State v. Hale ( 2015 )

Nebraska Advance Sheets
70 290 NEBRASKA REPORTS
motion is a bar to retrial only when there is an intent to “‘goad’
the defendant into moving for a mistrial.”42
It was not clearly erroneous for the district court to con-
clude that the prosecutor did not intend to goad Muhannad into
moving for the second mistrial. Therefore, double jeopardy
does not bar a third trial of Muhannad and the district court did
not err in overruling his plea in bar.
CONCLUSION
For the foregoing reasons, we affirm the order of the district
court which overruled Muhannad’s plea in bar following the
second mistrial.
Affirmed.
Wright, J., participating on briefs.
Heavican, C.J., not participating.
42
See Oregon v. Kennedy, supra note 6, 456 U.S. at 676.
State of Nebraska, appellee, v.
Terrance J. Hale, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-14-183.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
3. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard 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.
4. ____: ____. The relevant question when an appellate court reviews a sufficiency
of the evidence claim is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
Nebraska Advance Sheets
STATE v. HALE 71
Cite as 290 Neb. 70
5. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
6. Rules of Evidence: Hearsay. For a statement to be an excited utterance, the fol-
lowing criteria must be met: (1) There must be a startling event; (2) the statement
must relate to the event; and (3) the declarant must make the statement while
under the stress of the event.
7. ____: ____. The true test for an excited utterance is not when the exclamation
was made but whether, under all the circumstances, the declarant was still speak-
ing under the stress of nervous excitement and shock caused by the event.
8. ____: ____. Facts relevant to whether a statement is an excited utterance include
the declarant’s manifestation of stress, the declarant’s physical condition, and
whether the declarant spoke in response to questioning.
9. Rules of Evidence: Hearsay: Police Officers and Sheriffs. Statements made in
response to questions from law enforcement in particular do not generally have
inherent guarantees of reliability and trustworthiness. But the declarant’s answer
to a question may still be an excited utterance if the context shows that the state-
ment was made without conscious reflection.
Appeal from the District Court for Douglas County: Leigh
Ann R etelsdorf, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Scott C.
Sladek, and Douglas A. Johnson for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Connolly, J.
SUMMARY
Raymond Vasholz died from inhaling smoke from a fire set
in his home. His wife, Elizabeth Vasholz, testified that Terrance
J. Hale broke into the house, demanded money, assaulted her
and Raymond, and set several objects on fire. A jury convicted
Hale of first degree murder, and the court sentenced him to
life imprisonment. Hale argues that the court erred in allowing
two witnesses to testify about out-of-court statements made by
Elizabeth. The court overruled Hale’s hearsay objections on
the ground that the statements were excited utterances. Hale
also contends that the evidence is not sufficient to support his
conviction. We affirm.
Nebraska Advance Sheets
72 290 NEBRASKA REPORTS
BACKGROUND
Fire and Immediate R esponse
Elizabeth, 76 years old at the time of the assault, testified
that she was living with her husband, Raymond, in Omaha,
Nebraska, on February 7, 2013. In the time “leading up to 9
o’clock a.m.,” Elizabeth testified that she was sitting in the
living room with Raymond when she heard “[b]reaking glass”
that “sounded like it was coming from the basement.” Elizabeth
testified that a man wearing a coat, whom Elizabeth identified
in court as Hale, came up the basement stairs. Elizabeth testi-
fied that she recognized Hale because he had done yardwork
for her, but she did not know him by name.
Elizabeth testified that Hale demanded money. After she
replied that she had no money, Elizabeth said that Hale
assaulted her and Raymond. As Hale hit Raymond, Elizabeth
recalled striking Hale’s back with a lamp. Elizabeth testified
that Hale grabbed “a paper” and lit it using the gas stove.
Elizabeth said that Hale threw the lit paper at her and then set
a couch cushion on fire and “came at” her, pushing the burning
cushion against her arms.
Elizabeth testified that she escaped the house, grabbing a
recycling bin to cover herself because Hale had torn off the
pajama top she had been wearing. She recalled knocking on her
neighbor’s door, but no one answered, so she sat on her neigh-
bor’s porch and began “screaming my head off.” Elizabeth
stated that Hale then came outside and “threw his coat down.”
Then another man arrived, and Elizabeth asked him for help.
After police arrived, Elizabeth recalled that they arrested Hale
because she yelled, “That’s him, that’s him,” while pointing at
Hale. Elizabeth stated that she suffered burns on her back and
both arms and cracked vertebrae.
About 9 a.m., Gary Burns was driving in his car when he
saw an elderly woman sitting outside. Burns said that the
woman—who was “real dingy and dirty” and looked like “she
had been beat up, basically,”—had no shirt on, and was cov-
ering herself with a recycling bin. The woman was yelling,
“‘Help, help, help.’” Burns also saw a man, whom he identi-
fied in court as Hale, about 15 feet from the woman.
Nebraska Advance Sheets
STATE v. HALE 73
Cite as 290 Neb. 70
Burns got out of his car and called the 911 emergency
dispatch service to report an assault. As he approached the
woman, Burns testified that she pointed at Hale and said,
“‘You did this, you did it.’” According to Burns, Hale threw up
his arms and said, “‘I didn’t do this.’”
Firefighters responded to an alarm for a house fire at
9:12 a.m. Smoke was escaping from the house when they
arrived. Inside they found “pockets of fire” that they quickly
extinguished.
The firefighters searched the house for victims and found
a man, later identified as Raymond, lying across a bed in a
bedroom. The firefighters carried Raymond out of the house
and to the front yard, where paramedics immediately attended
to him. A paramedic testified that Raymond was not breath-
ing and did not have a pulse. Electronic monitors placed on
Raymond while an ambulance transported him to a hospital
showed no signs of cardiac activity.
Police officer Roger Oseka was patrolling with a training
officer, Patrick Andersen, when they heard a request for assist­
ance over the radio at 9:12 a.m. Oseka estimated that it took
him and Andersen less than 5 minutes to reach the scene. When
Oseka arrived, he saw an elderly white woman sitting on the
“front porch” of a neighbor’s house. Oseka also saw a black
man, whom he identified in court as Hale, “walking in circles”
and saying, “‘I was trying to save them.’”
Oseka exited his cruiser and approached the woman, whom
he said was bleeding from her nose and mouth and had “burn
sores” on both arms. Oseka observed the woman “throwing up
or spitting into” a green recycling bin. He made contact with
the woman and described her “tone” as “[s]urprisingly, for the
chaotic scene . . . was calm, but yet concise.” Oseka talked
with the woman and—after the court overruled Hale’s hearsay
objection—he testified that the woman “looked past me, raised
her arm and pointed it and said, ‘He did it.’” Oseka turned and
saw Hale standing where the woman was pointing. Oseka then
directed Andersen to arrest Hale.
Andersen said that the woman appeared to be in “a state of
shock” and was “screaming” at them and fire personnel. When
Nebraska Advance Sheets
74 290 NEBRASKA REPORTS
the State asked, “[W]hat does she scream to you?” Andersen
testified that the woman said, “‘That’s him. He did this.’” As
she screamed, Andersen said that the woman pointed at a black
man, whom Andersen identified in court as Hale. Andersen
stated that Hale thereafter screamed, “‘I tried to help them. I
saved her, but I couldn’t save him.’”
William Guidebeck, a paramedic, arrived at about 9:19 a.m.
and saw a woman sitting on a “neighbors’ stoop,” cradling a
green recycling bin against her chest. Guidebeck observed that
she was not wearing a shirt but had a green coat with blood
on it draped over her back. Guidebeck described the condi-
tion of the woman: “She was in pain. She was kind of hanging
her arms over the recycle bin as to not touch anything. She
had burns—severe burns on her arms, on her face. Her hair
was singed. She just kind of had a blank look on her face.”
Guidebeck also noted that she had a “significant amount of
soot around her mouth and nose.”
Nevertheless, Guidebeck testified that the woman was “alert
and oriented,” based on her answers to the “times three” ques-
tions of “[p]erson, place, and time.” That is, she “knew where
she was at, she knew what day it was, and she was very aware
of her surroundings.” Guidebeck removed the coat, and he tes-
tified that the woman “reacted in pain.”
At this point in Guidebeck’s testimony, the State asked
whether he had “receive[d] any response of any kind from
this female patient.” Hale objected on hearsay grounds. The
court overruled Hale’s objection on the ground that Elizabeth’s
answer was an excited utterance. Guidebeck testified:
We removed the coat from her. We threw it down.
Asked her if there was anybody else inside. She said her
husband. We asked her if that was her husband’s coat,
because it was kind of odd that she didn’t have a shirt
on, but she had a coat draped around her. When I asked if
that was her husband’s coat, she said, “No.” We asked her
whose coat it was, and she said, “It’s his.”
After the court overruled another hearsay objection from Hale,
Guidebeck testified, “And we said, ‘Whose?’ And she pointed
in the direction of one of the [police] cars.” Guidebeck knew
that someone was in the cruiser, but he could not see who.
Nebraska Advance Sheets
STATE v. HALE 75
Cite as 290 Neb. 70
Investigation
Raymond was pronounced dead during the afternoon of
February 7, 2013. A coroner’s physician performed an autopsy
on February 8. He testified that 10 to 18 percent of the body
was covered by second-degree burns. Additionally, the autopsy
showed numerous abrasions, lacerations, and bruises. The phy-
sician stated that “soot” in the trachea and lungs showed that
Raymond had been alive during the fire. Blood sample tests
showed a fatal amount of carbon monoxide. The physician tes-
tified that Raymond’s death was caused by “the complication
of breathing smoke, soot, carbon monoxide, and the other hot
gasses in the fire, [and] being burned by the fire.”
Fire investigator Michael Shane McClanahan examined the
house on February 7, 2013. McClanahan identified six different
points of origin, each independent of the other. McClanahan also
found a couch cushion with “thermal damage.” McClanahan
opined that the fire was “intentionally-set,” based on the mul-
tiple points of origin and no indication that they would have
naturally spread from one to another. McClanahan testified that
his conclusions were consistent with Elizabeth’s description
of events.
Inside, the house showed signs of a violent struggle.
Firefighters saw what appeared to be “blood streaks” on a
refrigerator in the kitchen. Photographs of the house showed
“apparent blood” on the leg of an upturned table, a windowsill
in the room where Raymond was found, an exterior door, and
the wall leading to the basement. “[A]pparent blood” was also
documented on the sleeve and lining of the green coat and on
the recycling bin. Additionally, a pane in a basement window
was broken and the latch used to open the window was bent. A
handprint was pressed into the dirt outside the window.
Regarding Hale’s condition, Oseka testified that he offered
Hale medical attention because Hale was “complaining that he
was in the house and he was breathing in the smoke and he was
coughing.” Andersen said that Hale “started coughing up or
spitting up black soot” after he drank some water. Photographs
of Hale after his arrest show a small cut on his nose, a scratch
on his right arm, a small cut on his right leg, and “scrapes or
lacerations” on his back.
Nebraska Advance Sheets
76 290 NEBRASKA REPORTS
The University of Nebraska Medical Center performed a
forensic DNA analysis of several items retrieved from the
scene. Blood on the “left chest area” and left sleeve of the
green coat generated a genetic profile matching Elizabeth’s.
Hale’s DNA profile was consistent with blood on the right
sleeve of the coat. The probability of an unrelated African
American individual matching the profile is 1 in 6.35
quintillion.
Hale did not testify, but the State played for the jury several
recordings of his statements. In a statement to police, Hale said
that he “tried to save this lady.” Hale said that he was walk-
ing near the Vasholzes’ home when he saw smoke. Because
the doors were locked, Hale said that he kicked in a basement
window and pulled Elizabeth from the house.
Four days after Raymond’s death, Hale sat for an interview
with local media. During the interview, Hale said that he was
walking to a bus stop when he saw smoke rising from the
Vasholzes’ house. Hale said that he opened a door and saw an
older woman that he recognized as a neighbor. Hale pulled her
out of the house and went back for her husband when “some-
body attacked me from behind.” Hale said that he went to the
basement, broke a window, climbed out, called 911, and waited
for police to arrive. Hale said that he covered the woman with
his coat, but she told him to get away. Hale claimed that the
police caused the laceration to his nose when they took him
into custody.
At trial, Hale’s attorneys emphasized the differences in
Elizabeth’s accounts of the event. Police officer Scott Warner
interviewed Elizabeth on February 8 and 19, 2013. The first
interview occurred when Elizabeth was still at the hospital,
and Warner testified that she was “medicated that time with
morphine,” “spoke very quietly,” and “spent most of the time
with her eyes closed.” During the first interview, Elizabeth told
Warner that it was “getting darker” at the time of the attack and
that her assailant wore a colorful hat. Warner asked Elizabeth
whether she had seen her assailant before February 7, and she
said, “‘I really don’t know.’”
At the second interview, Warner testified that Elizabeth
said she recognized the man because he had previously done
Nebraska Advance Sheets
STATE v. HALE 77
Cite as 290 Neb. 70
yardwork for her. Elizabeth again told Warner that her assailant
wore a hat.
At trial, Elizabeth testified that she could not recall whether
Hale wore a hat, and there is no evidence that he did.
Elizabeth also testified that the green coat was never over her
shoulders.
In the operative information, the State charged Hale with one
count of first degree murder under Neb. Rev. Stat. § 28-303(2)
(Reissue 2008). The information alleged that Hale killed
Raymond while committing, or attempting to commit, a rob-
bery, burglary, or arson.
A jury convicted Hale, and the court sentenced him to life
imprisonment.
ASSIGNMENTS OF ERROR
Hale assigns, restated, that (1) the court erred in overruling
his hearsay objections to Oseka’s and Guidebeck’s testimony
about Elizabeth’s out-of-court statements and (2) the evidence
is not sufficient to support his conviction.
STANDARD OF REVIEW
[1] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility.1
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection.2
[3,4] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion 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
1
State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014).
2
See State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014).
Nebraska Advance Sheets
78 290 NEBRASKA REPORTS
finder of fact.3 The relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.4
ANALYSIS
Oseka’s and Guidebeck’s Testimony
Hale argues that the court erred in overruling his hearsay
objections to testimony by Oseka and Guidebeck about out-
of-court statements made by Elizabeth. Regarding Oseka’s
testimony, Hale argues that the statement to which Oseka tes-
tified was not an excited utterance because Oseka described
Elizabeth as “‘calm and concise.’”5 Regarding Guidebeck’s tes-
timony, Hale contends that the statement to which Guidebeck
testified was not an excited utterance because Elizabeth spoke
after conscious reflection and in response to “investigative
questioning.”6
[5] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evi-
dence to prove the truth of the matter asserted.7 Hearsay is not
admissible unless otherwise provided for under the Nebraska
Evidence Rules or elsewhere.8
To recap, Oseka testified that Elizabeth pointed at Hale and
said, “‘He did it.’” Guidebeck testified that he asked Elizabeth
whose coat was draped over her shoulders and that she said,
“‘It’s his,’” while pointing at an individual in a police cruiser.
Elizabeth made her statement to Oseka before her statement to
Guidebeck. Both statements are hearsay.
[6] Excited utterances are one of the exceptions to the pro-
hibition of hearsay.9 For a statement to be an excited utterance,
3
State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).
4
See State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
5
Brief for appellant at 10.
6
Id. at 9.
 7
State v. Castillo-Zamora, supra note 2.
8
Id.
9
See State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
Nebraska Advance Sheets
STATE v. HALE 79
Cite as 290 Neb. 70
the following criteria must be met: (1) There must be a star-
tling event; (2) the statement must relate to the event; and (3)
the declarant must make the statement while under the stress of
the event.10 The justification for the excited utterance exception
is that circumstances may produce a condition of excitement
which temporarily stills the capacity for reflection and pro-
duces utterances free of conscious fabrication.11
Hale does not dispute that the attack Elizabeth suffered
and witnessed was a startling event. And when the startling
event is the commission of a crime, a statement identifying
the perpetrator relates to the event.12 So, the issue is whether
Elizabeth made her statements to Oseka and Guidebeck while
still under the stress from the assault and fire.
[7] An excited utterance does not have to be contempora-
neous with the exciting event.13 It may be subsequent to the
event if there was not time for the exciting influence to lose
its sway.14 The true test is not when the exclamation was
made but whether, under all the circumstances, the declarant
was still speaking under the stress of nervous excitement and
shock caused by the event.15 Therefore, the lapse of time is
not dispositive,16 and the proponent does not have to produce
definitive evidence of the time of the startling event.17 The
period in which the exception applies depends on the facts of
the case.18
[8,9] Relevant facts include the declarant’s manifestation
of stress,19 such as “yelling,”20 and the declarant’s physical
10
See State v. Castillo-Zamora, supra note 2.
11
Id.
12
See State v. Smith, supra note 9.
13
State v. Castillo-Zamora, supra note 2.
14
Id.
15
See id.
16
See State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
17
State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
18
State v. Castillo-Zamora, supra note 2.
19
See, e.g., id.
20
See State v. Canbaz, 259 Neb. 583, 591, 611 N.W.2d 395, 402 (2000).
Nebraska Advance Sheets
80 290 NEBRASKA REPORTS
­condition.21 Also relevant is whether the declarant spoke in
response to questioning.22 Statements made in response to
questions from law enforcement in particular do not generally
have inherent guarantees of reliability and trustworthiness.23
But the declarant’s answer to a question may still be an excited
utterance if the context shows that the statement was made
without conscious reflection.24
Here, Elizabeth testified that the attack occurred in the
period “leading up to 9 o’clock a.m.” on February 7, 2013.
Burns testified that he saw Elizabeth “yelling” for help on her
neighbor’s stoop at “approximately 9 a.m.” An alarm for a
house fire was sounded at 9:12 a.m., and Oseka and Andersen
testified that they arrived in less than 5 minutes. Guidebeck
estimated that he arrived at “about 9:19 a.m.”
So, we can infer that Oseka and Guidebeck arrived minutes
after Elizabeth left her burning home. And they both found
Elizabeth sitting on a neighbor’s stoop in pajama bottoms,
with untreated “severe burns,” cradling a plastic recycling bin
against her bare chest in the “chilly” February air.
Whether Elizabeth was still stressed when she spoke to
Oseka is a difficult question. Oseka testified that when he and
Andersen approached Elizabeth, she “had open burn sores on
both her left and right arms” and was bleeding from these sores
and her mouth. Additionally, Oseka stated that Elizabeth was
“throwing up or spitting into” the recycling bin. Nevertheless,
Oseka testified that Elizabeth, “[s]urprisingly, for the chaotic
scene . . . was calm, but yet concise.” If this was the only
description of Elizabeth’s demeanor, her statement to Oseka
would not be an excited utterance.
But Andersen witnessed—and testified about—the same
statement, and he described Elizabeth differently. According
21
Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
22
Id.
23
See State v. Hughes, 244 Neb. 810, 510 N.W.2d 33 (1993). See, also, State
v. Sullivan, 236 Neb. 344, 461 N.W.2d 84 (1990).
24
Werner v. County of Platte, supra note 21. See State v. Hembertt, 269 Neb.
840, 696 N.W.2d 473 (2005); State v. Plant, 236 Neb. 317, 461 N.W.2d
253 (1990).
Nebraska Advance Sheets
STATE v. HALE 81
Cite as 290 Neb. 70
to Andersen, Elizabeth was in a “state of shock” and was
“screaming” at the responders. In fact, Andersen described
Elizabeth’s identification of Hale not as a “statement,” but as
a “scream.”
So, Oseka’s and Andersen’s accounts of Elizabeth’s appar-
ent stress level differ. But considering the totality of the
circumstances—including the nearness of the event and
Elizabeth’s manifestations of physical stress—we conclude
that Elizabeth was still under the stress from the assault and
fire when she identified Hale as the perpetrator. The court
did not err by overruling Hale’s hearsay objection to Oseka’s
testimony.
We similarly conclude that Elizabeth’s statement to
Guidebeck was an excited utterance. Guidebeck testified that
Elizabeth was visibly “in pain” when he approached. Her
hair was singed, and she had burns on her arms and face.
Guidebeck testified that Elizabeth “had a blank look on her
face.” From these facts, we can infer that Elizabeth was under
the stress of the assault and fire when she spoke to Guidebeck.
Hale emphasizes that Guidebeck also described Elizabeth as
“alert and oriented” because she knew who she was, where
she was, and the day. But alertness is not inconsistent with
a stimulation of the sympathetic nervous system from the
adrenal gland’s release of hormones, a possible response to
stress.25 Hale also notes that Elizabeth told Guidebeck that
the green coat belonged to the person in the back of a police
cruiser only after Guidebeck asked whose coat it was. But the
record does not indicate that Elizabeth labored over the ques-
tion, and we conclude that her answer—“‘[i]t’s his’”—did not
involve conscious reflection.
Sufficiency of the Evidence
Hale argues that the evidence is not sufficient to support
his conviction. He contends that Elizabeth’s testimony was
25
See, Attorney’s Illustrated Medical Dictionary E31 (West 1997); Emily
Campbell, Comment, The Psychopath and the Definition of “Mental
Disease or Defect” Under the Model Penal Code Test of Insanity: A
Question of Psychology or a Question of Law? 69 Neb. L. Rev. 190
(1990).
Nebraska Advance Sheets
82 290 NEBRASKA REPORTS
critical to the State’s case and that her credibility is ques-
tionable due to her “admitted confusion” and the differences
between her trial testimony and her statements to Warner.26
Hale also claims that the State produced little physical evi-
dence and failed to more aggressively investigate another man
who was spotted near the Vasholzes’ home.
The State prosecuted Hale under the species of first degree
murder known as felony murder. Section 28-303 provides: “A
person commits murder in the first degree if he or she kills
another person . . . (2) in the perpetration of or attempt to
perpetrate any sexual assault in the first degree, arson, rob-
bery, kidnapping, hijacking of any public or private means
of transportation, or burglary . . . .” The critical difference
between felony murder and premeditated first degree murder
is that the intent to commit the underlying felony is substituted
for an intent to kill.27 Here, the underlying felonies alleged in
the operative information and put to the jury were robbery,
burglary, or arson.
We conclude that the evidence is sufficient to support Hale’s
conviction. Elizabeth and McClanahan testified that someone
intentionally damaged the Vasholzes’ home and contents by
starting a fire. The coroner’s physician testified that Raymond
died from breathing in smoke and carbon monoxide from the
fire. Elizabeth testified that Hale was the person who inten-
tionally set the fire, and her account is supported by circum-
stantial evidence such as Hale’s blood on the green coat and
the marks on his body. Viewing the evidence in the light most
favorable to the State, a rational fact finder could have found
beyond a reasonable doubt that Hale killed Raymond in the
perpetration of an arson.28 We need not address whether the
same conclusion can be reached under the two alternate under-
lying felonies of robbery and burglary.29
26
Brief for appellant at 12.
27
See State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014).
28
See, Neb. Rev. Stat. § 28-503(1) (Cum. Supp. 2014); State v. Ruyle, 234
Neb. 760, 452 N.W.2d 734 (1990).
29
State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014).
Nebraska Advance Sheets
STATE v. MERHEB 83
Cite as 290 Neb. 83
Elizabeth’s recounting of the events at trial differed some-
what from her statements to Warner, and her statements to
Warner themselves were not identical. This was a matter that
the jury could consider when weighing Elizabeth’s testimony
and credibility, but it is not a matter for us. Our question is
only whether a reasonable trier of fact could find the essen-
tial elements of the crime beyond a reasonable doubt.30 The
credibility and weight of witness testimony is the province
of the jury, and we will not reassess credibility on appel-
late review.31
CONCLUSION
We conclude that the out-of-court statements Oseka and
Guidebeck testified about were excited utterances, and there-
fore admissible despite their hearsay status. And we conclude
that the evidence is sufficient to support Hale’s conviction for
murder in the first degree.
Affirmed.
Heavican, C.J., participating on briefs.
30
See State v. Matit, supra note 4.
31
See, State v. Tolbert, 288 Neb. 732, 851 N.W.2d 74 (2014); State v. Huff,
282 Neb. 78, 802 N.W.2d 77 (2011).
State of Nebraska, appellee, v.
Ramez Merheb, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-14-315.
1. Appeal and Error. To the extent issues of law are presented, an appellate court
has an obligation to reach independent conclusions irrespective of the determina-
tions made by the court below.
2. Constitutional Law: Postconviction. A manifest injustice common-law claim
must be founded on a constitutional right that cannot and never could have been
vindicated under the Nebraska Postconviction Act or by any other means.
3. Constitutional Law: Effectiveness of Counsel: Convictions. As a general
proposition, counsel’s advice about collateral matters—those not involving
the direct consequences of a criminal conviction—are irrelevant under the
Sixth Amendment.