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- 756 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
State of Nebraska, appellee, v.
Patrick S. Tvrdy, appellant.
___ N.W.2d ___
Filed January 19, 2024. No. S-22-901.
1. 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.
2. Jury Instructions: Proof: Appeal and Error. In an appeal based upon
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
3. Jury Instructions: Appeal and Error. All the jury instructions must be
read together, and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by the plead-
ings and the evidence, there is no prejudicial error necessitating reversal.
4. ____: ____. A jury instruction which misstates the issues and has a
tendency to confuse the jury is erroneous.
5. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
7. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are untenable or
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
8. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
9. Criminal Law: Homicide: Evidence. To sustain a conviction for man-
slaughter, the evidence must be sufficient to justify the finding of a
causal connection between the unlawful act and the death of the victim.
10. Homicide: Motor Vehicles: Prosecuting Attorneys: Proof. The same
conduct may constitute both unlawful act manslaughter and motor
vehicle homicide, and the State has the prosecutorial discretion to pur-
sue charges for either offense. But in exercising its discretion to charge
under one offense or another, the State must still prove each element of
that offense beyond a reasonable doubt.
11. Homicide: Motor Vehicles: Negligence. Contributory negligence is not
a defense to the charge of motor vehicle homicide. Rather, the issue is
whether a defendant’s violation of the law was a contributing factor to
the death.
12. Homicide: Motor Vehicles: Negligence: Proximate Cause. A victim’s
negligence cannot act to absolve the defendant in a motor vehicle homi-
cide case unless the actions of the victim were the sole proximate cause
of the accident.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Kristi J. Egger, Lancaster County Public Defender, Timothy
M. Eppler, and Jennifer Craven, Senior Certified Law Student,
for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Following a vehicle-motorcycle collision, Patrick S. Tvrdy
was convicted of manslaughter in the death of the driver
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
of the motorcycle. Tvrdy was sentenced to 12 to 16 years’
imprisonment. He appeals. We affirm.
FACTUAL BACKGROUND
At approximately 9:25 p.m. on July 30, 2020, Tvrdy was
traveling eastbound in his Dodge Charger on what was then
Nebraska Highway 2 (now Nebraska Parkway) in Lincoln,
Nebraska. On this stretch of road, Highway 2 ran parallel
to Pioneers Boulevard, which was accessed from the high-
way via an access road. This access road then merged with
Pioneers Boulevard and continued eastbound. On this eve-
ning, Tvrdy sought to turn left across the westbound lanes
of Highway 2 traffic. The intersection in question is not con-
trolled by a traffic light.
When Tvrdy approached the left turn, he slowed, waiting
for a car ahead of him to make the turn. Tvrdy then made the
turn. While in the process of making the left turn, a motor-
cycle operated by Brady Sweetser, traveling in the westbound
lanes of Highway 2, collided with the passenger-side front
door of Tvrdy’s vehicle. Sweetser suffered blunt force trauma
in the collision and died from his injuries. There was evidence
at trial that Sweetser might have been speeding, including
testimony that a neighbor heard the throttling acceleration of
a motorcycle immediately prior to the sound of the collision,
but Sweetser’s exact rate of speed was unknown.
Tvrdy was transported to a hospital with reports of head
pain. He also suffered several minor cuts and abrasions. Based
upon the reports of law enforcement officials who responded
to the scene of the collision, it was thought that Tvrdy might
be under the influence of some intoxicating substance. A
preliminary breath test and other field sobriety tests were
performed. Following this drug investigation evaluation, the
officer conducting such tests concluded that it was her belief
that Tvrdy was under the influence of marijuana. A urine test
later showed the presence of “THC.”
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
Tvrdy was initially charged with motor vehicle homicide
while under the influence, a Class IIA felony. 1 The information
against him was later amended to add a charge of unlawful
act manslaughter, 2 with the unlawful act of driving under the
influence, also a Class IIA felony. 3 The motor vehicle homicide
charge was dismissed prior to trial, and Tvrdy proceeded to
trial on only the manslaughter charge.
Following a jury trial, Tvrdy was found guilty of unlawful
act manslaughter and was sentenced to 12 to 16 years’ impris-
onment. He appeals, and we moved this appeal to our docket.
ASSIGNMENTS OF ERROR
Tvrdy assigns that the district court erred in (1) using
jury instructions for motor vehicle homicide instead of man-
slaughter, to Tvrdy’s prejudice; (2) finding sufficient evidence
to support Tvrdy’s conviction; and (3) imposing an exces-
sive sentence.
STANDARD OF REVIEW
[1-4] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. 4 In an appeal based upon a claim of
an erroneous jury instruction, the appellant has the burden to
show that the questioned instruction was prejudicial or other-
wise adversely affected a substantial right of the appellant. 5
All the jury instructions must be read together, and if, taken
as a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating
1
See Neb. Rev. Stat. § 28-306(3)(b) (Reissue 2016).
2
See Neb. Rev. Stat. § 28-305 (Reissue 2016).
3
See Neb. Rev. Stat. § 60-6,196 (Reissue 2016).
4
State v. Fernandez, 313 Neb. 745, 986 N.W.2d 53 (2023).
5
Id.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
reversal. 6 A jury instruction which misstates the issues and
has a tendency to confuse the jury is erroneous. 7
[5] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insuffi-
ciency of the evidence, or failure to prove a prima facie case,
the standard is the same: In reviewing a criminal conviction,
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, and a conviction will
be affirmed, in the absence of prejudicial error, if the evidence
admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction. 8
[6-8] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 9 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 10 Where a sentence imposed within
the statutory limits is alleged on appeal to be excessive, the
appellate court must determine whether a sentencing court
abused its discretion in considering and applying the relevant
factors as well as any applicable legal principles in determin-
ing the sentence to be imposed. 11
ANALYSIS
Jury Instructions and Sufficiency of Evidence.
In his first and second assignments of error, Tvrdy contends
that the district court erroneously used jury instructions for
6
Id.
7
Id.
8
State v. Bershon, 313 Neb. 153, 983 N.W.2d 490 (2023).
9
State v. Applehans, 314 Neb. 653, 992 N.W.2d 464 (2023).
10
Id.
11
Id.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
motor vehicle homicide, instead of manslaughter, and that the
court further erred in finding sufficient evidence to support
Tvrdy’s conviction.
Tvrdy takes issue with instruction No. 5, which instructed
the jury as follows:
Under the law in Nebraska, the negligence of a victim
is not a defense to a prosecution for Manslaughter unless
such negligence is the sole proximate cause of the death.
Such negligence, if it exists, may be considered on the
issue of whether the conduct of [Tvrdy] was a proximate
cause of the death of [the victim].
While agreeing that the court’s instruction was a correct state-
ment of the law in cases of motor vehicle homicide, Tvrdy
contends that such statement is not correct in cases involv-
ing unlawful act manslaughter because, in those cases, “there
is reason to believe that evidence of a decedent’s contribu-
tory negligence may be a defense in Manslaughter cases.” 12
Tvrdy reasons:
The instruction erroneously barred the jury from con-
sidering [the victim’s] negligent conduct when deciding
[Tvrdy’s] direct causal responsibility for the accident.
Had the jury been able to consider the evidence of [the
victim’s] speeding, excessive and continuous acceleration,
and possible lane changes, [it] likely would have reached
a different verdict. 13
Tvrdy cites to United States v. Schmidt, 14 in support of this
assertion. In that case, the Eighth Circuit stated that such
evidence of contributory negligence “might . . . raise seri-
ous questions about the defendant’s causal responsibility for
the accident.” 15
12
Brief for appellant at 15.
13
Id.
14
United States v. Schmidt, 626 F.2d 616 (8th Cir. 1980).
15
Id. at 618.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
[9] Some background is helpful. According to statute, “A
person commits manslaughter if he or she . . . causes the
death of another unintentionally while in the commission of
an unlawful act.” 16 To sustain a conviction for manslaughter,
the evidence must be sufficient to justify the finding of a
causal connection between the unlawful act and the death of
the victim. 17
[10] The same conduct may constitute both unlawful act
manslaughter and motor vehicle homicide, and the State
has the prosecutorial discretion to pursue charges for either
offense. 18 But in exercising its discretion to charge under one
offense or another, the State must still prove each element of
that offense beyond a reasonable doubt. 19
[11,12] It has been a longstanding principle that contribu-
tory negligence is not a defense to the charge of motor vehicle
homicide. 20 Rather, the issue is whether a defendant’s viola-
tion of the law was a contributing factor to the death. 21 Thus,
a victim’s negligence cannot act to absolve the defendant in a
motor vehicle homicide case unless the actions of the victim
were the sole proximate cause of the accident. 22 All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal. 23
With these principles in mind, we turn to the arguments
on appeal. Instruction No. 3 is the elements instruction for
16
§ 28-305(1).
17
State v. Hare, 190 Neb. 339, 208 N.W.2d 264 (1973).
18
See State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).
19
See id.
20
State v. Brown, 258 Neb. 330, 603 N.W.2d 419 (1999).
21
Id.
22
Id.
23
State v. Fernandez, supra note 4.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
unlawful act manslaughter. It instructed, as relevant, that the
State must prove Tvrdy caused Sweetser’s death, unintention-
ally and while in the commission of the unlawful act of driv-
ing under the influence. Instruction No. 3 concluded by noting
that “[t]he burden of proof is always on the State to prove all
of the material elements of the crime charged, and the burden
never shifts.” We observe that this instruction is not challenged
on appeal.
Once again, we note instruction No. 5, which provides:
Under the law in Nebraska, the negligence of a victim
is not a defense to a prosecution for Manslaughter unless
such negligence is the sole proximate cause of the death.
Such negligence, if it exists, may be considered on the
issue of whether the conduct of [Tvrdy] was a proximate
cause of the death of [the victim].
This instruction is identical in substance to the instruction we
set forth in State v. Brown, 24 wherein we suggested that the
language be used “in such circumstances.”
And although Brown involved a charge of motor vehicle
homicide, we disagree with Tvrdy’s suggestion that while
the contributory negligence of the victim is not a defense
to motor vehicle homicide, it is a defense to manslaugh-
ter. Contrary to Tvrdy, we do not read the Eighth Circuit’s
opinion in Schmidt to hold that contributory negligence is a
defense to manslaughter. 25 Instead, we read the Eighth Circuit
to have said that evidence of a victim’s negligence might
be relevant to whether the defendant proximately caused
the death at issue. In fact, the Eighth Circuit’s opinion, in
a footnote, expressly rejected the notion that contributory
negligence of the decedent was a defense to manslaugh-
ter. 26 Furthermore, ample authority suggests that contributory
24
State v. Brown, supra note 20, 258 Neb. at 342, 603 N.W.2d at 428.
25
See United States v. Schmidt, supra note 14.
26
Id. at 618 n.2 (“the contributory negligence of the decedent is not in and
of itself a defense to a charge of involuntary manslaughter”).
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
negligence of the victim is never a defense to any criminal
charge. 27 Even if there might be some exception to the rule
that contributory negligence of the victim is not an available
defense in criminal cases, Tvrdy has not shown that it is a
defense to manslaughter.
We find no error in the giving of instruction No. 5. We
agree that it was a correct statement of the law. We dis-
agree with the assertion that the first sentence of instruction
No. 5 conflicts with the second sentence and that the jury
would have been confused about whether it could consider
Sweetser’s own negligence. The first sentence simply notes
that this negligence would not be a defense to manslaughter,
which is a correct statement of law. Moreover, this first sen-
tence does not preclude the consideration of that evidence—in
fact, it invites the jury to do so when determining causation.
The second sentence makes it even more plain that the jury
may consider that evidence to determine causation.
When read with instruction No. 3, which was not chal-
lenged, the instructions inform the jury that the State always
retains the burden to prove the elements of unlawful act
manslaughter (as well as driving under the influence). These
elements include causation, and the State must prove that
Tvrdy’s actions, and not Sweetser’s own negligence, were the
cause of Sweetser’s death.
An examination of the record shows that evidence of
Sweetser’s possible acceleration—both in the moments
before the collision, as well as immediately preceding the
27
See, People v. Tims, 499 Mich. 83, 98, 534 N.W.2d 675, 681 (1995)
(concluding that “[i]t appears to be the universal rule” that contributory
negligence is not defense in criminal cases); State v. Crace, 289 N.W.2d
54, 59 (Minn. 1979) (“[i]t is well settled that the contributory negligence
of the victim is never a defense to criminal prosecution”); State v. Moore,
106 N.W. 16, 17 (Iowa 1906) (“contributory negligence, if shown, is never
a defense or excuse for crime”); 1 Wayne R. LaFave, Substantive Criminal
Law § 6.5(b) at 690 (3d ed. 2018) (observing that contributory negligence
defense “has no place in the criminal law”).
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. TVRDY
Cite as 315 Neb. 756
collision—was presented to the jury. The jury was also pro-
vided evidence that over a multitude of different scenarios,
based on the evidence produced at trial, there was never
enough time for Tvrdy to complete his left turn without caus-
ing Sweetser—who had the right of way—to collide with him.
And while the evidence as to Tvrdy’s intoxication was chal-
lenged, there was sufficient evidence to support that finding.
As such, Tvrdy’s first and second assignments of error are
without merit.
Sentence.
In his final assignment of error, Tvrdy assigns that his sen-
tence of 12 to 16 years’ imprisonment was excessive. Tvrdy
contends that the court abused its discretion when it failed to
consider Tvrdy’s willingness to change, involvement in pro-
social activities, education, and positive relationships.
Unlawful act manslaughter is a Class IIA felony, which is
punishable by up to 20 years’ imprisonment. As such, Tvrdy’s
sentence was within statutory limits. Moreover, the presen-
tence report shows that Tvrdy has a criminal history entailing
both multiple speeding and possession of marijuana offenses,
as well as a driving under the influence offense. We find no
abuse of discretion in the district court’s sentence and no
merit to Tvrdy’s third assignment of error.
CONCLUSION
The decision of the district court is affirmed.
Affirmed.