Per Curiam.
Thomas P. Merchant appeals his conviction, after a second trial, for acting as a motor vehicle dealer, auction dealer, motor vehicle salesperson, or dealer's agent without the required license under the Motor Vehicle Industry Regulation Act.
The facts surrounding the charges against Merchant are outlined in Merchant I. We briefly recite them here. Merchant undertook a series of transactions with Nebraska Auto Auction, Inc. (NAA), involving the sale and purchase of motor vehicles on June 1, 2011. NAA is an automobile auction company that facilitates sales and purchases between dealers. It holds a valid Nebraska auction license, and by law, only licensed dealers can participate in auctions held by NAA.
NAA requested a copy of Merchant's motor vehicle dealer's license, but he never provided a copy. NAA reported Merchant to the Nebraska Motor Vehicle Industry Licensing Board. After determining that he did not possess a dealer's license, the State charged him with being an unlicensed dealer.
After a jury trial, Merchant was convicted. He appealed, and we reversed his conviction and remanded the cause for a new trial due to the improper admission of expert testimony.
In analyzing Merchant's first trial, we also provided guidance as to the jury instructions given by the district court. We observed that the instructions correctly required the jury to determine that Merchant was not a bona fide consumer, but were incomplete for assuming that he was a motor vehicle dealer. Merchant's status as a motor vehicle dealer was an essential element of the offense that was required to be determined by the jury. We therefore instructed the district court to add an instruction charging the jury to determine whether "Merchant bought, sold, exchanged, caused the sale of, or offered or attempted to sell new or used motor vehicles on or around June 1, 2011."
A second jury trial was held. The State presented evidence that NAA facilitated transactions for Merchant involving the sale and purchase of motor vehicles on two occasions in May and June 2011. Specifically, the State's evidence showed that on June 1, NAA facilitated transactions in which Merchant sold 10 or more vehicles and purchased 19 vehicles. The State further established Merchant's lack of a motor vehicle dealer's license. After the State rested, Merchant moved to dismiss on the ground that the State had failed to prove a prima facie case.
In arguing that the State had failed to prove a prima facie case, Merchant cited to the definition of "[m]otor vehicle dealer" as provided by § 60-1401.26. That section defines a motor vehicle dealer as
Because a motor vehicle dealer was defined as any person "actively and regularly engaged" in one of the enumerated acts, Merchant contended that there was insufficient evidence to prove such active and regular engagement.
The district court overruled Merchant's motion, finding that his status as a motor vehicle dealer was a question of fact for the jury and that the State had presented
When given the opportunity to object to the above instruction, Merchant requested that the district court give his proposed instructions. The court declined to do so.
The jury returned a verdict finding Merchant guilty of the unlawful sale or purchase of a motor vehicle. He was found to be a habitual criminal and sentenced to imprisonment for a minimum term of 12 years and a maximum term of 26 years. Merchant timely appeals.
Merchant assigns that the district court erred in (1) utilizing instruction No. 3, rather than his proposed instructions, and (2) overruling his motion for directed verdict.
Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.
In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.
Before addressing the merits of Merchant's assignments of error, we first review the licensure requirements under the Motor Vehicle Industry Regulation Act. Section 60-1403.01(1) provides that "[n]o person shall engage in the business as, serve in the capacity of, or act as a motor vehicle ... dealer, salesperson, auction dealer, [or] dealer's agent ... in this state without being licensed by the board under the Motor Vehicle Industry Regulation Act."
The State charged Merchant under § 60-1416, which states that "[a]ny person acting as a motor vehicle dealer, ... auction dealer, motor vehicle ... salesperson, [or] dealer's agent ... without having first obtained the license provided in section 60-1406 is guilty of a Class IV felony...."
The act provides definitions of the above persons subject to the licensure requirement. The most significant to this appeal is the definition of motor vehicle dealer, which has been provided above. But it is relevant to note that a bona fide consumer is expressly excluded from the definition of motor vehicle dealer.
Three other definitions of persons subject to the licensure requirement are also pertinent to our analysis. Because this appeal does not involve motorcycles or trailers, we omit portions of the definitions pertaining to those items. Similarly, we omit language addressing multiple dealerships. Section 60-1401.11 defines "[d]ealer's agent" as "a person who acts as a buying agent for one or more motor vehicle dealers...." Section 60-1401.05 defines "[a]uction dealer" as "any person engaged in the business of conducting an auction for the sale of motor vehicles...." And § 60-1401.27 defines "[m]otor vehicle... salesperson" as "any person who, for a salary, commission, or compensation of any kind, is employed directly by [a] licensed Nebraska motor vehicle dealer ... to sell, purchase, or exchange or to negotiate for the sale, purchase, or exchange of motor vehicles...."
Having reviewed the applicable law, we now turn to Merchant's first assignment of error regarding instruction No. 3.
We first recall governing principles of law relating to a claim of erroneous jury instructions. We have stated that all the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
As noted above, in Merchant I, we found the instructions given at Merchant's first trial to be incomplete. In order to find Merchant guilty, the instructions correctly
In the present appeal, Merchant contends that we erred in our analysis of the jury instructions in Merchant I. He argues that the instruction we directed the district court to utilize at his second trial (which was incorporated into instruction No. 3) misstated the statutory definition of motor vehicle dealer by failing to require that he be actively and regularly engaged in one of the enumerated acts. Thus, he claims that instruction No. 3 caused him prejudice by omitting a material element of the offense.
But we must first address the State's argument that Merchant is barred from challenging instruction No. 3. Although not expressly acknowledged, the State implicitly relies upon the law-of-the-case doctrine for its argument. Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it in reviewing proceedings of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either expressly or by necessary implication.
Merchant failed to move for rehearing from our analysis of the jury instructions in Merchant I. Consequently, upon remand, our findings as to the jury instructions became the law of the case and conclusively settled the issue for purposes of all subsequent stages of the prosecution. Thus, under the doctrine, the district court lacked the ability to deviate from our findings at Merchant's second trial and was required to incorporate the instruction we provided in Merchant I, notwithstanding any claim of error that Merchant might raise.
We, however, are not so bound. On appeal, the law-of-the-case doctrine is a rule of practice that operates to direct an appellate court's discretion, not to limit its power.
We agree that we erred in our analysis of the jury instructions in Merchant I. The instruction we directed the district court to incorporate into instruction No. 3 misstated the statutory definition of motor vehicle dealer. The instruction we provided omitted the "actively and regularly engaged" requirement of § 60-1401.26. Under that section, the definition of motor vehicle dealer entails three requirements. To be a motor vehicle dealer, a person must (1) not be a bona fide
Because Instruction No. 3 failed to charge the jury to determine whether Merchant was "actively and regularly engaged" in one of the acts enumerated by § 60-1401.26, it omitted a material element of the offense from the jury's determination. Such instructional error necessarily implicates considerations of substantial justice, because it violates a defendant's Sixth Amendment guarantee to trial by jury.
But the omission of an element of the offense from the jury's determination is not a constitutional violation requiring automatic reversal. Such error is not structural — so affecting the framework within which the trial proceeds that it affects the entire trial process and renders it fundamentally unfair.
We have stated that harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.
We do not find that the instructional error was harmless in this case. That is, we cannot say beyond a reasonable doubt that the jury would still have found Merchant guilty had it been required to find that he was "actively and regularly engaged" in one of the statutory enumerated acts. At Merchant's second trial, the State presented evidence that he undertook transactions with NAA involving the sale and purchase of motor vehicles on two separate occasions. Although one of these occasions involved the sale and purchase of a significant number of motor vehicles, we are unable to conclude beyond a reasonable doubt that the jury would have found such transactions to constitute active and regular engagement.
Because the omission of the active and regular engagement requirement from instruction No. 3 was not harmless, it warrants reversal and remand for a new trial. But Merchant argues that retrial is prohibited by the Double Jeopardy Clause. With one minor exception, we disagree. Upon finding reversible error in a criminal trial, an appellate court must determine whether the total evidence admitted by the district court, erroneously or not, was sufficient to sustain a guilty verdict.
Although we acknowledge that this is a close case, when viewed in the light most favorable to the prosecution, we find that the total evidence admitted by the district court was sufficient to sustain a guilty verdict. The evidence received at Merchant's second trial established that he undertook transactions with NAA involving the sale and purchase of motor vehicles on two separate occasions within a 2-month period. And the June 1, 2011, transaction involved the sale of approximately 10 vehicles and the purchase of 19 more. In our view, this evidence was sufficient for a jury to conclude that Merchant was actively and regularly engaged in the acts of selling or exchanging new or used motor vehicles. Further, this evidence established that Merchant was not a bona fide consumer, because he sold more than eight motor vehicles within a 12-month period.
However, there was no evidence that Merchant was "engaged in the business of conducting an auction for the sale of motor vehicles."
Based upon our above analysis, we reverse the judgment of conviction and remand the cause for a new trial. In doing so, we wish to make clear that this decision is based upon our own error in Merchant I. The district court did nothing but faithfully follow our direction in instructing the jury at Merchant's second trial. Upon retrial, the district court should craft an instruction charging the jury to determine whether Merchant acted as a motor vehicle dealer, motor vehicle salesperson, or dealer's agent without having first obtained the required license at the time he undertook the transactions with NAA.
Characterizing the offense as an unlawful sale or purchase of a motor vehicle is likely to cause confusion and render the instructions unintelligible, because reference would be required to a complicated series of statutes. Instead, the offense could be described as acting as a motor vehicle dealer, motor vehicle salesperson, or dealer's agent without a license. The State chose to charge Merchant with a single offense that can be committed in
Merchant contends that the district court erred in overruling his motion for directed verdict. Although the record does not show that Merchant ever moved for a directed verdict, he moved to dismiss after the close of the State's case in chief. And we have stated that a motion to dismiss for failure to prove a prima facie case should be treated as a motion for a directed verdict.
Merchant argues that the evidence presented at his second trial was insufficient to establish that he was "actively and regularly engaged" in one of the acts enumerated by § 60-1401.26. Based upon our above analysis, we disagree. As we have already noted, although this is a close case, we view the evidence of the transactions Merchant undertook with NAA as being sufficient to support a finding that he was actively and regularly engaged in the acts of selling or exchanging new or used motor vehicles. Because Merchant limited his argument to the definition of a motor vehicle dealer, we do not address the motion insofar as it was addressed to the alternatives of acting as a motor vehicle salesperson or a dealer's agent. This assignment of error is without merit.
Although we analyzed the jury instructions in this case in Merchant I, we erred in instructing the district court as to the statutory definition of motor vehicle dealer. Our error resulted in a material element of the offense being omitted from the jury's determination and caused Merchant prejudice. We reverse Merchant's conviction for acting as a motor vehicle dealer, motor vehicle salesperson, dealer's agent, or auction dealer without the required license and remand the cause for a new trial. Because there was no evidence to show that Merchant was acting as an auction dealer, he cannot be retried on that alternative means of committing the offense. Thus, the new trial must be limited to the other three alternatives for which Merchant was charged.
REVERSED AND REMANDED FOR A NEW TRIAL.
