State v. Savage - supplemental opinion , 302 Neb. 492 ( 2019 )

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05/10/2019 09:07 AM CDT
- 492 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. SAVAGE
Cite as 302 Neb. 492
State of Nebraska, appellee, v.
Courtney J. Savage, appellant.
___ N.W.2d ___
Filed March 15, 2019. No. S-17-1166.
supplemental opinion
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Supplemental opinion: Former opinion modi-
fied. Motion for rehearing overruled.
Darik J. Von Loh, of Hernandez Frantz, Von Loh, appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by the
appellant, Courtney J. Savage, concerning our opinion in State
v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018). We overrule
the motion, but we modify the opinion as follows:
In the subsection “(a) Authentication,” after the fourth
sentence of the fourth paragraph, we insert the following
language:
As for Savage’s contention that the State did not properly
authenticate messages sent to him by others, we again
disagree. The State was required only to introduce testi-
mony sufficient to establish that the evidence was what
- 493 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. SAVAGE
Cite as 302 Neb. 492
the State claimed it to be. The State did not claim that
messages sent by others were anything more than mes-
sages sent to Savage’s cell phone. See State v. Elseman,
287 Neb. 134, 841 N.W.2d 225 (2014).
Savage, 301 Neb. at 885, 920 N.W.2d at 703.
In subsection “(b) Hearsay,” following the second to the last
paragraph, we insert the following paragraph:
We also reject Savage’s argument that text messages
sent to his cell phone by unidentified individuals contained
inadmissible hearsay. Hearsay is “a statement, other than
one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the mat-
ter asserted.” Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
Messages sent to Savage’s cell phone were not offered
for the truth of the matters asserted. They were offered to
prove that the statements were made.
Savage, 301 Neb. at 887, 920 N.W.2d at 704.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.