State v. Kilmer

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. KILMER
Cite as 318 Neb. 148
State of Nebraska, appellee, v.
Kevin T. Kilmer, appellant.
___ N.W.3d ___
Filed December 6, 2024. 	No. S-23-1012.
1. 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.
2. Criminal Law: Evidence: Appeal and Error. The relevant question in
reviewing the sufficiency of the evidence 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. Criminal Law: Intent: Circumstantial Evidence. When an element of
a crime involves the existence of a defendant’s mental process or other
state of mind of an accused, such elements may be proved by circum-
stantial evidence.
4. Criminal Law: Evidence: Intent. The intent with which an act is com-
mitted is a mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the incident.
5. Criminal Law: Intent. A trier of fact may infer that the defendant
intended the natural and probable consequences of the defendant’s vol-
untary acts.
6. Circumstantial Evidence. Circumstantial evidence is entitled to be
treated by the trier of fact in the same manner as direct evidence.
7. Homicide: Intent: Words and Phrases. Deliberate malice, for pur-
poses of first degree murder, means not suddenly and not rashly, and it
requires that the defendant considered the probable consequences of his
or her act before doing the act.
8. ____: ____: ____. The term “premeditated” means to have formed a
design to commit an act before it was done.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:08 AM CDT

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STATE v. KILMER
Cite as 318 Neb. 148
9. Homicide: Intent. One kills with premeditated malice if, before the act
causing death occurs, one has formed the intent or determined to kill the
victim without legal justification.
10. Homicide: Intent: Time. No particular length of time for deliberation
or premeditation is required, provided the intent to kill is formed before
the act is committed and not simultaneously with the act that caused
the death.
11. ____: ____: ____. The design or purpose to kill may be formed upon
premeditation and deliberation at any moment before the homicide
is committed.
12. ____: ____: ____. The surrounding circumstances relevant to whether
the defendant acted with deliberate and premeditated malice are not
limited to the moments immediately preceding the victim’s death.
13. Homicide: Intent. Deliberate and premeditated malice can be found
without evidence that the defendant brought a weapon to the scene of
the crime.
14. Homicide: Intent: Time. Whether deliberate and premeditated malice
exists depends on numerous facts about how and what the defendant
did prior to the actual killing which show the defendant was engaged in
activity directed toward the killing, that is, planning activity.
15. Evidence: Intent. Circumstances showing motive are relevant to intent.
16. Homicide: Intent. The manner or fashion in which the injury was
inflicted may show a deliberate act and hence serve as evidence to sup-
port a finding of premeditation.
Appeal from the District Court for Cherry County, Mark D.
Kozisek, Judge. Affirmed.
Helen O. Winston, of Nebraska Commission on Public
Advocacy, for appellant.
Michael 	T. 	Hilgers, 	Attorney 	General, 	and 	Jacob 	M.
Waggoner for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
The defendant was convicted by jury of first degree mur-
der and use of a deadly weapon to commit a felony. His sole
assignment of error is that the evidence was insufficient to

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STATE v. KILMER
Cite as 318 Neb. 148
support his conviction of first degree murder. The defendant
argues there was insufficient evidence for the jury to find
beyond a reasonable doubt that he acted with deliberate and
premeditated malice. We affirm.
BACKGROUND
In September 2021, Kevin T. Kilmer was charged by infor-
mation with first degree murder, a Class IA felony, and use of
a deadly weapon to commit a felony, a Class II felony. The
information alleged that Kilmer killed Ruth Ann Wittmuss pur-
posely and with deliberate and premeditated malice and that he
used an ax during the commission of the murder.
Following trial, the jury returned a guilty verdict on both
counts, which the district court accepted. The court sentenced
Kilmer to life imprisonment for first degree murder and to
10 to 14 years’ imprisonment for use of a deadly weapon to
commit a felony. The court ordered the sentences to be served
consecutively.
Kilmer lived in Valentine, Nebraska, but at the time of
Wittmuss’ death, Kilmer had been staying with Wittmuss and
Michael Malone, with whom Kilmer had been romantically
involved. Wittmuss and Malone lived in a trailer house in
Kilgore, Nebraska. In exchange for their work, the owner of
the trailer house permitted Wittmuss and Malone to live in the
trailer house and provided them food. The trailer house owner
also gave Wittmuss her red van, which Wittmuss rarely let
others drive.
Amanda Schell Heath (Schell), a friend of Kilmer’s, testified
that on the night of the murder, Kilmer arrived at her residence
in a maroon van, wearing only shorts and black boots. As she
approached Kilmer, Schell saw specks of blood on his arms,
chest, face, legs, and back. Schell asked Kilmer why he had
blood on him, and Kilmer told her that he “hit a lady.”
Kilmer asked to take a shower, but before Schell let him,
she made him elaborate on his statement. Kilmer told Schell
that he hit Wittmuss in the head with an ax earlier that day.

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STATE v. KILMER
Cite as 318 Neb. 148
He explained that Wittmuss was yelling, so he hit her, she
paused for a second, said “Ow,” and then she fell to the
ground. Kilmer described to Schell seeing the membrane
between Wittmuss’ brain and her skull and told Schell that he
put Wittmuss in a suitcase and “dumped” her on the side of a
dirt road outside of Kilgore.
Kilmer explained to Schell that Wittmuss had woken him
up yelling, that she yelled a lot, and that there were instances
where she had struck him with a padlock tied to a string. He
also indicated to Schell that Wittmuss may have threatened to
tell others about his “secret” relationship with Malone. Schell
testified that Kilmer was “infatuated” with Malone and that
Kilmer and Malone had been romantically involved for a long
time. While Kilmer was in the shower, Schell wrote down the
license plate number of the van Kilmer had driven to her resi-
dence. She called law enforcement after he left.
After talking to Schell, law enforcement visited the trailer
house. A law enforcement officer accompanied Kilmer inside
of the trailer house, where the officer observed what he
believed to be blood spatter on a wall and either brain matter
or tissue in the kitchen area.
While Kilmer was outside the trailer house with law enforce-
ment, he changed out of his black boots and put on flat lace-up
shoes. Shortly after, Kilmer fled the scene, which prompted a
manhunt. Kilmer was located and arrested the next day.
During the investigation, law enforcement located a suit-
case in a ditch on the side of a road approximately 3 miles
north of Kilgore. The suitcase contained Wittmuss’ body,
which appeared to have blunt force trauma to the back of the
head. It also contained rags and linoleum tile that appeared to
have bloodstains on them, along with a padlock attached to
a cord.
The pathologist who conducted an autopsy on Wittmuss
testified that she had trauma to her face, a large bruise on her
back, a large laceration on the back of her head, and a fractured
skull containing bone fragments. The pathologist explained

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STATE v. KILMER
Cite as 318 Neb. 148
that the injuries on the back of Wittmuss’ head were caused by
a blunt object with sufficient size and weight to fracture the
skull and that the flat end of an ax could cause such injuries.
The pathologist opined that the injuries on the back of
Wittmuss’ head “probably took at least two, maybe three
blows.” The blow to the side of her head that caused bleed-
ing was not the same injury that caused the fracture to the
back of her skull. The pathologist determined that the bruise
on Wittmuss’ back was caused by blunt force trauma and that
the bruising on her back, face, and head were premortem. He
concluded, with a reasonable degree of medical certainty, that
Wittmuss’ cause of death was blunt force trauma to the head.
Law 	enforcement 	investigators 	observed, 	collected, 	and
tested evidence obtained from the trailer house and Wittmuss’
van. They observed blood spatter and bodily tissue in the
kitchen area of the trailer house. Law enforcement seized an ax
that appeared to have blood on its blunt end and linoleum tile
that matched the description of the tile found in the suitcase
containing Wittmuss’ body. The ax was found in the living
room of the trailer house.
A floor vent in the kitchen area that appeared to have blood
on and around it was tested with luminol and seized as evi-
dence. Law enforcement observed and swabbed bloodstains
on the interior and exterior of the van. They also located a
bucket containing a towel that appeared bloody, floor tiles,
and paper towels near a travel trailer that was located south
of the trailer house. The bloody towel and floor tiles in the
bucket were consistent with the ones found in the suitcase
containing Wittmuss’ body, and law enforcement believed the
tiles in the bucket were consistent with the area from where
the floor vent was seized.
A forensic scientist with the Nebraska State Patrol Crime
Laboratory testified she examined swabs from the crime scene
and the ax. The presence of blood was confirmed to be on
the butt of the ax’s head, the upper handle of the ax, and the
suitcase Wittmuss was found in. The forensic scientist also

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STATE v. KILMER
Cite as 318 Neb. 148
confirmed that blood was present in the trunk of Wittmuss’ van
and in the trailer house on a counter, wall, and doorframe in the
kitchen and on a refrigerator in the hallway.
The forensic scientist testified that a female DNA profile
was detected in the DNA profiles of a stain on Kilmer’s left
boot, the butt of the ax’s head, the upper handle of the ax, the
suitcase, blood in the trunk of Wittmuss’ van, and blood spatter
on the counter, wall, refrigerator, and doorframe in the trailer
house. In comparing reference samples of Kilmer, Malone,
and Wittmuss to the DNA profiles, Kilmer and Malone were
excluded as contributors, and Wittmuss was included.
Evidence was presented that, on the day she died, Wittmuss
told the trailer house owner that she wanted to “take [Kilmer]
home.” Later that day, Wittmuss called to borrow the trailer
house owner’s car, but she never showed up to retrieve the car
keys from him.
Malone testified that he and Kilmer had a romantic relation-
ship at one point, and he believed Kilmer was obsessed with
him. A couple of weeks before Wittmuss’ death, Malone intro-
duced Wittmuss to Kilmer. Kilmer then stayed with Malone and
Wittmuss in the trailer house for a couple of weeks. Wittmuss
and Kilmer would take trips to a “reservation” in search of
methamphetamine, which Malone, Kilmer, and Wittmuss used
at the trailer house.
At first, Wittmuss and Kilmer got along well, but they
started to argue after Wittmuss left Kilmer on the side of the
road during one of their trips. Wittmuss alleged that Kilmer
had stolen something from her. About 3 days before Wittmuss’
death, Malone witnessed Wittmuss and Kilmer yelling at each
other because Kilmer was wearing the padlock attached to a
cord, which belonged to Wittmuss, like a necklace. Wittmuss
and Kilmer were also arguing about how she left him on the
side of the road.
At some point, Wittmuss and Kilmer had a physical alter-
cation that involved Wittmuss’ yelling at Kilmer to pack his
belongings and leave the trailer house. Wittmuss indicated

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STATE v. KILMER
Cite as 318 Neb. 148
that she was going to take Kilmer back to Valentine. During
the remaining few days leading up to her death, Wittmuss and
Kilmer continued to argue, and Kilmer packed his belongings
while claiming that he did not steal anything.
Malone testified that either on the day of Wittmuss’ death
or on the night before, he woke up to Wittmuss and Kilmer
continuing their argument, and Wittmuss told Malone that she
had called the owner of the trailer house to borrow his car.
Wittmuss and Malone then got high on methamphetamines,
but Wittmuss, having control of the drugs in the house, did not
give any to Kilmer that day.
Later in the day, Malone left the trailer house to go to
the trailer house owner’s residence. At that time, Wittmuss
and Kilmer were physically and verbally arguing inside, and
Wittmuss “was still telling [Kilmer] he needed to pack all
of his stuff.” At one point, Kilmer was standing in front of
the trailer house, trying to explain to Malone that he did
not steal anything and that he did not want to leave the
trailer house. Malone told Kilmer that he had to go back to
Valentine because Wittmuss would not lie. Malone believed
that Kilmer would be leaving with Wittmuss that day to return
to Valentine.
Malone testified that when he returned to the trailer house,
no one was there and Wittmuss’ van was not there, so he
thought that Wittmuss and Kilmer had already left for Valentine.
Malone returned to the trailer house owner’s residence.
Thereafter, Kilmer stopped by the trailer house owner’s
residence while driving Wittmuss’ van. Malone testified that he
thought this was strange because Wittmuss would not have let
anyone drive her van.
Kilmer told Malone that Wittmuss was at the trailer house.
However, Wittmuss was not there when Malone visited the
trailer house a short time later. Malone questioned Kilmer,
who told him that Wittmuss may have gone for a walk. Shortly
thereafter, law enforcement arrived.

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STATE v. KILMER
Cite as 318 Neb. 148
Kilmer testified in his own defense at trial. He explained
that he had a romantic relationship with Malone and that he
had “liked [Malone] for a long time.” He testified that, on the
day of Wittmuss’ death, he heard Wittmuss and Malone argu-
ing, which he thought was unusual because he had never heard
them argue before. Kilmer testified that when he went to see
what was happening, he saw Malone hit Wittmuss in the back
of the head with an ax at least three times—once when she
was standing and two more times after she had fallen to the
ground. It occurred in the kitchen area and lasted only a couple
of minutes. Kilmer testified that, upon Malone’s request, he
cleaned the blood with towels and a cleaning product, and
Kilmer further admitted that he had removed some floor tiles
because blood had seeped under them. Kilmer put some of
the tiles and towels inside a bucket and left it near the travel
trailer, and he also put some of the towels in the suitcase that
Wittmuss was placed in.
Kilmer testified that after Malone left the trailer house, and
without Malone’s instruction, he hid the ax in the living room,
loaded the suitcase into Wittmuss’ van, drove it north, and left
the suitcase there. Kilmer drove back to the trailer house in
Kilgore because he did not have “anywhere else to go” and
would not return to Valentine because he had been kicked
out of his father’s house just a week earlier. Kilmer retrieved
clothes and toiletries from the trailer house and then drove to
Schell’s residence to shower so that he could rinse Wittmuss’
blood off of himself. Kilmer admitted to telling Schell that he
had cleaned the trailer house and left the suitcase on the side
of the road. Kilmer also admitted that he had lied repeatedly
to law enforcement.
ASSIGNMENT OF ERROR
Kilmer assigns there was insufficient evidence to support
the jury’s guilty verdict for first degree murder in violation of
Neb. Rev. Stat. § 28-303 (Cum. Supp. 2022) because a rational
trier of fact could not find all elements of the charged offense
beyond a reasonable doubt.

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STATE v. KILMER
Cite as 318 Neb. 148
STANDARD OF REVIEW
[1,2] 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 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. 1 The relevant question in reviewing
the sufficiency of the evidence 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. 2
ANALYSIS
Kilmer argues there was insufficient evidence of his intent
and premeditation for the jury to find him guilty beyond a rea-
sonable doubt of first degree murder in violation of § 28-303.
Section 28-303 provides, in pertinent part: “A person commits
murder in the first degree if he or she kills another person
(1) purposely and with deliberate and premeditated malice . .
. .” The three elements the State must prove beyond a rea-
sonable doubt to obtain a conviction for first degree murder
are as follows: The defendant (1) killed another person, (2)
did so purposely, and (3) did so with deliberate and premedi-
tated malice. 3
Kilmer does not challenge the jury’s finding that he killed
Wittmuss and did so purposely. Kilmer asserts the State’s evi-
dence was insufficient to prove that he killed Wittmuss with
deliberate and premeditated malice. We disagree.
[3-6] As previously mentioned, our standard of review is
the same for evidence that is direct, circumstantial, or a com-
bination thereof: We do not resolve conflicts in the evidence,
1 State v. Haynie, 317 Neb. 371, 9 N.W.3d 915 (2024).
2 See id.
3 State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), disapproved on
other grounds, State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865
(2018); State v. Escamilla, 291 Neb. 181, 864 N.W.2d 376 (2015).

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STATE v. KILMER
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pass on the credibility of witnesses, or reweigh the evidence,
and such matters are for the finder of fact. 4 When an element
of a crime involves the existence of a defendant’s mental
process or other state of mind of an accused, such elements
may be proved by circumstantial evidence. 5 This includes
deliberation and premeditation. 6 The intent with which an act
is committed is a mental process and may be inferred from the
words and acts of the defendant and from the circumstances
surrounding the incident. 7 Also, a trier of fact may infer that
the defendant intended the natural and probable consequences
of the defendant’s voluntary acts. 8 Circumstantial evidence is
entitled to be treated by the trier of fact in the same manner
as direct evidence. 9
[7-11] Deliberate malice, for purposes of first degree mur-
der, means not suddenly and not rashly, and it requires that
the defendant considered the probable consequences of his
or her act before doing the act. 10 The term “premeditated”
means to have formed a design to commit an act before it
was done. 11 One kills with premeditated malice if, before
the act causing death occurs, one has formed the intent or
determined to kill the victim without legal justification. 12 No
particular length of time for deliberation or premeditation is
required, provided the intent to kill is formed before the act
4 See State v. Haynie, supra note 1.
5 State v. Yah, 317 Neb. 730, 11 N.W.3d 632 (2024).
6 See State v. Beers, 201 Neb. 714, 271 N.W.2d 842 (1978).
7 State v. Barnes, 317 Neb. 517, 10 N.W.3d 716 (2024); State v. Miranda,
313 Neb. 358, 984 N.W.2d 261 (2023); State v. Golyar, 301 Neb. 488, 919
N.W.2d 133 (2018).
8 State v. Yah, supra note 5.
9 State v. Rush, 317 Neb. 622, 11 N.W.3d 394 (2024).
10 See, State v. Barnes, supra note 7; State v. Miranda, supra note 7; State v.
Golyar, supra note 7.
11 Id.
12 State v. Miranda, supra note 7; State v. Golyar, supra note 7.

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is committed and not simultaneously with the act that caused
the death. 13 In State v. Cotton, 14 we stated that “[t]he time
required to establish premeditation may be of the shortest
possible duration and may be so short that it is instantaneous
. . . .” We have also held that the design or purpose to kill
may be formed upon premeditation and deliberation at any
moment before the homicide is committed. 15
In asserting that the evidence was insufficient, Kilmer relies
on cases where we found deliberate and premeditated malice
was supported by defendants’ retreating from their victims
before returning with weapons to kill them 16 or arriving at the
scene of the crime with a weapon in hand. 17 Kilmer stresses
that the evidence in his case did not show that he brought
the ax into the trailer house or even that he retrieved it from
another room. He also points out that the jury was not pre-
sented with evidence of his statements or behavior “immedi-
ately preceding” 18 Wittmuss’ death.
[12-16] Kilmer views the circumstances relevant to his
state of mind too narrowly. The surrounding circumstances
relevant to whether the defendant acted with deliberate and
premeditated malice are not limited to the moments imme-
diately preceding the victim’s death. Furthermore, deliberate
and premeditated malice can be found without evidence that
the defendant brought a weapon to the scene of the crime.
Whether deliberate and premeditated malice exists depends
on numerous facts about how and what the defendant did
13 State v. Barnes, supra note 7. See, State v. Miranda, supra note 7; State v.
Golyar, supra note 7.
14 State v. Cotton, supra note 3, 299 Neb. at 670, 910 N.W.2d at 126.
15 State v. Barnes, supra note 7; State v. Miranda, supra note 7; State v.
Golyar, supra note 7.
16 See, State v. Miranda, supra note 7; State v. Braesch, 292 Neb. 930, 874
N.W.2d 874 (2016).
17 See, State v. Escamilla, supra note 3; State v. McLemore, 261 Neb. 452,
623 N.W.2d 315 (2001).
18 Brief for appellant at 13.

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prior to the actual killing which show the defendant was
engaged in activity directed toward the killing, that is, plan-
ning activity. 19 Circumstances showing motive are relevant
to intent. 20 The manner or fashion in which the injury was
inflicted may show a deliberate act and hence serve as evi-
dence to support a finding of premeditation. 21 This includes
the nature and number of the victim’s wounds. 22
Numerous surrounding circumstances demonstrated at trial
supported the jury’s finding that Kilmer acted with deliberate
and premeditated malice when he killed Wittmuss.
Circumstantial evidence showed a motive for the killing.
There was evidence of increasing animosity between Wittmuss
and Kilmer, who continuously fought with each other during
the 3 days leading up to Wittmuss’ death. On the day she died,
Wittmuss did not let Kilmer have any drugs, and there was a
physical and verbal altercation, wherein Wittmuss continued to
tell Kilmer to pack his belongings.
The evidence suggested that Kilmer knew Wittmuss was
planning on driving him back to Valentine on the day of
her death. There was evidence that Kilmer did not want to
leave. He did not have “anywhere else to go,” because he had
been kicked out of his father’s house a week before. Also,
Kilmer was “infatuated” with Malone, whom Kilmer presum-
ably wanted to keep staying with at the trailer house. The jury
could have inferred that Kilmer believed he could continue to
stay with Malone at the trailer house if Wittmuss were dead.
There was also circumstantial evidence that Kilmer wished
to prevent Wittmuss from carrying out her threat to tell oth-
ers about Kilmer’s “secret” relationship with Malone and that
Kilmer was angry with Wittmuss because she had turned
Malone against him.
19 See, State v. Cotton, supra note 3; State v. Escamilla, supra note 3.
20 See, State v. Barnes, supra note 7; State v. Beers, supra note 6.
21 See State v. Escamilla, supra note 3.
22 See id.

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The manner in which Kilmer inflicted Wittmuss’ injuries
also supported the jury’s finding of deliberate and premedi-
tated malice. Kilmer struck Wittmuss in the back of the head
with the ax at least three times over a couple of minutes, with
two blows occurring after she had already fallen to the ground.
The multiple blows from the ax were significant enough to
fracture Wittmuss’ skull and leave blood spatter and brain
matter in the trailer house. Kilmer told Schell that he saw the
membrane between Wittmuss’ brain and her skull. The vio-
lent and repetitive nature of Wittmuss’ wounds supported the
inferences that Kilmer knew the probable consequence of his
actions would be Wittmuss’ death and that he formed the intent
to kill her without legal justification.
Viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found beyond
a reasonable doubt that Kilmer acted with deliberate and pre-
meditated malice. We find no merit to Kilmer’s assignment of
error challenging the sufficiency of the evidence. We affirm
his convictions and sentences.
CONCLUSION
For the foregoing reasons, we affirm Kilmer’s convictions
and sentences.
Affirmed.
Miller-Lerman, J., concurring
Step instruction No. 6 was given in this case. It reads as
follows:
INSTRUCTION 	NO. 	6: 	CRIMES 	CHARGED;
ELEMENTS; EFFECT OF FINDINGS:
COUNT 1: MURDER IN THE FIRST DEGREE:
A. GREATER AND INCLUDED CRIMES: Depending
on the evidence, you may return one of several possible
verdicts to this count:
(1) Guilty of murder in the first degree;
(2) Guilty of murder in the second degree;

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(3) Guilty of manslaughter; or
(4) Not guilty.
B. ELEMENTS:
(1) MURDER IN THE FIRST DEGREE: The elements
which the State must prove beyond a reasonable doubt
in order to convict the defendant of murder in the first
degree are that:
(a) Kevin T. Kilmer killed Ruth Ann Wittmuss a/k/a
Ruth Ann Johnson;
(b) He did so purposely;
(c) He did so with deliberate and premeditated mal-
ice; and
(d) He did so in Cherry County, Nebraska on or about
August 23, 2021.
(2) MURDER IN THE SECOND DEGREE: The ele-
ments which the State must prove beyond a reasonable
doubt in order to convict the defendant of murder in the
second degree are that:
(a) Kevin T. Kilmer caused the death [of] Ruth Ann
Wittmuss a/k/a Ruth Ann Johnson;
(b) He did so intentionally, but without premeditation;
(c) He did so without the provocation of a sudden
quarrel; and
(d) He did so in Cherry County, Nebraska on or about
August 23, 2021.
(3) MANSLAUGHTER: The elements which the State
must prove beyond a reasonable doubt in order to convict
the defendant of manslaughter are that:
(a) Kevin T. Kilmer killed Ruth Ann Wittmuss a/k/a
Ruth Ann Johnson; and
(b) He did so intentionally without malice upon a sud-
den quarrel; and
(c) He did so in Cherry County, Nebraska on or about
August 23, 2021.
[C]. EFFECT OF FINDINGS: With respect to Count 1,
you must consider, in the following order, the crimes of

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Murder in the First Degree, Murder in the Second Degree
and Manslaughter.
For the crime of Murder in the First Degree you must
decide whether the State proved each and every element
beyond a reasonable doubt. If the State did so prove each
element of Murder in the First Degree, then you must
find the defendant guilty of Murder in the First Degree,
cease your deliberations on this count and proceed to
deliberations on Count 2. If however, you find that the
State failed to prove each and every element of Murder
in the First Degree, then you must proceed to consider-
ation of the crime of Murder in the Second Degree.
For the crime of Murder in the Second Degree you
must decide whether the State proved each and every
element beyond a reasonable doubt. If the State did so
prove each element of Murder in the Second Degree,
then you must find the defendant guilty of Murder in the
Second Degree, cease your deliberations on this count
and proceed to deliberations on Count 2. If however,
you find that the State failed to prove each and every
element of Murder in the Second Degree, then you must
proceed to consideration of the crime of Manslaughter.
For 	the 	crime 	of 	Manslaughter 	you 	must 	decide
whether the State proved each and every element beyond
a reasonable doubt. If the State did so prove each ele-
ment of Manslaughter, then you must find the defend-
ant guilty of Manslaughter, cease your deliberations on
this count and proceed to deliberations on Count 2. If
however, you find that the State failed to prove each
and every element of Manslaughter, then you must find
the defendant not guilty on Count 1 and cease your
deliberations.
When you have reached a verdict record your verdict
on the Verdict Form.
No assignment of error complains about this instruction. I
believe the due process implications of the step instruction in

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. KILMER
Cite as 318 Neb. 148
a first degree murder case warrant revisiting, as elucidated in
the dissent in State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d
211 (2016) (Connolly, J., dissenting; Miller-Lerman, J., joins).
See, also, State v. Esch, 315 Neb. 482, 997 N.W.2d 569 (2023)
(Miller-Lerman, J., concurring).