, 

,
   

, 

 (1986)).
18
   Id. at 827, 806 N.W.2d at 432.
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the practice shortly after being informed of it.” 19 We then
applied that “‘unacceptable risk’” standard to conclude that
the defendant in Iromuanya failed to show he was preju-
diced by his trial counsel’s allegedly deficient performance
because the spectators wore memorial buttons only for the
first 2 or 3 days of a 9-day trial, and the court instructed the
jurors not to allow sympathy or prejudice to influence their
verdict. 20 “Under these facts,” we declined to “presume juror
partiality.” 21
   We find Iromuanya to be dispositive as to Haynie’s sugges-
tion of inherent prejudice or unacceptable risk. The conduct
in question is not alleged to have been state sponsored. 22 The
conduct was individually and collectively brief in duration.
Both the “outburst” and the display of the T-shirt occurred
on the same morning of 1 day in a multiday trial. 23 The trial
court stopped both practices upon becoming aware of them. 24
The court barred Vasquez’ mother from returning that day and
imposed conditions on her return in the future. The court also
instructed the deputies to remove anyone making comments
or wearing memorial T-shirts or buttons. In addition, the court
instructed the jurors “not [to] allow sympathy or prejudice to
influence [their] verdict.”
19
   Id. at 827, 828, 806 N.W.2d at 432.
20
   Id. at 827, 806 N.W.2d at 432.
21
   Id. at 828, 806 N.W.2d at 432.
22
   Cf., U.S. v. Farmer, 

 (2d Cir. 2009) (T-shirts with victim’s
   photograph not inherently prejudicial); State v. Paige, 

, 

 (S.C. App. 2007) (refusal to order spectators to remove buttons
   with victim’s photograph not inherently prejudicial); State v. Lord, 

, 

 (2007) (en banc) (buttons with victim’s
   picture not inherently prejudicial).
23
   Cf., State v. Thompson, 

 (2023) (La. App. 2023) (T-shirts
   only visible to jury for about 1 hour); People v. Lopez, No. B212781, 

 (Cal. App. Mar. 29, 2010) (T-shirts briefly visible).
24
   Cf. 

 (court forbade those wearing T-shirts from
   entering courtroom).
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   As to Haynie’s argument that a T-shirt is “much more
noticeable when worn in the front row of a public gallery”
than “mere button[s]” and that the “outburst” by Vasquez’
mother highlighted the T-shirt by drawing attention to the
gallery, 25 we reiterate that there was no evidence the jurors
saw any of this.
   Because there was no evidence that the jurors observed the
“outburst” or the T-shirt, and because the displays were not
inherently prejudicial and did not pose an unacceptable risk
of prejudice under Iromuanya, the district court did not abuse
its discretion in overruling Haynie’s motion for a mistrial.
             No Error in Not Polling Jury and
          Not Admonishing Jury After Spectator
            Wore T-Shirt Memorializing Vasquez
   Haynie’s second assignment of error also concerns the
memorial T-shirt. Haynie argues that under Iromuanya, the dis-
trict court was required to poll the jurors to determine whether
the display of the T-shirt affected their ability to be impartial
and to admonish the jurors to disregard such displays. Haynie
claims that “the court’s failure to adhere to [these] require-
ments . . . resulted in reversible error,” 26 in part because
absent polling of the jurors, he had “no ability to effectively
argue and protect his right against inappropriate influence.” 27
The State, on the other hand, argues that Iromuanya does not
require that the jurors be polled and admonished. The State
also observes that Haynie failed to ask the district court to
take such actions.
   As was previously noted, our opinion in Iromuanya
addressed, among other things, the defendant’s argument that
his trial counsel was ineffective in the timing of his objec-
tion to memorial buttons and in not demanding an immediate
25
   Brief for appellant at 14.
26
   Id. at 15.
27
   Id. at 16.
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ruling on his objection or a mistrial. 28 We rejected that claim,
but advised trial courts to take specific steps to address spec-
tator conduct that could prejudice the defendant’s right to
a fair trial. We advised, “If the court concludes that jurors
would have been exposed to the displays, it should inquire
of jurors whether the displays would affect their ability to
be impartial and admonish them to disregard any displays to
which they might have been exposed.” 29 It is this language
regarding polling and admonishing the jury that Haynie relies
upon in his second assignment of error.
    Haynie’s reliance is misplaced for several reasons. First,
the language in Iromuanya upon which he relies is dicta. It
appears after this court had already concluded that the defend­
ant’s right to a fair trial was not violated and was framed as
guidance “[t]o avoid potential prejudice from victim memorial
displays . . . .” 30 We do not understand that language Haynie
relies upon to establish a rule, the failure of which to follow
amounts to reversible error. Second, Iromuanya recommends
that the jury be polled and admonished “[i]f the court con-
cludes that jurors would have been exposed to the displays
. . . .” 31 However, as was noted above, there is nothing in the
record here to show that jurors saw the T-shirt.
    We also note, as the State did, that Haynie never asked the
district court to poll and admonish the jurors. Haynie may
have mistakenly believed that the court was required to take
such actions sua sponte. But that does not excuse his failure
to raise the issue when the court did not take the actions
that he believed to be required. 32 As we have previously
28
   Iromuanya, supra note 9.
29
   Id. at 829, 806 N.W.2d at 433.
30
   Id. at 828, 806 N.W.2d at 432.
31
   Id. at 829, 806 N.W.2d at 433.
32
   See, e.g., State v. McClanahan, 

, 

 (1975)
   (superseded by statute on other grounds as stated in State v. McLain, 

, 

 (1991)); Barber v. State, 

, 

 (1906).
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explained, a defendant who might otherwise be entitled to an
admonishment may opt not to request one so as not to “‘high-
light[] the issue for the jury.’” 33 The approach suggested by
Haynie would effectively remove defendants’ right to make
such determinations on their own behalf by requiring that the
court sua sponte admonish the jurors on certain matters. We
decline to adopt such an approach to polling and admonishing
the jury based on spectator conduct.
   Accordingly, because Iromuanya does not require the district
court sua sponte to poll the jurors about the memorial T-shirt
and admonish them to disregard the display, and because
Haynie did not request the district court to take such actions,
the district court did not err in failing to poll the jurors and
admonish them.

               No Error in Declining to Give
                 Requested Jury Instruction
   Haynie’s third assignment of error concerns the failure to
give his proposed jury instruction regarding aiding and abet-
ting. As is discussed below, Haynie challenges the sufficiency
of the evidence of robbery, the crime during which Vasquez
was killed. Haynie suggests that there was no evidence of
robbery or that Mapp alone was responsible. As such, Haynie
argues that his proposed instruction was necessary to ensure
that the jury did not find him guilty merely because he was
at the scene and “acquiesc[ed] in whatever Mapp chose to
do inside the car.” 34 The State counters that the jury instruc-
tion given followed the Nebraska Jury Instructions, correctly
stated the law, and “already prohibited the jury from finding
Haynie guilty merely because he was present at the scene of
the crime.” 35
33
   State v. Dixon, 

, 286, 

, 880 (2011).
34
   Brief for appellant at 18.
35
   Brief for appellee at 15.
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   [6,7] To establish reversible error from a court’s refusal to
give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction. 36 It is not error for
a trial court to refuse to give a party’s requested instruction
where the substance of the requested instruction was covered
in the instructions given. 37
   [8] Haynie failed to meet that burden here. As we have pre-
viously explained, when there is an applicable instruction in
the Nebraska Jury Instructions, the court should usually give
that instruction to the jury in a criminal case. 38 The district
court here did precisely that, basing its instruction on NJI2d
Crim. 3.8.
   Moreover, in State v. Glantz, 39 we found that the language
in NJI2d Crim. 3.8 adequately addressed concerns like those
raised by Haynie here. The defendant in Glantz argued that
the district court erred, among other things, in refusing to
include in the jury instruction regarding aiding and abetting
a “statement that mere presence is not enough to establish
guilt.” 40 We disagreed. 41 We found that the instruction in
question was based on NJI2d Crim. 3.8 and that NJI2d Crim.
3.8 accurately described the offense of aiding and abetting
set forth in statute. 42 We also observed that NJI2d Crim. 3.8
provides, among other things, that “‘[t]he defendant aided
someone else if: 1. The defendant encouraged or intentionally
36
   State v. German, 

, 

 (2024).
37
   

38
   

39
   State v. Glantz, 

, 

 (1997).
40
   

, 

.
41
   

.
42
   

 See 

 (Reissue 2016).
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helped another person commit the [offense]; and 2. The
defendant knew that the other person intended to commit the
[offense].’” 43 We found that this “intent requirement suffi-
ciently informed the jury that an individual not at all involved
in the crime yet at the scene could not be found guilty of
aiding and abetting.” 44 Further, we found that the proposed
instruction regarding “mere presence” would have confused
and misled the jury because “it is impossible for jury instruc-
tions to include everything that does not constitute aiding and
abetting.” 45
   [9] In light of Glantz and subsequent cases, the district
court did not err in declining to give Haynie’s proposed jury
instruction. The jury instruction given was based on NJI2d
Crim. 3.8, which has not changed in relevant part between
Glantz and the present appeal; it correctly stated the law;
and its provisions regarding intent covered the substance of
the proposed instruction. In contrast, the proposed instruc-
tion would have confused and misled the jury for the reasons
set forth in Glantz. An instruction which does not correctly
state the law or which is likely to confuse or mislead the jury
should not be given. 46
   Haynie is correct that we used his proposed language about
“mere presence, acquiescence, or silence” in Ramsay and
related cases. 47 However, we use that language when sum-
marizing the law as to aiding and abetting. There was no sug-
gestion that this language was, or should be, included in jury
instructions.
43
   

, 

, 

.
44
   

, 

.
45
   

, 

 (emphasis omitted).
46
   State v. Gales, 

, 

 (2005).
47
   See 

. See, also, State v. Larsen, 

, 

 (1998); State v. Arnold, 

, 

 (1998).
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                            STATE V. HAYNIE
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             Evidence Was Sufficient to Support
                  Felony Murder Conviction
   In his fourth assignment of error, Haynie argues that the
evidence was insufficient to support his conviction for felony
murder because there was no evidence that he “intended to rob
Vasquez” 48 or “knew of Mapp’s intent to rob or attempt to rob”
Vasquez. 49 The State, in contrast, argues that the evidence was
sufficient to support Haynie’s felony murder conviction.
   [10] The critical difference between felony murder and
premeditated first degree murder is that the underlying felony
takes the place of the intent to kill, or premeditated malice,
and the purpose to kill is conclusively presumed from the
criminal intent required for the underlying felony. 50 In other
words, a specific intent to kill is not required to constitute
felony murder, only the intent to do the act which constitutes
the felony in question. 51
   In this case, the act that constituted the felony was robbery.
Under 

 (Reissue 2016), a person com-
mits robbery if, with the intent to steal, he or she forcibly and
by violence, or by putting in fear, takes from the person of
another any money or personal property of any value what-
ever. 

(1) (Cum. Supp. 2022) further
provides, in relevant part, that a person is guilty of an attempt
to commit a crime “if he or she . . . [i]ntentionally engages in
conduct which . . . constitutes a substantial step in a course
of conduct intended to culminate in his or her commission of
the crime.”
   [11,12] When a crime requires the existence of a particu-
lar intent, an alleged aider or abettor can be held criminally
liable as a principal if it is shown that the aider and abettor
knew that the perpetrator of the act possessed the required
48
   Brief for appellant at 18.
49
   Id. at 19.
50
   State v. Ely, 

, 

 (2014).
51
   

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intent or that the aider and abettor himself or herself possessed
such intent. 52 The intent with which an act is committed is a
mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the
incident. 53
   Viewing the evidence here in the light most favorable to
the State, we conclude that there is sufficient evidence for a
rational jury to conclude that Haynie had the requisite intent
to rob Vasquez or to aid and abet in robbing Vasquez. There
was evidence that Haynie and Mapp got into the back seat of
Grim’s vehicle, conduct that was not typical for drug sales
conducted by Vasquez in which Grim was involved. There was
also evidence that after Vasquez showed Haynie and Mapp the
bag containing the marijuana and asked for payment, Haynie
and Mapp both pulled out guns. Haynie then told Vasquez,
“‘Don’t make me shoot you in front of [Grim],’” and both
men “started reaching forward, trying to pull for the bag.”
Further, the evidence showed that two guns were fired inside
the vehicle and that Grim and Vasquez were unarmed. In addi-
tion, Haynie later sent a social media message to his girlfriend
contemplating another robbery.
   Haynie points to evidence that he claims was inconsistent
with a robbery. For example, he argues that the digital scale
found at the scene “can be presumed to be [his]” and shows
that he “had no intent to rob, because he intended to weigh
the marijuana to confirm the sale.” 54 Haynie also points to the
absence of any evidence that Haynie anticipated Mapp would
attempt to rob Vasquez, and he claims that the marijuana
and cartridge casing found on his seat suggest he exited the
vehicle before the shots were fired. Haynie argues that these
52
   See State v. Barfield, 

, 

 (2006), disapproved
   on other grounds, State v. McCulloch, 

, 

   (2007).
53
   State v. Clark, 

, 

 (2024).
54
   Brief for appellant at 17.
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                             STATE V. HAYNIE
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and other matters raised doubt about whether there was a rob-
bery and his role in it. The jury heard the evidence and voted
to convict Haynie. It is not our role to resolve any alleged
conflicts in the evidence or reweigh the evidence. 55
                         CONCLUSION
   The district court did not err in overruling Haynie’s motion
for a mistrial, in not polling the jury regarding the memorial
T-shirt and not admonishing the jury to disregard that display,
and in declining to give Haynie’s proposed jury instruction.
The evidence was also sufficient to support Haynie’s mur-
der conviction. As such, we affirm Haynie’s convictions and
sentences.
                                                    Affirmed.
55
     See 

.