Background
In June 2021, fifteen-year-old Mariano Flores and two co-defendants — Quan A. White and Nowa Kawunda — carried out a series of violent crimes over several days in the Omaha area. The episode began on June 13 when, at a pool after hours, White announced a plan to rob their driver, Emmanuel Jacinto Franco. White handed Kawunda a handgun; Flores contributed his phone as a ruse to lure Jacinto Franco to his vehicle, where Kawunda held him at gunpoint and forced him to start the car. Flores and White then jumped the fence and drove off in the stolen vehicle.
Three days later, on June 16, 2021, the group drove to a bar to shoot at people they believed to be affiliated with the Crips gang. They opened fire into a crowd outside, killing one person and seriously injuring another. The trio then drove to a nearby housing complex, again targeting a person they believed to be a Crips affiliate, and fired at him, injuring him and an apartment occupant. On June 17, they stole a second vehicle and were apprehended after the owner remotely tracked it for law enforcement.
Flores was tried jointly with White before a jury on charges including murder in the first degree, robbery, assault in the first degree, two counts of discharging a firearm at an inhabited structure, theft by receiving stolen property, and five counts of use of a deadly weapon to commit a felony. The jury found Flores guilty on all counts. The Douglas County District Court sentenced him to a total aggregate term of 320 years’ to life imprisonment, with all sentences running consecutively.
The Court’s Holding
The Nebraska Supreme Court unanimously affirmed on all three assignments of error. On sufficiency of the evidence, the court held that sufficient evidence supported Flores’ robbery and firearm-use convictions under an aiding and abetting theory. Although Flores did not personally brandish the weapon or demand the keys, the court found a rational jury could conclude that Flores intentionally encouraged and helped Kawunda commit the robbery — by providing his phone as a ruse and being present when White announced the plan and handed over the gun — and that he intended or knew the crimes would be committed.
On the jury instruction issue, the court declined to require a “mere presence” addendum to the standard NJI2d Crim. 3.8 aiding-and-abetting instruction. Relying on its prior decision in State v. Haynie, 317 Neb. 371 (2024), the court reasoned that such language would likely confuse or mislead the jury, that it is impossible to enumerate all conduct that falls short of aiding and abetting, and that the substance of Flores’ concern was adequately covered by the standard instruction.
On sentencing, the court rejected both the excessive-sentence and Eighth Amendment claims. It found that the district court conducted an individualized sentencing analysis — reviewing a comprehensive forensic evaluation, the PSR, and all statutory mitigating factors under Neb. Rev. Stat. § 28-105.02 — and that the mere fact the court imposed the same sentences as co-defendant White did not establish a failure to individualize. On the constitutional question, the court reaffirmed that a de facto life sentence imposed on a juvenile does not violate the Eighth Amendment so long as the sentencing court retained discretion to impose a lesser penalty, which it did here.
Key Takeaways
- A defendant can be convicted of robbery and firearm-use under Nebraska’s aiding and abetting statute even if he neither handled the weapon nor personally took the victim’s property, provided the evidence shows he intentionally encouraged or assisted the perpetrator and intended or knew the crime would occur.
- A trial court need not supplement the standard NJI2d Crim. 3.8 aiding-and-abetting instruction with “mere presence” language; such an addition risks confusing the jury and is not required by Nebraska law, even where case law uses that phrase in describing the doctrine.
- An aggregate de facto life sentence imposed on a juvenile does not constitute cruel and unusual punishment under the Eighth Amendment as long as the sentencing court retained discretion to impose a lesser sentence for each individual offense and meaningfully considered the juvenile-specific mitigating factors required by § 28-105.02.
- A sentencing court’s imposition of identical sentences on co-defendants does not, standing alone, establish that the court failed to make an individualized sentencing determination.
Why It Matters
This decision reinforces Nebraska’s position — consistent with its post-Miller v. Alabama jurisprudence — that lengthy aggregate sentences for juvenile offenders clear the Eighth Amendment bar so long as the sentencing judge exercises genuine discretion and considers youth-related mitigating factors. Defense counsel cannot avoid that outcome simply by pointing to an even longer aggregate term than those previously upheld; the constitutional inquiry focuses on the process and discretion at sentencing, not the arithmetic of consecutive terms.
For practitioners, the case also tightens the standard for supplementing the Nebraska pattern aiding-and-abetting instruction. Defendants seeking to add defensive “mere presence” language face a high bar: the court treats such additions as presumptively confusing and redundant of the pattern charge, leaving counsel to address the concept through closing argument rather than jury instruction.