State v. Liech

- 843 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
State of Nebraska, appellee, v.
Kim K. Liech, appellant.
___ N.W.3d ___
Filed February 20, 2026. 	No. S-25-094.
1. Jury Instructions. Whether jury instructions given by a trial court are
correct is a question of law.
2. 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.
3. 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.
4. ____: ____. An abuse of discretion takes place when the sentencing
court’s reasons or rulings are clearly untenable and unfairly deprive a
litigant of a substantial right and a just result.
5. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
6. Self-Defense. In Nebraska, self-defense is a statutorily defined affirma-
tive defense.
7. ____. It is only unlawful force directed at a defendant which provides a
justifiable basis for self-defense.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:55 AM CDT

- 844 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
8. Trial: Evidence: Proof. The nature of an affirmative defense is such
that the defendant has the initial burden of going forward with evidence
of the defense. When the defendant has produced sufficient evidence to
raise the defense, the issue is then one which the State must disprove.
9. Self-Defense: Jury Instructions: Evidence. If the trial evidence does
not support a claim of self-defense, the jury should not be instructed
on it.
10. Self-Defense. To successfully assert the claim of self-defense, a
defendant must have a reasonable and good faith belief in the necessity
of using force and the force used in defense must be immediately neces-
sary and justified under the circumstances.
11. Self-Defense: Jury Instructions: Evidence. A trial court must instruct
the jury on self-defense when there is any evidence adduced which
raises a legally cognizable claim of self-defense.
12. Self-Defense: Jury Instructions. Only where the jury could reasonably
find that the defendant’s use of force was justified should the trial court
instruct the jury on self-defense.
13. Self-Defense: Jury Instructions: Evidence. It is only when the evi-
dence does not support a legally cognizable claim of self-defense, or
when the evidence is so lacking in probative value that it constitutes a
failure of proof, that a trial court may properly refuse to instruct a jury
on a defendant’s theory of self-defense.
14. Self-Defense: Evidence. To determine whether the evidence supports
a legally cognizable claim of self-defense under Nebraska law, a trial
court assesses the evidence without deciding factual issues.
15. Self-Defense: Jury Instructions. A defendant who is the initial aggres-
sor is not entitled to a self-defense instruction.
16. Self-Defense. If a defendant has unjustifiably placed himself or herself
in harm’s way, a court may properly find that such facts do not support
a lawful claim of self-defense.
17. Criminal Law: Evidence: Appeal and Error. When a criminal
defendant challenges the sufficiency of the evidence upon which a con-
viction is based, the relevant question for an appellate court 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.
18. Criminal Law: Intent: Circumstantial Evidence. When an element
of a crime involves existence of a defendant’s mental process or other
state of mind of an accused, such elements may be proved by circum-
stantial evidence.
19. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court

- 845 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
must determine whether a sentencing court abused its discretion in
considering and applying the relevant factors, as well as any applicable
legal principles in determining the sentence to be imposed.
20. ____: ____. When determining whether a sentencing court abused its
discretion, it is not the proper function of an appellate court to conduct
a de novo review or engage in a reweighing of the sentencing factors in
the record.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
Matthew O. Mellor, Judge. Affirmed.
Kristi J. Egger, Lancaster County Public Defender, and
Matthew F. Meyerle for appellant.
Michael T. Hilgers, Attorney General, Teryn Blessin and
Danielle Jewell, Senior Certified Law Student, for appellee.
Funke, C.J., Cassel, Stacy, and Papik, JJ., and Heavican,
Retired C.J., and Martinez, District Judge.
Stacy, J.
In this appeal, an inmate challenges his felony conviction
for assaulting a correctional officer. He contends that the trial
court erred in refusing his proposed jury instruction on self-
defense, that the evidence was insufficient to support his con-
viction, and that he received an excessive sentence. We find no
merit to his assigned errors and therefore affirm the conviction
and sentence.
I. BACKGROUND
At all relevant times, Kim K. Liech was serving a prison
sentence 	in 	the 	custody 	of 	the 	Nebraska 	Department 	of
Correctional Services. He was housed in unit “A” at the
Reception and Treatment Center in Lancaster County.
On December 20, 2022, Cpl. Johnie Cantrell was a cor-
rectional officer assigned to unit “A,” and Officer Daniel
Lane was a trainee shadowing Cantrell. It is undisputed that
while Cantrell and Lane were working in the “pantry office”

- 846 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
of unit “A,” Liech entered the office and struck Cantrell twice
in the head.
Liech was charged with assault by a confined person, in
violation of Neb. Rev. Stat. § 28-932 (Reissue 2016). He pled
not guilty, and a 2-day jury trial was conducted in the district
court for Lancaster County.
1. Jury Trial
At trial, the State called both Cantrell and Lane to testify,
and it offered video footage from prison security cameras.
The defense called Liech and another inmate, Michael Brown,
to testify. We summarize this evidence only as necessary to
address the issues raised on appeal.
(a) Security Camera Footage
Video cameras mounted in the hallway of unit “A” recorded
the events of December 20, 2022, from a vantage point outside
the pantry office door. The footage did not capture audio, and
the inside of the office area is largely outside camera range.
In the video footage, Liech is carrying a laundry bag as he
approaches the open office door. Liech stands in the office
doorway with his feet straddling a red line on the floor near
the doorway, and he appears to be arguing with someone
inside the office. This behavior continues for approximately 90
seconds; then, Liech drops the bag, assumes a fighting stance,
and lunges inside the office where he is outside the security
cameras’ range. A few seconds later, Liech runs out of the
office and down the hallway.
(b) Evidence of Prison Policies
No written prison policies, rules, regulations, or guidelines
were offered into evidence. However, Lane testified that prison
policy prohibited inmates from crossing the red line on the
floor outside the pantry office without the permission of a cor-
rectional officer. And Brown testified that if a correctional offi-
cer directs an inmate to “leave the pantry office,” the inmate is
required to obey that direction.

- 847 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
There was also testimony about prison policies governing
the deployment of what the parties refer to as “OC spray,” a
substance carried by correctional officers on their service belts
that, for simplicity, we will refer to as “pepper spray.” Cantrell
testified that prison policy required officers to give two warn-
ings before deploying pepper spray and that if an inmate
refuses to comply after these warnings, then pepper spray is
to be deployed in short bursts. On cross-examination, Cantrell
admitted that prison guidelines did not generally authorize staff
to “use force against inmates who are verbally noncompliant.”
But Lane testified that under prison policy, it was “permissible
to respond with [pepper spray] to verbal threats,” adding that
if a correctional officer believed a situation was escalating
toward the use of physical force, then the officer was “encour-
aged to spray before it gets physical.”
(c) Cantrell’s Testimony
Cantrell testified that his memory of the assault was lim-
ited due to the injuries he sustained, which included loss of
consciousness, a broken nose, a broken orbital socket, and a
cut on his ear that required stitches. But Cantrell recalled that
on the afternoon of December 20, 2022, Liech was agitated as
he stood outside the pantry door and was demanding to be let
into his cell. Cantrell told Liech that he would help him after
he finished an email on behalf of another inmate. Liech con-
tinued demanding to be let into his cell, and because Liech
was standing with one foot over the red line and had not been
invited into the pantry office, Cantrell gave Liech “several
directives to go stand by the window.” Liech refused these
commands. Cantrell recalled standing up from his chair when
Liech said something that Cantrell perceived as a threat, but
Cantrell could not recall exactly what was said, and he did
not recall much beyond that point. Cantrell had no recollec-
tion of being punched by Liech or of unholstering or deploy-
ing his pepper spray.

- 848 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
(d) Lane’s Testimony
Lane testified that on December 20, 2022, Cantrell was
getting a lot of requests from inmates. At approximately
3 p.m., Lane and Cantrell were both seated inside the pantry
office, working on a request from another inmate, when Liech
approached the open doorway.
According to Lane, Liech demanded that Cantrell unlock his
cell and locker immediately. Cantrell told Liech he was work-
ing on an email for another inmate and would help Cantrell
when he was finished. Lane said that Liech and Cantrell then
bickered back and forth. Liech appeared “flustered and irri-
tated” at first, but as time passed, his demeanor turned more
“angry and threatening.” Lane testified that Liech was cross-
ing the red line on the floor and was refusing Cantrell’s com-
mands to back away from the door.
Lane testified that eventually, Cantrell stood up from his
computer and threatened to “call for holding” if Liech did not
back away. This prompted Liech to comment that Cantrell
was “nothing without his badge,” which Lane perceived as
Liech’s way of “letting [Cantrell] know that he wanted to hit
him but [was] not going to because of the repercussions.”
Lane said that Cantrell appeared frightened by Liech’s com-
ment and responded by unholstering his pepper spray, hold-
ing it at his hip, and announcing that he would use the spray
if Liech did not back away. Lane testified that Liech’s body
language, his anger, and his refusal to comply with “mul-
tiple directives to leave” gave Cantrell “good cause to be
worried that [the situation] would escalate.” According to
Lane, Cantrell’s act of unholstering his pepper spray “trig-
gered something” in Liech, who repeatedly called Cantrell a
derogatory name and then lunged into the office and punched
Cantrell once in the face.
Lane said that after Liech threw the punch, Cantrell deployed
his pepper spray. Liech then punched Cantrell in the face a
second time before fleeing from the office. Cantrell wobbled

- 849 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
and fell to the office floor; Lane closed the office door and
used a silent alarm to call for help.
(e) Testimony of Liech and Brown
Liech testified that around 3 p.m., he approached the pan-
try office and asked Cantrell to open his locker. According to
Liech, Cantrell remained seated at his computer and ordered
Liech to “back off,” but Liech ignored that order.
Brown testified that he watched this interaction and thought
that both Liech and Cantrell seemed “frustrated.” Although
Brown was not paying attention to what Liech and Cantrell
were saying, he noticed the volume of their voices escalating.
According to both Liech and Brown, Cantrell eventually
stood up from his chair and threatened to use pepper spray
on 	Liech. 	Both 	inmates 	testified 	that 	Cantrell 	eventually
unholstered his pepper spray and deployed it without fur-
ther warning.
Both inmates testified about the video footage that showed
Liech in a “fighting stance” just before he lunged into the
office. According to Brown, Liech assumed the fighting
stance as soon as Cantrell unholstered the pepper spray.
Liech denied this and testified that when he assumed a fight-
ing stance, Cantrell had already deployed the pepper spray.
However, both Liech and Brown agreed that once the pepper
spray was deployed, Liech entered the office and punched
Cantrell twice in the face. Liech described these punches as
“reaction[ary],” and he testified that after being sprayed, he
was unable to see and ran out of the office wiping his face
with his shirt.
2. Jury Instructions, Verdict,
and Sentencing
During the jury instruction conference, Liech submitted
a proposed instruction on self-defense. Liech told the court
his proposed instruction was “taken in substance” from three
sources: (1) Neb. Rev. Stat. § 28-1409 (Reissue 2016), which

- 850 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
governs the availability of justification defenses generally;
(2) Neb. Rev. Stat. § 28-1413 (Reissue 2016), which governs
when certain law enforcement officers may claim justification;
and (3) the pattern jury instruction on self-defense. 1
In arguing that the evidence supported a self-defense instruc-
tion, Liech acknowledged there was a factual dispute about
whether he was the initial aggressor. But he argued that the
evidence would allow a reasonable jury to conclude Cantrell
deployed his pepper spray first and that doing so amounted to
unlawful force, which would therefore allow the jury to con-
clude that Liech’s use of force against Cantrell was justified
under § 28-1409.
The State disagreed. It argued that it did not matter whether
the pepper spray was deployed before or after Liech punched
Cantrell, because there was no evidence that Cantrell’s use of
pepper spray was unlawful and the evidence therefore did not
support a self-defense instruction under § 28-1409. The State
also argued that under the reasoning of State v. Urbano, 2 the
evidence did not support a legally cognizable claim of self-
defense, because Liech unjustifiably placed himself in harm’s
way by refusing Cantrell’s lawful commands to back away
from the pantry office. The court agreed with the State’s argu-
ments, and it refused to give a self-defense instruction.
The case was submitted to the jury, which returned a guilty
verdict. The court accepted the verdict and later sentenced
Liech to a prison term of 3 to 3 years consecutive to his current
imprisonment. Liech filed a timely notice of appeal, and we
moved the appeal to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Liech assigns (1) the district court erred by refusing to give
his proposed jury instruction on self-defense, (2) the evidence
1 See NJI2d Crim. 7.1.
2 State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).

- 851 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
was insufficient to support his conviction, and (3) the court
abused its discretion by imposing an excessive sentence.
III. STANDARD OF REVIEW
[1] Whether jury instructions given by a trial court are cor-
rect is a question of law. 3
[2] 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 appel-
late 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. 4 The relevant question is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. 5
[3,4] An appellate court will also not disturb a sentence
imposed within the statutory limits absent an abuse of discre-
tion by the trial court. 6 An abuse of discretion takes place
when the sentencing court’s reasons or rulings are clearly
untenable and unfairly deprive a litigant of a substantial right
and a just result. 7
IV. ANALYSIS
1. Self-Defense Instruction
[5] Liech argues the district court erred in refusing to give
his proposed jury instruction on self-defense. To establish
reversible error from a court’s refusal to give a requested
instruction, an appellant has the burden to show that (1) the
3 State v. Gonzalez, 313 Neb. 520, 985 N.W.2d 22 (2023).
4 State v. Hagens, ante p. 65, 26 N.W.3d 174 (2025). See State v. Kruger,
ante p. 361, 27 N.W.3d 398 (2025).
5 Id.
6 Hagens, supra note 4.
7 State v. Alkazahy, 314 Neb. 406, 990 N.W.2d 740 (2023).

- 852 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3)
the appellant was prejudiced by the court’s refusal to give
the tendered instruction. 8 On this record, the second factor is
dispositive and we need not address the others. 9 We therefore
express no opinion on whether the instruction tendered by
Liech was a correct statement of the law.
[6,7] In Nebraska, self-defense is a statutorily defined
affirmative defense. 10 Section 28-1409(1) provides, in relevant
part, that “the use of force upon or toward another person is
justifiable when the actor believes that such force is immedi-
ately necessary for the purpose of protecting himself against
the use of unlawful force by such other person on the pres-
ent occasion.” And, in relevant part, the justification statutes
define “[u]nlawful force” to mean “force, including confine-
ment, which is employed without the consent of the person
against whom it is directed and the employment of which con-
stitutes an offense or actionable tort.” 11 Our cases recognize
that “[i]t is only unlawful force directed at a defendant which
provides a justifiable basis for self-defense.” 12
[8-10] The nature of an affirmative defense is such that
the defendant has the initial burden of going forward with
evidence of the defense. 13 When the defendant has produced
sufficient evidence to raise the defense, the issue is then one
8 State v. Johnson, 314 Neb. 20, 988 N.W.2d 159 (2023).
9 State v. Case, 304 Neb. 829, 842, 937 N.W.2d 216, 226 (2020) (when
evidence does not warrant self-defense instruction, appellate court “need
not consider whether the instruction was a correct statement of the law
or whether [defendant] was prejudiced by the court’s refusal to give the
instruction”).
10 State v. Case, supra note 9.
11 Neb. Rev. Stat. § 28-1406(1) (Reissue 2016).
12 Urbano, supra note 2, 256 Neb. at 201, 589 N.W.2d at 151 (emphasis in
original).
13 Urbano, supra note 2; State v. Kinser, 252 Neb. 600, 567 N.W.2d 287
(1997).

- 853 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
which the State must disprove. 14 But if the trial evidence does
not support a claim of self-defense, the jury should not be
instructed on it. 15 We have interpreted § 28-1409 to mean that
“‘to successfully assert the claim of self-defense, a defendant
must have a reasonable and good faith belief in the necessity
of using force [and] the force used in defense must be immedi-
ately necessary and justified under the circumstances.’” 16
[11-14] We have often said that a trial court must instruct
the jury on self-defense “when there is any evidence adduced
which raises a legally cognizable claim of self-defense.” 17
Elaborating on this principle, we have explained that “only
where the jury could reasonably find that the defendant’s use
of force was justified should the trial court instruct the jury on
self-defense.” 18 In other words, it is only when the evidence
does not support a legally cognizable claim of self-defense, or
when the evidence is so lacking in probative value that it con-
stitutes a failure of proof, that a trial court may properly refuse
to instruct a jury on a defendant’s theory of self-defense. 19
To determine whether the evidence supports a legally cogni-
zable claim of self-defense under Nebraska law, a trial court
assesses the evidence “without deciding factual issues.” 20
[15] Because the force used by a defendant must be “imme-
diately necessary and justified under the circumstances,” 21
14 Id.
15 See id. Accord State v. Adams, ante p. 316, 27 N.W.3d 23 (2025).
16 Adams, supra note 15, ante at 336, 27 N.W.3d at 41 (quoting State v.
Rezac, 318 Neb. 352, 15 N.W.3d 705 (2025)).
17 Urbano, supra note 2, 256 Neb. at 201, 589 N.W.2d at 151. Accord, Case,
supra note 9; Kinser, supra note 13.
18 Case, supra note 9, 304 Neb. at 842, 937 N.W.2d at 225.
19 See, Case, supra note 9; Kinser, supra note 13.
20 Case, supra note 9, 304 Neb. at 843, 937 N.W.2d at 226.
21 See Rezac, supra note 16, 318 Neb. at 371, 15 N.W.3d at 721. Accord,
State v. Rieker, 318 Neb. 238, 14 N.W.3d 855 (2025); Johnson, supra note
8; Case, supra note 9; Urbano, supra note 2.

- 854 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
our cases have recognized there are certain factual circum-
stances that generally will not support a legally cognizable
claim of self-defense. For instance, Nebraska has long fol-
lowed the rule that “a defendant who is the initial aggressor
is not entitled to a self-defense instruction.” 22 Conversely,
we have observed that a determination of whether the vic-
tim was the first aggressor is an essential element of a self-
defense claim. 23
Liech acknowledges trial testimony from the State’s wit-
nesses that he was the initial aggressor, but he points to con-
flicting testimony on that issue, and he argues that when the
evidence is in dispute on a material element of self-defense, it
presents a fact issue for the jury to determine. 24 He also argues
that, on this record, there was a factual dispute for the jury
regarding whether Cantrell’s use of pepper spray was lawful or
unlawful. But as we explain next, these factual disputes ulti-
mately make no difference to determining whether Liech was
entitled to a self-defense instruction, because the undisputed
evidence established a more fundamental reason why Liech
cannot assert a cognizable claim of self-defense.
[16] Nebraska has long recognized the rule that “[i]f
a defendant has unjustifiably placed himself or herself in
harm’s way, a court may properly find that such facts do not
support a lawful claim of self-defense.” 25 We have applied
22 State v. Valadez, 313 Neb. 902, 905, 987 N.W.2d 268, 270-71 (2023).
Accord, State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011); State v.
Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978).
23 See, e.g., State v. Kruger, supra note 4; State v. Matthews, 289 Neb. 184,
854 N.W.2d 576 (2014); Kinser, supra note 13.
24 See Kinser, supra note 13 (holding jury, and not trial court, must resolve
fact questions concerning whether defendant acted in self-defense within
meaning of law).
25 Urbano, supra note 2, 256 Neb. at 201, 589 N.W.2d at 151. See, also,
Case, supra note 9; State v. Marshall, 253 Neb. 676, 573 N.W.2d 406
(1998).

- 855 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
this rule under a variety of circumstances to hold that the
evidence did not support a legally cognizable claim of self-
defense. 26 Most apt is our application of the rule in Urbano,
a case that also involved an inmate’s use of force against a
correctional officer. 27
In Urbano, correctional officers instructed an inmate to take
his prescribed medication, but he refused and began shouting
and threatening the officers. The inmate was warned that if he
did not comply, correctional staff would forcibly administer
the medication. When the inmate continued to refuse the medi-
cation, a team of correctional officers conducted a “forced cell
move” 28 or “takedown” 29 of the inmate and forcibly adminis-
tered the medication. During that procedure, the inmate bit one
of the correctional officers on the arm, causing bodily injury.
The inmate was charged with assault by a confined person, in
violation of § 28-932 (Reissue 1995), and the case was tried
to a jury.
The inmate in Urbano claimed he was justified in biting the
correctional officer because he believed the force being used
to administer the medication was “excessive.” 30 He proffered a
jury instruction on self-defense, which the trial court refused,
reasoning that the medication was forcibly administered pursu-
ant to a court order and that there was no evidence the correc-
tional officers’ use of force was unlawful. The jury returned a
guilty verdict, and the inmate appealed. We found no error in
refusing to instruct on self-defense.
26 See, e.g., Case, supra note 9 (applying rule when defendant unjustifiably
placed himself in danger by leaving safety of his jail cell to confront
another inmate); Marshall, supra note 25 (applying rule when defendant
unjustifiably placed himself in danger by leaving safety of his house and
confronting men when he knew doing so would likely result in violence).
27 Urbano, supra note 2.
28 Id. at 202, 589 N.W.2d at 151.
29 Id.
30 Id. at 201, 589 N.W.2d at 151.

- 856 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
Urbano recited the rule that “[i]f a defendant has unjusti-
fiably placed himself or herself in harm’s way, a court may
properly find that such facts do not support a lawful claim of
self-defense.” 31 We agreed with the trial court’s conclusion
that the evidence at trial did not show the forced cell move
was unlawful, but we also emphasized the undisputed evi-
dence showing that the forced cell move “was initiated only
after [the inmate] refused to take medication which he knew
was court ordered” 32 and was necessitated only because the
inmate continued to physically resist a lawful request. Under
such circumstances, we concluded that the evidence did not
support a legally cognizable claim of self-defense.
We reached a similar conclusion in State v. Case. 33 There,
the defendant was charged with assault by a confined person
after a physical altercation with another inmate. The trial court
denied the defendant’s request for a self-defense instruction
on two alternative grounds: that the defendant was the initial
aggressor and that the defendant had unjustifiably placed him-
self in harm’s way by voluntarily leaving the safety of his cell
and confronting the victim.
On appeal, the defendant in Case argued he was entitled to
a self-defense instruction because there was a factual dispute
as to whether he, or the victim, was the initial aggressor. We
observed that although a factual dispute over the identity of
the initial aggressor “could be part of a legally cognizable
case of self-defense,” 34 we did not have to decide that issue
in Case, because the undisputed evidence fit squarely within
the rule from Urbano. We explained that the undisputed facts
showed the defendant voluntarily left his cell and walked
directly up to the victim and confronted him. We reasoned
31 Id.
32 Id. at 202, 589 N.W.2d at 152.
33 Case, supra note 9.
34 Id. at 843, 937 N.W.2d at 226.

- 857 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
that because there was no evidence the inmate was prevented
from remaining safely in his cell, “he unjustifiably placed
himself in harm’s way, and such facts do not support a legally
cognizable theory of self-defense.” 35
Similar to the evidence in Urbano and Case, the evidence
here was undisputed that Liech could have avoided Cantrell’s
use of force (the deployment of pepper spray) by complying
with Cantrell’s repeated lawful commands to back away from
the pantry office door. But Liech ignored those lawful com-
mands, even after being notified that his continued noncom-
pliance would result in the deployment of pepper spray. On
these facts, Liech voluntarily and unjustifiably placed himself
in harm’s way through his verbal and physical noncompliance
with Cantrell’s lawful request, and under our established case
law, such facts will not support a legally cognizable claim of
self-defense. 36 And application of this settled rule does not
depend on determining the identity of the initial aggressor, or
on showing that the victim used unlawful force. 37
Because the trial court did not err in concluding that the
undisputed evidence did not support a cognizable claim of self-
defense, 38 we reject Liech’s first assignment of error.
2. Sufficiency of Evidence
[17] Liech next assigns that the evidence was not suf-
ficient to support his conviction for assault by a confined
person, in violation of § 28-932 (Reissue 2016). When a
criminal defendant challenges the sufficiency of the evidence
upon which a conviction is based, the relevant question for
an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
35 Id. at 844, 937 N.W.2d at 227.
36 Urbano, supra note 2. See, also, Case, supra note 9; Marshall, supra note
25.
37 See, e.g., Case, supra note 9.
38 Id.

- 858 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 39
The essential elements of assault by a confined person are
found in § 28-932, which provides in relevant part:
(1) Any person (a)(i) who is legally confined in a jail
or an adult correctional or penal institution . . . and (b)
who intentionally, knowingly, or recklessly causes bodily
injury to another person shall be guilty of a Class IIIA
felony, except that if a deadly or dangerous weapon is
used to commit such assault, he or she shall be guilty of
a Class IIA felony.
Liech does not dispute that the State proved, beyond a rea-
sonable doubt, that he caused bodily injury to Cantrell and
that he did so while legally confined in an adult correctional
or penal institution. But he contends the evidence adduced
at trial was insufficient to prove that he intentionally, know-
ingly, or recklessly caused bodily injury to Cantrell. He relies
on his testimony that when he punched Cantrell, it was a
“reaction[ary]” response to the deployment of pepper spray,
and he argues this was “a reaction that he did not have time
to think about beforehand.” 40
[18] When an element of a crime involves existence of
a defendant’s mental process or other state of mind of an
accused, such elements may be proved by circumstantial
evidence. 41 And viewing the evidence in the light most favor-
able to the prosecution, we see ample circumstantial evidence
to allow a rational trier of fact to find beyond a reason-
able doubt that Liech intentionally, knowingly, or recklessly
caused bodily injury to Cantrell. This includes evidence that
Liech assumed a fighting stance before lunging into the
office and punching Cantrell in the face with a closed fist,
39 Case, supra note 9.
40 Brief for appellant at 25.
41 Adams, supra note 15.

- 859 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
evidence that Liech made threatening and derogatory remarks
to Cantrell before punching him, and evidence that Liech
punched Cantrell in the face not once, but twice, and with
sufficient force to cause loss of consciousness, a broken nose,
and a broken orbital socket. Liech’s second assignment of
error is refuted by the record.
3. Excessive Sentence
In his final assignment of error, Liech contends the trial
court abused its discretion by imposing an excessive sentence.
Assault by a confined person is a Class IIIA felony, 42 which
carries no minimum term of imprisonment and is subject to a
maximum term of 3 years’ imprisonment. 43 Liech’s sentence
of 3 to 3 years’ imprisonment was therefore within statutory
limits, and he does not contend otherwise.
[19] 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 determining the sentence
to be imposed. 44 An abuse of discretion takes place when the
sentencing court’s reasons or rulings are clearly untenable
and unfairly deprive a litigant of a substantial right and a
just result. 45
Here, the record demonstrates that before imposing the
sentence, the court stated it had reviewed the information in
the presentence investigation report, it had considered remarks
made at sentencing, and it had considered all the relevant
sentencing factors. On appeal, Leach does not contend the
42 See § 28-932.
43 Neb. Rev. Stat. § 28-105 (Cum. Supp. 2024).
44 Rezac, supra note 16.
45 Alkazahy, supra note 7; State v. Starks, 308 Neb. 527, 955 N.W.2d 313
(2021).

- 860 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LIECH
Cite as 320 Neb. 843
trial court failed to consider the relevant sentencing factors, 46
nor does he contend the court made its decision based on
improper considerations. Instead, he cites the general prin-
ciple that a sentence “ought not exceed the minimum period
consistent with protection of the public, gravity of the offense,
and rehabilitative needs of the defendant,” 47 and he argues
that his 3- to 3-year sentence is “beyond the minimum period
necessary” 48 to protect the public and meet his rehabilitative
needs. He also argues that the sentencing court did not suffi-
ciently consider the “significant institutional consequences” 49
imposed by the Department of Correctional Services because
of his misconduct relating to the assault, including the disci-
plinary loss of accrued good time.
[20] We understand Liech’s argument to be asking us to
reweigh the various sentencing factors, and we decline his
request. It is not the proper function of an appellate court to
conduct a de novo review or engage in a reweighing of the
sentencing factors in the record. 50 Because we see no abuse
of discretion in the sentence imposed, we reject Liech’s final
assignment of error.
V. CONCLUSION
Finding no merit to the assignments of error raised on
appeal, we affirm the district court’s judgment.
Affirmed.
Freudenberg and Bergevin, JJ., not participating.
46 See State v. Sutton, 319 Neb. 581, 612, 24 N.W.3d 43, 68 (2025)
(relevant sentencing factors customarily include “the defendant’s (1)
age, (2) mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense
and (8) the amount of violence involved in the commission of the crime”).
47 State v. Haynie, 239 Neb. 478, 491, 476 N.W.2d 905, 914 (1991).
48 Brief for appellant at 19.
49 Id. at 28.
50 See Starks, supra note 45.