State v. Henry ( 2016 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/courts/epub/
    02/26/2016 08:20 AM CST
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    STATE v. HENRY
    Cite as 
    292 Neb. 834
    State of Nebraska, appellee, v.
    Eric M. Henry, appellant.
    ___ N.W.2d ___
    Filed February 26, 2016.   No. S-14-519.
    1.	 Jury Instructions: Appeal and Error. Whether a jury instruction is
    correct is a question of law, regarding which an appellate court is obli-
    gated to reach a conclusion independent of the determination reached by
    the trial court.
    2.	 Motions to Suppress: Appeal and Error. In determining the correct-
    ness of a trial court’s ruling on a motion to suppress, the appellate court
    will uphold the trial court’s findings of fact unless they are clearly
    wrong, but will reach a conclusion independent of that reached by the
    trial court with regard to questions of law.
    3.	 Pretrial Procedure: Appeal and Error. Unless granted as a matter of
    right under the Constitution or other law, discovery is within the discre-
    tion of a trial court, whose ruling will be upheld on appeal unless the
    trial court has abused its discretion.
    4.	 ____: ____. The decision of the trial court granting or denying a motion
    for a bill of particulars requested by the accused will not be reversed by
    the appellate court in the absence of an abuse of discretion on the part
    of the trial court in making its adjudication.
    5.	 Pleadings: Parties: Judgments: Appeal and Error. A denial of a
    motion to sever will not be reversed unless clear prejudice and an
    abuse of discretion are shown, and an appellate court will find such an
    abuse only where the denial caused the defendant substantial prejudice
    amounting to a miscarriage of justice.
    6.	 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 determining admissibility.
    7.	 Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
    Rules commit the evidentiary question at issue to the discretion of the
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    trial court, an appellate court reviews the admissibility of evidence for
    an abuse of discretion.
    8.	 Trial: Juries: Evidence. A trial court does not have discretion to submit
    testimony materials to the jury for unsupervised review, but the trial
    court has broad discretion to submit to the jury nontestimonial exhibits,
    in particular, those constituting substantive evidence of the defend­
    ant’s guilt.
    9.	 Witnesses. The manner in which a witness may be examined is within
    the sound discretion of the court.
    10.	 Jury Instructions: Proof: Appeal and Error. The appellant has the
    burden to show that a questioned jury instruction prejudiced him or
    otherwise adversely affected his substantial rights.
    11.	 Jury Instructions: Appeal and Error. 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 necessitat-
    ing reversal.
    12.	 Statutes: Appeal and Error. An appellate court will not read into a
    statute a meaning that is not there.
    13.	 Pretrial Procedure: Evidence. In the absence of any discovery motion
    under Neb. Rev. Stat. § 29-1913 (Reissue 2008), there is no discovery
    order, and without a discovery order, there can be no violation requiring
    suppression of the evidence.
    14.	 ____: ____. Where the State in good faith destroys evidence before a
    defense discovery motion under Neb. Rev. Stat. § 29-1913(1) (Reissue
    2008) can be made, a district court is not obliged to suppress the State’s
    tests or analyses under § 29-1913(2) without any motion for discovery
    under § 29-1913(1).
    15.	 Motions to Suppress. A suppression motion cannot serve as a substitute
    for a discovery motion.
    16.	 Indictments and Informations. Where an information alleges the com-
    mission of a crime using language of the statute defining that crime or
    terms equivalent to such statutory definition, the charge is sufficient.
    17.	 Criminal Law: Robbery. It is not necessary to a charge of robbery to
    name the alleged victim.
    18.	 Rules of Evidence. Generally, the foundation for the admissibility of
    text messages has two components: (1) whether the text messages were
    accurately transcribed and (2) who actually sent the text messages.
    19.	 Rules of Evidence: Proof. The proponent of text messages is not
    required to conclusively prove who authored the messages; the pos-
    sibility of an alteration or misuse by another generally goes to weight,
    not admissibility.
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    20.	 Trial: Hearsay: Testimony: Evidence. It is generally sufficient to make
    a general hearsay objection to a specific statement, but a general hearsay
    objection to the entirety of a witness’ testimony or to multiple state-
    ments in an exhibit, each admissible or objectionable under differing
    theories, is not usually sufficient to preserve the hearsay objection.
    21.	 Trial: Evidence: Appeal and Error. Unless an objection to offered evi-
    dence is sufficiently specific to enlighten the trial court and enable it to
    pass upon the sufficiency of such objections and to observe the alleged
    harmful bearing of the evidence from the standpoint of the objector, no
    question can be presented therefrom on appeal.
    22.	 Trial: Evidence: Presumptions. Once the proponent of evidence shows
    that the proposed evidence is relevant and competent, it is presump-
    tively admissible.
    23.	 Trial: Hearsay: Evidence: Proof. It is the party objecting to the evi-
    dence as hearsay who bears the burden of production and persuasion
    that the objected-to evidence is in fact hearsay.
    24.	 ____: ____: ____: ____. Once the opponent demonstrates the evidence
    is hearsay, the burden shifts to the proponent to lay the foundation for
    one of the exceptions to the hearsay rule.
    25.	 Trial: Evidence. Regardless of whether the proponent or the trial court
    articulated no theory or the wrong theory of admissibility, an appellate
    court may affirm the ultimate correctness of the trial court’s admission
    of the evidence under any theory supported by the record, so long as
    both parties had a fair opportunity to develop the record and the circum-
    stances otherwise would make it fair to do so.
    26.	 Conspiracy: Hearsay: Rules of Evidence. The rule that a statement by
    a coconspirator is not hearsay if made during the course and in further-
    ance of a conspiracy is construed broadly in favor of admissibility.
    27.	 Conspiracy. A conspiracy is ongoing until the central purposes of the
    conspiracy have either failed or been achieved.
    28.	 ____. There is no talismanic formula for ascertaining when a coconspir-
    ator’s statements are in furtherance of the conspiracy; a statement need
    not be necessary or even important to the conspiracy, as long as it can
    be said to advance the goals of the conspiracy as opposed to thwarting
    its purpose.
    29.	 ____. The definitional exclusion to the hearsay rule applies to the cov-
    erup or concealment of the conspiracy that occurs while the conspiracy
    is ongoing, just as it would to any other part of the conspiracy.
    30.	 ____. When a conspiracy involves a sequence of objectives, conceal-
    ment is usually an integral part thereof.
    31.	 Conspiracy: Proof: Presumptions. Upon proof of participation in
    a conspiracy, a conspirator’s continuing participation is presumed
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    unless the conspirator demonstrates affirmative withdrawal from
    the conspiracy.
    32.	   Conspiracy. To withdraw from a conspiracy such that statements of a
    coconspirator are inadmissible, the coconspirator must do more than
    ceasing, however definitively, to participate; rather, the coconspirator
    must make an affirmative action either by making a clean breast to
    the authorities or by communicating abandonment in a manner cal-
    culated to reach coconspirators, and must not resume participation in
    the conspiracy.
    33.	   Trial: Juries: Verdicts: Appeal and Error. Harmless error exists when
    there is some incorrect conduct by the trial court which, on review of the
    entire record, did not materially influence the jury in reaching a verdict
    adverse to a substantial right of the defendant.
    34.	   Trial: Evidence: Words and Phrases. The “rule of completeness”
    states that an opponent may require one introducing part of a writing or
    statement to introduce any part which ought in fairness to be considered
    with the part introduced.
    35.	   Appeal and Error. An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the error to be
    considered by an appellate court.
    Appeal from the District Court for Platte County: Robert R.
    Steinke, Judge. Affirmed.
    Mark M. Sipple and Erik C. Klutman, of Sipple, Hansen,
    Emerson, Schumacher & Klutman, for appellant.
    Douglas J. Peterson, Attorney General, and James D. Smith
    for appellee.
    Heavican, C.J., Wright, Connolly, McCormack, Miller-
    Lerman, and Cassel, JJ., and Moore, Chief Judge.
    Wright, J.
    I. NATURE OF CASE
    Eric M. Henry was convicted of felony murder, use of a
    deadly weapon to commit a felony, and conspiracy to commit
    robbery for his involvement in the stabbing death of Steven
    T. Jorgensen. He was sentenced to consecutive terms of life
    imprisonment, 40 to 50 years’ imprisonment, and 10 to 20
    years’ imprisonment, respectively.
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    292 Neb. 834
    On appeal, Henry assigns error to the overruling of various
    pretrial motions, including a motion in limine, a motion for a
    bill of particulars, and a motion to sever. He also challenges the
    admission and handling of certain evidence and the giving of
    an instruction. We affirm.
    II. BACKGROUND
    1. Criminal Charges
    On December 20, 2013, Henry was charged by amended
    information with four counts. Count I alleged that he commit-
    ted the first degree murder of Jorgensen “in the perpetration of
    or attempt to perpetrate a robbery.” Count II charged use of a
    deadly weapon to commit a felony. Count III charged posses-
    sion of a deadly weapon (brass or iron knuckles) by a prohib-
    ited person. Count IV charged criminal conspiracy to commit
    robbery. Specifically, count IV alleged that
    on or about May 17 or May 18, 2013, in Platte County,
    Nebraska, . . . Henry, with the intent to promote or facili-
    tate the commission of felony robbery, did agree with one
    or more persons to engage in the result specified by the
    definition of the offense of robbery, and he or another
    person with whom he conspired committed an overt act in
    pursuance of the conspiracy, including at least one of the
    following overt acts:
    1) Transported or aided the transporting of Quentin
    Critser from Lincoln to Platte County;
    2) Attempted to obtain a gun;
    3) Gave iron or brass knuckles to Quentin Critser; or
    4) Went to the residence of a potential robbery victim
    or victims[.]
    Henry moved for a bill of particulars stating “with precision
    and specificity the name of the ‘potential robbery victim or
    victims’ as set forth in Count IV of its Amended Information.”
    The district court overruled the motion, after which Henry
    moved to sever count IV from the other counts. The motion to
    sever was also overruled.
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    STATE v. HENRY
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    2. Motion in Limine
    Prior to trial, Henry filed a motion in limine challenging
    the admissibility of any evidence of the autopsy performed
    on Jorgensen’s body, including any testimony of Dr. Robert
    Bowen, the pathologist. Bowen had performed an autopsy on
    Jorgensen’s body on May 23, 2013. On May 24, the county
    attorney for Platte County, Nebraska, had authorized, at the
    request of Jorgensen’s family, the release of Jorgensen’s body
    for cremation.
    Henry alleged that it would be a violation of due process and
    Neb. Rev. Stat. § 29-1913 (Reissue 2008) to permit the State to
    adduce evidence derived from examining and testing the body,
    because it had been destroyed before Henry had the opportu-
    nity to have it independently examined or tested. He claimed
    that in releasing the body for cremation, the Platte County
    Attorney had acted intentionally but not in bad faith.
    Aside from photographs and the autopsy results, several tis-
    sue samples were apparently retained. Fingerprints were also
    taken, Jorgensen’s clothing and a gag were collected, swabs
    and clippings from his fingernails were taken, and hairs were
    collected. However, a full accounting of what body parts or
    samples may have been retained was not given.
    Henry did not file a motion under § 29-1913(1) asking the
    court to make available to the defense the evidence necessary
    to make tests or analyses of “ballistics, firearms identifica-
    tion, fingerprints, blood, semen, or other stains” like those
    conducted by the prosecution. Henry did not advise the pros-
    ecution that he wished the body preserved for an independent
    autopsy, because the body was cremated prior to bringing
    charges against Henry. The district court overruled Henry’s
    pretrial motion in limine.
    3. Jury Trial
    The jury trial of Henry took place over 7 trial days. The
    parties stipulated that Henry had been convicted of a felony
    in 2007. They also stipulated that Jorgensen’s DNA was the
    only DNA identified on any of the items seized from the crime
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    scene, including the knife in Jorgensen’s throat and the gag in
    his mouth. These items were tested for fingerprints, but they
    yielded no identifiable prints.
    (a) Discovery of Jorgensen
    Officer Dale Ciboron testified that he and two other officers
    with the police department in Columbus, Nebraska, discov-
    ered Jorgensen’s body after being dispatched to Jorgensen’s
    house for a welfare check on May 22, 2013. Jorgensen had
    not reported to work for several days. Jorgensen’s supervisor
    testified that he last saw Jorgensen at work on May 17 and that
    the date was a payday. Jorgensen did not show up at work as
    expected on either Saturday or Monday.
    Upon entering Jorgensen’s house, Ciboron found Jorgensen’s
    body on the floor between the kitchen and the living room area.
    The house was in disarray. There was a knife protruding from
    Jorgensen’s neck, and a gag in his mouth. Ciboron described
    dried blood on Jorgensen’s head.
    Three officers with the Columbus Police Department arrived
    at the scene to investigate shortly after Ciboron. They testified
    that Jorgensen’s body had started to decompose. One officer
    testified that based on her observations of decay and lividity,
    Jorgensen had been dead “for several days.” Bloodstains were
    found throughout the house, including the couch, the floor, a
    door, baseboards, and the kitchen water faucet. Another officer
    explained that the blood had soaked through the carpet and
    padding to the wood floor underneath.
    A video and photographs of the scene and Jorgensen’s body
    were entered into evidence without objection. Jorgensen’s head
    and chest appeared covered in blood, and the photographs
    show numerous apparent stab wounds to the chest, arms,
    hands, and neck.
    (b) Bowen
    Prior to Bowen’s testimony, Henry renewed his motion in
    limine, objecting to “the entirety of the testimony.” Exhibits
    to be offered into evidence during Bowen’s testimony were
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    not explicitly referenced in Henry’s renewed objection. Henry
    again stated that he made no claim that the State acted in bad
    faith in releasing Jorgensen’s body for cremation.
    The prosecution noted that the autopsy report, photographs,
    and “[t]issue slides” had been made available to Henry for inde-
    pendent examination by an independent pathologist appointed
    for Henry. Henry explained that he did not have an expert who
    would testify differently as to Jorgensen’s cause of death, and
    Henry did not appear to contest the time of death. Nevertheless,
    Henry stated that there were “issues.” Henry never elaborated
    on what those issues were.
    The district court overruled the renewed motion and allowed
    Bowen to testify. In denying the motion, the court noted that
    the body was cremated pursuant to a request by Jorgensen’s
    family and that the detailed autopsy results, photographs, and
    tissue samples were available for examination by Henry’s
    own pathologist. The court also noted that Henry did not con-
    test, based on either Bowen’s examination or his pathologist’s
    review, Jorgensen’s cause of death.
    Bowen testified that the autopsy revealed 14 stab wounds
    on Jorgensen’s neck, chest, and abdomen, and numerous “blunt
    force injuries” from being struck. There were lacerations on the
    back of Jorgensen’s head consistent with being hit with brass
    knuckles. Bowen determined Jorgensen had died through a
    combination of blood loss and collapsed lungs, after receiving
    stab wounds to the chest, and that his death was a homicide.
    Bowen testified that Jorgensen had died somewhere between
    24 hours and 4 days before the autopsy, which was performed
    on May 23, 2013.
    Due to the decomposition, Bowen was unable to remove
    blood from the body, but he was able to test the decomposi-
    tion fluid found in the chest. Bowen testified that decom-
    position fluid is more difficult to interpret than blood. On
    cross-­examination, Bowen admitted that tests of samples or
    specimens of Jorgensen’s organs, such as his brain, kidney, or
    liver, would have probably been more accurate.
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    The tests of the decomposition fluid indicated there was
    a significant amount of methamphetamine in Jorgensen’s
    body at the time of death. Nevertheless, it was Bowen’s
    opinion that the cause of death was not methamphetamine.
    Bowen explained that there was extensive hemorrhaging in the
    body that could not have occurred if Jorgensen had first died
    of methamphetamine.
    During Bowen’s testimony, a wound chart showing 14 stab
    wounds on Jorgensen’s neck, chest, and abdomen was entered
    into evidence after Henry’s counsel expressly stated he had
    no objection. In addition, 14 autopsy photographs prepared
    by Bowen were entered into evidence, again after Henry’s
    counsel stated there was no objection. The autopsy report was
    not proffered.
    (c) Benson
    Vanessa Benson testified that on May 28, 2013, she informed
    the police department in Lincoln, Nebraska, that she sus-
    pected her boyfriend, Quentin Critser, had been involved in
    Jorgensen’s death. Critser was staying with Benson and was a
    friend of Henry’s. She reported that from May 16 to 18, Critser
    had been in Columbus with Henry and a woman by the name
    of Kimberly Henderson. On May 16, Henry and Henderson
    came to her apartment in Lincoln to pick up Critser. Based
    largely on text messages that Critser sent from Benson’s cell
    phone to Henry, Benson knew that Henry and Critser planned
    to commit a robbery in Columbus. Benson was upset about
    this, and she and Critser fought.
    Critser returned on May 18, 2013, after stopping first in
    Grand Island, Nebraska. Benson testified that after Critser
    returned from Columbus, he had Jorgensen’s debit card and
    keys. Benson saw Critser dispose of the keys in a drainage
    ditch. Benson testified that she led the police to where Critser
    had hidden Jorgensen’s debit card outside of her apartment
    building. Benson testified without objection that Henry had
    texted her several times asking her why she did not like him.
    She never responded.
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    (d) Critser
    Critser was a witness against Henry as part of his plea agree-
    ment. Critser testified that he met Henry while they were both
    incarcerated for previous convictions and that they developed a
    friendship after their release. In May 2013, Critser and Henry
    lived in Lincoln and Columbus, respectively. They kept in
    touch mainly via text messages.
    Critser did not have his own cell phone and used Benson’s
    cell phone to send messages to Henry. Critser testified that
    Henry had his own cell phone and that the number associated
    with Henry’s cell phone was programmed into Benson’s cell
    phone under the name “E.”
    Critser testified that in May 2013, Benson’s cell phone
    received a series of text messages from Henry asking Critser to
    come to Columbus for the purpose of “[c]ommit[ting] a crime
    of some sort” to obtain between $3,000 to $10,000.
    Critser stated that he had no doubt the messages were from
    Henry. They showed up on Benson’s cell phone as being sent
    from “E,” and Critser could also tell the texts were from Henry
    by the context and because he knew how Henry talked. Critser
    also explained that he did not communicate with anyone else
    who lived in Columbus.
    Pursuant to the plan developed by Critser and Henry, on
    May 16, 2013, Henry and Henderson picked up Critser in
    Lincoln and took him back to Columbus. Critser described
    without objection that he and Benson argued before he left.
    Benson did not want Critser to participate in the robbery and
    said that he was not welcome to come back if he did.
    Critser testified that during the drive to Columbus, he and
    Henry discussed their plans to rob a drug dealer named “Tony.”
    Critser also testified that he and Henry “were off and on talk-
    ing about [the robbery of Tony] the whole time” they were in
    Columbus. While Critser was in Columbus with Henry, he used
    Henry’s cell phone to stay in touch with Benson.
    Critser said that he, Henry, and Henderson spent much of the
    evening of May 16, 2013, looking for a gun for Henry to use
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    in the robbery of Tony. Sometime on May 17, Henry found a
    gun for sale by a man called “Cowboy,” but he needed money
    to buy it. Critser testified that he tried to convince Henry that
    they could rob Tony without a gun, but Henry was “adamant
    about having a gun to do it.”
    Because Jorgensen owed Henry money and because
    Henderson knew that Jorgensen would get paid that day, a plan
    developed “to go over there and collect some money” in order
    to buy the gun they would use to rob Tony. Critser had been
    aware that Henry had “fronted some people in Columbus some
    meth and they owed him money and he wanted me to come
    beat them up,” but he did not know if one of those people
    was Jorgensen.
    Critser testified that around 6 p.m. on May 17, 2013, he,
    Henry, and Henderson went to Jorgensen’s house. Soon after
    they got there, a fight broke out between Jorgensen and Henry.
    Critser joined the fight, punching Jorgensen in the head with
    brass knuckles and choking Jorgensen until he passed out.
    At that point, Henry ordered Critser to tie Jorgensen’s feet
    together and then go into another room. Critser complied.
    After Critser left the room, Henry was alone with Jorgensen
    for some period of time. At some point, Henderson left. When
    the State attempted to adduce testimony as to what conversa-
    tions took place before Henderson left, Henry objected on
    hearsay grounds. During a discussion outside the presence of
    the jury, Henry stated that he understood the State’s conspirator
    exclusion to the hearsay rule, but that there was only evidence
    of a conspiracy to rob Tony, not Jorgensen. The State responded
    that the conspirators were robbing Jorgensen in order to buy a
    gun with which to rob Tony, and so it was all in furtherance
    of the same conspiracy. The court overruled the objection and
    found that the coconspirator exclusion to the hearsay rule set
    forth in Neb. Rev. Stat. § 27-801(4)(b) (Reissue 2008) applied.
    Critser thereafter testified that Henderson said she was leaving
    to withdraw money from Jorgensen’s account with his debit
    card and that she would be right back.
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    Henderson returned from the automatic teller machine
    (ATM) approximately 10 to 15 minutes later. Henderson and
    Critser joined Henry in the kitchen. Henderson said she had
    withdrawn $100.
    Critser testified that at that time, he witnessed Henry “stab[]
    Jorgensen in the neck five times.” Critser testified that Henry
    threatened him when Critser “freaked out” about the stabbing,
    and Critser assured Henry that “you ain’t got nothing to worry
    about.” They wiped things down to remove possible finger-
    prints and left.
    The day after the murder, May 18, 2013, Henry and Critser
    continued to discuss trying to obtain a gun. While taking
    Critser back to Lincoln, they looked for, but were unable to
    obtain, a gun in Grand Island. Critser testified that he did not
    explicitly agree with Henry’s plan to go immediately back to
    Columbus to rob Tony. Still, Critser told Henry that he had a
    “buddy” he could ask about getting a gun.
    During the journey through Grand Island and then to Lincoln,
    Critser mentioned to Henry the knife left in Jorgensen’s neck.
    Without objection, Critser testified that he and Henry discussed
    what to do about the knife. Henry determined that he must go
    back and retrieve the knife, apparently because no one had
    wiped fingerprints off of it. Critser was going to give Henry the
    keys to Jorgensen’s house that were in the bag containing their
    bloodstained clothing.
    Critser testified that when they arrived in Lincoln, Henry
    tried unsuccessfully to withdraw money from Jorgensen’s debit
    card at an ATM that did not have video surveillance. Henry
    left Lincoln, leaving Critser in possession of Jorgensen’s debit
    card. He directed Critser to try after midnight to withdraw
    money from the account. Critser was also left with a book-
    bag containing their bloodstained clothes and the keys to
    Jorgensen’s house. Henry told Critser to get rid of the clothes.
    Henry planned on retrieving the keys, but forgot to do so.
    On May 19, 2013, Critser attempted to withdraw cash with
    Jorgensen’s debit card, but was unsuccessful. Later that same
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    day, Critser tried again to withdraw money with the debit card,
    but was unsuccessful. Critser testified that he hid Jorgensen’s
    debit card in the bushes outside Benson’s apartment and put
    the clothes in a Dumpster. He eventually threw the keys down
    different sewers in Lincoln. Critser testified that he did not
    actively look for a gun.
    (e) Henderson
    Henderson also testified against Henry as part of a plea
    agreement. Henderson’s testimony regarding certain details
    about the events in Columbus differed from Critser’s testi-
    mony, but she testified to the same general sequence of events:
    driving to Columbus with Henry to pick up Critser; planning
    to rob Tony; looking for a gun to use in the robbery; going
    to Jorgensen’s house to obtain money on May 17, 2013; and
    fighting Jorgensen.
    Henderson testified that while Jorgensen was still alive,
    Henry and Critser extracted Jorgensen’s personal identification
    number from him, and Henry told her to take Jorgensen’s debit
    card to an ATM to make sure it worked. She withdrew $100.
    Henderson testified that she witnessed Henry stab Jorgensen in
    the chest multiple times. Henderson admitted that she was the
    person who stabbed Jorgensen in the neck and left the knife
    there. Sometime after killing Jorgensen, she saw that Henry
    had obtained a gun.
    (f) ATM Withdrawals and Discovery
    of Jorgensen’s Possessions
    The investigating officers obtained Jorgensen’s bank records,
    which showed that on May 17, 2013, at 5:33 p.m., a $400 with-
    drawal was made and at 8:44 p.m., a $100 withdrawal was
    made from a Columbus ATM. The receipt for the $400 with-
    drawal was found in Jorgensen’s vehicle, and video confirmed
    Jorgensen made that withdrawal. But video footage of the $100
    withdrawal shows a woman believed to be Henderson making
    the withdrawal.
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    Officers found Jorgensen’s debit card where Benson
    reported it to be near her apartment. Another officer retrieved
    Jorgensen’s keys in a storm drain in Lincoln.
    (g) Text Messages
    The State entered into evidence text messages between
    Benson’s cell phones and Henry’s alleged cell phone. It offered
    the exhibits containing the text messages after the testimony
    of Benson, the witness who found what was purported to be
    Henry’s cell phone abandoned at a post office, and the foren-
    sic investigators who extracted the text messages from the
    cell phones.
    Benson had testified that at the time of the murder, she had
    a different cell phone from a second one she later obtained.
    She stated that while Critser was in Columbus, he communi-
    cated with Benson through the number that Critser had been
    texting to before he left, which she understood to be Henry’s
    cell phone. At one point, Benson called that number and Henry
    answered. She testified that Henry then handed the cell phone
    to Critser.
    Corey Weinmaster, the police officer who conducted the
    forensic examination of Benson’s old cell phone, testified that
    around the time of Jorgensen’s death, numerous text messages
    were exchanged between Benson’s old cell phone and cell
    phone number 402-367-8802. The cell phone with the 402-
    367-8802 number was found abandoned at the Columbus post
    office after one of the persons interviewed by investigating
    officers suggested they look there. An employee of the post
    office stated that the last number dialed from the 402-367-8802
    number was a contact labeled “Cowboy.” She called that num-
    ber, and a man saying his name was “Cowboy” claimed owner-
    ship of the cell phone.
    The parties stipulated that stored text messages had been
    retrieved from Benson’s old cell phone and from the cell
    phone with the 402-367-8802 number. They stipulated that
    the cell phones were in the same condition when examined
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    as when retrieved by law enforcement. Through forensic
    examination, each message offered into evidence identified
    the sending cell phone number, receiving number, date, time,
    and content.
    Exhibit 84 was a chart that was prepared by Weinmaster.
    It included the contents of the text messages sent between
    Benson’s old cell phone and the 402-367-8802 number. These
    messages were dated between May 15 and 25, 2013.
    Exhibit 86 was a chart prepared by Angela Bell, the State
    Patrol officer who conducted the forensic examination of the
    cell phone with the 402-367-8802 number. Although Bell
    retrieved all the text messages stored on the cell phone,
    exhibit 86 purportedly contained only those text messages
    sent between the 402-367-8802 number and Benson’s new
    cell phone. These messages were dated between May 20
    and 22, 2013. For reasons that are not fully explained by the
    record, all of the messages in exhibit 86 are also found within
    exhibit 84.
    Exhibits 83 and 90 were received into evidence for founda-
    tional purposes only and were never seen by the jury. Exhibit
    83 was a printout of the contents of every text message
    retrieved from Benson’s old cell phone. These messages were
    dated between December 31, 2012, and May 29, 2013. Exhibit
    90 contained two compact discs. The first disc was the digital
    version of exhibit 83. The second disc was the digital version
    of exhibit 84.
    Weinmaster and Bell confirmed that they had prepared the
    exhibits and explained how they retrieved the text messages
    from the cell phones.
    Benson was specifically asked to look at exhibit 84, and she
    confirmed that the text messages shown in the exhibit were the
    messages that she saw between Critser and Henry regarding the
    plans for a robbery in Columbus.
    Henry elicited testimony from Weinmaster and Bell that
    they could not be sure who was actually typing the text mes-
    sages from someone’s cell phone. Moreover, certain programs
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    could allow someone to send a text message from one cell
    phone but make it appear that the message had been sent from
    another cell phone.
    Henry objected to all text message evidence in its entirety.
    He asserted there was a lack of foundation establishing that
    the texts were in fact between Henry and Benson’s cell phones
    and to the extent they were “going to start putting names on
    phones.” And, principally, Henry argued that the State could
    not verify who sent the text messages.
    Henry also made a generalized hearsay objection to all the
    text messages, but there was no discussion on the record as to
    what particular statements Henry contended were inadmissible
    under such objection or why. At one point, Henry’s counsel
    said his objection was “still . . . foundation and hearsay based
    on the fact that [Bell] cannot identify what phone, if it’s even
    a correct number, that this comes from at this time or who
    sent it.” The district court overruled Henry’s objections to
    the exhibits.
    Later, at the time of Critser’s testimony, Henry further
    objected to the text messages based on the rule of complete-
    ness. Though he had not raised such a specific objection prior
    to the exhibits’ admission, Henry had previously argued that if
    any text messages were to be deemed admissible, exhibit 83
    was the more “appropriate” exhibit to go to the jury, because it
    did not have labels of names of cell phones and it contained all
    the text messages. Henry also objected to Critser’s testimony
    referencing the text messages, on the grounds of foundation,
    hearsay, and the rule of completeness. None of the objections
    were discussed. The objections were generally overruled.
    The State used the text messages extensively in its exami-
    nation of Critser. And, during his testimony, Critser generally
    recognized that the text messages accurately represented his
    communications with Henry regarding the plan to rob Tony
    and the attempts to cover up the murder of Jorgensen. Critser
    interpreted some of the slang and code words found in the mes-
    sages for the jury.
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    In the text messages sent before Jorgensen’s murder, Henry
    and Critser discussed the planned robbery; the need to obtain a
    gun, because the intended robbery victim also had a gun; and
    the arrangements to pick up Critser. After Jorgensen’s murder,
    Henry and Critser discussed via text messages the need to either
    hide the keys to Jorgensen’s house or retrieve them in order to
    enter Jorgensen’s house and remove the knife from Jorgensen’s
    body, Critser’s suggestion that Henry burn Jorgensen’s house
    down, Critser’s communication to Henry that he had taken care
    of “‘the bag’” containing bloodstained clothing, Critser’s com-
    plaints about whether he was going to get any money, Henry’s
    suggestion that Critser keep trying to withdraw money using
    Jorgensen’s debit card, whether Critser had been able to get the
    “‘thing’” from his “‘homi’” (which Critser explained referred
    to getting a gun), and Henry’s assurances that he was working
    on getting Critser money. There was also entered into evidence
    several text messages between Critser and Benson concerning
    their argument about Critser’s leaving with Henry to commit
    a robbery.
    Henry cross-examined Critser extensively about how he
    could be certain the text messages were in fact from Henry.
    Critser confirmed that there was no doubt in his mind that the
    text messages coming from cell phone number 402-367-8802
    came from Henry.
    (h) Condreay
    The State called Cory Condreay to testify regarding several
    statements Henry made after Jorgensen’s death. Condreay
    was present at the house where Henry, Critser, and Henderson
    stayed the night following the murder. Condreay testified
    without objection that Henry told Condreay (1) that Henry,
    Critser, and Henderson had gone to Jorgensen’s “to rob
    him of his ATM card on his payday”; (2) that they “beat
    [Jorgensen] so bad that he was speaking incoherently”; and
    (3) that at some point during the fight, Henry stabbed and
    killed Jorgensen.
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    One to three days later, Condreay drove with Henry to
    Jorgensen’s house, because Henry wanted to break into
    the house and extract the knife from Jorgensen’s body. But
    Condreay refused to try to break down the door of the house,
    even when Henry threatened Condreay with a gun that Henry
    had apparently recently acquired from “Cowboy.” Henry was
    never able to gain entry into Jorgensen’s house.
    4. Verdict and Sentencing
    At the conclusion of trial, the jury returned verdicts of guilty
    on the counts of felony murder, use of a deadly weapon to
    commit a felony, and conspiracy to commit robbery. The jury
    found Henry not guilty of possession of a deadly weapon by a
    prohibited person. On April 16, 2014, the district court entered
    judgment in accordance with the verdicts.
    Henry filed a motion for new trial. He alleged irregularity
    in the proceedings and insufficiency of the evidence. He also
    alleged that the district court had erred in failing to exclude
    Bowen’s testimony, in allowing evidence of the text messages
    without proper foundation, in permitting exhibits 84 and 86 to
    go to the jury room, and in instructing the jury.
    On May 20, 2014, the district court overruled Henry’s motion
    for new trial. The court sentenced him to life imprisonment on
    the felony murder conviction, 40 to 50 years’ imprisonment on
    the use conviction, and 10 to 20 years’ imprisonment on the
    conspiracy conviction. The court ordered the sentences to be
    served consecutively. Henry appeals.
    III. ASSIGNMENTS OF ERROR
    Henry assigns, restated and consolidated, that the district
    court erred in (1) giving jury instruction No. 2; (2) overrul-
    ing his motion in limine and allowing the State’s pathologist
    to testify to the results of the autopsy at trial; (3) overruling
    his motion for a bill of particulars; (4) failing to sustain his
    motion to sever; (5) failing to sustain his motion for new trial;
    (6) admitting exhibits 83, 84, and 86; (7) allowing exhibits 84
    and 86 to go to the jury room; (8) allowing the State to make
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    an assumption during questioning that Henry was sending cer-
    tain text messages; and (9) allowing the State’s witnesses to
    speculate as to what certain text messages meant.
    IV. STANDARD OF REVIEW
    [1] Whether a jury instruction is correct is a question of
    law, regarding which an appellate court is obligated to reach
    a conclusion independent of the determination reached by the
    trial court.1
    [2] In determining the correctness of a trial court’s ruling
    on a motion to suppress, the appellate court will uphold the
    trial court’s findings of fact unless they are clearly wrong, but
    will reach a conclusion independent of that reached by the trial
    court with regard to questions of law.2
    [3] Unless granted as a matter of right under the Constitution
    or other law, discovery is within the discretion of a trial court,
    whose ruling will be upheld on appeal unless the trial court has
    abused its discretion.3
    [4] The decision of the trial court granting or denying a
    motion for a bill of particulars requested by the accused will
    not be reversed by the appellate court in the absence of an
    abuse of discretion on the part of the trial court in making
    its adjudication.4
    [5] A denial of a motion to sever will not be reversed unless
    clear prejudice and an abuse of discretion are shown, and an
    appellate court will find such an abuse only where the denial
    caused the defendant substantial prejudice amounting to a mis-
    carriage of justice.5
    [6,7] In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the
    1
    State v. Schmidt, 
    276 Neb. 723
    , 
    757 N.W.2d 291
    (2008).
    2
    See State v. Shurter, 
    238 Neb. 54
    , 
    468 N.W.2d 628
    (1991).
    3
    State v. Henderson, 
    289 Neb. 271
    , 
    854 N.W.2d 616
    (2014).
    4
    See Annot., 
    5 A.L.R. 2d 444
    (1949).
    5
    See State v. Foster, 
    286 Neb. 826
    , 
    839 N.W.2d 783
    (2013).
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    Nebraska Evidence Rules; judicial discretion is involved only
    when the rules make discretion a factor in determining admis-
    sibility.6 Where the Nebraska Evidence Rules commit the evi-
    dentiary question at issue to the discretion of the trial court,
    an appellate court reviews the admissibility of evidence for an
    abuse of discretion.7
    [8] A trial court does not have discretion to submit testimony
    materials to the jury for unsupervised review, but the trial court
    has broad discretion to submit to the jury nontestimonial exhib-
    its, in particular, those constituting substantive evidence of the
    defendant’s guilt.8
    [9] The manner in which a witness may be examined is
    within the sound discretion of the court.9
    V. ANALYSIS
    1. Assignment of Error No. 1
    Henry assigns that the district court erred in giving jury
    instruction No. 2, which was based on NJI2d Crim. 9.2. It
    stated as follows:
    As I told you at the beginning of the trial, this is a
    criminal case in which the State of Nebraska has charged
    [Henry] with the following four crimes: felony murder;
    use of a deadly weapon to commit a felony; possession
    of a deadly weapon by a prohibited person; and criminal
    conspiracy to commit robbery. The fact that the State has
    brought these charges is not evidence of anything. The
    charges are simply an accusation, nothing more.
    [Henry] has pleaded not guilty. He is presumed to be
    innocent. That means you must find him not guilty unless
    and until you decide that the State has proved him guilty
    beyond a reasonable doubt.
    6
    State v. Russell, 
    292 Neb. 501
    , ___ N.W.2d ___ (2016).
    7
    Id.
    8
    State v. Castaneda, 
    287 Neb. 289
    , 
    842 N.W.2d 740
    (2014).
    9
    Ederer v. Van Sant, 
    184 Neb. 774
    , 
    172 N.W.2d 96
    (1969).
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    Henry argues that jury instruction No. 2 was prejudicial and
    violated his due process rights, because the words “‘and until’”
    in the last sentence “presume[d] a finding of guilty.”10 He does
    not object to any other language in the instruction.
    [10,11] In considering the propriety of giving jury instruc-
    tion No. 2, we apply well-known principles of law. The appel-
    lant has the burden to show that a questioned jury instruction
    prejudiced him or otherwise adversely affected his substantial
    rights.11 All the jury instructions must be read together, and if,
    taken as a whole, they correctly state the law, are not mislead-
    ing, and adequately cover the issues supported by the plead-
    ings and the evidence, there is no prejudicial error necessitat-
    ing reversal.12
    In the instant case, when read as a whole, the jury instruc-
    tions correctly stated the law regarding the presumption of
    innocence, adequately covered the issue, and were not mis-
    leading. Jury instruction No. 2 clearly stated that Henry was
    “presumed to be innocent” and that the jury was required
    to find him not guilty “unless” the State proved him guilty
    beyond a reasonable doubt. These statements were not negated
    by the inclusion of the words “and until,” nor did such words
    create confusion. To the contrary, the U.S. Supreme Court
    has employed the phrase “unless and until” when explain-
    ing the presumption of innocence.13 In light of this fact, we
    reject Henry’s argument that the words “and until” created a
    presumption of guilt or otherwise made jury instruction No. 2
    improper. This assignment of error lacks merit.
    2. Assignment of Error No. 2
    Henry assigns that the district court erred in allowing
    Bowen, who performed the autopsy of Jorgensen’s body, to
    10
    Brief for appellant at 31.
    11
    State v. Loyuk, 
    289 Neb. 967
    , 
    857 N.W.2d 833
    (2015).
    12
    
    Id. 13 See
    Clark v. Arizona, 
    548 U.S. 735
    , 766, 
    126 S. Ct. 2709
    , 
    165 L. Ed. 2d 842
    (2006).
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    testify at the trial. Henry challenges Bowen’s testimony only
    on the ground that it was inadmissible under § 29-1913. Henry
    argues that because the body was cremated, evidence of the
    autopsy and cause of death should not have been admitted
    at trial. In addition, Henry refers to the “graphic and grue-
    some” photographs that were received into evidence during
    Bowen’s testimony.14
    (a) Statutory Scheme
    Section 29-1913 provides as follows:
    (1) When in any felony prosecution or any prosecu-
    tion for a misdemeanor or a violation of a city or village
    ordinance for which imprisonment is a possible penalty,
    the evidence of the prosecuting authority consists of
    scientific tests or analyses of ballistics, firearms identifi-
    cation, fingerprints, blood, semen, or other stains, upon
    motion of the defendant the court where the case is to be
    tried may order the prosecuting attorney to make avail-
    able to the defense such evidence necessary to allow the
    defense to conduct like tests or analyses with its own
    experts. . . .
    (2) If the evidence necessary to conduct the tests or
    analyses by the defense is unavailable because of the
    neglect or intentional alteration by representatives of
    the prosecuting authority, other than alterations neces-
    sary to conduct the initial tests, the tests or analyses
    by the prosecuting authority shall not be admitted into
    evidence.
    (Emphasis supplied.)
    Section 29-1913 is part of a series of discovery statutes.
    The principal and broader discovery statute, Neb. Rev. Stat.
    § 29-1912(1)(e) (Cum. Supp. 2014) provides that the defend­
    ant may request an order permitting the defendant to inspect
    and copy, among other things, the “results and reports of
    14
    Brief for appellant at 34.
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    physical or mental examinations, and of scientific tests, or
    experiments made in connection with the particular case.”
    Under § 29-1912(2), the court “may” issue such a discovery
    order considering, in the exercise of its discretion, several
    listed factors. Neb. Rev. Stat. § 29-1919 (Reissue 2008) pro-
    vides that if a party fails to comply with a court’s order pursu-
    ant to Neb. Rev. Stat. §§ 29-1912 to 29-1921 (Reissue 2008 &
    Cum. Supp. 2014), the court “may,” “[p]rohibit the party from
    calling a witness not disclosed or introducing in evidence the
    material not disclosed”15 or issue such other order as it deems
    just under the circumstances.16
    Section 29-1913 is unique insofar as it contains both discre-
    tionary elements and matters of right. From the plain usage of
    the term “may,” whether to grant the requested discovery order
    under § 29-1913(1) is a matter of discretion, just as any other
    order of discovery under § 29-1912.17 But, unlike the “may”
    language of § 29-1919, which applies generally to failure to
    comply with discovery orders, § 29-1913 states that the court
    “shall” not admit the prosecuting authority’s tests or analyses
    described in subsection (1), “[i]f the evidence necessary to con-
    duct the tests or analyses by the defense is unavailable because
    of the neglect or intentional alteration by representatives of the
    prosecuting authority, other than alterations necessary to con-
    duct the initial tests . . . .”18 Under this plain language, exclu-
    sion of the described tests or analyses is a mandatory sanction
    for violation of the discovery order issued under § 29-1913, in
    the event of unavailability due to neglect or intentional altera-
    tion as described in the statute.
    15
    § 29-1919(3).
    16
    § 29-1919(4).
    17
    See, Christiansen v. County of Douglas, 
    288 Neb. 564
    , 
    849 N.W.2d 493
          (2014); State v. Hense, 
    276 Neb. 313
    , 
    753 N.W.2d 832
    (2008); State v.
    County of Lancaster, 
    272 Neb. 376
    , 
    721 N.W.2d 644
    (2006).
    18
    § 29-1913(2).
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    (b) Plain Language of § 29-1913 Does
    Not Include Testing of Bodies
    The State argues that § 29-1913 is plainly limited to “sci-
    entific tests or analyses of ballistics, firearms identification,
    fingerprints, blood, semen, or other stains,” and does not apply
    to the testing of bodies. We agree that the plain language of
    § 29-1913 does not encompass the testing of bodies, as such.
    We have little case law discussing § 29-1913. What case law
    we have almost exclusively concerns tests of blood, which are
    encompassed by the plain language of the statute.19
    Henry points out that in State v. Brodrick,20 we applied
    § 29-1913 to the analysis of a drug tablet, which is not an
    item listed in the statute. We held that the court erred in deny-
    ing the defendant’s motion to suppress the testimony of the
    chemist who determined that a tablet consisted of a controlled
    substance. Prior to the motion to suppress, the defendant had
    moved for a discovery order to permit him to have an indepen-
    dent analysis conducted on the tablet.21 But the tablet had been
    discarded by the chemist, despite the fact that the chemist had
    been asked by the county attorney to preserve part of the tablet
    if possible. It was undisputed that it would have been possible
    to preserve the tablet. We concluded that the destruction of the
    tablet constituted neglect under § 29-1913.
    In contrast to Brodrick, however, in State v. Batchelor,22
    we conducted our analysis under §§ 29-1912 and 29-1919
    to determine whether a chemical test of a tablet should have
    been suppressed. We found that where the evidence was
    conflicting as to whether the chemist could have preserved
    the tablet determined to be a controlled substance, the trial
    19
    See, State v. Peterson, 
    242 Neb. 286
    , 
    494 N.W.2d 551
    (1993); State v.
    Tanner, 
    233 Neb. 893
    , 
    448 N.W.2d 586
    (1989).
    20
    State v. Brodrick, 
    190 Neb. 19
    , 
    205 N.W.2d 660
    (1973). See, also, State v.
    Batchelor, 
    191 Neb. 148
    , 
    214 N.W.2d 276
    (1974).
    21
    State v. Brodrick, supra note 20.
    22
    State v. Batchelor, supra note 20.
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    court did not abuse its discretion in denying the motion
    to suppress.23
    In State v. Davlin,24 we expressed doubt as to whether a
    victim’s larynx, extracted during an autopsy of the victim’s
    body, fell within the purview of § 29-1913. In a case where the
    victim’s cause of death was at issue, the defendant had sought
    suppression of the victim’s autopsy, because the State had lost
    the victim’s larynx after the autopsy was conducted. But we
    held that by not properly objecting below, the defendant in
    Davlin had waived any issue under § 29-1913.
    We also noted in dicta that while the defendant sought to
    exclude the entirety of the autopsy evidence, the statutory
    language clearly refers to exclusion of “tests or analyses”
    performed on the evidence that is unavailable to the defense.25
    We said that “even if the unavailable evidence . . . was within
    the scope of § 29-1913,” the remedy would be exclusion of
    the tests or analyses of the unavailable evidence, not of the
    entire autopsy.26
    We explained that “[t]he effect of § 29-1913(2) is to level
    the playing field when evidence is unavailable and prevent
    the prosecuting authority from making use of evidence that
    was not available to the defense.”27 And the tests or analyses
    presented by the State at trial did not rely on the missing lar-
    ynx. The pathologist determined the victim’s cause of death by
    relying on blood tests and the examination of body parts other
    than the larynx.28
    [12] We will not read into a statute a meaning that is not
    there,29 and there are logical reasons the Legislature would
    23
    
    Id. See, also,
    State v. Peterson, supra note 19.
    24
    State v. Davlin, 
    263 Neb. 283
    , 
    639 N.W.2d 631
    (2002).
    25
    
    Id. at 298,
    639 N.W.2d at 646.
    26
    
    Id. 27 Id.
    28
    
    Id. 29 State
    v. Yos-Chiguil, 
    281 Neb. 618
    , 
    798 N.W.2d 832
    (2011).
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    have intended the tests or analyses encompassed by § 29-1913
    to be limited to tests or analyses of “ballistics, firearms
    identification, fingerprints, blood, semen, or other stains.”
    Particularly, there are reasons why the Legislature would not
    have intended this statute to apply to bodies.
    Unlike other evidence, a person’s body is uniquely con-
    nected to the emotional feelings of the deceased’s relatives,
    who wish to dispose of their loved one’s remains as they see
    fit, rather than preserve them for duplicative tests or analyses.30
    Cremation of a body may be an “intentional alteration by rep-
    resentatives of the prosecuting authority,”31 but considerations
    are at play in doing so at the behest of the victim’s family,
    which considerations are not present with “ballistics, firearms
    identification, fingerprints, blood, semen, or other stains.”32
    Also, unlike “ballistics, firearms identification, fingerprints,
    blood, semen, or other stains,” a body will naturally deteriorate
    and is difficult to preserve as a whole unit. Conservation should
    be required only of those individual body parts or samples that
    the State intends to offer tests of and that are capable of being
    specially preserved in order to retest or reanalyze them in a
    manner similar to those items listed by the statute. Most of
    such parts or samples, of course, actually are “fingerprints,
    blood, semen, or other stains.”
    (c) Mandatory Suppression Is Not Triggered
    Absent Discovery Motion
    [13] But even if § 29-1913 were to apply to a body or any
    of its parts that are not “fingerprints, blood, semen, or other
    stains,” we agree with the State that there was no obligation
    for the district court to suppress the evidence without a motion
    by Henry that the specific evidence be made available to con-
    duct like tests or analyses. For, in the absence of any discovery
    30
    See People v. Vick, 
    11 Cal. App. 3d 1058
    , 
    90 Cal. Rptr. 236
    (1970).
    31
    See § 29-1913(2).
    32
    See § 29-1913(1).
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    motion under § 29-1913(1), there is no discovery order, and
    without a discovery order, there can be no violation requiring
    suppression of the evidence.
    We can find no case wherein we have reached a holding
    under § 29-1913, and the defendant had failed to file a motion
    under § 29-1913(1) to make available to the defense the evi-
    dence necessary to conduct like tests or analyses. To the con-
    trary, in cases decided under § 29-1913, the defendant’s motion
    for discovery of the relevant evidence and the corresponding
    discovery order is explicitly noted in our analysis.33
    Indeed, in State v. Tanner,34 we said that because the defend­
    ant failed to demand that the blood sample be produced, which
    was allegedly coagulated and untestable for unknown reasons,
    the defendant waived production of the sample and the corre-
    sponding sanctions under § 29-1913(2).
    In Batchelor,35 decided under §§ 29-1912 and 29-1919, we
    similarly found decisive that the defendant failed to specifically
    request discovery of a graph produced as part of the chemical
    testing, which the State had failed to preserve. We explained
    that the defendant could not obtain suppression of the chemical
    test based on the destruction of a graph that was not subject to
    a discovery motion.36
    Henry argues that a motion for discovery under § 29-1913(1)
    would have been futile, because Jorgensen’s body had been
    cremated before Henry was charged with the murder and
    appointed an attorney. Since it would have been impossible
    for the State to comply with any discovery order issued in
    response to a motion under § 29-1913(1), Henry argues that a
    motion under § 29-1913(1) was not a necessary prerequisite to
    the mandatory sanctions under § 29-1913(2).
    33
    See, State v. Peterson, supra note 19; State v. Tanner, supra note 19; State
    v. Brodrick, supra note 20. But see State v. Davlin, supra note 24.
    34
    State v. Tanner, supra note 19.
    35
    State v. Batchelor, supra note 20.
    36
    
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    [14] We find no merit to Henry’s futility argument. Section
    29-1913(1) plainly states that a discovery order may be issued
    “upon motion of the defendant.” We will not conclude that
    because the State in good faith destroyed evidence before a
    defense discovery motion under § 29-1913 could be made, the
    district court was obliged to suppress the State’s tests or analy-
    ses under § 29-1913(2) without any motion for discovery under
    § 29-1913(1).
    Without a discovery motion under § 29-1913(1), the trial
    court cannot know the precise issue presented and make the
    necessary factual findings in determining whether an order of
    discovery should be granted. And, without a proper discovery
    order and a claim of the violation of such order being brought
    to the court’s attention, the court cannot properly determine
    whether the evidence subject to the order was, in fact, unavail-
    able and whether it was unavailable due to neglect or inten-
    tional alteration.
    [15] Simply put, the mandatory sanction of suppression
    provided for under § 29-1913(2) cannot be triggered unless
    these discretionary determinations have first been made upon
    a proper motion. Thus, a discovery motion under § 29-1913(1)
    is a prerequisite for sanctions under § 29-1913(2). A sup-
    pression motion cannot serve as a substitute for a discov-
    ery motion.37
    (d) Trial Court Did Not Abuse Its Discretion
    in Denying Motion to Suppress
    Particularly here, without a proper discovery motion under
    § 29-1913(1), the court and the State were left to guess what
    similar tests Henry wished his experts to conduct. Henry
    sought to suppress all evidence derived from the autopsy, but
    without an appropriate motion, it was unclear what tests Henry
    sought to retest or reanalyze, or whether some individual body
    part or fluid was Henry’s real object.
    37
    See 
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    It was unclear whether Henry contested Jorgensen’s cause
    of death. The ultimate scientific analysis entered into evidence
    as a result of the autopsy was that Jorgensen died of multiple
    stab wounds. Henry did not contest that Jorgensen was stabbed
    multiple times or that he bled profusely as a result. And these
    facts were confirmed by the testimony of the officers who
    arrived at the scene and by the photographs they took. In deny-
    ing Henry’s motion under § 29-1913(1), the court noted that
    after having appointed Henry an independent pathologist and
    given full access to Bowen’s report, the autopsy photographs,
    and any evidence retained by Bowen as a result of the autopsy,
    Henry did not contest Jorgensen’s cause of death.
    Henry failed to explain how reanalysis of Jorgensen’s body
    could have led to a different determination. Henry’s pathologist
    certainly did not indicate that the absence of the body hindered
    the pathologist’s determination of cause of death. While there
    was methamphetamine found in Jorgensen’s decomposition flu-
    ids, the State pathologist’s determination of Jorgensen’s cause
    of death did not depend on the chemical tests of the decom-
    position fluids. Rather, Bowen determined that based on the
    amount of hemorrhaging from the stab wounds, Jorgensen was
    alive at the time he was stabbed and that therefore, he did not
    die from methamphetamine.
    Having concluded that the mandatory sanctions of
    § 29-1913(2) were not triggered, Henry’s motion to suppress
    was a matter within the court’s discretion.38 Henry failed to
    provide sufficient grounds upon which we could conclude that
    the district court abused its discretion in denying the motion
    to suppress. We find no merit to Henry’s second assignment
    of error.
    3. Assignment of Error No. 3
    Henry assigns that the district court erred in overruling his
    motion for a bill of particulars by which he sought to know
    38
    See State v. Henderson, supra note 3.
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    the names of the “‘potential robbery victim or victims’” men-
    tioned in count IV of the amended information. He argues that
    without identifying the victim or victims, the language of the
    information was not sufficient to charge him with conspiracy to
    commit robbery. We do not agree.
    [16] We have stated that where an information alleges the
    commission of a crime using language of the statute defining
    that crime or terms equivalent to such statutory definition, the
    charge is sufficient.39 Neb. Rev. Stat. § 28-202(1) (Reissue
    2008), which defines criminal conspiracy, states:
    A person shall be guilty of criminal conspiracy if, with
    intent to promote or facilitate the commission of a
    felony:
    (a) He agrees with one or more persons that they or one
    or more of them shall engage in or solicit the conduct or
    shall cause or solicit the result specified by the definition
    of the offense; and
    (b) He or another person with whom he conspired com-
    mits an overt act in pursuance of the conspiracy.
    Significantly, this definition refers to the conduct and result
    “specified by the definition of the offense” to which the per-
    sons have conspired to commit, but it does not mention the
    identity of the victim of the underlying offense.40
    [17] We additionally note that this court has established that
    it is not necessary to a charge of robbery to name the alleged
    victim.41 In State v. Smith,42 we specifically rejected the argu-
    ment that the charge for robbery in an information was insuf-
    ficient because it failed to indicate the victim of the alleged
    robbery. Therefore, in order to allege the existence of an
    39
    See State v. Davlin, 
    272 Neb. 139
    , 
    719 N.W.2d 243
    (2006).
    40
    See 
    id. 41 See,
    State v. Smith, 
    269 Neb. 773
    , 
    696 N.W.2d 871
    (2005); State v.
    Nicholson, 
    183 Neb. 834
    , 
    164 N.W.2d 652
    (1969).
    42
    State v. Smith, supra note 41.
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    agreement to commit robbery, it was not necessary to identify
    the alleged victim or victims of such robbery.43
    In the instant case, count IV of the amended information
    used the language of § 28-202(1) to charge Henry with crimi-
    nal conspiracy to commit robbery. It alleged that “with the
    intent to promote or facilitate the commission of felony rob-
    bery,” he “agree[d] with one or more persons to engage in the
    result specified by the definition of the offense of robbery” and
    that “he or another person with whom he conspired committed
    an overt act in pursuance of the conspiracy.” This language
    corresponded to that of § 28-202(1) and was thus sufficient to
    charge Henry with criminal conspiracy to commit robbery.44
    The district court did not err in overruling Henry’s motion for
    a bill of particulars.
    4. Assignment of Error No. 4
    Henry assigns that the district court erred in overruling his
    motion to sever count IV from the other three counts for trial.
    The joinder or separation of charges for trial is governed by
    Neb. Rev. Stat. § 29-2002 (Reissue 2008), which states, in
    relevant part:
    (1) Two or more offenses may be charged in the same
    indictment, information, or complaint in a separate count
    for each offense if the offenses charged, whether felonies
    or misdemeanors, or both, are of the same or similar
    character or are based on the same act or transaction or
    on two or more acts or transactions connected together or
    constituting parts of a common scheme or plan.
    ....
    (3) If it appears that a defendant or the state would
    be prejudiced by a joinder of offenses in an indict-
    ment, information, or complaint . . . the court may order
    an election for separate trials of counts, indictments,
    43
    
    Id. 44 See
    State v. Davlin, supra note 39.
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    informations, or complaints, grant a severance of defend­
    ants, or provide whatever other relief justice requires.
    Under § 29-2002, whether offenses were properly joined
    involves a two-stage analysis in which we first determine
    whether the offenses were related and joinable and then deter-
    mine whether an otherwise proper joinder was prejudicial to
    the defendant.45
    (a) Offenses Properly Joinable
    The first question is whether count IV, which alleged a con-
    spiracy to commit robbery, was properly joinable with counts
    I, II, and III, which related to Jorgensen’s murder. Offenses are
    properly joinable under § 29-2002(1) if they “‘are of the same
    or similar character or are based on the same act or transaction
    or on two or more acts or transactions connected together or
    constituting parts of a common scheme or plan.’”46
    Henry argues that count IV “was completely separate and
    apart from the other counts of the Information,” because it
    related to the conspiracy to rob a person named “Tony” and
    not to Jorgensen.47 But the testimony at trial established that
    Jorgensen’s murder and the conspiracy to rob Tony were not
    unrelated but were in fact “connected together” and “parts of a
    common scheme or plan.”48 Critser testified that they went to
    Jorgensen’s house in order to obtain the money they needed to
    buy a gun to use in the robbery of Tony. In other words, the
    plan to go to Jorgensen’s house developed from the conspiracy
    to rob Tony. Accordingly, count IV was properly joinable with
    counts I, II, and III.
    45
    See State v. Knutson, 
    288 Neb. 823
    , 
    852 N.W.2d 307
    (2014), cert. denied
    ___ U.S. ___, 
    135 S. Ct. 1505
    , 
    191 L. Ed. 2d 442
    (2015).
    46
    
    Id. at 830,
    852 N.W.2d at 316. See, also, State v. Rocha, 
    286 Neb. 256
    ,
    
    836 N.W.2d 774
    (2013).
    47
    Brief for appellant at 43.
    48
    See § 29-2002(1).
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    (b) Joinder Not Prejudicial
    Even if offenses are properly joinable, § 29-2002(3) pro-
    vides that severance may be granted if the joinder would be
    prejudicial. A defendant opposing joinder of charges has the
    burden of proving prejudice.49
    Henry argues that he was prejudiced by having count IV
    tried with the other counts for only one reason: It allowed the
    State to adduce evidence that would not have been relevant in
    a separate trial on counts I, II, and III, namely, the text mes-
    sages. But this claim is not supported by the facts. The plan
    to go to Jorgensen’s developed from the conspiracy to rob
    Tony, which itself developed by text message and in-person
    conversations. Thus, even though the text messages do not
    mention Jorgensen, they would have been relevant in a sepa-
    rate trial of counts I, II, and III. The joinder of offenses did
    not prejudice Henry by allowing for the introduction of the
    text messages.
    Severance is not a matter of right, and a ruling of the trial
    court with regard thereto will not be disturbed on appeal
    absent a showing of prejudice to the defendant.50 Henry has
    failed to establish that he was prejudiced by the otherwise
    proper joinder of count IV to the other offenses. We thus
    conclude that the district court did not err in overruling his
    motion to sever.
    5. Assignment of Error No. 5
    Henry assigns, but does not argue, that the district court
    erred in failing to grant a new trial. An alleged error must be
    both specifically assigned and specifically argued in the brief
    of the party asserting the error to be considered by an appel-
    late court.51 Therefore, we do not consider this assignment
    of error.
    49
    See State v. Knutson, supra note 45.
    50
    State v. Hilding, 
    278 Neb. 115
    , 
    769 N.W.2d 326
    (2009).
    51
    State v. Cook, 
    290 Neb. 381
    , 
    860 N.W.2d 408
    (2015).
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    6. Assignment of Error No. 6
    Henry assigns that the district court erred in admitting exhib-
    its 83, 84, and 86. He does not appear to challenge exhibit 90.
    Exhibit 90 was admitted for foundational purposes only, and it
    was never seen by the jury. Exhibit 83 is simply a printout of
    the first compact disc of exhibit 90, and it was likewise entered
    into evidence for foundational purposes only. Because it was
    never seen by the jury and it does not affect our analysis of
    the admissibility of exhibits 84 and 86, we will not address
    whether the court erred in “admitting” exhibit 83.
    (a) Foundation
    [18] Henry objected to the exhibits principally on the ground
    of foundation, and that is his principal argument on appeal.
    A growing body of case law has developed concerning the
    admissibility of text messages.52 Generally, the foundation for
    the admissibility of text messages has two components: (1)
    whether the text messages were accurately transcribed and (2)
    who actually sent the text messages.53
    Henry did not seem to dispute at trial that the text messages
    were accurately transcribed from the cell phone numbers iden-
    tified in the exhibits, other than to the extent he asserted “text
    spoofing” could misidentify the sending cell phone number.
    We find the testimony of Bell and Weinmaster was sufficient
    to authenticate the exhibits under Neb. Rev. Stat. § 27-901
    (Reissue 2008) as accurate transcriptions of the text mes-
    sages from the two cell phones examined. We find no merit
    to Henry’s argument that there was insufficient authentica-
    tion of the exhibits, because Bell and Weinmaster were “only
    52
    See, U.S. v. Barnes, 
    803 F.3d 209
    (5th Cir. 2015); State v. Elseman, 
    287 Neb. 134
    , 
    841 N.W.2d 225
    (2014); State v. Koch, 
    157 Idaho 89
    , 
    334 P.3d 280
    (2014); State v. Otkovic, 
    322 P.3d 746
    (Utah App. 2014); Gulley v.
    State, 
    2012 Ark. 368
    , 
    423 S.W.3d 569
    (Oct. 4, 2012); State v. Thompson,
    
    777 N.W.2d 617
    (N.D. 2010); State v. Franklin, 
    280 Kan. 337
    , 
    121 P.3d 447
    (2005); Annot., 
    34 A.L.R. 6th 253
    (2008).
    53
    See State v. Thompson, supra note 52.
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    familiar with one phone and one phone number and had no
    actual knowledge of what the other phone or phone num-
    ber contained.”54
    Henry claims there was not sufficient foundation that he
    in fact sent the text messages attributed to him. Specifically,
    Henry points out the lack of evidence that he was the record
    owner of the cell phone corresponding to the number 402-
    367-8802 and the facts that the cell phone corresponding to
    that number was found in a post office dropbox and that a
    person named “Cowboy” claimed ownership of the cell phone.
    Further, Henry points out that a sender of a text message can,
    through “text spoofing,” make it appear that the text message
    was sent from one cell phone number when it was actually sent
    from another number.
    [19] In similar cases, testimony concerning context or famil-
    iarity with the manner of communication of the purported
    sender is sufficient foundation for the identity of the sender of
    the message.55 Such testimony is typically in combination with
    testimony that the cell phone number belonged to or was regu-
    larly utilized by the alleged sender.56 The proponent of the text
    messages is not required to conclusively prove who authored
    the messages.57 The possibility of an alteration or misuse by
    another generally goes to weight, not admissibility.58
    Despite the fact that the cell phone was found in a post
    office and there was no record ownership established, there
    was testimony at trial identifying Henry as the regular user
    of the cell phone number in question. Critser testified that he
    had programmed that number under the name “E.” Benson
    54
    Brief for appellant at 47.
    55
    See, e.g., State v. Franklin, supra note 52.
    56
    See, U.S. v. Barnes, supra note 52; State v. Koch, supra note 52; State v.
    Otkovic, supra note 52; Gulley v. State, supra note 52; State v. Blake, 
    2012 Ohio 3124
    , 
    974 N.E.2d 730
    (2012).
    57
    See State v. Elseman, supra note 52.
    58
    See 
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    testified that Henry answered when she called that number.
    Furthermore, the identity of Henry as the sender of the mes-
    sages was sufficiently established through Critser’s testimony
    that he knew the messages were from Henry by their context
    and familiarity with how Henry talked.
    The district court did not abuse its discretion in overruling
    Henry’s foundation objections to the text messages.
    (b) Hearsay
    Henry also asserts that the text messages were inadmissible
    hearsay. Our analysis of this assertion is complicated by the
    fact that Henry made just one general hearsay objection to the
    exhibits as a whole without any discussion of what particular
    statements were inadmissible under such objection and why. It
    was unclear whether Henry even drew any meaningful distinc-
    tion between his foundation and his hearsay objections. Thus,
    the parties and the court did not discuss Henry’s hearsay objec-
    tion, and the court generally overruled the hearsay objection
    without elaboration and without making any explicit findings
    of fact.
    [20,21] It is generally sufficient to make a general hearsay
    objection to a specific statement, but a general hearsay objec-
    tion to the entirety of a witness’ testimony or to multiple state-
    ments in an exhibit, each admissible or objectionable under dif-
    fering theories, is not usually sufficient to preserve the hearsay
    objection.59 Rather, the opponent to the evidence must identify
    which statements are objectionable as inadmissible hearsay.60
    59
    See, State v. Gutierrez, 
    272 Neb. 995
    , 
    726 N.W.2d 542
    (2007), abrogated
    on other grounds, State v. Thorpe, 
    280 Neb. 11
    , 
    783 N.W.2d 542
    ;
    McMartin v. State, 
    95 Neb. 292
    , 
    145 N.W. 695
    (1914); Moyer v. State, 
    948 S.W.2d 525
    (Tex. App. 1997); Thompson v. State, 
    589 So. 2d 1013
    (Fla.
    App. 1991); State v. Brown, 
    310 Or. 347
    , 
    800 P.2d 259
    (1990); Jackson v.
    State, 
    213 Ga. 275
    , 
    98 S.E.2d 571
    (1957).
    60
    See, McMartin v. State, supra note 59; Moyer v. State, supra note 59;
    Thompson v. State, supra note 59; State v. Brown, supra note 59; Jackson
    v. State, supra note 59.
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    Unless an objection to offered evidence is sufficiently specific
    to enlighten the trial court and enable it to pass upon the suf-
    ficiency of such objections and to observe the alleged harmful
    bearing of the evidence from the standpoint of the objector, no
    question can be presented therefrom on appeal.61
    [22-24] Once the proponent of evidence shows that the pro-
    posed evidence is relevant and competent, it is presumptively
    admissible.62 It is the party objecting to the evidence as hearsay
    who bears the burden of production and persuasion that the
    objected-to evidence is in fact hearsay.63 Once the opponent
    demonstrates the evidence is hearsay, the burden shifts to the
    proponent to lay the foundation for one of the exceptions to the
    hearsay rule.64 Neither the trial court nor the appellate court are
    obliged to sort the statements out on the opponent’s behalf.65
    And where the reason for the trial court’s overruling of a
    hearsay objection is left at large, arguably, it is the opponent’s
    burden to demand an explanatory ruling.66
    [25] Henry’s hearsay objection was thus arguably waived.
    But we conclude, in any case, that the text messages were
    properly admitted into evidence. Regardless of whether the
    proponent or the trial court articulated no theory or the wrong
    theory of admissibility, an appellate court may affirm the
    61
    State v. Gutierrez, supra note 59.
    62
    See, Neb. Rev. Stat. § 27-402 (Reissue 2008); G. Michael Fenner, Evidence
    Review: The Past Year in the Eighth Circuit, Plus Daubert, 28 Creighton
    L. Rev. 611 (1995).
    63
    G. Michael Fenner, The Hearsay Rule 58 (2003).
    64
    See, e.g., Idaho v. Wright, 
    497 U.S. 805
    , 
    110 S. Ct. 3139
    , 
    111 L. Ed. 2d 638
    (1990); American Automotive Accessories, Inc. v. Fishman, 
    175 F.3d 534
    (7th Cir. 1999); U.S. v. Samaniego, 
    187 F.3d 1222
    (10th Cir. 1999);
    Bemis v. Edwards, 
    45 F.3d 1369
    (9th Cir. 1995).
    65
    See, McMartin v. State, supra note 59; Moyer v. State, supra note 59;
    Thompson v. State, supra note 59; State v. Brown, supra note 59; Jackson
    v. State, supra note 59.
    66
    See Shepard v. United States, 
    290 U.S. 96
    , 
    54 S. Ct. 22
    , 
    78 L. Ed. 196
          (1933).
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    ultimate correctness of the trial court’s admission of the evi-
    dence under any theory supported by the record, so long as
    both parties had a fair opportunity to develop the record and
    the circumstances otherwise would make it fair to do so.67
    In United States v. Rosenstein,68 the court accordingly
    affirmed the admission of evidence under the coconspirator
    exclusion to the hearsay rule, even though the evidence was
    admitted at trial under the business records exception. The
    court rejected the opponent’s argument that admission of the
    evidence could not be affirmed on appeal under the cocon-
    spirator exclusion because the trial court failed to make at
    trial the requisite foundational findings that the statements
    were in furtherance of a conspiracy. The court said that it
    would make a post hoc determination on appeal of whether
    the record supported the exclusion.69 It found that doing so did
    not in any way impinge upon any jury function.70 The court
    explained that no unfairness results under circumstances where
    the evidence is deemed on appeal admissible for the truth
    of the matter asserted, because no different or other limiting
    instruction would have been necessary to explain to a jury its
    limited purpose.71
    We conclude that the record supports the admissibility of
    the text messages in light of the hearsay rule and that it is fair
    to affirm the admission of the text messages under theories
    that neither the State nor the court articulated below—in large
    part due to the vagueness of Henry’s objection. Specifically,
    for the reasons that follow, we conclude that the text messages
    by Henry are admissions by a party opponent and that the text
    messages from Critser are statements of a coconspirator. As
    67
    See, U.S. v. Paulino, 
    13 F.3d 20
    (1st Cir. 1994); U.S. v. Williams, 
    837 F.2d 1009
    (11th Cir. 1988); United States v. Rosenstein, 
    474 F.2d 705
    (2d Cir.
    1973); State v. Draganescu, 
    276 Neb. 448
    , 
    755 N.W.2d 57
    (2008).
    68
    United States v. Rosenstein, supra note 67.
    69
    
    Id. 70 Id.
    Compare Shepard v. United States, supra note 66.
    71
    See United States v. Rosenstein, supra note 67.
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    for the remaining text messages between Benson and Critser,
    if inadmissible hearsay, we conclude the admission of those
    text messages was harmless.
    (i) Henry’s Statements
    The State argues that the text messages sent by Henry
    were admissible under § 27-801(4)(b)(i), because they are
    statements of a party opponent. We agree. These text mes-
    sages were “offered against” Henry and contained “his own
    statement[s].”72 As such, under § 27-801(4)(b)(i), they were
    not hearsay.
    (ii) Critser’s Statements to Henry
    We conclude that Critser’s statements to Henry were admis-
    sible as nonhearsay under the coconspirator exclusion to the
    hearsay rule. The coconspirator exclusion, found in § 27-801,
    provides: “(4) A statement is not hearsay if . . . (b) [t]he state-
    ment is offered against a party and is . . . (v) a statement by a
    coconspirator of a party during the course and in furtherance
    of the conspiracy.” The coconspirator exclusion is another kind
    of “admissions” nonhearsay, attributable to the principal as an
    agent.73 Under § 27-801(4)(b)(v), statements offered against a
    party that are made by a coconspirator of the party during the
    course of and in furtherance of the conspiracy are not hearsay
    and are admissible.
    [26] The rule that a statement by a coconspirator is not
    hearsay if made during the course and in furtherance of
    a conspiracy is construed broadly in favor of admissibil­
    ity.74 The principal element of a conspiracy is an agreement
    or understanding between two or more persons to inflict a
    wrong against or injury upon another, but it also “requires an
    ‘overt act.’”75
    72
    See § 27-801(4)(b)(i).
    73
    See David F. Binder, Hearsay Handbook, 4th § 35:9 (2015-16 ed.).
    
    74 U.S. v
    . McMurray, 
    34 F.3d 1405
    (8th Cir. 1994).
    75
    State v. Hansen, 
    252 Neb. 489
    , 500, 
    562 N.W.2d 840
    , 849 (1997).
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    [27,28] A conspiracy is ongoing until the central purposes
    of the conspiracy have either failed or been achieved.76 There
    is no talismanic formula for ascertaining when a cocon-
    spirator’s statements are in furtherance of the conspiracy;
    a statement need not be necessary or even important to the
    conspiracy, as long as it can be said to advance the goals of
    the conspiracy as opposed to thwarting its purpose.77 But if
    the statements are merely idle chatter, took place after the
    conspiracy ended, or are merely narrative of past events, they
    are not admissible.78
    Ideally, the trial court would make a finding that there was
    a conspiracy and that the statements admitted under the cocon-
    spirator exclusion were in the course and in furtherance of
    the conspiracy.79 Obviously, that foundational finding was not
    made here, because the court did not articulate this theory of
    admissibility in overruling Henry’s generalized hearsay objec-
    tion. Nevertheless, we note that in a slightly different context,
    when Henry objected on hearsay grounds to Critser’s testimony
    about what Henderson said at Jorgensen’s house, the court
    found that the coconspirator exclusion to the hearsay rule set
    forth in § 27-801(4)(b) applied. Henry even seemed to con-
    cede at that time the existence of a conspiracy to rob Tony;
    he merely contested whether there was a conspiracy to rob or
    murder Jorgensen.
    76
    See 
    id. See, also,
    e.g., Krulewitch v. United States, 
    336 U.S. 440
    , 
    69 S. Ct. 716
    , 
    93 L. Ed. 790
    (1949).
    77
    See, e.g., U.S. v. Martinez-Medina, 
    279 F.3d 105
    (1st Cir. 2002); U.S. v.
    LiCausi, 
    167 F.3d 36
    (1st Cir. 1999).
    78
    See, State v. Gutierrez, supra note 59; State v. Bobo, 
    198 Neb. 551
    , 
    253 N.W.2d 857
    (1977).
    79
    See, U.S. v. Wright, 
    932 F.2d 868
    (10th Cir. 1991), overruled on other
    grounds, U.S. v. Flowers, 
    464 F.3d 1127
    (10th Cir. 2006); United States v.
    Marbury, 
    732 F.2d 390
    (5th Cir. 1984); State v. Alvarez, 
    820 N.W.2d 601
          (Minn. App. 2012). See, also, Bourjaily v. United States, 
    483 U.S. 171
    ,
    
    107 S. Ct. 2775
    , 
    97 L. Ed. 2d 144
    (1987).
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    In any event, the testimony of Critser, Henderson, and
    Benson sufficiently established that Critser, Henderson, and
    Henry were conspiring to rob Tony. Although much of this
    foundational testimony was adduced after exhibits 84 and 86
    were entered into evidence, a correct evidentiary ruling will not
    be reversed simply because the foundational proof came at the
    wrong time.80 And there is no bright-line requirement that the
    independent evidence of a conspiracy must precede the admis-
    sion of coconspirator statements.81
    a. May 15 and 16
    The text messages sent on May 15 and 16, 2013, were part
    of the text message conversation during which Critser and
    Henry first conceived of their plan to commit a robbery. By
    the fifth text message of this conversation, Henry had proposed
    that Critser come to Columbus to help Henry commit a rob-
    bery, and by the sixth, Critser had agreed. Over the remaining
    text messages in the conversation, they made arrangements for
    Henry to pick up Critser and discussed finding a gun. These
    text messages were clearly sent during the course and in fur-
    therance of the conspiracy.
    b. May 19 to 25
    The text messages written by Critser between May 19 and
    25, 2013, were part of an ongoing conversation with Henry
    about covering up their involvement in Jorgensen’s murder.
    80
    See, U.S. v. Williams, supra note 67; State v. Alvarez, supra note 79.
    81
    See, State v. Gutierrez, supra note 59; State v. Copple, 
    224 Neb. 672
    , 
    401 N.W.2d 141
    (1987), abrogated on other grounds, State v. Reynolds, 
    235 Neb. 662
    , 
    457 N.W.2d 405
    (1990); State v. Conn, 
    12 Neb. Ct. App. 635
    , 
    685 N.W.2d 357
    (2004). See, also, e.g., United States v. Fleishman, 
    684 F.2d 1329
    (9th Cir. 1982); United States v. Clark, 
    649 F.2d 534
    (7th Cir. 1981);
    United States v. Vargas-Rios, 
    607 F.2d 831
    (9th Cir. 1979); United States v.
    Nelson, 
    603 F.2d 42
    (8th Cir. 1979); State v. Thompson, 
    273 Minn. 1
    , 
    139 N.W.2d 490
    (1966); 6 Michael H. Graham, Handbook of Federal Evidence
    § 801:25 (7th ed. 2012 & Supp. 2016).
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    In these messages, Critser discussed (1) the proceeds from
    the murder; (2) disposing of Jorgensen’s keys and the clothes
    they had worn during the murder; (3) getting rid of any fin-
    gerprints at the scene of the murder, either by breaking into
    Jorgensen’s house or by burning it down; (4) being scared of
    getting caught; (5) looking for a gun; and (6) meeting up with
    Henry. These were also in the course and in furtherance of the
    conspiracy to rob Tony.
    [29] The definitional exclusion to the hearsay rule applies
    to the coverup or concealment of the conspiracy that occurs
    while the conspiracy is ongoing, just as it would to any other
    part of the conspiracy.82 Also, “[a] conspiracy to obtain money
    illegally does not end until the money is obtained or the con-
    spirators have stopped trying to obtain it.”83
    The conspiracy to rob Tony was still ongoing at the time
    Henry sent the text messages between May 19 and 25, 2013.
    The central purpose of the conspiracy to rob Tony had not
    been achieved. Neither had the conspiracy been abandoned
    or defeated at the time of the statements concerning conceal-
    ment of evidence linked to Jorgensen’s murder. To the con-
    trary, after Jorgensen’s murder, Henry continued to pursue
    and eventually obtain a gun with which to rob Tony, and he
    continued to try to make arrangements to get Critser to return
    to Columbus.
    [30] The statements between May 19 and 25, 2013, relat-
    ing directly to the concealment of Jorgensen’s murder, were in
    furtherance of this ongoing conspiracy to rob Tony. Whether
    it was the conspirators’ original plan to murder Jorgensen,
    Jorgensen was murdered during the conspirators’ attempt to
    get money from Jorgensen in order to buy a gun with which
    to rob Tony. And covering up the murder of Jorgensen was in
    furtherance of the ongoing conspiracy to rob Tony, because,
    82
    Fenner, supra note 63, p. 102.
    83
    Binder, supra note 73, § 35:13 at 996.
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    if the conspirators were caught for the murder of Jorgensen,
    then they would not be able to rob Tony.84 When a conspiracy
    involves a sequence of objectives, concealment is usually an
    integral part thereof.85
    [31,32] While a conspirator’s statements during an ongoing
    conspiracy will not be in furtherance of the conspiracy if made
    after the conspirator’s withdrawal from the conspiracy, Critser
    did not withdraw from the conspiracy before making the state-
    ments between May 19 and 25, 2013.86 Upon proof of partici-
    pation in a conspiracy, a conspirator’s continuing participation
    is presumed unless the conspirator demonstrates affirmative
    withdrawal from the conspiracy.87 And to withdraw from a
    conspiracy such that statements of a coconspirator are inadmis-
    sible, the coconspirator must do more than ceasing, however
    definitively, to participate.88 Rather, the coconspirator must
    make an affirmative action either by making a clean breast to
    the authorities or by communicating abandonment in a manner
    calculated to reach coconspirators, and must not resume par-
    ticipation in the conspiracy.89
    Although Critser indicated at trial that he had no real inten-
    tion of returning to Columbus to carry out the robbery of Tony,
    he did not affirmatively communicate his abandonment of the
    conspiracy to Henry or Henderson. To the contrary, Critser
    84
    See, e.g., U.S. v. DiDomenico, 
    78 F.3d 294
    (7th Cir. 1996); United States
    v. Pecora, 
    798 F.2d 614
    (3d Cir. 1986); United States v. Del Valle, 
    587 F.2d 699
    (5th Cir. 1979); Neal v. State, 
    104 Neb. 56
    , 
    175 N.W. 669
    (1919);
    People v. Manson, 
    61 Cal. App. 3d 102
    , 
    132 Cal. Rptr. 265
    (1976).
    85
    See United States v. Del Valle, supra note 84.
    86
    See, e.g., U.S. v. Zizzo, 
    120 F.3d 1338
    (7th Cir. 1997).
    
    87 U.S. v
    . Patel, 
    879 F.2d 292
    (7th Cir. 1989); United States v. Gibbs, 
    739 F.2d 838
    (3d Cir. 1984); United States v. Basey, 
    613 F.2d 198
    (9th Cir.
    1979); 29A Am. Jur. 2d Evidence § 853 (2008).
    88
    See, U.S. v. Robinson, 
    390 F.3d 853
    (6th Cir. 2004); U.S. v. Zarnes, 
    33 F.3d 1454
    (7th Cir. 1994); U.S. v. Patel, supra note 87.
    
    89 U.S. v
    . Hubbard, 
    22 F.3d 1410
    (7th Cir. 1994); U.S. v. Patel, supra
    note 87.
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    complained of not having received any money, indicated his
    willingness to try to obtain a gun with which to rob Tony, and
    indicated he would return to Columbus to carry out the rob-
    bery of Tony.
    The text messages sent by Critser between May 19 and 25,
    2013, were made during the course of and in furtherance of
    the conspiracy.
    (iii) Statements Between Benson and Critser
    Because Benson was not part of the conspiracy to rob Tony,
    the messages between Benson and Critser do not fall under the
    exclusion found in § 27-801(4)(b)(v).90 No other exclusion or
    exception would appear to apply to these statements to make
    them admissible for the truth of the matters asserted. But we
    find their admission harmless.
    [33] Harmless error exists when there is some incorrect con-
    duct by the trial court which, on review of the entire record, did
    not materially influence the jury in reaching a verdict adverse
    to a substantial right of the defendant.91 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 would surely have been ren-
    dered, but, rather, whether the actual guilty verdict rendered
    was surely unattributable to the error.92 Erroneous admission of
    evidence is harmless error and does not require reversal if the
    evidence is cumulative and other relevant evidence, properly
    admitted, supports the finding by the trier of fact.93
    The majority of the text messages sent between Critser and
    Benson concerned the argument they had before Critser left for
    Columbus. Benson and Critser had a text message conversa-
    tion during which she stated, “I am pissed that you’re leaving
    90
    See Fenner, supra note 63, p. 97.
    91
    State v. Lavalleur, 
    289 Neb. 102
    , 
    853 N.W.2d 203
    (2014).
    92
    
    Id. 93 State
    v. DeJong, 
    287 Neb. 864
    , 
    845 N.W.2d 858
    (2014).
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    to go to commit crimes” and “your friend needs to learn
    some damn respect. This isn’t his apartment to leave his trash
    around. That really pissed me off.”
    We find the admission of these text messages harmless,
    because they were cumulative not only to the text messages
    properly admitted but also to Benson’s and Critser’s testimony.
    Benson testified without objection (1) that she was “kind of
    upset” about Critser’s letting Henry into her apartment and (2)
    that when Critser left on May 16, 2013, she believed he was
    going “[t]o go rob people for money and drugs.” Critser simi-
    larly testified about the argument he had with Benson.
    The remaining text messages entered into evidence con-
    tained statements about matters completely unrelated to this
    case, such as Benson’s daughter’s birthday and Benson’s pur-
    chases at a discount store. These messages concerning matters
    unrelated to the case could not have materially influenced the
    jury in reaching its verdict.
    (c) Rule of Completeness
    [34] Finally, Henry asserts that exhibits 84 and 86 were
    inadmissible under the rule of completeness.94 Henry’s objec-
    tion that the exhibits were inadmissible under the rule of
    completeness, to the extent it was timely made below, has no
    merit. The “‘rule of completeness’” states that an opponent
    may require one introducing part of a writing or statement to
    introduce any part which ought in fairness to be considered
    with the part introduced.95 We find no merit to any contention
    that the relevant text messages lacked proper context or were
    somehow incomplete without text messages sent to and from
    persons unrelated to the case and pertaining to unrelated mat-
    ters simply because all the messages were extracted during the
    same forensic examination of the cell phones and placed in the
    same documents prepared by the examiners.
    94
    
    Id. 95 State
    v. Manchester, 
    213 Neb. 670
    , 679, 
    331 N.W.2d 776
    , 782 (1983).
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    7. Assignment of Error No. 7
    Henry next assigns that the district court erred in allow-
    ing exhibits 84 and 86 to go to the jury room. His argument
    on this assignment of error encompasses exhibit 84 but not
    exhibit 86. As such, our review necessarily will be limited to
    exhibit 84.96
    This court has previously noted that, generally, a trial court
    does not have discretion to submit testimony materials to the
    jury for unsupervised review, but that the trial court has broad
    discretion to submit to the jury nontestimonial exhibits, in par-
    ticular, those constituting substantive evidence of the defend­
    ant’s guilt.97
    Within this context, we have concluded that testimony mate-
    rials include “live testimony at trial by oral examination or by
    some substitute for live testimony, including but not limited to,
    affidavit, deposition, or video recording of an examination con-
    ducted prior to the time of trial for use at trial.”98 Conversely,
    we have found that transcripts of online conversations “were
    not testimonial material but instead were substantive evidence
    of [the defendant’s] guilt,” because the transcripts proved that
    the defendant had used a computer to communicate with a
    person he believed to be under 16 years of age and that he had
    offered to engage in sexual activity with that person, both of
    which were elements of the crime charged.99
    Similar to the transcripts of online conversations, exhibit 84
    was a nontestimonial exhibit that contained substantive evi-
    dence of Henry’s guilt. The exhibit was not prepared or offered
    as live testimony or as a substitute for live testimony. Nor was
    it transformed into a form of testimonial evidence by the fact
    that the State used the exhibit during its direct examination of
    Critser. Wholly apart from the testimony adduced at trial, the
    96
    See State v. Cook, supra note 51.
    97
    State v. Castaneda, supra note 8.
    98
    State v. Vandever, 
    287 Neb. 807
    , 816-17, 
    844 N.W.2d 783
    , 790 (2014).
    99
    State v. Pischel, 
    277 Neb. 412
    , 427-28, 
    762 N.W.2d 595
    , 607 (2009).
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    text messages in exhibit 84 were proof that Henry agreed with
    another person (Critser) to engage in robbery in Columbus.
    Exhibit 84 thus constituted substantive evidence of one of the
    crimes charged.
    Because exhibit 84 was a nontestimonial exhibit that con-
    tained substantive evidence of Henry’s guilt, the district court
    had broad discretion to submit it to the jury for use during
    deliberations.100 We conclude that the court did not abuse its
    discretion by doing so, and we reject this assignment of error.
    8. Assignments of Error Nos. 8 and 9
    We address Henry’s final two assignments of error together,
    because they both relate to the State’s questioning of Critser
    regarding exhibit 84. During this questioning, the State referred
    to the cell phone with the 402-367-8802 number as being
    Henry’s cell phone and the text messages sent from that num-
    ber as being from Henry. Moreover, much of the direct exami-
    nation of Critser consisted of the State’s either asking Critser
    to read text messages from the exhibit and explain what he
    understood them to mean or restating the content of text mes-
    sages within questions.
    Henry argues that the district court erred in allowing the
    State to ask questions which “contained the assumption that
    the message was from . . . Henry and not simply from a
    number.”101 The manner in which a witness may be examined
    is within the sound discretion of the court.102 We do not find
    that the district court abused its discretion in permitting the
    State to refer to the text messages as being from Henry. As
    discussed, the State’s evidence supported the inference that
    Henry was the person sending the text messages. Additionally,
    Henry had the opportunity to thoroughly cross-examine Critser
    and the State’s other witnesses on the topic of who used the
    100
    See State v. Castaneda, supra note 8.
    101
    Brief for appellant at 55.
    102
    Ederer v. Van Sant, supra note 9.
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    cell phone found at the post office and whether the messages
    received on Benson’s cell phone could falsely identify the
    sending number. Through such questioning, Henry reiterated
    that the State and its witnesses were only assuming, and could
    not be sure, that Henry sent the text messages.
    [35] Henry also assigned that the district court erred in
    allowing the State to ask Critser what he understood the
    text messages to mean. However, Henry does not argue this
    assignment of error in his brief. An alleged error must be
    both specifically assigned and specifically argued in the brief
    of the party asserting the error to be considered by an appel-
    late court.103
    Even if Henry had preserved this issue for appeal by argu-
    ing it in his brief, we would not find that the district court
    abused its discretion in allowing the State to ask Critser
    what he understood the text messages to mean. The State
    established that Critser was qualified to give such testimony
    through its evidence (1) that Critser had “known [Henry] for
    quite a while” and was familiar with “how he talks” and (2)
    that Critser was familiar with the terminology of “the criminal
    world” from his time in prison. Moreover, Critser’s explana-
    tion of the text messages was undoubtedly both relevant and
    helpful to the jury, given that the text messages contained
    numerous abbreviations and terms that may not have been
    familiar to the average person. We also note that Henry was
    allowed to thoroughly cross-examine Critser on the content of
    the text messages. For these reasons, we find no abuse of dis-
    cretion in allowing the State to ask Critser about the meaning
    of the text messages.
    VI. CONCLUSION
    Finding no merit to Henry’s assignments of error, we affirm
    the judgment below.
    A ffirmed.
    103
    State v. Cook, supra note 51.
    

Document Info

Docket Number: S-14-519

Filed Date: 2/26/2016

Precedential Status: Precedential

Modified Date: 10/15/2019

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