State v. Carlson

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. CARLSON
Cite as 322 Neb. 547
State of Nebraska, appellee, v.
Mark Carlson, appellant.
___ N.W.3d ___
Filed October 9, 2026. 	No. S-25-464.
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. Criminal Law: Jury Instructions. When there is an applicable jury
instruction in the Nebraska Jury Instructions, the court should usually
give that instruction to the jury in a criminal case.
3. Jury Instructions. If no standard jury instruction is available, the court
must draft one appropriate to the existing conditions.
4. Jury Instructions: Appeal and Error. To preserve an error related to
the failure to give a proposed jury instruction, the party claiming error
must object to the court’s refusal to give the instruction at the jury
instruction conference.
5. 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
by the evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction.
6. Jury Instructions: Appeal and Error. It is not error for a trial court to
refuse to give a party’s requested jury instruction where the substance of
the requested instruction was covered in the instructions given.
7. Convictions: Homicide: Motor Vehicles: Intent. Reckless driving
requires the necessary mens rea to be the unlawful act to support a con-
viction for manslaughter.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:36 AM CDT

- 548 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. CARLSON
Cite as 322 Neb. 547
Stuart J. Dornan, of Dornan, Howard, Breitkreutz, Dahlquist
& Klein, P.C., L.L.O., and Ryan S. Crnkovich for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Funke, C.J., Cassel, Stacy, Papik, Bergevin, and Vaughn,
JJ.
Vaughn, J.
INTRODUCTION
Mark Carlson was convicted of manslaughter by a jury and
sentenced to 10 to 14 years’ incarceration. Carlson appeals.
On appeal, Carlson assigns a single error of failure to instruct
the jury on his theory of defense. For the following reasons,
we affirm.
BACKGROUND
In September 2023, Carlson was involved in a motor vehicle
collision that resulted in the death of Anna Bosma. As a result,
Carlson was charged with manslaughter, and the matter pro-
ceeded to a jury trial.
At trial, the State’s theory was that, in the moments lead-
ing up to the collision, Carlson was engaged in “road rage”
and “racing” with a vehicle driven by Cameron Robinson.
Carlson’s theory was that Carlson, who had previously been
diagnosed with vasovagal syncope, suffered a syncopal event
that rendered him unconscious in the moments leading up to
the collision. Thus, Carlson asserts, it was impossible for him
to have had the intent necessary for reckless driving, which
was the basis of the manslaughter charge. At trial, both parties
called various witnesses to support their respective theories and
Carlson requested a specific jury instruction.
Prior to the jury instruction conference, Carlson filed a writ-
ten brief requesting a specific theory of defense instruction. In
his brief, Carlson argued that this instruction was appropriate

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. CARLSON
Cite as 322 Neb. 547
because the Nebraska Jury Instructions do not contain an
instruction on an “unavoidable medical event or unconscious-
ness.” Carlson also requested that, if the district court found his
proposed instruction insufficient, it use another state’s “model”
jury instruction on unconsciousness, with modifications to fit
the circumstances of this case.
At the jury instruction conference, Carlson also objected
to jury instruction No. 6 on the basis that even together
with jury instruction No. 7, it allowed him to be convicted
of manslaughter without specifying a mens rea requirement.
He requested an alternative instruction to be used instead of
instruction No. 6. As written, and ultimately given, instruction
No. 6 read:
INSTRUCTION NO. 6
COUNT I
The material elements which the State must prove by
evidence beyond a reasonable doubt in order to convict
the Defendant of the crime of Manslaughter are:
1. That on or about September 1, 2023[,] the Defendant,
Mark Carlson, killed Anna Bosma;
2. That the Defendant did so in Douglas County,
Nebraska;
3. That the Defendant was operating a motor vehicle
while upon the streets or highways of the State of
Nebraska;
4. 	That 	the 	Defendant 	did 	so 	without 	malice
unintentionally while in the commission of an unlawful
act to wit: reckless driving as defined in Instruction No. 7.
EFFECTS OF FINDINGS
If you decide that the State proved each element beyond
a reasonable doubt, then you must find the Defendant
guilty. Otherwise, you must find the Defendant not guilty.
Instruction No. 7 read as follows:
INSTRUCTION NO. 7
In Instruction No. 6 defining the crime of Manslaughter,
the unlawful act is referred to as reckless driving.

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. CARLSON
Cite as 322 Neb. 547
The material elements of Reckless Driving are:
On or about September 1, 2023, in Douglas County,
Nebraska, the Defendant drove a vehicle upon the streets
or highways of the State of Nebraska in such a manner
as to indicate an indifferent or wanton disregard for the
safety of persons or property.
The State has the burden of proving beyond a reasonable
doubt each and every one of the foregoing material
elements of an unlawful act set forth above.
The jury was further instructed: “The term ‘Reckless’ is the dis-
regard for or indifference to the safety of another or for the
consequences of one’s act. ‘Wanton’ and ‘Reckless’ are treated
synonymously.”
Carlson’s proposed instruction on manslaughter differed, in
part, in that it included a provision allowing for conviction if
the acts were done intentionally without malice upon sudden
quarrel. It also required the State to prove beyond a reasonable
doubt: “That [Carlson] did not faint or was not unconscious or
suffering from automatism by a sudden medical event, a syn-
copal episode triggering a vasovagal response[.]”
The district court declined to give the requested instruction
and explained that, in its view, “the other instructions in this
matter, No[s]. 6 and 7, adequately cover [Carlson’s] position
in this matter.”
ASSIGNMENT OF ERROR
Carlson assigns, restated, that the district court erred in
failing either to give his requested theory of defense jury
instruction relating to unconsciousness or automatism caused
by a medical event or to incorporate it into the existing
jury instructions.
STANDARD OF REVIEW
[1] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. State v. Haynie, 317 Neb. 371, 9 N.W.3d
915 (2024).

- 551 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. CARLSON
Cite as 322 Neb. 547
ANALYSIS
Analyzing Carlson’s assigned error requires this court to
consider the availability of a standard jury instruction on
unconsciousness, as well as Carlson’s entitlement to the spe-
cific instruction he requested.
Unavailability of Standard Instruction
on Unconsciousness
[2,3] 	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. Haynie, supra. If
no such standard instruction is available, the court must draft
one appropriate to the existing conditions. State v. Samuels,
205 Neb. 585, 289 N.W.2d 183 (1980). It is undisputed that
Nebraska, unlike some other states, does not have a model
jury instruction addressing unconsciousness or automatism.
See, Cal. Jury Instr. Crim. § 3425 (2026); N.C. Jury Instr.
Crim. § 302.10 (2009). Thus, we must consider whether the
district court erred by not giving Carlson’s proposed jury
instruction, which was received at the jury instruction confer-
ence as exhibit 270.
[4] At the jury instruction conference, Carlson did not
object to the district court’s failure to give any of the other
jury instructions contained in his brief. Thus, we will not
consider Carlson’s arguments that the district court failed to
give any jury instruction other than the instruction contained
in exhibit 270. See Olson v. Sherrerd, 266 Neb. 207, 213, 663
N.W.2d 617, 622 (2003) (“[t]o preserve an error related to the
failure to give a proposed jury instruction, the party claiming
error must object to the court’s refusal to give the instruction
at the jury instruction conference”).
Entitlement to Requested Instruction
[5,6] In Haynie, this court stated:
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

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. CARLSON
Cite as 322 Neb. 547
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.
317 Neb. at 386, 9 N.W.3d at 926. It is not error for a trial
court to refuse to give a party’s requested jury instruction
where the substance of the requested instruction was covered
in the instructions given. Id.
Carlson asserts that the district court was required to give
his requested jury instruction because it correctly stated the
law, was supported by the evidence, and was timely requested.
The State disagrees.
“A person commits manslaughter if he or she kills another
without malice upon a sudden quarrel or causes the death of
another unintentionally while in the commission of an unlaw-
ful act.” Neb. Rev. Stat. § 28-305(1) (Reissue 2016). “Any
person who drives any motor vehicle in such a manner as to
indicate an indifferent or wanton disregard for the safety of
persons or property shall be guilty of reckless driving.” Neb.
Rev. Stat. § 60-6,213 (Reissue 2021).
As set forth above, the jury was instructed that a man-
slaughter conviction required the State to prove certain ele-
ments beyond a reasonable doubt. One of those elements was
that Carlson killed Bosma “without malice unintentionally
while in the commission of an unlawful act to wit: reckless
driving as defined in Instruction No. 7.” Instruction No. 7
provided the elements of reckless driving, which included the
requirement that the State prove beyond a reasonable doubt
that Carlson drove his vehicle “in such a manner as to indi-
cate an indifferent or wanton disregard for the safety of per-
sons or property.” The jury was further instructed: “The term
‘Reckless’ is the disregard for or indifference to the safety of
another or for the consequences of one’s act. ‘Wanton’ and
‘Reckless’ are treated synonymously.”
[7] Reckless driving requires “the necessary mens rea to be
the unlawful act to support a conviction for manslaughter.”

- 553 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. CARLSON
Cite as 322 Neb. 547
State v. Cerros, 312 Neb. 230, 241, 978 N.W.2d 162, 171
(2022). In Cerros, the court’s jury instruction set forth the ele-
ments of manslaughter, including that the jury was required to
find that the defendant caused the death of the victim while
in the commission of the unlawful act of reckless driving. A
separate instruction set forth the elements of reckless driv-
ing as being that the defendant in Cerros drove a vehicle
“‘in such a manner as to indicate an indifferent or wanton
disregard for the safety of persons or property.’” 312 Neb. at
242, 978 N.W.2d at 171. This court explained that the instruc-
tion tracked the statute defining reckless driving and included
the mens rea this court had previously found sufficient. See
id. Like in Cerros, the instructions given to Carlson’s jury
included the mens rea requirement. Pursuant to these instruc-
tions, the burden of proving, beyond a reasonable doubt, that
Carlson possessed the necessary mens rea correctly remained
with the State.
The district court’s failure to give Carlson’s proposed jury
instruction did not prejudice Carlson because the existing
instructions adequately covered the mens rea requirement.
The mens rea requirement precluded the State from obtaining
a conviction if the jury determined Carlson had been operat-
ing his motor vehicle in accordance with Nebraska law, during
which time he had suffered an unforeseen and unavoidable
medical episode causing him to lose consciousness and, thus,
control of his vehicle. Considering the jury instructions as a
whole, we find that Carlson was not prejudiced by the district
court’s failure to give his proposed jury instruction because
the substance of the requested instruction was covered in the
instructions given.
We reach this conclusion notwithstanding Carlson’s argu-
ment that comments made by the State during closing argument
demonstrated the need for his requested instruction. In closing,
the State informed the jury that “[u]nconsciousness does not
equal not guilty.” The State went on to explain that if Carlson
was consciously driving and then “in the heat of the moment

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. CARLSON
Cite as 322 Neb. 547
during a dangerous situation that he created, what if things
got too intense and at the last second maybe he had a physi-
cal reaction to an unsafe situation he put himself in. That does
not absolve him.” We do not understand this statement to have
misstated the law or demonstrated that Carlson would have
been prejudiced by the failure to give his requested instruction.
The prosecutor did not suggest that Carlson could be guilty
of manslaughter even if the State failed to prove the required
mens rea.
Because we conclude that Carlson was not prejudiced by
the district court’s decision not to give his requested instruc-
tion, it is not necessary for this court to determine whether
Carlson’s proposed instruction was an accurate statement of
law or warranted by the evidence.
CONCLUSION
For each of the foregoing reasons, the judgment of the dis-
trict court is affirmed.
Affirmed.
Freudenberg, J., not participating.