State of Nebraska v. Marcus M. Escamilla

Following a jury trial, Marcus M. Escamilla was convicted

in the district court for Douglas County of first degree murder,

use of a deadly weapon to commit a felony, and possession

of a deadly weapon by a prohibited person. Escamilla

appeals, claiming as his only assignment of error that there

was insufficient evidence of premeditation to convict him of

first degree murder. Because the record contains sufficient evidence

to support the jury's verdict, we affirm his convictions

and sentences.

STATEMENT OF FACTS

Escamilla was convicted of first degree murder, use of

a deadly weapon to commit a felony, and possession of a

deadly weapon by a prohibited person in connection with the

2013 shooting death of Kenneth Gunia. He was sentenced to

life imprisonment for his conviction of first degree murder,

5 years' imprisonment for his conviction of use of a deadly

weapon to commit a felony, and 3 years' imprisonment for

his conviction of possession of a deadly weapon by a prohibited

person. Escamilla's sentences were ordered to be served

- 183 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

consecutively to each other, and he was given credit for 414

days of time served.

Evidence at trial generally indicated that on the night of

April 16, 2013, Escamilla drove with Michele Willcoxon to an

apartment complex located on 24th Street in Omaha, Nebraska,

in order to meet up with Gunia. When they arrived at the apartments,

Escamilla got out of Willcoxon's black sport utility

vehicle (SUV) and met Gunia in the parking lot. They talked

outside Gunia's car for a brief time before they both got into

Gunia's car, where Escamilla shot and killed Gunia. Escamilla

then walked back to Willcoxon's SUV, and she drove Escamilla

back to his residence.

Escamilla was charged on July 17, 2013, with first degree

murder in alternative theories of premeditated murder and

felony murder, use of a firearm to commit a felony, and possession

of a deadly weapon by a prohibited person. A jury trial

was held May 6 through 9, 2014.

At trial, Willcoxon testified for the State. She said that at the

time of Gunia's death, she knew Escamilla and Janella Marks,

who lived with Escamilla, and that she had become recently

acquainted with Gunia. Willcoxon testified that at the time,

she was using methamphetamine "[a]ll the time,” and that part

of her relationship with Gunia was based on the use and sale

of methamphetamine. On April 15, 2013, Willcoxon "fronted”

Gunia some methamphetamine, and at the end of the day on

April 15, Gunia owed Willcoxon $275 to $300.

Sometime in the early evening on April 16, 2013, Willcoxon

went to the residence of Escamilla and Marks in order to use

methamphetamine with Marks. Willcoxon testified that while

she was with Marks, she was waiting for Gunia to call her to

let her know that he had the money he owed her. Willcoxon

told Marks that she had heard that Gunia was going to rob her.

Escamilla heard this conversation, and Willcoxon testified that

he told her "not to worry about it. He [Escamilla] would say

something to him [Gunia].”

Sometime later that evening, Willcoxon left the residence

of Escamilla and Marks in her SUV and she agreed to give

- 184 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

Escamilla a ride. Willcoxon testified that Escamilla was wearing

a black sweater over a white T-shirt, black pants, black

shoes, and a black hat.

Willcoxon and Escamilla drove to a few places, and during

that time, Gunia texted Willcoxon and they arranged to

meet at the apartment complex on 24th Street. Willcoxon and

Escamilla arrived at the apartment complex at approximately

10 p.m., and when they got there, Willcoxon did not see Gunia

right away, so she circled the parking lot a couple of times.

When Willcoxon and Escamilla saw Gunia walking to his

car, Escamilla got out of the SUV and walked toward Gunia.

As Escamilla approached Gunia, Willcoxon heard Gunia say,

"What? What? What did I do?” as he backed up against the

driver's-side door of his car.

Willcoxon circled her SUV around the parking lot another

time before parking. When she parked, Willcoxon saw Gunia

sitting in the driver's side of his car and Escamilla squatting

down next to the driver's-side door. Willcoxon testified that

she did not constantly watch the activity going on between

Escamilla and Gunia, but that at some point, she looked over

and saw Escamilla in the driver's seat and Gunia in the passenger

seat of Gunia's car. Willcoxon testified that she did

not hear anything come from the car, but that at some point,

Escamilla "jogged” back to her SUV and said they needed to

go. Escamilla got in the passenger side of Willcoxon's SUV,

and she drove them back to Escamilla's residence.

On the way to Escamilla's residence, Escamilla told

Willcoxon that he had shot Gunia. Willcoxon testified that

Escamilla stated, "'I shot that fool.'” When asked to describe

Escamilla's demeanor when he said that, Willcoxon stated that

"[h]e was okay with it. He was hyped up.” Willcoxon testified

that when Escamilla told her about what had occurred in

Gunia's car, "[h]e kind of chuckled” and stated that Gunia

"kept asking — saying that he just want[ed] to go upstairs to

his kids.”

Willcoxon stated that after they arrived at Escamilla's residence,

she stayed for approximately 10 minutes before going

- 185 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

home. Willcoxon testified that she did not see Escamilla with

a gun that night, but she stated that he was wearing loosefitting

clothing.

The State also called Thomas Williams to testify at trial.

At the time of Escamilla's trial, there was a charge of criminal

intent to distribute methamphetamine pending against

Williams, and Williams was incarcerated at the Douglas County

Correctional Center. Williams testified that he was acquainted

with Escamilla through Escamilla's girlfriend, Marks, because

Williams was friends with Marks' father.

Sometime after Williams was incarcerated, Escamilla was

placed in the same unit at the Douglas County Correctional

Center where Williams was placed, and Escamilla started

talking to Williams. In connection with the death of Gunia,

Escamilla asked Williams if he had ever heard "a gun pop

in a car” and stated that he might be in trouble. Williams

asked why, and Escamilla stated that he had "'killed a fool.'”

Escamilla said he had killed Gunia inside a car in front of the

residence of Gunia's girlfriend off of 24th Street. Escamilla

told Williams that "since the gun was pushed uptight [sic]

against him [Gunia], it was just like a whoosh inside the car.”

He also told Williams that he had "the piece up on [Gunia]

so good . . . that it wasn't like a loud pop, bang. It was like a

whoosh. Like an air — like an air release or something in the

car.” Williams testified that Escamilla indicated that he held

the gun up to Gunia's abdominal area. Escamilla told Williams

that after he shot Gunia, he "casually got out of [Gunia's] car,”

walking back to the SUV in which he had arrived, and he and

Willcoxon drove away.

Amanda Wickersham, Gunia's girlfriend at the time of his

death, was called to testify. At the time of Gunia's death,

Wickersham and her two children were living in the apartment

complex at the 24th Street location, and Gunia sometimes

stayed at her apartment. Wickersham stated that she

was aware of Gunia's drug use and that it had caused problems

between them. Wickersham testified that on the night

of Gunia's murder, April 16, 2013, Gunia had made dinner

- 186 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

and spent time with her children. After dinner, Wickersham

lay down because she was not feeling well. Gunia lay down

next to her for a little while, then he got up and left the room.

After a while, Wickersham realized Gunia had not returned

to the room, so she got up to look for him. Gunia was not

in the apartment, but his coat was still there, so Wickersham

called him.

Wickersham testified that when she dialed Gunia's cell

phone number, the call was answered, but she did not actually

converse with Gunia. She stated that she heard a man's voice

who was not Gunia and that it sounded like there was "some

kind of argument or tussle going on.” She ended the call.

Because she assumed there was something wrong, she went

downstairs. When she got downstairs, she saw a man walking

away from where Gunia's car was parked. She described

the man as white or light skinned, wearing dark clothing, and

between 5 feet 7 inches and 6 feet tall. Wickersham watched

the man get into a dark SUV and leave.

Wickersham testified that she then ran to Gunia's car, where

she found Gunia in the front passenger seat. Wickersham

stated that the passenger car door was open, and Gunia's

legs were outside the car. Wickersham nudged Gunia, and he

reacted, so Wickersham called the 911 emergency dispatch

service. Wickersham testified that there appeared to be a burn

hole in Gunia's shirt on the left side of his abdominal area,

but that she was "too scared to lift the shirt up to see what

was underneath it.” While she was waiting for the police to

arrive, Wickersham stated that Gunia was unable to speak, but

that he had "reach[ed] out” to her.

Lisa Stafford, Wickersham's neighbor at the apartment

complex, was then called to testify. She stated that on the

night of Gunia's murder, she was home studying. At approximately

10 p.m., Stafford was smoking a cigarette near her

bedroom window that overlooked the apartment complex's

parking lot. She observed two men in the parking lot near a

white car, one wearing a white shirt and the other dressed in

black. Stafford stated that the two men were standing "really

- 187 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

close to each other,” which Stafford found to be "odd,” so she

watched them. Stafford described the man dressed in black

as approximately 5 feet 7 inches tall and light skinned, either

"white or Hispanic or native.”

Stafford stated that she thought the man dressed in black

was trying to make the man in the white shirt get into the

driver's side of the white car. Specifically, she testified that

Escamilla's conduct was aggressive and that "there was no

way for the guy in the white shirt to go [anywhere] but into the

car.” Stafford stated she believed the man in the white shirt was

nervous or drunk based on his body language. She stated that

he was "kind of jittery or shaky or not fully stable.” Stafford

turned away for a moment, and when she looked back out the

window, the two men were in the car. She heard a "pop” and a

man's scream. She then observed the man dressed in black get

out of the driver's side of the white car and walk across the

parking lot to a black SUV. He got in the passenger side of the

black SUV, and it drove away.

Stafford testified that she left her apartment and went downstairs

to the white car, where she encountered Wickersham. She

saw the man in the white shirt in the front passenger seat in the

car. She stated that his white shirt appeared to be black on the

side of his body. Stafford reached into the car to see if the man

had a pulse; he then "took a big gasp of air . . . like he was

trying to breathe.” Stafford was there when the police arrived,

and she gave a statement to the police that night.

The State then called Savannah Sharpe to testify. Sharpe

stated that she met Gunia at a drug rehabilitation center in

2011. Sharpe stated that in April 2013, Gunia would call

her every night to check on her and her children. On April

16, Sharpe was having a telephone conversation with Gunia

at approximately 10 p.m., and Sharpe testified that her conversation

with Gunia stopped when she heard another man

approach Gunia, but that Sharpe stayed on the open line.

Sharpe testified that she could hear the conversation between

the two men and that during the conversation, Gunia's tone

changed from confident to "more of a plea.” Sharpe then

- 188 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

heard a sound as if the cell phone had been dropped or

stepped on, which she described as sounding like "pow pow

pow.” Sharpe testified that after hearing the noises, she heard

Gunia breathing and making a gurgling sound. After some

time, Sharpe heard two women's voices and then sirens

before the call was disconnected. Sharpe testified that the

next morning, she learned that there had been a homicide at

the apartment complex, so she called the police to report what

she had heard.

Marks, Escamilla's girlfriend, also testified. She stated that

in April 2013, she was living with Escamilla and knew Gunia

through her father. Marks testified that at that time, she was

using methamphetamine daily. On April 16, Willcoxon came

to the residence of Escamilla and Marks to talk to Escamilla

and, at some point, they left together. Marks testified that

later that night, Escamilla returned to their residence with

Willcoxon, and that after Willcoxon left, Escamilla told Marks

that "he shot somebody.” Marks testified that on that night,

Escamilla was wearing all black and had a gun tucked into

the waistband of his pants. Marks stated that after Willcoxon

left, Escamilla placed the gun in a hole in the ceiling of

their bedroom.

Marks stated that on the morning of April 17, 2013, U.S.

marshals arrived at the residence of Escamilla and Marks.

Marks testified that Escamilla told another person in the residence

to retrieve the gun from the hole in the ceiling and to

hide it in the wall of the shower in the basement bathroom.

The U.S. marshals arrested Escamilla, and they searched the

residence, but they did not find the gun. Marks found the

gun after the marshals left, and she returned it to the hole in

the ceiling.

Marks testified that Escamilla called her from jail soon

after he was arrested and that he asked her to get rid of some

clothes he had left in their bathroom. Marks told Escamilla she

got rid of them, but, in actuality, she did not because she could

not find the clothes. Marks testified that in their telephone

conversation, Escamilla told her to sell his "car” so Marks

- 189 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

would have some money. Marks testified that at the time,

Escamilla did not own a car and that by "car,” he meant the

gun. Marks sold the gun.

The State called Dr. Michelle Elieff, a general and forensic

pathologist, to testify, and Dr. Elieff stated that she performed

the autopsy on Gunia. She testified that Gunia had suffered

a single gunshot wound, with an entrance wound in his left

lower abdomen and an exit wound in his back. Dr. Elieff

stated that the entrance wound had a ring of soot around it

and that "[t]he ring of soot indicates a close range of fire.

Inches perhaps.”

The State rested, and Escamilla presented no evidence in

his defense. At the close of evidence, Escamilla moved to

dismiss the three counts against him and, specifically, the

State's theory of felony murder. The State conceded that it did

not present evidence with regard to the felony murder theory

and requested that the court not instruct the jury as to felony

murder. The court granted the motion to dismiss the theory

of felony murder, and it did not instruct the jury as to felony

murder; however, the court overruled Escamilla's motion with

respect to the theory of premeditated murder and the other two

counts, i.e., use of a deadly weapon to commit a felony and

possession of a deadly weapon by a prohibited person. The

jury was given a step instruction stating that Escamilla could

be found guilty of first degree murder, second degree murder,

intentional manslaughter, or unintentional manslaughter, or

found not guilty.

Escamilla was convicted of first degree murder, use of a

deadly weapon to commit a felony, and possession of a deadly

weapon by a prohibited person. Escamilla moved for a new

trial, which the district court overruled. After a sentencing

hearing, the district court filed an order on August 4, 2014,

sentencing Escamilla to life imprisonment for his conviction

of first degree murder, 5 years' imprisonment for his conviction

of use of a deadly weapon to commit a felony, and

3 years' imprisonment for his conviction of possession of a

deadly weapon by a prohibited person. Escamilla's sentences

- 190 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

were ordered to be served consecutively to one another, and

Escamilla was given credit for 414 days of time served.

Escamilla appeals.

ASSIGNMENT OF ERROR

Escamilla contends that there was insufficient evidence

of premeditation to support his conviction for first degree

murder.

STANDARDS OF REVIEW

[1,2] In reviewing a criminal conviction for a sufficiency

of the evidence claim, 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. See State v. Hale, 290

Neb. 70, 858 N.W.2d 543 (2015). 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. See, id.; State v. Juranek, 287

Neb. 846, 844 N.W.2d 791 (2014).

ANALYSIS

Escamilla asserts that the evidence adduced at trial was

insufficient to support a conviction of first degree murder.

Escamilla specifically contends that the evidence was insufficient

to support a finding that the killing was done with

deliberate and premeditated malice. Contrary to Escamilla's

argument, we determine that there is sufficient evidence in the

record to support the jury's verdict, and we therefore find no

merit to this assignment of error.

Escamilla stands convicted of premeditated murder, which

in Nebraska is a form of murder in the first degree. Pursuant

to Neb. Rev. Stat. § 28-303 (Reissue 2008), a person commits

this form of murder in the first degree if he or she kills

another person purposely and with deliberate and premeditated

malice. We have summarized the three elements which

- 191 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

the State must prove beyond a reasonable doubt to obtain a

conviction for first degree murder as follows: The defendant

(1) killed another person, (2) did so purposely, and (3) did so

with deliberate and premeditated malice. State v. Morgan, 286

Neb. 556, 837 N.W.2d 543 (2013); State v. Watt, 285 Neb.

647, 832 N.W.2d 459 (2013). A question of premeditation is

for the jury to decide. State v. Watt, supra.

[3-5] With respect to the element of "deliberate and premeditated

malice,” our cases commonly look to the facts

showing the planning of a murder and the manner in which

the murder was carried out. Regarding planning we have

stated:

"'Deliberate means not suddenly, not rashly, and

requires that the defendant considered the probable consequences

of his or her act before doing the act. . . .

The term "premeditated” means to have formed a design

to commit an act before it is done. . . . One kills with

premeditated malice if, before the act causing the death

occurs, one has formed the intent or determined to kill

the victim without legal justification. . . . No particular

length of time for premeditation is required, provided

that the intent to kill is formed before the act is committed

and not simultaneously with the act that caused the

death. . . .'”

Id. at 659, 832 N.W.2d at 474, quoting State v. Nolan, 283

Neb. 50, 807 N.W.2d 520 (2012). The time required to establish

premeditation may be of the shortest possible duration

and may be so short that it is instantaneous, and the design

or purpose to kill may be formed upon premeditation and

deliberation at any moment before the homicide is committed.

State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).

Whether premeditation exists depends on numerous facts

about "how and what the defendant did prior to the actual

killing which show he was engaged in activity directed

toward the killing, that is, planning activity.” 2 Wayne R.

LaFave, Substantive Criminal Law § 14.7(a) at 480 (2d ed.

2003) (emphasis in original).

- 192 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

Regarding the method of a murder, we have observed that

the manner or fashion in which the injury is inflicted may

show a deliberate act and hence serve as evidence to support

a finding of premeditation. See State v. Watt, 285 Neb. at 659,

832 N.W.2d at 474 (stating that "the act of shooting an individual

in the manner described by the witnesses in this case

is inherently a deliberate act”); State v. Nolan, 283 Neb. at

74, 807 N.W.2d at 541 (stating that "[t]he act of shooting an

individual, at least in the fashion described by [a witness], is

inherently a deliberate act”). Other sources are in accord. See,

e.g., 40A Am. Jur. 2d Homicide § 448 (2008) (stating that finding

of premeditation may be supported by nature and number

of victim's wounds or use of deadly weapon upon unarmed

victim). Other courts agree that the manner of the murder can

serve as evidence of premeditation. Thus, it has been stated

that the fact finder may look to "facts about the nature of the

killing from which it may be inferred that the manner of killing

was so particular and exacting that the defendant must

have intentionally killed according to a preconceived design.”

State v. Clark, 739 N.W.2d 412, 422 (Minn. 2007) (emphasis

in original), quoting State v. Moore, 481 N.W.2d 355 (Minn.

1992). See, also, 2 LaFave, supra.

[6] In a criminal case, the evidence upon which a jury may

rely in making its findings may be direct, circumstantial, or

a combination thereof. See State v. Hale, 290 Neb. 70, 858

N.W.2d 543 (2015). Deliberation and premeditation may be

proved circumstantially. State v. Beers, 201 Neb. 714, 271

N.W.2d 842 (1978). In State v. Kofoed, 283 Neb. 767, 788-89,

817 N.W.2d 225, 242 (2012), we stated that "circumstantial

evidence is not inherently less probative than direct evidence.

In finding a defendant guilty beyond a reasonable doubt, a fact

finder may rely upon circumstantial evidence and the inferences

that may be drawn therefrom.” It has been observed that

premeditation may be established by circumstantial evidence,

including the nature of the defendant's conduct before and

after the killing. See 40A Am. Jur. 2d, supra.

- 193 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

Given the foregoing principles and remembering that on

appeal after conviction, the evidence is viewed in a light most

favorable to the State, we determine that there is sufficient

evidence in this record to support the jury's finding beyond a

reasonable doubt that Escamilla killed Gunia with deliberate

and premeditated malice.

Although no one testified directly that they saw Escamilla

arrive at the meeting with Gunia with a gun, the overwhelming

evidence in the case shows that Escamilla brought a gun

to the event. Further, there is no indication that Gunia had a

gun. Willcoxon testified that when Escamilla first approached

Gunia in the parking lot, Gunia backed up against the driver'sside

door of his car and said, "What? What? What did I do?”

A juror could infer from Gunia's reaction that Gunia saw that

Escamilla was approaching him with a gun. Willcoxon testified

that after Escamilla got out of Gunia's car and returned

to her SUV, Escamilla told her, "'I shot that fool.'” Williams

testified that Escamilla told him that he had "'killed a fool'”

inside of a car. Marks testified that after Escamilla returned

to their residence on the night of the shooting, Escamilla told

her he had shot somebody, and that he then pulled a gun out

of the waistband of his pants and hid it. Thus, there is considerable

evidence that Escamilla arrived at the meeting with

Gunia with a gun and that over the course of their encounter,

if not before, Escamilla formed a design to kill Gunia with no

legal justification.

Stafford, the neighbor of Gunia's girlfriend, Wickersham,

testified that she observed Escamilla and Gunia in the parking

lot the night of the shooting. She stated that Escamilla's

conduct was aggressive and that "there was no way for [Gunia]

to go [anywhere] but into the car.” Stafford also testified that

Gunia appeared to be nervous or drunk. After Stafford heard

a "pop” and a man's scream, she observed Escamilla get out

of the driver's side of Gunia's car and walk to Willcoxon's

SUV. The evidence indicates that when Escamilla shot Gunia,

Escamilla was in the driver's seat of Gunia's car and Gunia

was in the passenger seat. Based on this placement and other

- 194 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

evidence, a juror could infer that Escamilla was in control

of the situation by forcing Gunia to get into the driver's side

of his car and to slide across to the passenger side, while

Escamilla sat in the driver's seat. Escamilla's control of the

situation indicates a deliberate plan unfolding that is indicative

of premeditation.

Sharpe testified that she was on the telephone with Gunia the

night of the shooting. She stated that when she heard another

man, Escamilla, approach Gunia, her conversation with Gunia

stopped, but that she stayed on the open line and overheard

the conversation between the two men. Sharpe testified that

during that conversation, Gunia's tone shifted from confident

to "more of a plea.” She then heard a sound as though the cell

phone had been dropped and a "pow pow pow.” After those

noises, Sharpe heard what she described as Gunia's struggling

to breathe.

As stated above, no particular length of time for premeditation

is required, provided that the intent to kill is formed

before the act is committed and not simultaneously with the

act that caused the death. State v. Watt, 285 Neb. 647, 832

N.W.2d 459 (2013). Furthermore, the time required to establish

premeditation may be of the shortest possible duration

and may be so short that it is instantaneous, and the design

or purpose to kill may be formed upon premeditation and

deliberation at any moment before the homicide is committed.

State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011). The

jury could infer from the testimony of Willcoxon, Williams,

Marks, Stafford, and Sharpe that Escamilla's plan was unfolding

and that Escamilla had sufficient time to form an intent

to kill prior to shooting Gunia, and these facts would establish

premeditation.

[7] A rational juror could also find that the manner in which

Escamilla killed Gunia, i.e., the placement of the gun at close

range to Gunia's torso, indicates a deliberate and premeditated

killing with malice. With respect to the nature or manner of

killing, it has been stated that "what is required [to show

premeditation] is evidence (usually based upon examination

- 195 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

of the victim's body) showing that the wounds were deliberately

placed at vital areas of the body.” 2 Wayne R. LaFave,

Substantive Criminal Law § 14.7(a) at 481 (2d ed. 2003). The

Virginia Supreme Court has recognized that the placement of a

gun that is used to shoot a victim may indicate premeditation.

See Stewart v. Com., 245 Va. 222, 427 S.E.2d 394 (1993). In

Stewart, the Virginia Supreme Court stated that "evidence that

a weapon was placed against a victim's head when the fatal

shot was fired . . . is sufficient alone to support a finding that

'the shot was fired deliberately and with premeditation.'” Id.

at 240, 427 S.E.2d at 406, quoting Townes v. Commonwealth,

234 Va. 307, 362 S.E.2d 650 (1987). Similarly, we have previously

stated that intent to kill may be inferred from deliberate

use of a deadly weapon in a manner reasonably likely to cause

death. State v. Watt, supra. See, also, State v. Iromuanya, 272

Neb. 178, 719 N.W.2d 263 (2006); State v. Gunther, 271 Neb.

874, 716 N.W.2d 691 (2006).

The evidence shows that Escamilla shot Gunia on the left

side of Gunia's abdomen from a close range. The shot was to

the torso and was a "through-and-through wound,” perforating

the aorta. Dr. Elieff testified that the entrance wound from the

bullet on Gunia's abdomen indicated that the shot was fired

from inches away. Dr. Elieff observed a ring of soot around

the wound. Furthermore, Williams testified that Escamilla told

him that "the gun was pushed uptight [sic] against [Gunia]”

and that "the piece was up on [Gunia] so good . . . that it

wasn't like a loud pop, bang. It was like a whoosh.” Based

upon this evidence, a rational juror could infer Escamilla had

formed the intent to kill from the deliberate use of a deadly

weapon in a manner reasonably likely to cause death. See State

v. Watt, supra.

The evidence also indicates that Escamilla was calm immediately

after he killed Gunia. Calmness immediately after a

killing has sometimes been associated with premeditation.

See 40A Am. Jur. 2d Homicide § 448 (2008). Williams testified

that after Escamilla shot Gunia, Escamilla "casually got

out of the car” in which he had just shot Gunia and walked

- 196 -

Nebraska Advance Sheets

291 Nebraska Reports

STATE v. ESCAMILLA

Cite as 291 Neb. 181

back to Willcoxon's SUV, and they drove away. Willcoxon

testified that as she and Escamilla were driving away from the

scene, Escamilla told her, "'I shot that fool,'” and Willcoxon

said that Escamilla's behavior showed that he "was okay with

it.” She also testified that when Escamilla told her what had

occurred in Gunia's car, "[h]e kind of chuckled.”

[8] The law imposes a heavy burden on a defendant who

claims on appeal that the evidence is insufficient to support a

conviction. See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520

(2012). Faced with the trial record to which we have referred

above, we determine that Escamilla has not carried that burden.

Given the evidence, we determine that a rational trier of

fact could reasonably infer that Escamilla formed an intent to

deliberately kill Gunia before committing the homicide and,

therefore, could have found beyond a reasonable doubt that

Escamilla killed purposely and with deliberate and premeditated

malice. The evidence is therefore sufficient to support

entry of the jury's verdict of first degree murder.

We conclude that the evidence is sufficient to support

Escamilla’s convictions, and we find no merit to his assignment

of error on appeal. Therefore, we affirm the judgment of

the district court.



Affirmed.