State v. Ramirez ( 2014 )

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without merit under either alternative formulation, his coun-
sel was not ineffective in not asserting it at sentencing or on
direct appeal.
CONCLUSION
To summarize, in my view, the rule announced in Miller is
procedural and does not apply to Mantich on collateral review.
I would find that Graham has no application to Mantich’s
sentence of life imprisonment for first degree felony murder,
a homicide, and that Mantich’s alternative claim that his sen-
tence was grossly disproportionate to his crime is procedurally
barred. Because these claims are without merit, Mantich’s trial
and appellate counsel was not ineffective in failing to assert
them. And because the files and records conclusively show that
Mantich’s motion for postconviction relief is without merit, the
district court did not err in denying the requested relief without
conducting an evidentiary hearing. I would affirm the decision
of the district court.
Heavican, C.J., joins in this dissent.
State of Nebraska, appellee, v.
Eric A. Ramirez, appellant.
___ N.W.2d ___
Filed February 7, 2014. No. S-11-486.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make such discretion a factor in deter-
mining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court’s
conclusions with regard to evidentiary foundation and witness qualification for an
abuse of discretion.
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5. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
6. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
7. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
8. Trial: Juries: Evidence. Demonstrative exhibits are defined by the purpose for
which they are offered at trial; demonstrative exhibits aid or assist the jury in
understanding the evidence or issues in a case.
9. Trial: Evidence. Exhibits admitted only for demonstrative purposes do not con-
stitute substantive evidence.
10. Trial: Evidence: Appeal and Error. On appeal, a defendant may not assert a
different ground for his objection to the admission of evidence than was offered
at trial.
11. Appeal and Error. An objection, based on a specific ground and properly over-
ruled, does not preserve a question for appellate review on any other ground.
12. Evidence: Words and Phrases. Cumulative evidence means evidence tending to
prove the same point of which other evidence has been offered.
13. Trial: Evidence: Appeal and Error. The erroneous admission of evidence is not
reversible error if the evidence is cumulative and other relevant evidence, prop-
erly admitted, supports the finding of the trier of fact.
14. Criminal Law: Statutes: Sentences. Where a criminal statute is amended by
mitigating the punishment, after the commission of a prohibited act but before
final judgment, the punishment is that provided by the amendatory act unless the
Legislature has specifically provided otherwise.
15. Appeal and Error. An appellate court always reserves the right to note plain
error which was not complained of at trial or on appeal.
16. Sentences: Weapons. Although it is generally within the trial court’s discre-
tion to direct that sentences imposed for separate crimes be served concurrently
or consecutively, Neb. Rev. Stat. § 28-1205(3) (Reissue 2008) does not permit
such discretion in sentencing, because it mandates that a sentence for the use of
a deadly weapon in the commission of a felony be served consecutively to any
other sentence imposed and concurrent with no other sentence.
17. Sentences: Appeal and Error. An appellate court has the power on direct appeal
to remand a cause for the imposition of a lawful sentence where an erroneous one
has been pronounced.
Appeal from the District Court for Douglas County: John
D. Hartigan, Jr., Judge. Convictions affirmed, all sentences
vacated, and cause remanded for resentencing.
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James Martin Davis, of Davis Law Office, and Mark A.
Weber, of Carlson & Burnett, L.L.P., for appellant.
Jon Bruning, Attorney General, James D. Smith, and Carrie
A. Thober for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
In this direct appeal, Eric A. Ramirez appeals from his con-
victions and sentences in the district court for Douglas County
of two counts of first degree murder, three counts of use of
a deadly weapon to commit a felony, one count of attempted
second degree murder, one count of attempted robbery, and one
count of criminal conspiracy. The first degree murder convic-
tions are each Class IA felonies. Ramirez was 17 years old at
the time of the murders. Ramirez assigns error to certain rul-
ings regarding the admission and withdrawal of evidence. We
find no merit to these assignments of error and affirm his con-
victions. Regarding the sentences imposed for his convictions,
we conclude that the two life imprisonment sentences without
the possibility of parole imposed for the two convictions of
first degree murder, counts I and III, are unconstitutional and,
accordingly, we vacate those sentences and remand the cause
for resentencing consistent with Neb. Rev. Stat. § 28-105.02
(Supp. 2013). We find plain error in regard to the sentences
imposed for the convictions of use of a deadly weapon to
commit a felony, counts II, IV, and VII, and we vacate such
sentences and remand the cause for resentencing consistent
with Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2012), such
that each sentence imposed for the conviction of use of a
deadly weapon runs consecutively to all other sentences and
concurrently with no other sentence. We also find plain error
in regard to the three sentences imposed for the convictions of
count V, attempted second degree murder; count VI, attempted
robbery; and count VIII, criminal conspiracy, because, as cur-
rently written, each of these three sentences was ordered to
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run concurrently with the sentences for the convictions of use
of a deadly weapon, and, even after resentencing in counts II,
IV, and VII, these three sentences as written would impose
sentences which would run concurrently with at least two
sentences for the convictions of use of a deadly weapon. We
vacate the sentences for counts V, VI, and VIII and remand the
cause for resentencing such that the sentences imposed do not
run concurrently with the sentences for the convictions of use
of a deadly weapon. Accordingly, we affirm the convictions,
vacate all of the sentences, and remand the cause for resentenc-
ing consistent with this opinion.
STATEMENT OF FACTS
This case involves three shootings that occurred on the
night of November 12, 2008, at three separate locations in
Omaha, Nebraska, within an hour of each other. These shoot-
ings resulted in the deaths of two people and injury to a third
person. Ramirez, Edgar Cervantes, and Juan E. Castaneda
were later arrested for the crimes; Cervantes testified against
Ramirez and Castaneda pursuant to a plea agreement.
The first shooting took place at a residence located on
Dorcas Street, in Omaha, where Luis Silva was shot at approx-
imately 10:45 p.m. outside his residence. Jose Hernandez,
Silva’s cousin, was living with Silva at the time, along with an
aunt and another cousin. Hernandez testified that he was home
at approximately 10:30 p.m. when Silva’s truck, a Chevrolet
Blazer, arrived and parked in the driveway. Hernandez testi-
fied that he went outside to ask Silva to come inside and that
Silva told Hernandez he was going to finish a telephone call.
About 2 minutes later, Hernandez heard the truck’s horn honk.
Hernandez testified that he looked outside and saw Silva lying
on the ground near the truck and a man with a gun standing
next to him. Hernandez also saw another man by a tree nearby.
The man next to Silva pointed his gun at Hernandez and,
speaking in Spanish, said that “they only wanted money.” The
other man then said, “Let’s go,” in English. Through his porch
window, Hernandez watched the two men leave. Hernandez
testified that the man who pointed the gun at him was wear-
ing black pants and a black, hooded sweatshirt and had a
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goatee and that the other man was wearing black pants and a
gray sweatshirt.
Silva was shot twice. One bullet grazed the left side of his
head. The other bullet entered his upper back, and continued to
the left side of his chest. Silva was pronounced dead upon his
arrival at an Omaha hospital.
The second shooting took place near North 50th Street and
Underwood Avenue. Shortly after Silva was shot, Charles
Denton and Hilary Nelsen drove to a walkup automatic teller
machine (ATM). Denton got out of the van he was driving to
use the ATM, while Nelsen remained in the van. Nelsen and
Denton saw two people walking toward their vehicle. Nelsen
testified that they were male and were wearing their hoods up.
Nelsen testified that after Denton started the van, the two men
started running toward the van. One of the men approached the
driver’s-side window and yelled at Nelsen and Denton to give
him money. The man fired his gun, and Denton drove away.
Denton called the 911 emergency dispatch service, but after he
realized that he had been shot, he asked Nelsen to talk to the
911 operator.
Nelsen testified that she believed the men were not white
but that she could not tell if they were “Hispanic” or “black.”
Nelsen and Denton both testified that the gun was silver.
Denton stated the men were Hispanic and that the man with the
gun had facial hair. Denton testified that the shooter was wear-
ing a lighter-colored, hooded sweatshirt; that the other man
was wearing a darker-colored, hooded sweatshirt; and that both
men were wearing their hoods up. Denton sustained a bullet
wound through his left bicep and a graze on his chest.
The third shooting took place in the parking lot of a gas
station at South 52d and Leavenworth Streets. Tari Glinsmann
was finishing her shift at the gas station. A passerby noticed
a green Ford Taurus in front of the gas station with the lights
on, the door open, and the engine running. The passerby saw
a body and called 911. Glinsmann was dead when the rescue
workers arrived on the scene.
A crime scene technician with a specialty in fingerprint
identification was called by the State to testify. The fingerprint
specialist testified that she dusted the exterior of the Ford
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Taurus, concentrating on areas where it appeared that the dust
and dirt on the car had been smudged. She testified that she
lifted three latent prints from the car: two on the hood of the
car on the passenger side and one from just above the driver’s-
side door handle. She testified that the prints from the hood of
the car appeared to be two parts of a left palmprint. After anal-
ysis, the fingerprint specialist determined that the latent prints
found on the hood of the car matched Castaneda’s prints.
Another of the State’s witnesses was Cervantes, who agreed
to testify against Ramirez and Castaneda pursuant to a plea
agreement. Cervantes testified that on November 12, 2008,
he called Ramirez to see “if he wanted to go jack [rob] some
people and get some extra money.” When Cervantes called
Ramirez later, Ramirez said he was at a friend’s house near
South 24th and L Streets, and Cervantes offered to pick him
up. Cervantes testified that he drank some beer and used
cocaine while at the friend’s house. Ramirez asked Cervantes
if Castaneda could come along and if he could give “Tiny,”
another friend, a ride home. Cervantes agreed.
Cervantes testified that while he was on his way to drop
off Tiny at home, Ramirez was in the front passenger seat
and Tiny and Castaneda were in the back seat. Cervantes
testified that he passed a gun, which was wrapped in a blue
bandanna, to Ramirez and that Ramirez put the gun under
his seat. Cervantes stated that after he dropped off Tiny, they
proceeded to South 13th and Dorcas Streets where they saw
“some white guys getting out of [a] truck.” Cervantes testified
that Ramirez and Castaneda got out of the car and tried to rob
them. Ramirez and Castaneda then ran back to the car and said
that the men did not have any money and that they “started
getting crazy.” Cervantes testified that both he and Ramirez
were wearing gray, hooded sweatshirts and that Castaneda
was wearing a black coat with fur trim and orange lining on
the inside.
Cervantes testified that he then drove west on Dorcas
Street, when Cervantes saw a man in a Chevrolet Blazer
and pointed him out to Ramirez and Castaneda. Once again,
Ramirez and Castaneda got out of the car while Cervantes
waited. Cervantes heard a gunshot, Ramirez and Castaneda
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ran back to the car, and Cervantes drove away. Cervantes testi-
fied that Ramirez told him that when the man started honking
the horn, Ramirez shot him through the vehicle’s window.
Castaneda then pulled the man out of the vehicle and began
searching him. The people inside the house tried to come out,
but Ramirez pointed his gun at the house so they would not
come outside. Ramirez and Castaneda then ran back to the car
with the man’s wallet.
Cervantes stated that after robbing Silva, he drove to the area
around North 50th Street and Underwood Avenue, where they
saw a man at an ATM. Once again, Ramirez and Castaneda got
out of the car, and Cervantes drove around the block. Cervantes
heard gunshots, and Ramirez and Castaneda ran back to the
car. Cervantes testified that Ramirez told him that the man saw
them coming and started to drive away in his van, so Ramirez
shot at the van.
Cervantes then drove south until they reached South 52d
and Leavenworth Streets. Ramirez and Castaneda then saw
Glinsmann at the gas station and asked Cervantes to stop.
Ramirez and Castaneda, once again, got out of the car and
went over to the gas station. Cervantes parked in a nearby lot,
and he heard a gunshot. Ramirez and Castaneda ran back to
the car and got in. Cervantes testified that Ramirez said he shot
Glinsmann in the head.
At trial, the State also called as a witness Preston Landell,
the operations coordinator for Cricket Communications
(Cricket) in Omaha and Lincoln, Nebraska, to testify regard-
ing the cell phone records of Ramirez and Castaneda. Landell
stated that he is essentially a recordkeeper for Cricket and
that he had testified as a recordkeeper in other cases in the
past. Landell testified that his duties included maintaining
records at Cricket and being a resource for direct and indirect
retail teams.
Landell stated that records of calls made were stored in a
server for 6 months and that the date was recorded immedi-
ately at the time of sending a call. Text messages are stored in
the same way, but on a different server. Records are kept for
6 months after the date of sending the text message. Landell
testified as to the telephone number assigned to Ramirez and
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the telephone number assigned to Castaneda’s stepmother. The
records show the cell phone number from which the call or text
originated and the recipient’s number, the time and duration of
the call, and the cell tower used to process the call or text. The
State offered the cell phone and text records for each of these
accounts for the dates of November 9 to 19, 2008. The records
were received without objection.
The State also showed Landell exhibit 224, which is a time-
line summarizing the calls and texts between the cell phones
of Ramirez, Castaneda, and a third telephone number from
November 9 to 19, 2008. The information reflected on the
timeline was extracted from cell phone account records already
in evidence. Although exhibit 224 was discussed, it was not
offered or received into evidence at this point in the trial.
Landell further testified regarding the operation of cell
t
­owers. He stated that as an operational employee, he had a
“working knowledge of the infrastructure of the cell phone
towers.” Landell stated that when a call is made, the caller’s
cell phone searches for the closest available tower to route the
call to a “switch.” When the call reaches the switch, certain
information is recorded in the server, including the date, time,
and duration of the call; the caller’s telephone number; the
destination telephone number; the number of the cell tower that
was used; and any special features that were used during the
call. The switch then searches for the cell tower closest to the
destination cell phone and uses that cell tower to route the call
to the destination telephone. Landell testified that these records
are kept and stored in the ordinary course of business, at or
near the time the calls are made.
When the State asked Landell whether a cell phone would
use the closest cell tower when sending or receiving a call,
Ramirez objected on the basis of foundation. The objection
was overruled, and Landell testified that that was generally
how the system works, but not always. When asked whether
there was a distance that a tower would pull a call from,
Landell testified—over Ramirez’ foundation objection—that a
rural cell tower may have a 20-mile radius while the radius in
an urban setting is much less because of obstructions and more
tower traffic.
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The State then offered exhibit 259, which is a map of a
portion of Omaha showing the locations of the six cell towers
­
that were used by Ramirez’ cell phone the night of the shoot-
ings, along with the locations of the shootings. The map
shown on exhibit 259 incorporated information from evidence
that was previously admitted during trial with the exception
of the exact street addresses of the cell towers. Landell stated
that he had reviewed exhibit 259 and that the addresses and
locations of the cell towers shown on the exhibit were cor-
rect. Ramirez objected to exhibit 259 based on foundation
and was granted permission to voir dire Landell. During voir
dire, Landell stated that generally, a cell phone call will go to
the closest tower if it is available, but that he could not say
with certainty that a call will always go to the closest tower.
Landell further stated that if the towers are busy, a call may
go to a number of towers before it is put through. The court
overruled Ramirez’ foundation objection and received exhibit
259 into evidence.
There is a suggestion in the record that the parties agreed to
a stipulation of facts to the effect that Ramirez lived with his
mother, that he was on probation, and that Ramirez’ mother
tried to ensure that he was home by curfew every night, but
that she could not guarantee Ramirez never would have snuck
out of the house after curfew. After the State rested, the defense
did not call any witnesses or offer evidence.
Before closing arguments were made, the trial judge sum-
moned counsel outside the presence of the jury to discuss
exhibit 259, which was the map which showed the locations
of the shootings and cell towers used by Ramirez’ cell phone
the night of the shootings. After further discussion, the judge
withdrew exhibit 259, which had been admitted over Ramirez’
foundational objection. The trial judge later orally admonished
the jury by saying: “One final item on the evidence. Exhibit
259 has been withdrawn from evidence. You are instructed
not to consider it in your deliberations or the testimony of . . .
Landell regarding the location of cell towers insofar as the sub-
scriber’s location is concerned.” Ramirez moved for a mistrial,
which the court overruled. For completeness, we note that the
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written jury instructions stated that the jury “must disregard all
evidence ordered stricken.”
The morning after jury deliberations began, it was noticed
that exhibit 224, the timeline of the cell phone calls and texts
which had been made between the cell phones of Ramirez,
Castaneda, and a third subscriber, had not been offered or
received into evidence. Exhibit 224 incorporated information
from previously admitted evidence, primarily Ramirez’ and
Cervantes’ cell phone records. After hearing arguments from
both parties outside the presence of the jury, the court allowed
the State to supplement the record and received exhibit 224 at
that time. The district court judge commented that exhibit 224
doesn’t contain any information that hasn’t been received
into evidence, and it had been referenced [sic] to during
the evidence and closing arguments. . . . It’s a fair repre-
sentation of a timeline that is already in evidence through
those records. And so the exhibit will be included among
the evidence that the court reporter transmits to the jury
for [its] deliberation.
Ramirez moved for a mistrial, and the court overruled the
motion.
The jury found Ramirez guilty on all eight counts. Ramirez
filed a motion for new trial on various bases, including the
admission and later withdrawal of exhibit 259, the map, and
the admission of exhibit 224, the timeline of cell phone
calls and texts. The district court denied Ramirez’ motion for
new trial.
In ruling on the motion for new trial, the court determined
that the admission and later withdrawal of exhibit 259 did not
require a new trial. The court explained: “I withdrew [exhibit]
259 from evidence, really, in an abundance of caution because
I didn’t want someone to draw the inference that the subscriber
or user was in a particular location at a particular time and that
that was the significance of [exhibit] 259.” In further explain-
ing why the court withdrew exhibit 259, the district court
judge stated:
It was a belt-and-suspenders approach, really. I don’t
think he [Landell] ever claimed in his testimony or the
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exhibit ever stated that the subscriber or the user was in
a particular location at a given time. He just talked about
the program; the way, depending upon traffic, cell towers
are programmed to receive and transmit incoming and
outgoing calls.
In denying Ramirez’ motion for new trial, the district court
also stated that the admission of exhibit 224, the timeline of
cell phone calls and texts, did not require a new trial. The court
stated that exhibit
224 was not itself an item of evidence but a summary of
other evidence that had been received and it was referred
to during the trial for the jury’s benefit by counsel at
different times, and I did not want to hobble the jury
in [its] consideration of the evidence by taking an item
away from [its] consideration that everybody had used,
and [exhibit 224] was itself not substantive evidence
but a compilation of other items that had been sepa-
rately received.
Following denial of the motion for new trial, the court
conducted the sentencing hearing on December 29, 2010. The
December 30, written sentencing order stated that Ramirez
had been informed of his convictions for the following
eight crimes:
Count I  Murder in the First Degree . . . .
Count II  Use of a Deadly Weapon to Commit a
Felony . . . .
Count III  Murder in the First Degree . . . .
Count IV  Use of a Deadly Weapon to Commit a
Felony . . . .
Count V  Attempted Murder in the Second Degree
....
Count VI  Attempted Robbery . . . .
Count VII  Use of a Deadly Weapon to Commit a
Felony . . . .
Count III  Criminal Conspiracy . . . .
We note that counts I and III, murder in the first degree, are
Class IA felonies. See Neb. Rev. Stat. § 28-303 (Reissue
2008). We further note that counts II, IV, and VII involve use
of a deadly weapon to commit a felony.
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The sentencing order set forth Ramirez’ sentences as follows:
Count I  Life imprisonment without the possibility
of parole
Count II  - 15 years consecutive to Count I only
12
Count III  Life imprisonment without the possibility
of parole
Count IV  - 15 years consecutive to Count III only
12
Count V  - 20 years concurrent with all
12
Count VI  - 15 years concurrent with all but
12
Count VII
Count VII  - 15 years consecutive to Count VI only
12
Count VIII  - 15 years concurrent with all
12
In its sentencing order, the district court ordered that each of
the sentences for the convictions of use of a deadly weapon
were to run consecutively only to the sentence for the underly-
ing felony conviction.
On April 13, 2011, we dismissed Ramirez’ first appeal in
case No. S-11-090, based on Ramirez’ failure to submit a
docket fee or file a poverty affidavit. Ramirez then filed a
motion to vacate judgment of conviction in the district court
for Douglas County, which the district court granted, limiting
relief to a new direct appeal of the original convictions and
sentences. This is the direct appeal before us.
While this appeal was pending, the U.S. Supreme Court
decided Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455,
2469, 183 L. Ed. 2d 407 (2012), holding that “the Eighth
Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders.”
Ramirez was born in September 1991, which made him 17
years old at the time of the crimes. On July 11, 2012, we filed
an order directing supplemental briefing, instructing the parties
to address issues raised by Miller v. Alabama, supra.
After this court heard oral argument, the Nebraska
Legislature passed, and the Governor signed, 2013 Neb. Laws,
L.B. 44, which amended state law to “change penalty provi-
sions with respect to Class IA felonies committed by persons
under eighteen years of age [and] to change parole proce-
dures with respect to offenses committed by persons under
eighteen years of age.” On September 12, 2013, we filed an
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order directing supplemental briefing, instructing the parties
to address whether the provisions of L.B. 44 apply to Ramirez
if the cause is remanded for resentencing.
ASSIGNMENTS OF ERROR
Ramirez claims, summarized and restated, that the district
court erred when it (1) denied his motion for new trial based on
the denial of his motion for mistrial resulting from the admis-
sion and later withdrawal of exhibit 259, the map, and testi-
mony relative thereto, and (2) denied his motion for new trial
based on the denial of his motion for mistrial resulting from the
admission of exhibit 224, the timeline of cell phone calls and
texts, after the parties had rested.
In his first supplemental brief, Ramirez assigns additional
errors, rephrased, that (3) the two life sentences imposed
on him violated the Eighth Amendment’s ban on cruel and
unusual punishment by imposing lifetime sentences without
first requiring a sentencing hearing and without any mean-
ingful opportunity for the juvenile to obtain release based
on demonstrated maturity and rehabilitation, and (4) the dis-
trict court erred by sentencing Ramirez to two terms of life
imprisonment without the possibility of parole, because the
sentences are not authorized under existing Nebraska statutes
and the sentences are void as unconstitutional under Miller v.
Alabama, supra.
STANDARDS OF REVIEW
[1-3] 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 such discretion a factor in determining
admissibility. State v. Merchant, 285 Neb. 456, 827 N.W.2d
473 (2013). Where the Nebraska Evidence Rules commit the
evidentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Id. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.
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[4] An appellate court reviews the trial court’s conclusions
with regard to evidentiary foundation and witness qualification
for an abuse of discretion. State v. Richardson, 285 Neb. 847,
830 N.W.2d 183 (2013).
[5] Whether to grant a mistrial is within the trial court’s
discretion, and we will not disturb its ruling unless the court
abused its discretion. State v. Watson, 285 Neb. 497, 827
N.W.2d 507 (2013).
[6] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not
be disturbed. State v. Williams, 282 Neb. 182, 802 N.W.2d
421 (2012).
[7] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, repu-
tation, and fairness of the judicial process. State v. Watt, 285
Neb. 647, 832 N.W.2d 459 (2013).
ANALYSIS
Exhibit 259 and Related Testimony.
Ramirez contends that it was error to admit certain of
Landell’s testimony and exhibit 259, a map of a portion of
Omaha showing the location of the shootings, the residences
of various persons, and the locations of cell towers that were
used by Ramirez’ cell phone on the night of the shootings.
Ramirez contends there was insufficient foundation for the
evidence. Ramirez further asserts that the district court’s later
withdrawal of the exhibit, its striking of the testimony, and
its admonition to the jury were insufficient to cure this error.
Ramirez thus claims that the district court erred when it over-
ruled his motion for mistrial and denied his motion for new
trial on the same basis.
In a criminal case, we review the denial of a motion for
new trial for abuse of discretion. See State v. Williams, supra.
As explained below, exhibit 259 was merely demonstrative,
and Landell provided sufficient foundation for the informa-
tion on exhibit 259. We therefore determine that neither the
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proceedings surrounding exhibit 259 nor the denial of the
motion for mistrial based on the rulings surrounding exhibit
259 was an abuse of discretion and that therefore, a new trial
was not warranted. We find no merit to Ramirez’ argument.
[8] With respect to the nature of exhibit 259, we first note
that exhibit 259 was admissible at trial as a demonstrative
exhibit. Demonstrative exhibits are defined by the purpose
for which they are offered at trial; demonstrative exhibits aid
or assist the jury in understanding the evidence or issues in
a case. State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790
(2013). See, also, 2 McCormick on Evidence § 214 (Kenneth
S. Broun et al. eds., 7th ed. 2013). Demonstrative exhibits “are
relevant . . . only because of the assistance they give to the
trier in understanding other real, testimonial and documentary
evidence.” Id. at 19.
Exhibit 259 reflected numerous undisputed facts already
in evidence, including the location of the shootings, the resi-
dences of various persons, and the location of the cell towers
used during the timeframe of the shootings. Ramirez does
not take issue with the depiction of this evidence on the map.
Overall, exhibit 259 was demonstrative.
Ramirez concedes that his cell phone records and Landell’s
related testimony explaining how to interpret the informa-
tion shown in the cell phone records were properly admit-
ted into evidence. These records indicated which cell towers
were used by Ramirez’ cell phone on the night of the shoot-
ings. The information on the map shown on exhibit 259 was
derived from properly admitted evidence; with the exception
of the exact street addresses for cell towers, exhibit 259 was
a demonstrative exhibit that was used to aid the jury in under-
standing the facts already in evidence. Because exhibit 259 was
demonstrative, it was not error for the district court to admit it
or to publish it to the jury during trial.
[9] Although withdrawal was not necessary, we do not
find an abuse of discretion to the district court’s subsequent
withdrawal of exhibit 259. We have stated that due to the
difference in purpose, an exhibit admitted for demonstrative
purposes—that is, to aid the jury—is not evidence in the same
way that an exhibit admitted for substantive purposes—that
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is, as proof of an underlying fact or occurrence—is evidence.
State v. Pangborn, supra. In Pangborn, we agreed with the
majority of appellate courts and the major evidence trea-
tises and held that exhibits admitted only for demonstrative
purposes do not constitute substantive evidence. Id. (citing
cases). Exhibit 259 aided the jury while it was available dur-
ing trial. For the district court to withdraw exhibit 259, which
was not substantive, was not an abuse of discretion. The
jury was not disadvantaged, nor was Ramirez harmed when
exhibit 259, which was nonsubstantive evidence, was not ulti-
mately admitted.
[10,11] With respect to the foundation for exhibit 259, we
note that when the State offered exhibit 259 at trial, Ramirez
objected to the exhibit only on the basis of foundation. On
appeal, a defendant may not assert a different ground for his
objection to the admission of evidence than was offered at
trial. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
An objection, based on a specific ground and properly over-
ruled, does not preserve a question for appellate review on any
other ground. State v. Robinson, 272 Neb. 582, 724 N.W.2d
35 (2006), abrogated on other grounds, State v. Thorpe, 280
Neb. 11, 783 N.W.2d 749 (2010). Accordingly, our analysis is
limited to Ramirez’ claim that the district court initially erro-
neously admitted exhibit 259 and Landell’s related testimony
based on insufficient foundation.
Under Neb. Evid. R. 602, Neb. Rev. Stat. § 27-602 (Reissue
2008), a lay witness will not be permitted to testify as
to objective facts in the absence of foundational evidence
establishing personal knowledge of such facts. See State v.
Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998). Evidence
rule 602, regarding laying the foundation of personal knowl-
edge, provides:
A witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that he has
personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the
testimony of the witness himself. This rule is subject to
the provisions of section 27-703, relating to opinion testi-
mony by expert witnesses.
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Pertinent to our analysis in the present case is our decision
in State v. Robinson, supra. In Robinson, prior to trial, the
defendant made a motion in limine with respect to the defend­
ant’s cell phone records. The defendant complained that the
State had gathered data regarding the locations of the towers
through which the defendant had placed telephone calls, and
he contended that the location data were not scientifically reli-
able. The trial court overruled the motion in limine, pending
the State’s presentation at trial of proper and sufficient founda-
tion for the evidence.
At trial in Robinson, two witnesses who worked for the com-
munications company, Cricket, testified. One was a “‘switch
tech,’” who worked on the central computer system that inter-
acted with the cellular sites, and the other was a field engi-
neer, who was responsible for maintaining and optimizing the
network of cellular sites throughout the city of Omaha. Id. at
611, 724 N.W.2d at 63. During the switch tech’s testimony, the
State offered the cell phone records. The defendant objected to
the records on the bases of foundation, hearsay, and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 2d 469 (1993). The objections were over-
ruled, and the exhibits were received.
We concluded in Robinson that the cell phone records
offered by the State fell within the business records exception
to the rule against hearsay. We then determined that a Daubert
challenge was not pertinent to the cell phone records, because
they “contained nothing even resembling ‘expert opinion tes-
timony.’” State v. Robinson, 272 Neb. at 619, 724 N.W.2d
at 69. We further determined that Daubert remained inappli-
cable even if the defendant’s objections and argument were
construed to address the field engineer’s testimony relating to
the cell phone records, because the field engineer’s testimony
was limited to explaining the data contained in the cell phone
records, and he did not offer any opinions based on that data.
We stated that “[t]o the extent that the defendant wanted to
raise more general questions about the reliability of the records
and the cellular location data, [the field engineer] was available
for cross-examination on those issues.” State v. Robinson, 272
Neb. at 620, 724 N.W.2d at 69. Based on our determinations
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that the cell phone records fell within the business records
exception and that given the purpose for which the records
were offered no Daubert hearing was required with respect to
the records, we determined that the trial court did not err when
it admitted the cell phone records into evidence.
After deciding State v. Robinson, 272 Neb. 582, 724 N.W.2d
35 (2006), we decided State v. Taylor, 282 Neb. 297, 803
N.W.2d 746 (2011), which also involved the admission of cell
phone records into evidence. In Taylor, the defendant claimed
that cell phone records were erroneously admitted into evidence
due to a lack of foundation. The defendant based his founda-
tional argument on the requirement of authentication provided
by Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2008).
In Taylor, the cell phone records at issue were authenticated by
the same Cricket employee, Landell, who testified in the pres-
ent case. We rejected the defendant’s argument and determined
that Landell’s testimony was sufficient to authenticate the cell
phone records.
In the present case, the cell phone records indicated which
cell towers were used by Ramirez’ cell phone on the night
of the shootings, and Ramirez concedes that the cell phone
records and Landell’s related testimony explaining how to
interpret the information shown in the records were properly
admitted into evidence. At trial, Ramirez objected to exhibit
259 only on the basis of foundation. He does not argue that
exhibit 259 or Landell’s related testimony was inadmissible
as expert testimony under Neb. Evid. R. 703, Neb. Rev. Stat.
§ 27-703 (Reissue 2008), or that the evidence was subject to
a Daubert hearing. Instead, Ramirez contends that there was
an insufficient basis that Landell had personal knowledge
regarding the routing of cell phone calls among cell towers
and the locations of subscribers in relation to those towers. We
believe that Ramirez misconstrues the record and the nature of
Landell’s testimony. We therefore disagree with Ramirez’ argu-
ment that there was insufficient foundation for exhibit 259 and
Landell’s related testimony.
At trial, Landell testified that as an operational employee,
he was required “to have a working knowledge of the infra-
structure of the cell phone towers.” He also testified that he
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had many discussions with the network operation techni-
cians or engineers at Cricket regarding cell tower locations
and how the infrastructure is used. Landell also testified
how, as a general matter, cell phone calls are routed through
the network.
Landell testified that when a call is made, generally, the
caller’s cell phone searches for the closest available tower to
route the call to the switch. The switch then typically searches
for the closest available tower to the destination cell phone,
and it uses that tower to route the call to the destination cell
phone. Landell testified that the closest tower to the caller’s
cell phone or the destination cell phone will not always be used
because of too much traffic or some other obstruction. With
respect to exhibit 259, Landell testified that he had reviewed
the exhibit and that the addresses and the locations of the cell
towers shown on the map were accurate.
Based on Landell’s testimony, we determine that he pro-
vided sufficient foundational evidence to demonstrate that he
had personal knowledge generally regarding how cell phone
calls are routed through the network, which cell towers were
used by Ramirez’ cell phone on the night of the shootings,
and that the location on the map of the cell towers used that
night were accurate. Furthermore, Ramirez cross-examined
Landell regarding the foregoing issues, and he was permitted
to question Landell when the State offered exhibit 259. As an
operational employee of Cricket, Landell was able to verify
the addresses and locations of the cell towers depicted on the
exhibit 259 map. It is significant, and we note, that Landell did
not offer an opinion regarding cell tower locations and their
relation to Ramirez’ location. Based upon his testimony at trial,
we determine that there was sufficient foundational evidence
to demonstrate Landell’s personal knowledge under rule 602,
and thus the admission of exhibit 259 was not objectionable on
this basis.
We are aware that there is currently a discussion among the
courts regarding the reliability and the admissibility of cell
tower location data and their relation to a defendant’s location.
See, e.g., U.S. v. Evans, 892 F. Supp. 2d 949 (N.D. Ill. 2012).
See, also, Aaron Blank, The Limitations and Admissibility of
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Using Historical Cellular Site Data to Track the Location
of a Cellular Phone, 18 Rich. J.L. & Tech. 3 (2011). We are
also aware that there are emerging legislation and discussions
regarding the necessity of a search warrant to obtain tracking
information from cell phone providers. See, e.g., Mont. Code
Ann. § 46-5-110 (2013); State v. Earls, 214 N.J. 564, 70 A.3d
630 (2013). However, at the trial of the present case, Ramirez
did not claim that exhibit 259 was inadmissible on these
bases. Ramirez objected only on the basis of foundation, and,
as stated above, we have determined that sufficient founda-
tion was laid for the admission of exhibit 259 and Landell’s
related testimony.
Based on our determination that sufficient foundation was
laid and based on the fact that exhibit 259 was a demonstra-
tive exhibit, we determine that the district court did not abuse
its discretion when it admitted exhibit 259 and Landell’s
related testimony into evidence. Although it was not neces-
sary, the district court did not err when it later withdrew
exhibit 259 and admonished the jury regarding exhibit 259.
The district court did not abuse its discretion when it denied
Ramirez’ motion for mistrial based on exhibit 259, and thus
it did not err when it later denied his motion for new trial on
the same basis.
Exhibit 224.
Ramirez contends that it was error to admit exhibit 224,
a timeline summarizing the calls and texts between the cell
phones used by Ramirez, Castaneda, and a third telephone
number. As recited in our “Statement of Facts,” exhibit 224
was received after the close of evidence. Ramirez contends
that the district court erred when it denied his motion for mis-
trial based on admission of exhibit 224 and thus it erred when
it denied his motion for new trial urged on the same basis.
Because we determine that the district court did not abuse its
discretion when it admitted exhibit 224, we determine that the
court did not err when it denied Ramirez’ motion for mistrial
on the basis of admitting exhibit 224 and did not err when it
denied his motion for new trial on this basis. Thus, we find no
merit to this assignment of error.
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Ramirez concedes that exhibit 224 was referred to dur-
ing trial and that its contents were derived from documents
admitted in evidence. He nevertheless contends that it was
not properly offered or received. He states that after the jury
began its deliberations, the State could have reopened its case
to offer exhibit 224. Ramirez contends that because exhibit 224
was not offered during the evidentiary portion of the trial and
because there was no motion to reopen the evidence, the dis-
trict court did not adhere to the proper formalities for receipt of
evidence and that a mistrial should have been declared.
In the present case, after closing arguments were given and
after jury instructions were read, the case was given to the
jury on October 20, 2010, at 4:18 p.m. for deliberations. The
next day at approximately 9 a.m., during what might fairly
be characterized as “housekeeping,” the district court judge
noticed that exhibit 224 had not been received into evidence
and brought this to the attention of counsel. After arguments
by both parties, the judge stated outside the hearing of the jury
that exhibit 224
doesn’t contain any information that hasn’t been received
into evidence, and it had been referenced [sic] to during
the evidence and closing arguments. I think that it would
hobble the jury to take that away from [it]. It’s a fair
representation of a timeline that is already in evidence
through those records.
Based upon this reasoning, the court stated that exhibit 224
would “be included among the evidence that the court reporter
transmits to the jury for [its] deliberation.” Ramirez moved for
a mistrial, which was overruled. He later unsuccessfully moved
for a new trial on this same basis.
[12,13] Exhibit 224 was a demonstrative exhibit. As we
have recently explained, demonstrative exhibits are exhib-
its offered at trial to aid or assist the jury in understanding
the evidence or issues in a case. See State v. Pangborn, 286
Neb. 363, 836 N.W.2d 790 (2013). See, also, 2 McCormick
on Evidence § 214 (Kenneth S. Broun et al. eds., 7th ed.
2013). The information contained in exhibit 224 was a syn-
thesis of information taken from other lengthy exhibits that
were properly received into evidence during trial without
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objection. Furthermore, because exhibit 224 contained facts
already received in evidence, it was cumulative. Cumulative
evidence means evidence tending to prove the same point of
which other evidence has been offered. State v. McBride, 250
Neb. 636, 550 N.W.2d 659 (1996). The erroneous admission
of evidence is not reversible error if the evidence is cumula-
tive and other relevant evidence, properly admitted, supports
the finding of the trier of fact. See State v. Robinson, 271
Neb. 698, 715 N.W.2d 531 (2006). In fact, at the hearing on
Ramirez’ motion for new trial, Ramirez’ attorney stated that
exhibit 224 “was merely a summary of telephone records that
were already in evidence that, I would concede, would have
been considered cumulative in nature.”
Based on the fact that exhibit 224 was a demonstrative
exhibit and that it was cumulative of other properly admit-
ted evidence, we cannot say that the district court abused its
discretion when it admitted exhibit 224 into evidence. We
acknowledge that the formality of reopening the record was not
observed, but as we read the record quoted above, exhibit 224
was added to the evidence at a time previous to when the court
reporter might later transmit evidence to the jury. We cannot
find that the procedure employed was prejudicial. Accordingly,
we determine that the district court did not err when it denied
Ramirez’ motion for mistrial and, thus, it did not err when it
denied his motion for new trial with respect to the admission
of exhibit 224.
Ramirez’ Sentences.
Ramirez claims that the district court erred when it sen-
tenced him to life imprisonment without the possibility of
parole for counts I and III. After Ramirez filed his notice of
appeal but before the case was argued before us, the U.S.
Supreme Court decided Miller v. Alabama, ___ U.S. ___, 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Miller generally held
that it is unconstitutional to sentence a juvenile convicted of a
homicide to a mandatory sentence of life imprisonment without
the possibility of parole.
This court filed an order directing supplemental briefing,
instructing the parties to address the issues raised by Miller. In
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its supplemental brief, the State argued that Ramirez’ sentences
were unaffected by Miller because they were not sentences
without the possibility of parole. The State suggested that the
district court improperly sentenced Ramirez to “[l]ife imprison-
ment without the possibility of parole” and that instead, under
Nebraska law, the court should have simply sentenced Ramirez
to “‘life imprisonment.’” Supplemental brief for appellee at
2. With the deletion of the phrase “without the possibility
of parole,” the State contends that Ramirez’ sentences were
not sentences without the possibility of parole, because upon
commutation to a term of years, parole would be available
to Ramirez. The State further argued that if Miller did apply,
Ramirez’ current life sentences should be vacated and the cause
remanded for resentencing in light of the sentencing factors
which are discussed in Miller and which are now reflected
in § 28-105.02.
Similar to the State, Ramirez argued in his supplemental
briefing that the district court improperly added the phrase
“without the possibility of parole” to his sentences of life
imprisonment. Supplemental brief for appellant at 21. Of
greater relevance, however, Ramirez argued that Miller is
applicable to this case and that in light of Miller, Ramirez’ life
sentences were unconstitutional and his sentences should there-
fore be vacated and he should be resentenced in accordance
with § 28-105.02.
We recently addressed similar arguments regarding Miller
and its application in State v. Castaneda, ante p. 289, ___
N.W.2d ___ (2014), which, like the current case, was before us
on direct appeal. In Castaneda, the defendant, a juvenile at the
time of his crimes, was convicted of two first degree murders
and was sentenced to two terms of life imprisonment without
the possibility of parole. In Castaneda, we noted that at the
time the defendant was sentenced, Nebraska’s statutes pro-
vided that a juvenile convicted of first degree murder was sub-
ject to mandatory life imprisonment, and although the statutes
did not expressly contain the qualifier “without parole,” we
found that “Nebraska’s sentence of life imprisonment is effec-
tively life imprisonment without parole under the rationale of
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Miller . . . because it provides no meaningful opportunity to
obtain release.” Ante at 313-14, ___ N.W.2d at ___. We further
determined that because Castaneda was before us on direct
appeal, Miller was applicable. The instant case is also before
us on direct appeal, and we determine, as we did in Castaneda,
that Miller is applicable.
After we heard oral argument on Ramirez’ appeal, in reaction
to Miller, the Nebraska Legislature passed, and the Governor
signed, L.B. 44, which amended state law to “change penalty
provisions with respect to Class IA felonies committed by per-
sons under eighteen years of age [and] to change parole pro-
cedures with respect to offenses committed by persons under
eighteen years of age.”
Section 28-105.02 provides:
(1) Notwithstanding any other provision of law, the
penalty for any person convicted of a Class IA felony for
an offense committed when such person was under the
age of eighteen years shall be a maximum sentence of not
greater than life imprisonment and a minimum sentence
of not less than forty years’ imprisonment.
(2) In determining the sentence of a convicted person
under subsection (1) of this section, the court shall con-
sider mitigating factors which led to the commission of
the offense. The convicted person may submit mitigating
factors to the court, including, but not limited to:
(a) The convicted person’s age at the time of the
offense;
(b) The impetuosity of the convicted person;
(c) The convicted person’s family and community
environment;
(d) The convicted person’s ability to appreciate the
risks and consequences of the conduct;
(e) The convicted person’s intellectual capacity; and
(f) The outcome of a comprehensive mental health
evaluation of the convicted person conducted by an
adolescent mental health professional licensed in this
state. The evaluation shall include, but not be limited to,
interviews with the convicted person’s family in order
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to learn about the convicted person’s prenatal history,
developmental history, medical history, substance abuse
treatment history, if any, social history, and psychologi-
cal history.
And Neb. Rev. Stat. § 83-1,110.04 (Supp. 2013) further
provides:
(1) Any offender who was under the age of eighteen
years when he or she committed the offense for which
he or she was convicted and incarcerated shall, if the
offender is denied parole, be considered for release on
parole by the Board of Parole every year after the denial.
(2) During each hearing before the Board of Parole
for the offender, the board shall consider and review, at
a minimum:
(a) The offender’s educational and court documents;
(b) The offender’s participation in available rehabilita-
tive and educational programs while incarcerated;
(c) The offender’s age at the time of the offense;
(d) The offender’s level of maturity;
(e) The offender’s ability to appreciate the risks and
consequences of his or her conduct;
(f) The offender’s intellectual capacity;
(g) The offender’s level of participation in the offense;
(h) The offender’s efforts toward rehabilitation; and
(i) Any other mitigating factor or circumstance submit-
ted by the offender.
At the time of Ramirez’ sentencing for first degree murder,
the district court was required to impose a sentence of life
imprisonment. See Neb. Rev. Stat. § 28-105(1) (Reissue 2008).
As we explained above, a sentence imposed under § 28-105(1)
was tantamount to life imprisonment without the possibility of
parole and, under Miller, such sentence was unconstitutional.
Ramirez’ life sentences for counts I and III imposed under
§ 28-105(1) as it then existed must be vacated, and Ramirez
must be resentenced.
In view of the enactment of L.B. 44, this court sought
supplemental briefing regarding the issue of whether Ramirez
should be resentenced under the provisions of L.B. 44. Both
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the State and Ramirez contend that L.B. 44 should be utilized
if this cause is remanded for resentencing.
[14] This court recently discussed the applicability on direct
appeal of L.B. 44 in State v. Castaneda, ante p. 289, ___
N.W.2d ___ (2014). We stated in Castaneda that
the change effected by L.B. 44 does not violate ex post
facto principles.
Nor is it inconsistent under Nebraska law for this
mitigation in sentencing to apply upon resentencing.
“[W]here a criminal statute is amended by mitigating
the punishment, after the commission of a prohibited act
but before final judgment, the punishment is that pro-
vided by the amendatory act unless the Legislature has
specifically provided otherwise.” And in this case, the
Legislature has not provided otherwise.
Ante at 319, ___ N.W.2d at ___. In light of the foregoing
discussion, we determine that L.B. 44 applies to Ramirez’
resentencing upon remand. We therefore vacate Ramirez’
life sentences imposed for counts I and III and remand the
cause for resentencing under the procedures set forth under
L.B. 44.
[15] In addition to the corrections needed regarding the
sentences for murder, we also note that upon our review of
the record, we find plain error in the district court’s sentenc-
ing order regarding the sentences for use of a deadly weapon
to commit a felony, counts II, IV, and VII, and regarding
the sentences for attempted second degree murder, count V;
attempted robbery, count VI; and criminal conspiracy, count
VIII. An appellate court always reserves the right to note plain
error which was not complained of at trial or on appeal. State v.
Scott, 284 Neb. 703, 824 N.W.2d 668 (2012). Plain error may
be found on appeal when an error unasserted or uncomplained
of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of
the judicial process. State v. Watt, 285 Neb. 647, 832 N.W.2d
459 (2013). As explained below, each sentence for use of
a deadly weapon, counts II, IV, and VII, should have been
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ordered to run consecutively to all other sentences imposed
and not concurrently with any sentence, and the sentences for
attempted second degree murder, attempted robbery, and crimi-
nal conspiracy, counts V, VI, and VIII, respectively, should not
have been ordered to be served concurrently with any use of a
deadly weapon sentence.
In its December 30, 2010, order, the district court stated that
Ramirez had been informed of his convictions for the follow-
ing crimes:
Count I  Murder in the First Degree . . . .
Count II  Use of a Deadly Weapon to Commit a
Felony . . . .
Count III  Murder in the First Degree . . . .
Count IV  Use of a Deadly Weapon to Commit a
Felony . . . .
Count V  Attempted Murder in the Second Degree
....
Count VI  Attempted Robbery . . . .
Count VII  Use of a Deadly Weapon to Commit a
Felony . . . .
Count III  Criminal Conspiracy . . . .
Counts II, IV, and VII involve use of a deadly weapon to com-
mit a felony.
The written order then set forth Ramirez’ sentences as
follows:
Count I  Life imprisonment without the possibility
of parole
Count II  - 15 years consecutive to Count I only
12
Count III  Life imprisonment without the possibility
of parole
Count IV  - 15 years consecutive to Count III only
12
Count V  - 20 years concurrent with all
12
Count VI  - 15 years concurrent with all but
12
Count VII
Count VII  - 15 years consecutive to Count VI only
12
Count VIII  - 15 years concurrent with all
12
At the sentencing hearing, the district court judge pro-
nounced Ramirez’ sentences by stating:
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It’ll be the sentence and judgment of the Court on
Count 1 that [Ramirez] be incarcerated through the
Department of Correctional Services for murder in the
first degree to a term of life imprisonment.
Under Count 2, the use of a deadly weapon to com-
mit that felony, it will be the sentence and judgment of
the Court that he be incarcerated for a period of 12 to 15
years. The statute . . . requires the sentence to be served
consecutive to the underlying conviction.
Count 3, murder in the first degree, it will be the sen-
tence and judgment of the Court that [Ramirez] be impris-
oned for life.
Under Count 4, [the use of a deadly weapon to com-
mit the felony of murder in the first degree,] it will be
the sentence and judgment of the Court that [Ramirez] be
incarcerated for an indeterminate period of 12 to 15 years,
and the statute requires that that sentence be served con-
secutive to the underlying conviction.
On Count 5, attempted murder in the second degree,
it will be the sentence and judgment of the Court that
[Ramirez] be incarcerated for an indeterminate period of
12 to 20 years in prison.
Under Count 6, the attempted robbery, it will be the
sentence and judgment of the Court that [Ramirez] be
incarcerated for a period of 12 to 15 years.
Under Count 7, use of a deadly weapon to commit
the felony in Count 6, it’ll be the sentence and judg-
ment of the Court that [Ramirez] be incarcerated for an
indeterminate period of 12 to 15 years consecutive to
Count 6 only.
Under Count 8, the criminal conspiracy, it will be
the sentence and judgment of the Court that [Ramirez]
be incarcerated through the Department of Correctional
Services for an indeterminate period of 12 to 15 years.
Now, the sentences in Counts 1 and 2 are, for record
purposes, imposed concurrent with the sentences in
Counts 3 and 4 and with Counts 5 and 6. Count 5
is a sentence that’s concurrent with other convictions.
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Count 6, the attempted robbery, is concurrent with the —
all but Count 7. And Count 8, the criminal conspiracy, the
sentence there is concurrent with all of the others.
(Emphasis supplied.)
[16] With respect to the three sentences for the convictions
of use of a deadly weapon, the record shows that the district
court has a misperception of the law. Section 28-1205(3) con-
cerns the crimes of use of a deadly weapon and provides: “The
crimes defined in this section shall be treated as separate and
distinct offenses from the felony being committed, and sen-
tences imposed under this section shall be consecutive to any
other sentence imposed.” Although it is generally within the
trial court’s discretion to direct that sentences imposed for sep-
arate crimes be served concurrently or consecutively, we have
long held that § 28-1205(3) does not permit such discretion
in sentencing, because it mandates that a sentence for the use
of a deadly weapon in the commission of a felony be served
consecutively to any other sentence imposed and concurrent
with no other sentence. See State v. Sorenson, 247 Neb. 567,
529 N.W.2d 42 (1995). See, also, State v. Thomas, 268 Neb.
570, 685 N.W.2d 69 (2004); State v. Decker, 261 Neb. 382,
622 N.W.2d 903 (2001); State v. Wilson, 16 Neb. Ct. App. 878, 754
N.W.2d 780 (2008).
Because § 28-1205(3) mandates that the sentence imposed
for a conviction of use of a deadly weapon be consecutive
to any other sentence and concurrent with no other sentence,
the district court did not have the authority to order that the
sentences for the convictions of use of a deadly weapon to
commit a felony, counts II, IV, and VII, run consecutively
only to the sentences for the underlying felony offenses.
Furthermore, the district court erred when it imposed the fol-
lowing sentences to run concurrently with the sentences for
the convictions involving use of a deadly weapon: count V,
attempted second degree murder, 12 to 20 years’ imprison-
ment “concurrent with all”; count VI, attempted robbery, 12 to
15 years’ imprisonment “concurrent with all but Count VII”;
and count VIII, criminal conspiracy, 12 to 15 years’ imprison-
ment “concurrent with all.” The district court did not have
the authority to order that the sentences for counts V, VI, and
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STATE v. RAMIREZ 385
Cite as 287 Neb. 356
VIII run concurrently with any sentences for use of a deadly
weapon, and the sentences imposed for counts V, VI, and VIII
constitute plain error.
[17] An appellate court has the power on direct appeal to
remand a cause for the imposition of a lawful sentence where
an erroneous one has been pronounced. State v. Gunther, 271
Neb. 874, 716 N.W.2d 691 (2006); State v. Wilson, supra.
Therefore, we vacate the sentences imposed in counts II, IV,
and VII for the convictions of use of a deadly weapon, and
vacate the sentences imposed for count V, attempted second
degree murder; count VI, attempted robbery; and count VIII,
criminal conspiracy, and remand the cause with directions that
the district court resentence Ramirez such that each sentence
for the conviction of use of a deadly weapon runs consecu-
tively to any other sentences imposed and not concurrently
with any other sentence and that the sentences for counts V, VI,
and VIII not be ordered served concurrently with any sentence
for use of a deadly weapon.
CONCLUSION
We determine that the district court did not abuse its dis-
cretion when it received exhibit 259 and Landell’s related
testimony into evidence. The district court’s subsequent rul-
ing to withdraw exhibit 259 was not an abuse of discretion.
Accordingly, the district court did not err when it denied
Ramirez’ motion for mistrial based on rulings surrounding
exhibit 259 and, therefore, it did not err when it denied his
motion for new trial on this basis. We further determine that
the district court did not abuse its discretion when it received
exhibit 224. Thus, it did not err when it denied Ramirez’
motion for mistrial based on the admission of exhibit 224 and,
therefore, did not err when it denied his motion for new trial on
this basis. Ramirez’ convictions are affirmed.
We conclude that the life sentences mandatorily imposed
upon Ramirez for counts I and III were effectively life
imprisonment sentences without the possibility of parole and
unconstitutional under Miller v. Alabama, ___ U.S. ___, 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Accordingly, we
vacate those unconstitutional sentences and remand the cause
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386 287 NEBRASKA REPORTS
for resentencing in accordance with L.B. 44, as codified at
§ 28-105.02.
Upon our review of the record, we find plain error in the
district court’s sentencing order, which ordered that the three
sentences for the convictions of use of a deadly weapon to
commit a felony, counts II, IV, and VII, run concurrently with
any other sentence. We also find plain error in the district
court’s sentencing order, which ordered that the sentences for
the convictions of count V, attempted second degree murder;
count VI, attempted robbery; and count VIII, criminal con-
spiracy, run concurrently with the sentences for use of a deadly
weapon. We therefore vacate the sentences for counts II, IV, V,
VI, VII, and VIII, and remand the cause to the district court
with directions to resentence Ramirez on all these counts, so
that each sentence for the conviction of use of a deadly weapon
runs consecutively to all other sentences and concurrently with
no sentence.
Convictions affirmed, all sentences vacated,
and cause remanded for resentencing.