State v. Nickels

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
State of Nebraska, appellee, v.
Daniel S. Nickels, appellant.
___ N.W.3d ___
Filed August 14, 2026. 	No. S-25-013.
1. Jury Instructions: Appeal and Error. Whether a jury instruction
is correct is a question of law, which an appellate court indepen-
dently decides.
2. Jury Instructions: Proof: Appeal and Error. To establish revers-
ible error based on the district court’s refusal to give the self-defense
instruction an appellant requested, the 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.
3. Statutes: Appeal and Error: Words and Phrases. When terms in a
statute are not specifically defined by the statute, principles of statutory
interpretation generally require an appellate court to give such terms
their plain and ordinary meaning.
4. Appeal and Error: Words and Phrases. Appellate courts often turn to
dictionaries to ascertain a word’s plain and ordinary meaning.
5. Statutes: Words and Phrases. Under the associated words canon of
statutory interpretation, if two or more words are grouped together in a
statute, the meaning of a particular word may be determined by refer-
ence to the meaning of associated words and phrases.
6. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
7. ____. Generally, an appellate court will find plain error only when a
miscarriage of justice would otherwise occur.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:36 AM CDT

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
8. Trial: Testimony: Appeal and Error. The scope of cross-examination
of a witness rests largely in the discretion of the trial court, and its ruling
will be upheld on appeal unless there is an abuse of discretion.
9. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under the framework established by
the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
or her counsel’s performance was deficient and that this deficient per-
formance actually prejudiced the defendant’s defense.
10. ____: ____. To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law.
11. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
12. Words and Phrases. A reasonable probability of prejudice is a prob-
ability sufficient to undermine confidence in the outcome.
13. Effectiveness of Counsel: Appeal and Error. In determining whether
there is a reasonable probability that any deficient performance of trial
counsel would have resulted in a different outcome in the proceeding,
an appellate court may properly consider the strength of the admissible
evidence relating to the controverted issues in the case.
14. Effectiveness of Counsel: Records: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it
requires examination of facts not contained in the record.
15. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of trial which
is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
Natalie M. Andrews, of Chandler | Conway, P.C., L.L.O., for
appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
Papik, J.
Daniel S. Nickels shot and killed Esmeralda Vargas in a
hotel room. He had paid Vargas for sex, but after he con-
cluded Vargas was “procrastinating,” he decided to leave. An
argument and altercation ensued in which Nickels shot and
killed Vargas. Nickels claimed that he shot Vargas because he
believed she was reaching into her backpack for a handgun
to shoot him. At Nickels’ trial for first degree murder and
use of a deadly weapon to commit a felony, the district court
instructed the jury on self-defense, but, over Nickels’ objec-
tion, included language in the self-defense instruction stating
that Nickels had a duty to retreat. The jury found Nickels
guilty of both charges. Now on appeal, Nickels contends that,
because the hotel room was his dwelling for purposes of Neb.
Rev. Stat. § 28-1409(4)(b)(i) (Reissue 2016), he had no duty
to retreat and the district court erred by including the duty to
retreat language in the self-defense instruction. He also con-
tends that the district court made an evidentiary error and that
his trial counsel was ineffective in two respects. Finding no
reversible error, we affirm.
I. BACKGROUND
The State charged Nickels with first degree murder and use
of a deadly weapon to commit a felony. At trial, the State pre-
sented evidence that on the morning Vargas was shot, she and
Nickels entered a hotel room together around 3 a.m. A couple
hours later, Vargas ran out of the hotel room and down the hall
before collapsing. At the same time, Nickels ran out of the
hotel room in the other direction. He left the hotel and drove
to Missouri, where he was later apprehended. Vargas died that
morning from a single gunshot wound.
Nickels testified in his own defense. He admitted to shoot-
ing Vargas in the hotel room but claimed that he did so in
self-defense.
Nickels testified that Vargas was an “escort” and that on
prior occasions, he had paid her to engage in sex with him, but

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
that on other occasions, he had given her rides without receiv-
ing anything in return. Nickels testified that in the early morn-
ing hours on the day of the shooting, he had picked Vargas
up at a hotel where he had rented her a room and drove her
to another location where she purchased drugs. Nickels testi-
fied that Vargas began using the drugs as he drove back to the
hotel and that during that drive, Vargas seemed “delusional,
maybe.” Nickels claimed that during the drive, Vargas asked
him to stop behind a gas station because “she heard voices,
and somebody was getting hurt back there.” Nickels also testi-
fied that during the drive, Vargas asked him to “take care” of
some people who had hurt her sister, which Nickels under-
stood to be a request to help Vargas kill those people. Nickels
testified that Vargas seemed “mad at . . . everything.”
Nickels testified that after they entered the hotel room
on the morning of the shooting, he paid Vargas for sex, but
she was “procrastinating,” so he decided to leave. Nickels
testified that after he got up to leave, Vargas became angry
and eventually grabbed him by his collar, blocked his exit,
and told him that he “wasn’t going anywhere until [he] gave
her the rest of [his] money.” Nickels testified that at some
point while Vargas was blocking his exit, he “perceived” that
she was putting her hand in a backpack she was wearing.
Nickels claimed that a few days earlier, he had seen a gun
in that backpack. Believing that Vargas was reaching for that
gun, Nickels reached into his pocket, grabbed his own gun,
and fired it at Vargas.
Nickels admitted on cross-examination that he never saw
a gun in Vargas’ possession on the night he shot her and that
Vargas had never previously been violent with him. He also
admitted that he could not actually see whether Vargas was
reaching into the backpack because a jacket was covering
the backpack.
The jury was instructed as to self-defense, but it convicted
Nickels of both charges. He now appeals. We describe Nickels’

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
claims and provide additional facts as necessary in the analysis
section below.
II. ASSIGNMENTS OF ERROR
Nickels assigns four errors, which we have restated as fol-
lows. First, Nickels assigns error to the district court’s inclu-
sion of language in the self-defense jury instruction indicating
he had a duty to retreat. Second, Nickels assigns error to the
district court’s refusal to allow evidence as to Nickels’ char-
acter trait for peacefulness during the prosecution’s case in
chief. Third, Nickels asserts that his trial counsel provided
ineffective assistance of counsel by failing to adduce evidence,
through two witnesses, of specific instances of conduct dem-
onstrating Vargas’ “violent, erratic, and aggressive behavior.”
Finally, Nickels claims that his counsel provided ineffective
assistance of counsel by failing to object and move for a
mistrial based on the prosecutor’s and a detective’s use of the
word “murder” during trial.
III. ANALYSIS
1. Duty to Retreat Instruction
The district court gave the jury the following instruction
regarding self-defense:
[Nickels] acted in self-defense if:
1. [Vargas] threatened or attempted to cause death or
serious bodily harm to [Nickels]; and
2. [Nickels] did not provoke any use of force by
[Vargas] against [Nickels] with the intent of using deadly
force in response; and
3. Under the circumstances as they existed at the time,
[Nickels] reasonably believed that his use of deadly force
was immediately necessary to protect himself against any
such force used by [Vargas]; and
4. Before using deadly force, [Nickels] either tried to
get away or did not try because he reasonably did not
believe he could do so in complete safety.

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
The fact that [Nickels] may have been wrong in
estimating the danger to himself does not matter as long as
there was a reasonable basis for what [Nickels] believed
and he acted reasonably in response to that belief.
The State [of] Nebraska has the burden to prove
beyond a reasonable doubt that [Nickels] did not act in
self-defense.
Nickels argues on appeal that while the district court was
correct to provide the jury with a self-defense instruction, para-
graph 4 should not have been included. He contends that, under
the circumstances, he had no duty to retreat from Vargas.
(a) Additional Background
The following facts adduced at trial are relevant to Nickels’
argument that the district court erred by including the duty to
retreat language in the self-defense instruction.
The afternoon before Nickels shot and killed Vargas, Nickels
picked her up and gave her a ride to the hotel where the shoot-
ing would later take place. At around 6 p.m. that day, Nickels
entered the hotel and rented a room. Nickels testified at trial
that he rented the room because Vargas did not have photo
identification. He testified that Vargas later paid him cash
for the cost of the room. Nickels testified that on at least one
prior occasion, he had paid for a motel room for Vargas. When
Nickels was later apprehended after Vargas was shot, he had a
key to the hotel room in his possession.
Shortly after Nickels rented the hotel room, Vargas entered
the hotel and went to the room and remained there until
approximately 2 a.m. the next day. Nickels, on the other hand,
left the hotel after he paid for the room. He testified that he
went back to his home where he had dinner with a friend.
Surveillance videos presented to the jury showed that while
Vargas remained at the hotel, two unidentified males sepa-
rately came to the room and left after some time. After one of
them left, Vargas walked through the hall with wet hair, wear-
ing what the district court described as a “long cloth or some

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
sort of a long shirt.” Police later found a used condom in the
hotel room’s trash can.
Nickels returned to the hotel around 2 a.m., at which point
Nickels drove Vargas to another location where she purchased
drugs. Nickels and Vargas returned to the hotel just after 3 a.m.
They then both went to the hotel room and remained there until
about 5:30 a.m.
Nickels testified that the hotel room was a suite with a liv-
ing room and a bedroom. He and Vargas first sat in the living
room and conversed while Vargas continued to use the drugs
she had purchased. Nickels testified that, at the time, he was
“[w]illing” to pay for sex with Vargas but that Vargas was fall-
ing asleep in a chair. Nickels eventually became impatient and
offered Vargas $100 to “expedite this thing and get the show
on the road and take care of business.” Nickels testified that
Vargas agreed but asked for $120, which Nickels testified
that he paid.
Vargas then went to the bedroom, and Nickels followed.
After some additional time passed, Nickels concluded Vargas
was “procrastinating” and decided to leave. The argument and
altercation in which Nickels shot Vargas followed.
A number of personal items belonging to Vargas were
found in the hotel room. Nickels admitted that he did not
bring any additional clothes or a toothbrush to the hotel room.
When he was asked on cross-examination if he was “staying”
at the hotel, he responded, “I had nothing at the hotel. I rented
the room for [Vargas].”
(b) Jury Instruction Conference
At the jury instruction conference, the district court, over the
State’s objection, agreed to give a self-defense instruction. The
district court concluded there was enough evidence presented
that Nickels acted in self-defense to provide the instruction.
During the jury instruction conference, Nickels objected
to the inclusion of paragraph 4 in the self-defense instruction
quoted above. He argued that because he had rented the room,

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
the hotel room was his “temporary domicile” in which he had
no duty to retreat. The State argued that Nickels did have a
duty to retreat. It emphasized that Vargas paid Nickels for the
room and she “was the one utilizing the room.”
The district court overruled Nickels’ motion and gave the
instruction with paragraph 4 included. In explaining its rul-
ing, it emphasized that Vargas had paid Nickels back for
renting the room; that Vargas had occupied the room for the
vast majority of the time, while Nickels was in room for only
around 2 hours; that Vargas had various personal items in the
room; and that two other men had visited Vargas in the hotel
room, and, based on the used condom found in the trash can,
at least one of those other men appeared to have had sexual
relations with Vargas in the room. The district court stated that
it was “clear, consonant, and unequivocal that [Vargas] had
custody and control of the room.”
(c) Standard of Review
[1] Whether a jury instruction is correct is a question of
law, which an appellate court independently decides. State v.
Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
(d) Analysis
Before analyzing Nickels’ argument regarding the district
court’s self-defense instruction, we pause to clarify the precise
argument Nickels made before the district court regarding this
instruction and the arguments he now makes on appeal. We do
so because Nickels makes an argument on appeal he did not
present to the district court, and we apply a different standard
of review to arguments that are raised for the first time on
appeal.
As noted above, during the jury instruction conference in the
district court, Nickels requested that the self-defense instruc-
tion be given but argued to the district court that paragraph 4
should be removed because the hotel room was his “temporary
domicile.” Nickels thus effectively proposed that the jury be
instructed on self-defense but with no mention of a duty to

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NICKELS
Cite as 322 Neb. 1
retreat. And although Nickels’ counsel did not expressly refer
to § 28-1409(4)(b)(i), we understand counsel to have proposed
that such an instruction was required by that statute.
Now on appeal, Nickels renews his argument that paragraph
4 should have been excised from the self-defense instruc-
tion pursuant to § 28-1409(4)(b)(i), but he also argues that
the paragraph should have been removed because, under the
circumstances, there was no possibility he could retreat. This
second argument was not presented to the district court.
The failure to object to a jury instruction after it has been
submitted to counsel for review precludes raising an objection
on appeal absent plain error indicative of a probable miscar-
riage of justice. State v. Mowell, 267 Neb. 83, 672 N.W.2d
389 (2003). The purpose of the instruction conference is to
give the trial court an opportunity to correct any errors made
by it. Id. Consequently, a party who does not request a desired
jury instruction cannot complain on appeal about incomplete
instructions. Id. Furthermore, an objection to a jury instruc-
tion on one ground does not preserve an objection to that
jury instruction on another ground. See, State v. Reeves, 321
Neb. 427, 35 N.W.3d. 46 (2026); Mowell, supra. Rather, to
preserve an alleged error, the party must “specifically object
to that error.” Mowell, 267 Neb. at 93, 672 N.W.2d at 398.
Where a party objects to an instruction on one ground in the
trial court and attempts to raise a different objection to that
instruction on appeal, it is only reviewable for plain error. See
Reeves, supra.
Applying 	the 	foregoing 	error 	preservation 	rules 	here,
Nickels has fully preserved an argument that paragraph 4
should have been removed from the self-defense instruction
because the hotel room was his dwelling and, thus, he had
no duty to retreat pursuant to § 28-1409(4)(b)(i). We review
that argument accordingly below. Because Nickels did not
present any objection to the duty to retreat language based
on his alleged inability to retreat in the hotel room, however,
he has not fully preserved that argument for appeal. We will

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Nebraska Supreme Court Advance Sheets
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STATE v. NICKELS
Cite as 322 Neb. 1
thus review that issue under a plain error standard of review.
We will also review for plain error an issue that is potentially
implicated by our analysis but that Nickels did not raise either
in the district court or before us.
(i) § 28-1409(4)(b)(i) Did Not Obligate District
Court to Give Nickels’ Proposed Instruction
We first address Nickels’ argument that the self-defense
instruction should have been given without including paragraph
4 because the hotel room was Nickels’ dwelling for purposes of
§ 28-1409(4)(b)(i), and, thus, he had no duty to retreat.
Section 28-1409(4) provides that the use of deadly force is
not justifiable if
(b) The actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by
surrendering possession of a thing to a person asserting a
claim of right thereto or by complying with a demand that
he abstain from any action which he has no duty to take,
except that:
(i) The actor shall not be obliged to retreat from his
dwelling or place of work, unless he was the initial
aggressor or is assailed in his place of work by another
person whose place of work the actor knows it to be[.]
We have previously observed that § 28-1409(4)(b) creates
a general duty to retreat, but § 28-1409(4)(b)(i) recognizes a
“corollary privilege of nonretreat.” State v. Harris, 294 Neb.
766, 780, 884 N.W.2d 710, 720 (2016). The privilege of non-
retreat, however, exists only in one’s “dwelling or place of
work” and only if the actor was not “the initial aggressor.” See
§ 28-1409(4)(b)(i). For purposes of § 28-1409, the Legislature
has defined “[d]welling” as “any building or structure, though
movable or temporary, or a portion thereof, which is for the
time being the actor’s home or place of lodging.” Neb. Rev.
Stat. § 28-1406(5) (Reissue 2016).
Nickels concedes that he was not at his place of work or at
his home when he shot Vargas. Accordingly, he was entitled

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STATE v. NICKELS
Cite as 322 Neb. 1
to the privilege of nonretreat only if the hotel room was, in
the words of § 28-1406(5), his “place of lodging.”
Nickels argues the hotel room was his place of lodging
when he shot Vargas. While Nickels admits that there is no
evidence he slept in the hotel room, he observes that some
dictionaries include a definition of “lodging” as “a tempo-
rary place to stay.” See, e.g., Merriam-Webster’s Collegiate
Dictionary 731 (11th ed. 2020). Nickels asserts the hotel
room qualified as his place of lodging under this definition,
emphasizing the evidence showing that he was in the hotel
room with Vargas for approximately 2 hours. Nickels also
claims that the hotel room was his “place of lodging” because
he rented the room from the hotel and had a key to access
it. And even if the hotel room was Vargas’ place of lodging,
Nickels adds, that does not mean it was not his as well. On
this point, Nickels directs us to State v. White, 20 Neb. App.
116, 819 N.W.2d 473 (2012), in which the Nebraska Court
of Appeals held the privilege of nonretreat recognized in
§ 28-1409(4)(b)(i) applied even when the defendant and the
victim were cohabitants of a residence.
[2] To establish reversible error based on the district court’s
refusal to give the self-defense instruction he requested, Nickels
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) he was prejudiced by the
court’s failure to give the requested instruction. See State v.
White, 321 Neb. 1, 32 N.W.3d 256 (2026). We find, however,
that the instruction Nickels proposed to the district court—that
the self-defense instruction be given without paragraph 4 and
with no additional instructions provided—was not warranted
by the evidence. Here is why.
Many other jurisdictions have statutes that similarly rec-
ognize a privilege of nonretreat in certain locations, often a
person’s dwelling. See, e.g., N.Y. Penal Law § 35.15(2)(a)(i)
(McKinney Supp. 2026); N.J. Stat. Ann. § 2C:3-4(b)(2)(b)(i)
(West 2015); 18 Pa. Stat. and Cons. Stat. Ann. § 505(b)(2)(ii)

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STATE v. NICKELS
Cite as 322 Neb. 1
(West 2015). Courts in several of those states have held that
the question of whether a person is in their dwelling and thus
entitled to the privilege of nonretreat is one of fact and, as a
result, in a jury trial, must be resolved by the jury so long as
there is evidence to support either conclusion.
For example, in People v. Berk, 88 N.Y.2d 257, 667 N.E.2d
308, 644 N.Y.S.2d 658 (1996), a trial court instructed a jury
as to self-defense but declined the defendant’s request that it
also instruct the jury that the defendant had no duty to retreat
because the shooting occurred in his dwelling. The New York
Court of Appeals held this was not error. It explained that
whether the home in question was the defendant’s dwelling
was a “disputed factual question” on which “there was sub-
stantial evidence” on both sides. Id. at 267, 667 N.E.2d at
313, 644 N.Y.S.2d at 663. Accordingly, the appellate court
explained, it was not error for the trial court to decline to
instruct the jury that the defendant had no duty to retreat.
Several other jurisdictions have likewise concluded that
when there is conflicting evidence as to whether a defendant
was in a specific place where the law afforded them a privi-
lege of nonretreat, that is a factual determination that must
be made by the jury. See, e.g., State v. Bragg, 260 N.J. 387,
334 A.3d 184 (2025) (holding jury must decide disputed fac-
tual issues of whether apartment where stabbing took place
was defendant’s dwelling and whether defendant was initial
aggressor); Widdison v. State, 410 P.3d 1205 (Wyo. 2018)
(holding trial court erred by not instructing jury to decide
whether defendant was in her residence and thus was entitled
to privilege of nonretreat when there was conflicting evidence
on the question); Com. v. Hornberger, 74 A.3d 279, 286 (Pa.
Super. 2013) (holding trial court should instruct jury to deter-
mine whether defendant was in his dwelling and thus entitled
to privilege of nonretreat because facts “constituted a viable
jury question”).
We agree with these courts and hold that when there is evi-
dence to support a conclusion that a defendant was in his or

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STATE v. NICKELS
Cite as 322 Neb. 1
her dwelling but also evidence to support a contrary conclu-
sion, the jury should be instructed to make that factual determi-
nation. Specifically, the jury should be instructed to determine
whether the defendant was in his or her dwelling and addition-
ally instructed that whether the defendant is entitled to the
privilege of nonretreat depends on that factual determination.
For the same reason, we conclude that when there is conflict-
ing evidence as to whether the defendant was the initial aggres-
sor, the jury should be instructed to determine whether that is
the case and additionally instructed that the defendant is not
entitled to the privilege of nonretreat if he or she is found to be
the initial aggressor.
It follows from our preceding conclusions that it would be
improper to altogether remove language about a defendant’s
duty 	to 	retreat 	in 	the 	manner 	Nickels 	requested 	at 	the
jury instruction conference, unless the only conclusion the jury
could reach based on the evidence is that the defendant was in
his or her dwelling and was not the initial aggressor. But that is
not the case here. As we will explain, even if we set to the side
the initial aggressor question, there was evidence by which the
jury could have concluded that the hotel room was not Nickels’
place of lodging.
We begin our explanation by exploring the meaning of the
phrase “place of lodging.” On this point, we first observe
that for Nickels to be entitled to the privilege of nonretreat,
it is not sufficient that he be present in a “place of lodging.”
“Dwelling” is defined to mean “the actor’s home or place of
lodging.” § 28-1406(5) (emphasis supplied). The relevant ques-
tion is thus not whether the hotel room was a place of lodging,
but whether it was Nickels’ place of lodging.
[3,4] 	Focusing 	now 	on 	whether 	the 	hotel 	room 	was
Nickels’ place of lodging, we consider the meaning of that
phrase. Although § 28-1406(5) defines dwelling to include a
defendant’s “place of lodging,” the statute does not further
define the phrase “place of lodging.” When terms in a statute
are not specifically defined by the statute, our principles of

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STATE v. NICKELS
Cite as 322 Neb. 1
statutory interpretation generally require us to give such terms
their plain and ordinary meaning. Aguilar v. Valdez-Mendoza,
318 Neb. 402, 16 N.W.3d 130 (2025). We often turn to dic-
tionaries to ascertain a word’s plain and ordinary meaning. Id.
Here, Nickels is correct that at least one dictionary includes
a definition of “lodging” as “a temporary place to stay.”
See Merriam-Webster’s Collegiate Dictionary 731 (11th ed.
2020). But this definition appears alongside others, which
define “lodging” as a “a place to live” or “sleeping accom-
modations.” Id. See, also, 8 The Oxford English Dictionary
1098 (2d ed. 1989) (“[a]ccommodation for rest at night or
for residence”).
We have no doubt that a place where a person sleeps or
stays overnight qualifies as that person’s “place of lodging”
under the statute. Much more difficult to accept is Nickels’
suggestion that any building or structure at which someone
remains for as little as a couple hours and for any purpose
qualifies as the person’s place of lodging. If that were so,
places of lodging would multiply beyond measure; retail estab-
lishments, houses of worship, sports arenas, medical clinics,
other people’s homes, and any other building or structure
would seem to qualify as an individual’s place of lodging
once he or she remained at the location for enough time.
Because we are confident that these places would not com-
monly be considered places of lodging merely because a per-
son remained there for some length of time, we reject Nickels’
suggestion as untenable.
Further, the dictionary definition of “lodging” as “a tem-
porary place to stay” appears to use the word “stay” in a par-
ticular sense. Coming directly after the definition of lodging
as “a temporary place to stay,” and relied on by Nickels, is
a parenthetical suggesting that “stay[ing]” is “for the night.”
See Merriam-Webster’s Collegiate Dictionary, supra. Indeed,
in everyday conversation, asking a friend where he or she
will “stay” during travels is usually not an inquiry about all
the locations the friend might visit and remain for some time,

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but, rather, a question about where he or she will sleep for
the night.
[5] The fact that the phrase “place of lodging” appears
alongside “home” in § 28-1406(5) provides an additional clue
that “place of lodging” is not as broad as Nickels suggests.
Under the associated words canon of statutory interpretation,
if two or more words are grouped together in a statute, the
meaning of a particular word may be determined by refer-
ence to the meaning of associated words and phrases. In re
William R. Zutavern Revocable Trust, 309 Neb. 542, 961
N.W.2d 807 (2021). Specifically, the canon directs that words
grouped together in a statutory list should be given related
meaning. See id. This canon is often applied to avoid giv-
ing “unintended breadth” to statutory language. McDonnell
v. United States, 579 U.S. 550, 569, 136 S. Ct. 2355, 195 L.
Ed. 2d 639 (2016) (internal quotation marks omitted). The
placement of the phrase “place of lodging” next to “home” in
§ 28-1406(5) suggests that a person’s dwelling includes both
their actual home and a place they are temporarily treating
like their home.
With this understanding of “place of lodging” in mind, we
conclude that there was evidence by which the jury could have
concluded that the hotel room was not Nickels’ place of lodg-
ing. Although Nickels rented the room from the hotel, when he
was asked at trial if he was “staying” at the hotel, he responded
that he “rented the room for [Vargas].” Consistent with that
description, Nickels did not sleep in the hotel room and did
not have a change of clothes, a toothbrush, or other personal
items one might bring for an overnight stay. Furthermore,
Nickels spent only about 2 hours in the hotel room, during
which he conversed with Vargas and waited for the possibility
of having sex with her. And when Vargas did not engage in sex
as soon as Nickels hoped, he decided to leave. In this respect,
one could conclude that Nickels was visiting the hotel room
merely to complete a transaction, not because he was treating
it like a temporary home.

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Because there was evidence that would have allowed the
jury to conclude that the hotel room was not Nickels’ dwelling,
the self-defense instruction Nickels requested—the self-defense
instruction the district court gave but with paragraph 4 deleted
entirely—was not warranted by the evidence. Accordingly, the
district court did not err in declining to give it.
(ii) District Court Did Not Plainly Err in Failing
to Instruct Jury to Determine Whether
Hotel Room Was Nickels’ Dwelling
Having concluded that the argument Nickels fully preserved
for appeal lacks merit, we proceed to consider whether the
district court’s self-defense instruction amounted to plain error.
We mentioned above an argument that Nickels raised for the
first time on appeal that we will review for plain error. But
before we get to that, we address an argument that we antici-
pate Nickels might make based on our analysis above.
Specifically, we anticipate that Nickels might respond to
our analysis above by contending that even if paragraph 4
should not have been removed, the district court should have
at least directed the jury to determine whether the hotel room
qualified as Nickels’ dwelling under § 28-1409(4)(b)(i) and
additionally instructed the jury that if it found the hotel room
was his dwelling, he was not obligated to retreat. Here, we
imagine Nickels might say that even if the evidence was not
so one-sided on the dwelling question to justify the removal of
paragraph 4 entirely, neither did it conclusively establish that
the hotel room was not his dwelling. Nickels, however, has not
argued either before the district court or this court that the jury
should have been instructed to determine whether the hotel
room was his dwelling. Accordingly, we could review this
issue for, at most, plain error. See, In re Estate of Meyers, 320
Neb. 871, 31 N.W.3d 591 (2026) (absent plain error, appellate
court can consider only errors both specifically assigned and
specifically argued); State v. Buol, 314 Neb. 976, 994 N.W.2d

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98 (2023) (absent plain error, issue raised for first time on
appeal will be disregarded).
[6,7] At this point, it must be recalled that the plain error
standard imposes a threshold that is not easily cleared. Not
every error that a trial court might make constitutes plain error.
See Peterson v. Brandon Coverdell Constr., 318 Neb. 342,
15 N.W.3d 698 (2025). We have said that plain error may be
found on appeal when an error unasserted or uncomplained
of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the
judicial process. State v. Horne, 315 Neb. 766, 1 N.W.3d 457
(2024). We have additionally observed that courts should find
plain error “only in those rare instances where it is warranted,”
see State v. McSwine, 292 Neb. 565, 582, 873 N.W.2d 405,
418 (2016), as opposed to invoking it “routinely,” see id. at
583, 873 N.W.2d at 418. We have also said that generally, an
appellate court will find plain error only when a miscarriage of
justice would otherwise occur. State v. Anthony, 320 Neb. 757,
30 N.W.3d 187 (2026).
Our precedent also reveals that for an error to be “plainly
evident from the record,” it must be more than a run-of-the-
mill mistake; the error must instead be obvious. Our opinion in
State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021), illus-
trates the point. In that case, we found that a district court did
not plainly err when, in a trial for perjury, it received a 131-
page transcript of an earlier county court trial that included, on
the 129th page, a statement from the county court judge that
he believed that perjury had been committed. We explained
that the defendant did not raise an objection in the district
court based on the county court judge’s comment and that
without such an objection, the district court was not obligated
to review the exhibit “sua sponte for potentially prejudicial
content not objected to by the parties.” Id. at 445, 960 N.W.2d
at 598. We cited approvingly to multiple federal cases in
which courts explained that for the admission of evidence to

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constitute plain error, the evidence must be “obviously inad-
missible.” Id. at 445 n.35 (citing U.S. v. Williams, 527 F.3d
1235 (11th Cir. 2008), and United States v. Amador-Flores,
728 Fed. Appx. 839 (10th Cir. 2018)) (internal quotation
marks omitted).
Other opinions from this court likewise demonstrate that
an error must be obvious for it to be plainly evident from
the record. In State v. Mata, 266 Neb. 668, 668 N.W.2d 448
(2003), disapproved on other grounds, State v. Falcon, 319
Neb. 911, 25 N.W.3d 462 (2025), we concluded that in deter-
mining whether an error was “plain,” we would follow the
approach adopted by the U.S. Supreme Court in Johnson v.
United States, 520 U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d
718 (1997), and ask whether the error was plain at the time
of appellate consideration. See, also, State v. Smith, 284 Neb.
636, 822 N.W.2d 401 (2012) (concluding that error is plain
for purposes of plain error review if it was plain at time of
appellate consideration). In Johnson, the U.S. Supreme Court
explained that for an error to qualify as plain, it must be
“clear” or “obvious.” Id., 520 U.S. at 467 (internal quotation
marks omitted) (quoting United States v. Olano, 507 U.S. 725,
113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)).
In this case, we cannot say that it was clear or obvious that
the district court should have instructed the jury to determine
whether the hotel room was Nickels’ dwelling. For one thing,
prior to this case, this court had never held that where the
evidence is in conflict as to whether a defendant was pres-
ent in his or her dwelling and thus entitled to the privilege
of nonretreat, the jury must make that determination. On top
of that, even if that legal proposition had been previously
established, the evidence in this case did not make it clear or
obvious that this was a case in which the jury should decide
whether the hotel room was Nickels’ dwelling. As discussed
above, Nickels did not sleep in the hotel room, had no belong-
ings in the room suggesting he was planning for an overnight
stay, was present in the hotel room for only about 2 hours, and

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specifically testified that he “rented the room for [Vargas].” It
was not plainly evident from the record that the district court
should have instructed the jury to determine whether the hotel
room was Nickels’ dwelling.
(iii) District Court Did Not Plainly Err by
Including Duty to Retreat Language in
Self-Defense Instruction
Finally, we address Nickels’ argument raised for the first
time on appeal that paragraph 4 should have been removed
from the self-defense instruction because he could not have
retreated in the hotel room. For this argument, Nickels relies
on State v. Schroeder, 199 Neb. 822, 261 N.W.2d 759 (1978).
In Schroeder, a defendant was charged with assault with
intent to inflict great bodily injury after he stabbed his prison
cellmate. The defendant requested an instruction based on
the defense of choice of harms, which the trial court refused
to give. This court found that the trial court did not err in
refusing to give the instruction, reasoning that there was
no evidence that would allow the jury to conclude that the
defendant believed an assault was imminent. The opinion also
stated that while those threatened with force ordinarily have
a duty to retreat, “[t]he duty to retreat was not applicable
here because the defendant could not retreat.” Id. at 826, 261
N.W.2d at 761.
Relying on the above-quoted language, Nickels argues that
paragraph 4 should not have been included in the self-defense
instruction because, like the inmate confined to a prison cell
in Schroeder, there was no way for him to retreat in the hotel
room. Again, however, we find that Nickels has not dem-
onstrated plain error. We first note that the language from
Schroeder that Nickels relies upon is dicta, as it was not nec-
essary to this court’s determination that the trial court did not
err in refusing to give the defendant’s requested instruction.
Additionally, Nickels points us to little evidence showing that
the hotel room, or, more precisely, the suite of rooms, was

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equivalent to a prison cell with respect to his ability to retreat.
But even setting those facts to the side, we are confident that
no miscarriage of justice took place. Paragraph 4 instructed
the jury that Nickels was under no obligation to retreat if “he
reasonably did not believe he could do so in complete safety.”
Accordingly, if the jury believed that Nickels did not retreat
because he reasonably could not retreat, his failure to retreat
did not preclude a finding that he acted in self-defense. We
thus see little risk that Nickels was convicted based on a fail-
ure to retreat from a place from which retreat was impossible
and conclude that leaving Nickels’ convictions in place will
result in no miscarriage of justice and no risk of damage to
the integrity, reputation, and fairness of the judicial process.
See State v. Horne, 315 Neb. 766, 1 N.W.3d 457 (2024).
Accordingly, we find no plain error in the district court’s self-
defense instruction.
2. Character for Peacefulness During
Prosecution’s Case in Chief
Nickels next assigns that the district court erred by not
allowing him to present evidence of his character for peaceful-
ness during the State’s case in chief. We find no merit to this
assignment.
(a) Additional Background
Following the shooting, Nickels left the hotel and drove
to Missouri. While driving, Nickels called a few friends and
family members and told them what happened. One of these
family members was his stepson. During its case in chief, the
State called Nickels’ stepson as a witness, and he testified that,
on the phone call, Nickels told him he had killed a “girl” in a
hotel room.
During cross-examination of his stepson, Nickels sought to
elicit evidence of his own character for peacefulness. The dis-
trict court initially ruled that, for Nickels’ character for peace-
fulness to be admissible, Nickels himself had to testify. Nickels
argued otherwise.

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The district court later changed its ruling on the issue. It
informed Nickels that he would be able to present evidence
of his character trait for peacefulness during his case in
chief regardless of whether Nickels chose to testify. The dis-
trict court stated, however, that it would continue to sustain
objections to questions to Nickels’ stepson regarding Nickels’
character for peacefulness during the State’s case in chief on
the grounds that they were beyond the scope of the direct
examination.
Nickels later called his stepson as a witness during his case
in chief. His stepson testified that Nickels is calm, patient, and
peaceful; that Nickels is not violent; and that he had never
seen Nickels lose his temper.
(b) Standard of Review
[8] The scope of cross-examination of a witness rests largely
in the discretion of the trial court, and its ruling will be upheld
on appeal unless there is an abuse of discretion. State v. Kuehn,
273 Neb. 219, 728 N.W.2d 589 (2007).
(c) Analysis
Nickels contends that the district court erred by not allowing
him to elicit evidence of his character for peacefulness dur-
ing the prosecution’s case in chief. He argues extensively that
such evidence was admissible under Neb. Rev. Stat. § 27-405
(Reissue 2016) but says almost nothing about the district
court’s determination that such evidence exceeded the scope of
the State’s direct examination. For that reason alone, Nickels’
argument fails.
Further, we can discern no possible harm to Nickels from
the district court’s ruling. Even assuming for the sake of argu-
ment that the district court erred by not allowing the testi-
mony during the State’s case in chief, Nickels was permitted
to elicit testimony from his stepson regarding his character
for peacefulness during his case in chief. This assignment of
error lacks merit.

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3. Ineffective Assistance: Failure to Adduce
Evidence of Vargas’ Violence
Beyond errors Nickels assigned to the district court, Nickels
also assigns that his trial counsel provided ineffective assis-
tance of counsel. Nickels’ first assignment of ineffective
assistance of counsel is that his trial counsel failed to elicit
testimony from two witnesses who he claims would have tes-
tified to “violent, erratic, and aggressive behavior” of Vargas.
For reasons we will explain, we find that even if Nickels’
counsel performed deficiently, Nickels cannot show that he
was prejudiced.
(a) Additional Background
Nickels’ counsel stated at a pretrial hearing that the defense
planned to call Dezjarron Jones, who would testify to the fact
that he had been in a relationship with Vargas and that she
had “a propensity to act with volatility and aggression.” At
another pretrial hearing, Nickels’ trial counsel stated that he
planned to call Katherine Foley, an acquaintance of Vargas,
who would “testify consistently with what [Jones] would tes-
tify to.”
Nickels did not call Jones as a witness at trial. He did call
Foley to testify to Vargas’ character for violence. Nickels’
counsel asked whether Foley believed Vargas had a propensity
for violence, to which Foley said, “I believe she did.” Trial
counsel did not ask Foley any more questions.
On appeal, Nickels assigns that his counsel was ineffective
in failing to elicit testimony from Jones and Foley as to specific
occasions on which they observed Vargas acting violently or
erratically. Specifically, Nickels asserts that Jones could have
testified to “instances [of] violence on the part of [Vargas] that
involved a firearm.” Brief for appellant at 31. Nickels claims
that Foley could have testified that Vargas assaulted her best
friend on a number of occasions and, additionally, threatened
Foley’s children.

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(b) Analysis
Nickels asserts that his counsel should have elicited the
testimony from Jones and Foley described above, as it would
have strengthened his claim of self-defense. Nickels argues that
if Jones and Foley had testified to specific instances of violent
or erratic conduct by Vargas, it would support his contention
that Vargas was the initial aggressor and that he shot her in
self-defense.
[9,10] Generally, to prevail on a claim of ineffective assis-
tance of counsel under the framework established by the U.S.
Supreme Court in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. State v. Lopez, 321 Neb. 118, 32 N.W.3d
868 (2026). To show that counsel’s performance was defi-
cient, a defendant must show that counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law. Id.
[11-13] To show prejudice in a claim of ineffective assis-
tance of counsel, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. Id. A
reasonable probability of prejudice is a probability sufficient
to undermine confidence in the outcome. Id. In determining
whether there is a reasonable probability that any deficient
performance of trial counsel would have resulted in a different
outcome in the proceeding, an appellate court may properly
consider the strength of the admissible evidence relating to the
controverted issues in the case. Id.
[14] An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires examination of facts
not contained in the record. Id. But if the record on direct
appeal conclusively establishes either that trial counsel’s per-
formance was not deficient or that any deficient performance

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did not prejudice the defendant’s defense, an appellate court
can determine trial counsel was not ineffective. Id.
In this case, even if we assume that Nickels’ trial counsel
performed deficiently by not eliciting the testimony Nickels
describes, we conclude that the record conclusively establishes
that Nickels was not prejudiced. The jury heard testimony from
Nickels as to Vargas’ violent and erratic behavior on the night
of the shooting. It also heard Foley’s testimony that Vargas had
a propensity for violence. The testimony of Jones and Foley
would have, at most, provided some additional evidence that
Vargas was prone to violent or erratic behavior. Even so, we
see no reasonable probability that the jury would have con-
cluded that Nickels was entitled to shoot her.
Nickels was entitled to use deadly force against Vargas if
he had a reasonable and good faith belief in the necessity
of using deadly force. See State v. Lopez, 321 Neb. 118, 32
N.W.3d 868 (2026). Given Nickels’ admissions that he never
saw a gun in Vargas’ possession on the day of the shooting,
that Vargas had never been violent with him before, and that
he could not even see if she was reaching in her backpack
because it was covered by a jacket, we see no reasonable
probability that the jury would have concluded that Nickels
had a reasonable and good faith belief in the necessity of
using deadly force if it had heard testimony regarding a few
instances of Vargas’ violent conduct. Because the record dem-
onstrates that Nickels cannot establish prejudice, this claim of
ineffective assistance of counsel is without merit.
4. Ineffective Assistance: Use
of the Word “Murder”
Nickels also claims that his counsel provided ineffective
assistance of counsel in another respect. Here, he contends
that his counsel should have objected and moved for a mis-
trial based on the prosecutor’s and a detective’s use of the
word “murder” during trial. He contends that in using the word

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“murder,” both the prosecutor and the detective offered an
opinion as to Nickels’ guilt. We find no merit to this claim.
(a) Additional Background
Before Nickels’ trial, he filed a motion in limine and asked
the district court to, among other things, prevent the State from
eliciting any opinions from witnesses as to Nickels’ guilt. The
parties stipulated to an order prohibiting the parties from “tes-
tifying as to the opinion of [Nickels’] guilt.”
During trial, the State called a detective who testified about
his investigation of the shooting. The State asked the detective
a series of questions about why certain items found inside the
hotel room were not tested. The detective explained that those
items were not tested because Nickels was the only person in
the hotel room with Vargas when she was shot and the other
evidence was less probative. During that explanation, the
detective used the word “murder” several times. For example,
he stated that he knew who was in the room when Vargas was
“murdered” and that he knew the other individuals who had
been in the room with Vargas earlier did not “murder” her. On
cross-examination, the detective also referred to the gun found
on Nickels as “[t]he murder weapon.”
During the detective’s redirect testimony, the prosecutor also
used the word “murder” in several questions. Most of those
questions referred to Nickels as a “suspect in the murder of”
Vargas. The prosecutor also asked a question referring to the
“murder weapon.”
At no point did Nickels’ counsel object to the use of the
word “murder.” Nor did Nickels’ trial counsel move for a mis-
trial on that basis.
(b) Analysis
Nickels claims that the use of the word “murder” by the
prosecutor and the detective amounted to the expression of
an opinion as to Nickels’ guilt. This, he claims, transgressed
the district court’s order in limine, caused the prosecutor to

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violate his ethical duties, and should have prompted an objec-
tion and motion for mistrial by his counsel. We disagree. We
find that there was no improper conduct nor any possibility
of prejudice, and, thus, any objection or motion for mistrial
would not have been successful.
We do not agree that the use of the word “murder” by either
the prosecutor or the detective amounted to the expression of
an opinion about Nickels’ guilt. The detective was, in fact,
investigating whether Vargas’ death was a murder, and it is
thus neither surprising nor improper that he would use that
term while describing his investigation. Viewed in its proper
context, the detective’s testimony cannot be understood as
containing an assertion about whether the elements of murder
had been satisfied. As for the prosecutor, it was certainly not
improper to refer to Nickels as being a suspect in Vargas’
murder—Nickels was a suspect in Vargas’ murder, and one
could say so without expressing an opinion as to whether
Nickels was guilty of murder.
When Nickels’ arguments are considered within the con-
text of this case, it becomes even clearer that the references
were neither improper nor prejudicial. The parties agreed on
almost all of the facts in this case, save for whether Nickels
acted in self-defense when he shot Vargas. But none of the
uses of the word “murder,” by the prosecutor or the detective,
can reasonably be understood as an expression of an opinion
about whether Nickels had a valid self-defense claim. We see
no basis to conclude that Nickels’ counsel acted deficiently
by failing to object or move for a mistrial based on the state-
ments of the prosecutor and the detective.
[15] And even if we could look past the deficient per-
formance prong, Nickels’ ineffective assistance claim would
still fail because had an objection or motion for mistrial been
made, there is no reasonable probability that the outcome of
the trial would have been different. An objection would have
been unsuccessful because, as we explained above, the com-
ments were not improper. Neither would a motion for mistrial

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have been successful. A mistrial is properly granted in a
criminal case where an event occurs during the course of trial
which is of such a nature that its damaging effect cannot be
removed by proper admonition or instruction to the jury and
thus prevents a fair trial. State v. Lenhart, 317 Neb. 787, 11
N.W.3d 661 (2024). The uses of the word “murder” here were
not improper, and they certainly were not of such significance
that they prevented Nickels from receiving a fair trial. Nickels’
second ineffective assistance of counsel claim is meritless.
IV. CONCLUSION
As we have discussed above, none of Nickels’ assignments
of error have merit. We therefore affirm his convictions.
Affirmed.