State v. Merchant

456 	285 NEBRASKA REPORTS
Black, we follow the reasoning of those courts that order the
attorney fees be awarded directly to the legal services pro-
vider. We remand with directions for the attorney fees awarded
by the district court to be awarded directly to the Creighton
Legal Clinic.
CONCLUSION
We affirm the judgment in favor of Black in all respects, but
modify the designee of the attorney fee award. We direct the
district court to amend its order so as to award the attorney fees
directly to the Creighton Legal Clinic.
A ffirmed As modified.
miller-lermAn, J., participating on briefs.
stAte of nebrAskA, Appellee, v.
thomAs p. merchAnt, AppellAnt.
827 N.W.2d 473
Filed March 8, 2013. 	No. S-12-191.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
5. Expert Witnesses: Evidence. Expert testimony is relevant and admissible only
if it tends to help the trier of fact understand the evidence or to determine a fact
issue, and expert testimony concerning the status of the law does not tend to
accomplish either of these goals.
6. ____: ____. Expert testimony concerning a question of law is generally not
admissible in evidence.
7. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

STATE v. MERCHANT 	457
Cite as 285 Neb. 456
8. Evidence. Evidence which is not relevant is not admissible.
9. Evidence: Words and Phrases. Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it would be without
the evidence.
10. Criminal Law: Statutes: Legislature: Intent. Generally, the established rule
is that when construing a criminal statute, the existence of a criminal intent is
regarded as essential and relevant, even though the terms of the statute do not
require it, unless it clearly appears that the Legislature intended to make the act
criminal without regard to the intent with which it was done.
11. 	Public Policy: Words and Phrases. Public welfare offenses are in the nature of
neglect where the law requires care, or inaction where it imposes a duty.
12. Public Policy: Negligence: Intent. One accused of a public welfare offense,
although not intending the violation, is in the position to prevent it with the exer-
cise of reasonable due care.
13. Criminal Law: Intent: Public Policy: Sentences. With public welfare offenses,
criminal penalties simply serve as an effective means of regulation, dispensing
with the conventional mens rea requirement for criminal conduct.
14. Motor Vehicles: Sales: Licenses and Permits: Public Policy. The motor vehicle
dealer licensing requirement found under Neb. Rev. Stat. § 60-1416 (Reissue
2010) is a public welfare offense.
15. Motor Vehicles: Sales: Licenses and Permits: Public Policy: Legislature:
Intent. License requirements for buying, selling, and exchanging vehicles are
not found in common law, but were created by the Nebraska Legislature with the
intent to protect the public interest.
16. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court would have been sufficient to sustain a guilty verdict.
Appeal from the District Court for Lancaster County: steven
d. burns, Judge. Reversed and remanded for a new trial.
John S. Berry, of Berry Law Firm, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
heAvicAn, c.J., Wright, connolly, stephAn, mccormAck,
miller-lermAn, and cAssel, JJ.
mccormAck, J.
I. NATURE OF CASE
Thomas P. Merchant was found guilty after a jury trial of the
unlawful sale or purchase of a motor vehicle under Neb. Rev.
Stat. § 60-1416 (Reissue 2010). Two issues presented by this

458 	285 NEBRASKA REPORTS
appeal are whether the trial court properly admitted “expert”
testimony interpreting § 60-1416 and whether mens rea is a
required element of that offense.
II. BACKGROUND
According to Merchant, he was in the business of auto-
motive wholesaling. In June 2011, Merchant arranged to
exchange vehicles with Nebraska Auto Auction, Inc. (NAA).
NAA is an automobile auction company that facilitates sales
and purchases between dealers by guaranteeing the sellers
receive payment and the buyers receive clean title to the
vehicles purchased.
NAA holds a valid Nebraska auction license. By law, only
licensed dealers can participate in the auctions held by NAA.
NAA requires all auction participants to fill out necessary
paperwork and to provide a copy of their state-issued deal-
er’s license.
On June 1, 2011, Merchant exchanged vehicles through an
NAA auction. In total, he sold 9 vehicles and purchased 19
more. For the vehicles he purchased, Merchant wrote sepa-
rate checks totaling approximately $338,000. The checks were
written by Merchant doing business under the title “The Auto
Merchant Exchange.”
Merchant completed and signed the paperwork associated
with these transactions but never provided NAA a copy of
a dealer’s license. On the NAA registration form, Merchant
wrote “wholesale only” and, when requested to provide “Type
of Dealer,” checked a box indicating “Wholesale.” He listed
his dealer’s license number as “NF-4711.”
NAA requested a copy of Merchant’s dealer’s license, but
never received a copy. NAA reported Merchant to the Nebraska
Motor Vehicle Industry Licensing Board. After determining
Merchant did not have a dealer’s license, the State charged
Merchant with one count of being an unlicensed dealer.
Prior to trial, the court held a hearing to determine whether
Merchant’s prior convictions were admissible for purposes of
impeachment. The State offered a certified copy of the judg-
ment from the clerk of the district court for Weld County,
Colorado. The exhibit showed that Merchant was convicted

STATE v. MERCHANT 	459
Cite as 285 Neb. 456
of theft of more than $400 in August 1996 and was sentenced
to 24 years of incarceration. The exhibit does not state when
Merchant was released, but does indicate that the court last
modified the sentence in February 2003. Counsel for Merchant
objected to the admission of the exhibit, arguing that it was
“somewhat convoluted and confusing” and that it does not
prove by the preponderance of the evidence that Merchant was
convicted of a felony in the past 10 years. The judge over-
ruled the objection and, without further explanation, stated that
the conviction represented by the exhibit could be used for
impeachment purposes.
Additionally, the State requested a motion in limine to
prevent Merchant from testifying about or putting on evi-
dence concerning his lack of knowledge of the law requiring
a license to conduct sales and/or purchases of motor vehicles
in the State of Nebraska. The trial court granted the motion
in limine.
At trial, the State called William S. Jackson as a witness.
Jackson is the executive director with the State of Nebraska
Motor Vehicle Industry Licensing Board. The board is respon-
sible for licensing and regulating the manufacturers, distribu-
tors, salespersons, dealer agents, manufacturer representatives,
and finance companies for Nebraska vehicles.
Jackson testified that in order to sell or purchase a vehicle
in Nebraska, a person must be a licensed motor vehicle dealer,
a licensed salesperson of a licensed dealer, or a bona fide
consumer. He testified that a bona fide consumer is a person
who purchases a vehicle, pays all taxes on the vehicle, and
registers the vehicle prior to reselling. He also testified that a
bona fide consumer cannot sell more than eight vehicles during
a 1-year period.
Jackson further testified that the term “wholesale” refers to
any dealer-to-dealer transaction and that “wholesale” transac-
tions require a license. Merchant’s counsel objected to this
portion of the testimony, stating that it was irrelevant and
that it invaded the province of the jury. The objection was
overruled. Additionally, Jackson testified that he searched
the 	Nebraska 	Motor 	Vehicle 	Industry 	Licensing 	Board’s
records and found no record of either Merchant’s or The Auto

460 	285 NEBRASKA REPORTS
Merchant Exchange’s having a license to buy and sell vehicles
in Nebraska.
The State also called Shane L. Fox to testify. Fox is an
investigator with the Wyoming Department of Transportation.
Fox’s duties in that position included monitoring and enforc-
ing various motor vehicle dealer licenses for the State of
Wyoming. Fox testified that he searched for Merchant and
The Auto Merchant Exchange in the Wyoming Department of
Transportation records and found that neither Merchant nor his
company was a licensed dealer in the State of Wyoming. He
also testified that the dealer No. NF-4711 used by Merchant
was not a valid license number in Wyoming.
After the testimony of Fox, the State rested. Prior to testify-
ing, Merchant made two offers of proof for the granted motion
in limine. In his first offer of proof, Merchant testified that
he had contacted a Wyoming attorney who told him he could
wholesale vehicles in the State of Wyoming without a license.
He also testified that he had contacted dealers in Nebraska
who informed him that he did not need a license in Nebraska
because he was a wholesaler in Wyoming. His second offer
of proof would have been the testimony of a Wyoming attor-
ney who, according to Merchant, would have testified that
the Wyoming Department of Transportation told Merchant he
could legally “wholesale” vehicles between dealers without
a license.
The State objected to these offers of proof on the ground
that Merchant’s lack of knowledge of the illegality of his
actions was irrelevant to any elements of the charged crime.
Both objections on both offers of proof were sustained.
Merchant then took the stand. During direct examination,
Merchant testified that he transported wholesale cars with his
truck and trailer for a $250-per-car transportation fee. Merchant
testified that he had done previous business in Nebraska with
the Husker Auto Group. Merchant also admitted during direct
examination that he had been convicted of a felony within the
past 10 years.
On 	cross-examination, 	Merchant 	testified 	that 	he 	was
directly involved with the NAA transactions that occurred on
June 1, 2011. He testified that money did exchange hands and

STATE v. MERCHANT 	461
Cite as 285 Neb. 456
that he personally wrote checks for the vehicles purchased. He
testified that he filled out and signed most of the paperwork
for these transactions and that the paperwork “reassigned”
ownership of the vehicles. He acknowledged that he was not
a licensed motor vehicle dealer in Nebraska or any state and
that he was not working for a licensed dealer. Merchant admit-
ted that he did not title, register, or pay taxes on the vehicles
purchased at the NAA auction on June 1.
Following 	Merchant’s 	testimony, 	jury 	instructions 	were
given to the jury. In relevant part, jury instruction No. 3 stated
the following:
Regarding the crime of Unlawful Sale or Purchase of
Motor Vehicle, the State must prove beyond a reasonable
doubt that:
(1) On the day he sold or purchased a motor vehicle
described in the evidence . . . Merchant did not pos-
sess a valid Nebraska Motor Vehicle Dealer’s license,
Motor Vehicle Auction Dealer license, Motor Vehicle
Salesperson license, or Motor Vehicle Dealer’s Agent
license, and
(2) Any one of the following:
(a) . . . Merchant did not acquire the vehicle he sold or
purchased for use in business or for pleasure purposes, or
(b) the motor vehicle sold was not titled in . . .
Merchant’s name, or
(c) the motor vehicle sold was not registered to . . .
Merchant in accordance with the laws of his resident
state, or
(d) . . . Merchant sold more than eight registered motor
vehicles within a twelve month period;
and
(3) . . . Merchant did so on or about June 1, 2011, in
Lancaster County, Nebraska.
Counsel for Merchant objected to the use of this instruc-
tion and alleged that the bona fide consumer portion of the
instruction was unnecessary and confusing. Merchant’s pro-
posed instruction stated:
[R]egarding the crime of acting without a license, the
State must prove beyond a reasonable doubt that:

462 	285 NEBRASKA REPORTS
. . . Merchant acted as a motor vehicle dealer, an
auction dealer, a motor vehicle salesperson, or dealers
agent without having first obtained a license and . . .
Merchant did so on or about June 1st, 2011, in Lancaster
County, Nebraska.
The court overruled Merchant’s objection and did not give the
proposed instruction.
During the State’s closing argument, the prosecutor stated:
“Wholesaler is defined in Nebraska Statutes. It means any
person actively and regularly engaged in the act of selling,
leasing for a period of 30 or more days, or exchanging new or
used motor vehicles, who buy, sell, exchange . . . .” Counsel
for Merchant objected and requested permission to approach.
Counsel for Merchant stated there was no definition of “whole-
saler” in the statutes and that the prosecutor’s statement was
misleading. The trial court agreed, and counsel asked for
“either mistrial or . . . per curiam Instruction.” The trial court
agreed to give an instruction and told the jury that “whole-
saler” is not defined and that the State was simply interpreting
the statutes at issue.
After closing arguments, the jury convicted Merchant of
the unlawful sale or purchase of a motor vehicle. An enhance-
ment hearing was held to determine whether Merchant was a
habitual criminal. The State offered exhibit 11, and the court
admitted it over the objections of Merchant. Exhibit 11 was
a letter from the Colorado Department of Corrections outlin-
ing Merchant’s criminal history. Merchant was classified as
a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue
2008) and was sentenced to 12 to 30 years’ imprisonment.
III. ASSIGNMENTS OF ERROR
Merchant claims, restated and summarized, that the trial
court erred when it (1) prevented Merchant from testifying
about his knowledge of the licensing requirement and his lack
of mens rea, (2) allowed Jackson to testify to his interpreta-
tion of the licensing requirements, (3) submitted jury instruc-
tion No. 3 to the jury, (4) allowed the prosecution to impeach
Merchant with a prior conviction, (5) denied the motion for
retrial after the prosecutor misstated the law during closing

STATE v. MERCHANT 	463
Cite as 285 Neb. 456
arguments, (6) found the evidence to be sufficient to support
the conviction, and (7) excessively sentenced Merchant.
IV. STANDARD OF REVIEW
[1-3] In proceedings where the Nebraska Evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.1 Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for
an abuse of discretion.2 An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence.3
[4] Whether jury instructions given by a trial court are cor-
rect is a question of law.4 When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below.5
V. ANALYSIS
1. JAckson’s testimony
We begin with Merchant’s second assignment of error.
Merchant asserts that the trial court erred in allowing the
State’s witness to testify as to his interpretation of the law
regarding the licensing of motor vehicle dealers in the State of
Nebraska. We agree.
The Nebraska rules of evidence provide the relevant stan-
dards for the admissibility of testimony for both lay witnesses
and experts. Neb. Evid. R. 701, Neb. Rev. Stat. § 27-701
(Reissue 2008), states:
1 State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
2 State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
3 State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
4 State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).
5 Id.

464 	285 NEBRASKA REPORTS
If the witness is not testifying as an expert, his tes-
timony in the form of opinions or inference is limited
to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a
clear understanding of his testimony or the determination
of a fact in issue.
Likewise, Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue
2008), allows expert testimony “[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a wit-
ness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an
opinion or otherwise.” For both lay and expert witnesses, the
testimony must aid the jury in either understanding the evi-
dence or determining a fact at issue.
Specifically, Merchant challenges the following questions
and answers during the direct examination of Jackson by the
State. The prosecutor asked, “And in the state of Nebraska a
license is required in order to be able to do that legally; is that
correct?” to which Jackson replied affirmatively. The pros-
ecutor followed with, “And that’s whether it be wholesale or
retail?” Counsel for Merchant objected, stating, “Objection,
your Honor, that goes — first of all, relevance. Second of all,
that’s . . . for the jury to say.” The objection was overruled,
and the prosecutor restated her question: “It [d]oesn’t mat-
ter whether we’re talking about something that’s described as
wholesale or something that’s described as . . . retail, in the
state of Nebraska you have to have a license?” Jackson again
responded in the affirmative.
[5,6] We find that Jackson’s testimony interpreting the stat-
utes was not relevant and was unfairly prejudicial to Merchant.
In Kaiser v. Western R/C Flyers,6 the issue at trial was whether
the relevant zoning ordinance barred operation of a model
airplane airfield near Springfield, Nebraska. Both parties intro-
duced expert testimony in support of their respective interpre-
tations of the ordinance. We held both parties’ expert evidence
to be irrelevant and explained:
6 Kaiser v. Western R/C Flyers, 239 Neb. 624, 477 N.W.2d 557 (1991).

STATE v. MERCHANT 	465
Cite as 285 Neb. 456
[E]xpert testimony is relevant and admissible only if it
tends to help the trier of fact understand the evidence
or to determine a fact issue[,] and . . . expert testimony
concerning the status of the law does not tend to accom-
plish either of these goals. Expert testimony concerning
a question of law is generally not admissible in evi-
dence. . . . The interpretation of a zoning ordinance pre-
sents a question of law, and we decline to consider any
expert testimony as to what constitutes a “commercial”
or a “private” recreational use under the Springfield zon-
ing ordinances.7
(Citations omitted.)
In Sports Courts of Omaha v. Brower,8 a law professor testi-
fied, over objection, that the actions taken by an attorney serv-
ing as monitor and agent of a corporation constituted a dispo-
sition of collateral under provisions of the Nebraska Uniform
Commercial Code and that appropriate notice was not given.
We rejected this testimony as irrelevant, because the testimony
did not help the trier of fact understand the evidence or deter-
mine a fact issue.9 Likewise, in Sasich v. City of Omaha,10 the
plaintiff brought an action seeking an injunction against certain
Omaha, Nebraska, zoning ordinances. In dicta, we criticized
the trial court for admitting expert testimony from a legal
scholar on the status of the zoning laws.11 We stated that such
evidence is irrelevant and inadmissible and noted that such
scholarship “should not reach a judge’s attention by way of the
witness stand.”12
Here, Jackson’s testimony improperly interpreted the dealer
licensing statute for the court. Much like the testimony in
Kaiser, Jackson interpreted the actions of Merchant to be
in violation of the statute. Jackson testified that Merchant’s
self-described job title of “wholesaler” was included in the
7 Id. at 628, 477 N.W.2d at 560.
8 Sports Courts of Omaha v. Brower, 248 Neb. 272, 534 N.W.2d 317 (1995).
9 Id.
10 Sasich v. City of Omaha, 216 Neb. 864, 347 N.W.2d 93 (1984).
11 Id.
12 Id. at 873-74, 347 N.W.2d at 99.

466 	285 NEBRASKA REPORTS
definition of “[m]otor vehicle dealer” under Neb. Rev. Stat.
§ 60-1401.26 (Reissue 2010), which Jackson testified was
subject to licensing requirements under § 60-1416. Similar to
Kaiser, where the meaning of a zoning ordinance was con-
sidered a question of law, Jackson’s interpretation of what
“wholesale” means 	and 	whether 	“wholesaling” requires a
license is a question of law and is inappropriate for expert tes-
timony. Jackson’s testimony did not aid the jury in determining
the factual issues of the case and therefore was irrelevant.
The State argues that Merchant did not properly preserve
this issue for appeal and that Merchant’s use of the term whole-
saler “opened the door”13 to Jackson’s testimony. Neither argu-
ment has merit. First, the State argues that Merchant did not
properly object to the testimony during trial and that a party
may not assert a different ground for an objection on appeal.14
Although the legal proposition is correct, it is inapplicable.
Merchant properly objected to Jackson’s testimony as being
irrelevant, and the admission of the testimony constitutes a
ground for remand.
Second, the State argues that Merchant “‘opened the door’”15
by introducing evidence that he was a “wholesaler” not subject
to the licensing requirements. By “‘opening the door,’”16 the
State argues that irrelevant evidence becomes relevant. We
disagree. Merchant’s labeling himself as a “wholesaler” does
not permit the State to introduce testimony that a “wholesaler”
is in fact covered by the law. Such testimony is still irrelevant
and impinges on the role of the judge to instruct the jury on
the law.17
We find Jackson’s testimony to be improper and the trial
court’s decision to admit this “expert” testimony to be an abuse
of discretion. Jackson’s testimony instructed the jury on how
to make its decision of Merchant’s guilt. Only the trial court
13 Brief for appellee at 27.
14 See State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
15 See State v. Harrold, 256 Neb. 829, 855, 593 N.W.2d 299, 318 (1999).
16 Brief for appellee at 27.
17 See Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992).

STATE v. MERCHANT 	467
Cite as 285 Neb. 456
should be instructing the jury on the relevant law.18 Thus, it
is patently clear to this court that admitting Jackson’s testi-
mony was an abuse of discretion. We remand the cause for a
new trial.
2. remAining A ssignments
of error
[7] An appellate court is not obligated to engage in an analy-
sis that is not needed to adjudicate the controversy before it.19
However, we find it prudent to discuss some of the remaining
assignments of error to provide guidance to the trial court on
these issues which are likely to resurface on remand.
(a) Mens Rea
Merchant argues that he should have been allowed to testify
regarding his knowledge of the licensing requirement, his lack
of intent, or his lack of mens rea. We disagree. Such testimony
is irrelevant, because § 60-1416 is a public welfare offense
which does not require proof of mens rea.
[8-10] All relevant evidence normally is admissible. Evidence
which is not relevant is not admissible.20 “Relevant evidence
means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without
the evidence.”21 Generally, the established rule is that when
construing a criminal statute, the existence of a criminal intent
is regarded as essential and relevant, even though the terms of
the statute do not require it, unless it clearly appears that the
Legislature intended to make the act criminal without regard to
the intent with which it was done.22 As explained by the U.S.
Supreme Court in United States v. Balint23:
18 See State v. Brown, 258 Neb. 330, 603 N.W.2d 419 (1999).
19 State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
20 See Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2008).
21 Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2008).
22 See State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).
23 United States v. Balint, 258 U.S. 250, 252, 42 S. Ct. 301, 66 L. Ed. 604
(1922).

468 	285 NEBRASKA REPORTS
[I]n the prohibition or punishment of particular acts, the
State may in the maintenance of a public policy provide
“that he who shall do them shall do them at his peril
and will not be heard to plead in defense good faith or
ignorance.” Many instances of this are to be found in
regulatory measures in the exercise of what is called
the police power where the emphasis of the statute is
evidently upon achievement of some social betterment
rather than the punishment of the crimes as in cases of
mala in se.
[11-13] We have held that public welfare offenses do not fit
neatly into an accepted classification of common-law offenses
because they are not in the nature of positive aggressions or
invasions with which the common law dealt.24 Rather, the
offenses are “‘in the nature of neglect where the law requires
care, or inaction where it imposes a duty.’”25 One accused of
such an offense, although not intending the violation, is in the
position to prevent it with the exercise of reasonable due care.26
With public welfare offenses, criminal penalties simply serve
as an effective means of regulation, dispensing with the con-
ventional mens rea requirement for criminal conduct.27
In State v. Perina,28 we recently determined that misde-
meanor motor vehicle homicide is a public welfare offense
which does not require proof of mens rea. We noted that
motor vehicle homicide was a traffic law, not found in com-
mon law, based on the negligence of the driver. The law exists
not to prevent “‘evil conduct,’” but, rather, to deter negligent
conduct in hopes of protecting the traveling public.29 Thus,
mens rea is not a required element of misdemeanor motor
vehicle homicide.
24 State v. Perina, supra note 22.
25 Id. at 468, 804 N.W.2d at 169 (quoting Morissette v. United States, 342
U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952)).
26 State v. Perina, supra note 22.
27 Id.
28 Id.
29 Id. at 473, 804 N.W.2d at 172.

STATE v. MERCHANT 	469
Cite as 285 Neb. 456
Here, the Legislature has made it explicitly clear that the
motor 	vehicle 	dealer 	licensing 	requirements, 	under 	which
Merchant was convicted, are regulatory measures intended
to 	protect 	Nebraska’s 	public 	welfare. 	Neb. 	Rev. 	Stat.
§ 60-1401.01(1) (Reissue 2010) states:
The Legislature finds and declares that the distribution
and sales of motor vehicles, motorcycles, and trailers in
the State of Nebraska vitally affects the general economy
of the state, the public interest, the public welfare, and
public safety and that in order to promote the public
interest and the public welfare and in the exercise of its
police power, it is necessary to regulate motor vehicle,
motorcycle, and trailer dealers, manufacturers, distribu-
tors, and their representatives doing business in the State
of Nebraska.
[14,15] Therefore, we find that acting without a dealer’s
license under § 60-1416 is a public welfare offense, which
does not require proof of mens rea. License requirements for
buying, selling, and exchanging vehicles are not found in com-
mon law, but were created by the Nebraska Legislature with
the intent to protect the public interest. Thus, all evidence and
testimony regarding Merchant’s knowledge of the dealer’s
licensing requirement, his lack of intent, or his lack of mens
rea are irrelevant.
(b) Jury Instruction No. 3
Merchant argues that jury instruction No. 3 was misleading
and confusing and that it prevented the jury from determining
whether his conduct of wholesaling vehicles violated the law.
We agree.
First, we must compare the instruction with the motor vehi-
cle industry licensing statutes found under chapter 60, article
14, of the Nebraska Revised Statutes. Section 60-1416 states
that “[a]ny person acting as a motor vehicle dealer . . . without
having first obtained the license provided in section 60-1406
is guilty of a Class IV felony . . . .” Motor vehicle dealer is
defined under § 60-1401.26 as
any person, other than a bona fide consumer, actively
and regularly engaged in the act of selling, leasing for a

470 	285 NEBRASKA REPORTS
period of thirty or more days, or exchanging new or used
motor vehicles, trailers, and manufactured homes who
buys, sells, exchanges, causes the sale of, or offers or
attempts to sell new or used motor vehicles.
Under § 60-1401.26, the only exception to a person who
buys 	and 	sells 	motor 	vehicles 	from 	being 	considered 	a
“[m]otor vehicle dealer” is a person who is a “bona fide con-
sumer.” Bona fide consumer is defined under Neb. Rev. Stat.
§ 60-1401.07 (Reissue 2010) as
an owner of a motor vehicle, motorcycle, or trailer who
has acquired such vehicle for use in business or for
pleasure purposes, who has been granted a certificate of
title on such motor vehicle, motorcycle, or trailer, and
who has registered such motor vehicle, motorcycle, or
trailer, all in accordance with the laws of the residence
of the owner, except that no owner who sells more than
eight registered motor vehicles, motorcycles, or trailers
within a twelve-month period shall qualify as a bona
fide consumer.
Based on our comparison of jury instruction No. 3 to the
relevant statutes, we observe that the instruction is incom-
plete. Summarized, the law requires a person who buys and
sells vehicles either to be a bona fide consumer or to be
licensed.30 Instruction No. 3(A)(1) correctly states that in
order to find Merchant guilty, the jury must find that he did
not have a proper license. Instruction No. 3(A)(2) is also cor-
rect in requiring the jury to determine whether Merchant was
a “bona fide consumer.” But instruction No. 3(A) is incom-
plete because it assumes the transactions made by Merchant
were sufficient to establish that he was a “motor vehicle
dealer.” At trial, Merchant’s crucial argument was that his
“wholesale” transactions were not covered under the defini-
tion of “[m]otor vehicle dealer” and, thus, that he was not
subject to the licensing requirement. Therefore, a crucial, and
contested, element of the crime is whether Merchant’s trans-
actions classified him as a motor vehicle dealer. This factual
determination should be made by the jury and not assumed
30 Compare §§ 60-1416, 60-1401.26, and 60-1401.07.

STATE v. MERCHANT 	471
Cite as 285 Neb. 456
by the instructions. Such an omission would be prejudicial
because it withdraws from the jury an essential issue or ele-
ment in the case.31
Therefore, we find that instruction No. 3 does not “ade-
quately cover the issues.”32 An adequate instruction should
also ask the jury to determine whether Merchant bought, sold,
exchanged, caused the sale of, or offered or attempted to sell
new or used motor vehicles on or around June 1, 2011. Adding
such an instruction allows the jury to determine all of the ele-
ments and essential facts in this case.
(c) Prior Conviction, Closing Argument
Misstatement, and Excessive Sentence
Merchant contends that the trial court erred by admitting
his prior conviction, not granting his motion for new trial after
the prosecutor’s misstatement during closing arguments, and
giving an excessive sentence. Because we have determined
that the trial court committed reversible error by admitting
Jackson’s “expert” testimony, we do not need to address these
assignments of error, as they are unlikely to occur again
on remand.
The prior conviction assignment of error is unlikely to
occur again. Merchant objected to the use of the certi-
fied document provided by the Weld County District Court
because it did not give the date when Merchant was released
from incarceration for his previous felony conviction. At
trial, the trial court was able to infer from the document that
Merchant was incarcerated until at least February 2003. Thus,
the conviction was within 10 years of the start of the trial,
making it admissible for purposes of impeachment.33 Such
an inference, however, cannot be made for a trial occurring
in February 2013 or after. Therefore, this issue is unlikely to
occur on remand.
Likewise, we find that the prosecutorial misstatement and
excessive sentence assignments of error are unlikely to occur
31 See State v. Brown, supra note 18.
32 See State v. Kibbee, supra note 2, 284 Neb. at 103, 815 N.W.2d at 897.
33 Neb. Evid. R. 609(2), Neb. Rev. Stat. § 27-609(2) (Reissue 2008).

472 	285 NEBRASKA REPORTS
on remand. We need not address these three assignments
of error.
(d) Sufficiency of Evidence
[16] Having found reversible error, we must determine
whether the totality of the evidence admitted by the trial court
was sufficient to sustain Merchant’s conviction. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of
all the evidence admitted by a trial court would have been suf-
ficient to sustain a guilty verdict.34
The evidence admitted showed that Merchant purchased
and sold vehicles with NAA on June 1, 2011. The evidence
established that Merchant did so without a valid motor vehicle
dealer’s license. Furthermore, there was sufficient evidence
demonstrating that Merchant was a not a bona fide consumer
when he purchased and sold the vehicles. Thus, all the evi-
dence, whether properly admitted or not, was sufficient to
sustain a guilty verdict on the crime charged and the Double
Jeopardy Clause does not bar retrial.
VI. CONCLUSION
The trial court erred in admitting Jackson’s testimony inter-
preting § 60-1416 to apply to the “wholesale” transactions
conducted by Merchant. We remand the cause for a new trial
consistent with this opinion.
reversed And remAnded for A neW triAl.
34 State v. Payne-McCoy, supra note 4.
susAn c. Wulf, AppellAnt, v.
shArAd kunnAth, m.d., Appellee.
827 N.W.2d 248
Filed March 8, 2013. 	No. S-12-307.
1. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
2. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on
a motion for directed verdict, an appellate court must treat the motion as an