State v. Henry , 292 Neb. 834 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/26/2016 08:20 AM CST
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Nebraska A dvance Sheets
292 Nebraska R eports
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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STATE v. HENRY
Cite as 292 Neb. 834
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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STATE v. HENRY
Cite as 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
Cite as 292 Neb. 834
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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STATE v. HENRY
Cite as 292 Neb. 834
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
Id.
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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 id.
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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 id.
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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.