State v. Hill , 298 Neb. 675 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
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STATE v. HILL
Cite as 298 Neb. 675
State of Nebraska, appellee, v.
Teon D. Hill, appellant.
___ N.W.2d ___
Filed January 19, 2018. No. S-16-441.
1. 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.
2. Expert Witnesses: Appeal and Error. The standard for reviewing the
admissibility of expert testimony is abuse of discretion.
3. 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.
4. 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.
5. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
6. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law
and fact.
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7. ____: ____. When reviewing a claim of ineffective assistance of coun-
sel, an appellate court reviews the factual findings of the lower court for
clear error.
8. ____: ____. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), an appellate court reviews such legal determinations inde-
pendently of the lower court’s decision.
9. Criminal Law: Trial: Prosecuting Attorneys. Prosecutors have a duty
to conduct criminal trials in a manner that provides the accused with a
fair and impartial trial.
10. ____: ____: ____. A prosecutor’s improper comments during closing
argument can require reversal of a conviction if the comments preju-
diced the defendant’s rights in obtaining a fair trial.
11. Trial: Prosecuting Attorneys: Appeal and Error. In determining
whether a prosecutor’s conduct was prejudicial, an appellate court ordi-
narily looks to the cumulative effect of the improprieties, the strength of
the evidence against the defendant, and whether the district court took
any curative action.
12. Trial: Prosecuting Attorneys: Jury Instructions: Appeal and Error.
Not every variance between a prosecutor’s advance description and the
actual presentation constitutes reversible error, when a proper limit-
ing instruction has been given and the remarks are not crucial to the
State’s case.
13. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
to the contrary, it is presumed that a jury followed the instructions given
in arriving at its verdict.
14. Effectiveness of Counsel: Proof: Appeal and Error. In order to show
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant must
show, first, that counsel was deficient and, second, that the deficient
performance actually caused prejudice to the defendant’s case.
15. Effectiveness of Counsel: Proof: Presumptions: Appeal and Error.
The two prongs of the ineffective assistance of counsel test under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), may be addressed in either order, and the entire ineffective-
ness analysis should be viewed with a strong presumption that counsel’s
actions were reasonable.
16. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A
mistrial is properly granted in a criminal case where an event occurs
during the course of a trial that is of such a nature that its damaging
effect cannot be removed by proper admonition or instruction to the jury
and thus prevents a fair trial. The defendant must prove that the alleged
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error actually prejudiced him or her, rather than creating only the pos-
sibility of prejudice.
Appeal from the District Court for Douglas County:
K imberly Miller Pankonin, Judge. Affirmed.
Gregory A. Pivovar and Jeff T. Courtney, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Heavican, C.J.
I. INTRODUCTION
On December 10, 2013, Virgil Dunn was fatally shot two
blocks north of the Spencer Street housing projects in Omaha,
Nebraska, in what appeared to be a robbery. On June 4, 2014,
Teon D. Hill was charged in Dunn’s death.
On February 24, 2016, a jury found Hill guilty of first degree
murder and two counts of possession of a deadly weapon by a
prohibited person. Hill was found not guilty of use of a deadly
weapon (firearm) to commit a felony. On April 28, Hill was
sentenced to life imprisonment on the murder conviction and
15 to 20 years’ imprisonment on each conviction of possession
of a deadly weapon. The latter two sentences were ordered to
be served concurrently to each other and consecutively to the
life sentence. Hill appeals. We affirm.
II. BACKGROUND
1. Factual Background
(a) Homicide
A December 10, 2013, surveillance video shows Dunn
making a purchase at a liquor store at 30th and Pinkney
Streets in Omaha at approximately 9:54 p.m. The purchase
was placed in a white plastic bag. Surveillance video indicates
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that Dunn then walked toward 28th Avenue. At approximately
10 p.m., a gunshot detection system notified the Omaha
Police Department of six shots fired in the area. Officers
were dispatched immediately and found Dunn wounded in
front of a residence located on North 28th Avenue. Dunn no
longer had the plastic bag or his wallet. A baseball cap was
lying on the ground approximately 50 feet from Dunn’s body;
Dunn had not been wearing a baseball cap in the surveil-
lance video. Dunn was taken to the hospital, where he died of
gunshot wounds shortly thereafter. There are several witness
accounts in the record, but none of the witnesses actually saw
the shooting.
That night, Randy Nunn was driving a van full of children
from daycare at approximately 10:20 p.m. when he heard
gunshots. He slowed the van and saw “two guys coming with
hoodies.” They were both around “five, seven; five, eight.”
One person was wearing a black hoodie, and the other had a
“white or grayish hoody.” One person was carrying a “white
grocery bag,” but it was difficult to see because “[i]t was dark
that night.” The person carrying the bag “might have had [a
baseball hat].” As the two men were approaching him, Nunn
“sped up” because he “didn’t know if they [were] getting shot
at [or] if they were shooting.” Nunn looked in his rearview
mirror and noticed that one of the men took longer to cross the
bridge, because he “probably . . . dropped something.” Nunn
took the children home and told his girlfriend what he had
seen. Nunn’s girlfriend then called the police.
Raul Francia testified that he was at home watching televi-
sion with his brother when, “just before 10 p.m.,” he “heard
like five, six shots.” Francia opened the front door, walked
outside, and “saw a guy running . . . to the projects.” The man
was “maybe six-foot tall,” “African-American,” and wearing
“a black hoody or a black jacket” and “a hat maybe.”
(b) Arrest
On February 12, 2014, Metro Area Fugitive Task Force
officers were conducting surveillance in the area of the
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Spencer Street housing projects in Omaha, near the location
of the December 10, 2013, shooting. Officers were attempt-
ing to locate a wanted fugitive, Charles Toles. Toles was
described as an “African-American male, five, seven to five,
nine; a hundred and sixty pounds.” Officers “had been receiv-
ing tips that he was frequenting the Spencer West Housing
Projects area.”
Omaha police officer Jeffrey Gassaway, a member of the
task force, testified that while conducting surveillance, he
observed a “Ford Taurus driving slowly” with a “black male in
the passenger seat who matched the general physical descrip-
tion of Toles,” and a female driver. In fact, Hill, and not
Toles, was the passenger in the Taurus. Gassaway asked U.S.
Marshal Rovance Lewis, another member of the task force,
to also follow the Taurus. Gassaway noticed that the Taurus
accelerated as the officers began following it, and “the driver
went through the stop sign.” The driver of the Taurus drove
in a “big square” and violated the stop sign at each corner by
failing to come to a complete stop. Because the driver vio-
lated “at least six traffic control devices,” Gassaway activated
his vehicle’s emergency lights and pulled over the Taurus at
30th and Evans Streets. The driver of the Taurus did not ini-
tially pull over in response to the activation of the emergency
lights. Gassaway testified that the driver was “actively fleeing
from” him and continued to make several turns, but pulled
over eventually.
Gassaway and Lewis approached the Taurus simultane-
ously. As Gassaway approached, he “saw [Hill] reach down
briefly.” Based on his training and experience, this movement
caused Gassaway concern, because “maybe [Hill] was con-
cealing contraband or a weapon.” Hill exited the Taurus with
his hands up, and Gassaway “was 100 percent positive that it
was not . . . Toles.” When Gassaway observed Hill step out of
the car, Gassaway “told him keep your hands in the air, and
. . . Lewis approached him and took physical hold of him and
just escorted him back to the back of the car.” Hill disputes
that he exited the Taurus voluntarily and contends that the
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officers “removed [Hill] from the car.”1 Gassaway testified
that he “felt that we needed to investigate further based on
why this vehicle was fleeing from us and violating traffic
control devices.” Gassaway proceeded to ask the driver for
her identification, driver’s license, and vehicle registration.
Gassaway observed that there was an infant in the back seat
of the Taurus and that the driver was “extremely nervous and
agitated,” repeatedly asking if she could call her mother.
Gassaway asked the driver if she would give the officers
“permission to search the vehicle, and she did.” Gassaway
“walked over immediately to the area where . . . Hill exited,
and looked inside the vehicle underneath the seat and saw a
handgun.” Gassaway left the handgun in place and called the
crime laboratory to photograph and collect the handgun. The
handgun had six live cartridges in the cylinder. A box with
live ammunition and a magazine were recovered from a black
purse that was also in the vehicle. However, the handgun was
a type of weapon that did not require a magazine for reloading,
and the investigator determined that the magazine in the black
purse “would belong to something separate” from the handgun
found under the seat. Gassaway then requested the other offi-
cers who had arrived to place Hill under arrest for possession
of a firearm.
(c) Baseball Cap
An Omaha police officer testified that he was dispatched
to the location of Dunn’s shooting on December 10, 2013,
and arrived within “one to two minutes” of dispatch. As the
officer was heading north on 28th Avenue from Bristol Street,
he “observed something in the street, which, as we got closer,
appeared to be a red baseball cap.” The cap was “in the middle
of the Street on North 28th Avenue . . . south of the residence
located [on] North 28th Avenue” and about 50 feet from
Dunn’s body.
1
Brief for appellant at 20.
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Melissa Helligso, a forensic DNA analyst, swabbed the
inside of the cap for DNA evidence. She swabbed two different
areas: inside the headband area of the cap and inside the front
area of the cap. Helligso testified that she utilized “method­
ology and procedure that includes PCR — STR [polymerase
chain reaction short tandem repeat] type of work [that] has
been accredited and certified through the ASCLD [American
Society of Crime Laboratory Directors] and also subject . . .
to peer review.” For inside the headband area, Helligso “was
able to determine that the major DNA profile matches . . .
Hill at all of the major alleles obtained; therefore, he’s not
excluded as the major contributor of the DNA tested.” Helligso
further stated:
The probability of an unrelated individual matching the
major DNA profile from the specimen, given that . . . Hill
expresses this profile, is 1 in 1.94 quintillion, which is 10
with 18 zeros for Caucasians; 1 in 1.94 quadrillion, which
is 15 zeros, for African-Americans; and 1 in 26.0 quadril-
lion for American Hispanics.
In regard to the front area of the cap, Helligso similarly
“was able to find that [Hill] was not excluded as the major
contributor to the DNA tested.” Helligso stated:
The probability that an unrelated individual matching the
major DNA profile from this specimen, given that . . . Hill
expresses this profile, is . . . 1 in 802 sextillion, which is
21 zeros for Caucasians; 1 in 391 quintillion, which is 18
zeros for African-Americans; and 1 in 3.78 sextillion for
American Hispanics.
(d) Spent Projectile and Jeans
A spent projectile was found within the fabric of Dunn’s
jacket. Helligso tested a swab of the projectile and deter-
mined that a DNA profile consistent with a single male
individual was present. Helligso was able to determine that
“Dunn is not excluded as the source of the DNA tested.” The
probability of an unrelated individual matching the DNA pro-
file from the spent projectile, given that Dunn expresses this
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DNA profile, “is 1 in 344 quintillion for Caucasians, 1 in 108
quintillion for African-Americans, and 1 in 68.0 quintillion
for American Hispanics.” The spent projectile was thus pre-
sumably shot into Dunn and caught in his jacket upon exiting
his body. A crime laboratory technician for the forensic inves-
tigations services with the Omaha Police Department testified
that based on her analysis of the spent projectile at the crime
scene and a test fire from the handgun found in the Taurus,
the handgun found under Hill’s seat fired the spent projectile
found in Dunn’s jacket.
Helligso performed DNA analysis on a swab of the inside
right front pocket of the jeans. Investigators swabbed the
inside of Dunn’s front right pocket, because Dunn was found
without his wallet and investigators suspected that the shooter
took the wallet from this pocket. The DNA test “generated
a profile that was consistent with a mixture of at least three
individuals.” Dunn’s DNA matched a partial profile within the
major mixture of the profile, while the results were inconclu-
sive as to Hill because his profile was not present in at least
half of the loci generated in the mixture.
(e) Handgun and Live
Ammunition Rounds
Because there were no fingerprints on the handgun found
under Hill’s seat, DNA testing was ordered to confirm that
Hill was in possession of the firearm used to shoot Dunn.
Helligso analyzed a swab of the handgun for DNA and found
that “there was a mixture of at least three individuals” and
“there was a mixture within the major contributor.” Helligso
found that “Hill matches a full profile within the major mix-
ture DNA profile, therefore, . . . Hill is not excluded as a
major contributor to the DNA tested.” Thus, “[t]he probability
of a random individual matching a major DNA profile . . .
given that . . . Hill expresses this profile, is 1 in 7.05 million
for Caucasians, 1 in 2.97 million for African-Americans, and
1 in 7.70 million for American Hispanics.”
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Helligso also tested a swab taken of the six live ammunition
rounds found in the handgun. Helligso “detected a mixture of
at least two people” and “was able to determine a major con-
tributor.” Helligso found that Hill “was in 14 of the loci out
of 15 of the major mixture, therefore, he’s not excluded as a
major profile contributor to the DNA tested.” Helligso stated
that “[t]he probability of a random individual matching a par-
tial major DNA profile from this specimen, given that . . . Hill
expresses this profile, is 1 in 251 million for Caucasians, 1 in
46.9 million for African-Americans, and 1 in 47.0 million for
American Hispanics.”
2. Procedural Background
On June 4, 2014, Hill was charged with count I, murder in
the first degree; count II, use of a deadly weapon (firearm) to
commit a felony; and counts III and IV, possession of a deadly
weapon by a prohibited person. On June 5, Hill filed a plea
in abatement. On August 21, following a hearing, the district
court overruled Hill’s plea in abatement.
On January 27, 2015, Hill filed a motion to suppress and a
motion in limine. In the motion to suppress, Hill argued that
the officers did not have probable cause to stop the vehicle and
that the search of Hill’s person and the vehicle was improper.
Hill argued that the fruits of such search, namely the hand-
gun and the live ammunition rounds, were inadmissible. In
the motion in limine, Hill argued that the DNA sample taken
from him was obtained without a valid warrant based on prob-
able cause, without a valid court order, and without voluntary
consent. Hill also contended that Helligso, the State’s DNA
witness, did not qualify as an expert and that the reasoning
and methodology she used did not meet the requirements
for admissibility.
On September 8, 2015, the district court overruled Hill’s
motion to suppress and motion in limine. In its order, the court
found that (1) police had probable cause to stop the vehicle
after observing multiple traffic violations; (2) Hill, as a pas-
senger in the vehicle, did not have standing to challenge the
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search, and even if he had standing, the driver consented to the
search; and (3) Hill’s Daubert/Schafersman2 challenge to the
introduction of DNA evidence was without merit.
At the close of the State’s case on February 23, 2016, Hill
made a motion to dismiss, which the court overruled. On
February 24, the jury found Hill guilty of murder in the first
degree and guilty of both counts of possession of a deadly
weapon by a prohibited person. However, the jury found Hill
not guilty of use of a deadly weapon to commit a felony.
On April 28, Hill was sentenced to life imprisonment on the
murder conviction, and 15 to 20 years’ imprisonment on each
conviction of possession by a prohibited person, to be served
concurrently to each other and consecutively to the life sen-
tence. Hill appeals.
III. ASSIGNMENTS OF ERROR
Hill assigns, restated, that the district court erred in (1)
overruling Hill’s motion to suppress, (2) overruling Hill’s
motion in limine, (3) allowing the State’s counsel in rebuttal
closing arguments to argue facts not in evidence, (4) failing
to find that Hill was denied effective assistance of counsel,
and (5) overruling Hill’s motion to dismiss and motion for
directed verdict.
IV. STANDARD OF REVIEW
[1] 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.3
[2] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.4
2
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001).
3
State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
4
State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
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[3,4] 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 admis-
sibility.5 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.6
[5] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction.7
[6-8] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact.8 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.9 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,10 an appellate court
reviews such legal determinations independently of the lower
court’s decision.11
5
State v. Henry, supra note 3.
6
Id.
7
State v. White, 272 Neb. 421, 722 N.W.2d 343 (2006).
8
State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).
9
Id.
10
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
11
State v. Rocha, supra note 8.
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V. ANALYSIS
1. Motion to Suppress
Hill argues that the district court erred in overruling the
motion to suppress because “[t]here was no probable cause
fo[r] the stop, nor any reasonable suspicion” and “the allega-
tions of infractions were a pretext.”12 The State argues that
the district court correctly denied Hill’s motion to suppress
because the officer had probable cause to believe that a traf-
fic violation had occurred. The State contends that the officers
“observed multiple traffic violations before stopping the white
Taurus.”13 The district court overruled the motion to suppress,
finding that the “police had probable cause to stop the vehicle
after observing multiple traffic violations.”
In Whren v. United States,14 officers became suspicious
of a vehicle waiting at a stop sign and observed the vehicle
turn without signaling and speed off at an “‘unreasonable’”
speed. The officers pulled over the vehicle, approached, and
observed plastic bags of what appeared to be crack cocaine.
The petitioners asserted that the stop was not supported by
reasonable suspicion or probable cause, because the “ground
for approaching the vehicle—to give the driver a warning
concerning traffic violations—was pretextual.”15 The U.S.
Supreme Court stated that “the decision to stop an automobile
is reasonable where the police have probable cause to believe
that a traffic violation has occurred.”16 The Court then held
that “the officers had probable cause to believe that petition-
ers had violated the traffic code”17 and that “[s]ubjective
12
Brief for appellant at 13, 16.
13
Brief for appellee at 9.
14
Whren v. United States, 517 U.S. 806, 808, 116 S. Ct. 1769, 135 L. Ed. 2d
89 (1996).
15
Id., 517 U.S. at 809.
16
Id., 517 U.S. at 810.
17
Id., 517 U.S. at 819.
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intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.”18
In State v. Dallmann,19 we addressed a defendant’s conten-
tion that officers “had decided, without probable cause, to
follow and stop” the defendant and used the defendant’s subse-
quent traffic violation as “a pretext to obtain consent to search
the vehicle.” We rejected that argument, holding that “a traffic
violation, no matter how minor, creates probable cause to stop
the driver of a vehicle.”20 We further stated that “[i]f an officer
has probable cause to stop a violator, the stop is objectively
reasonable, and any ulterior motivation on the officer’s part
is irrelevant.”21
Gassaway and Lewis testified that they observed the Taurus
fail to stop at multiple stop signs and fail to signal turns. Hill
attempts to distinguish this case from Whren by arguing that
the officers “made the decision to initiate a traffic stop” by
radioing the other officers before witnessing a traffic viola-
tion.22 Hill appears to want this court to take Gassaway’s and
Lewis’ subjective intentions into account, but this court must
interpret the U.S. Supreme Court’s decision in Whren and
conclude, as it did in Dallman, that the officers’ subjective
intentions are irrelevant in the probable cause analysis. Once
the officers observed the traffic violations, they had sufficient
probable cause to stop the vehicle.
We note that Hill cites State v. Van Ackeren 23 and U.S. v.
Crawford 24 for the proposition that “the officers were not justi-
fied in conducting an investigative stop of the Ford Taurus,”
because the “officers did not present any specific or articulable
18
Id., 517 U.S. at 813.
19
State v. Dallmann, 260 Neb. 937, 948, 621 N.W.2d 86, 97 (2000).
20
Id. at 949, 621 N.W.2d at 97.
21
Id.
22
Brief for appellant at 15.
23
State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
24
U.S. v. Crawford, 891 F.2d 680 (8th Cir. 1989).
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facts which tend to show that they had reasonable suspicion
that . . . Hill had or was committing a crime, and were there-
fore not justified in conducting the stop.”25 Here, as discussed
above, the officers witnessed the driver of the vehicle commit
several traffic violations and they subsequently initiated a traf-
fic stop. Based on their observations of traffic violations, the
officers had probable cause to stop the vehicle. Therefore, Van
Ackeren and Crawford are inapplicable.
Next, we address Hill’s contention that by searching the
vehicle, the officers “went beyond the scope of a limited Terry
Stop.”26 In State v. Konfrst,27 we held that “[t]he right to be
free from unreasonable searches and seizures may be waived
by the consent of the citizen.” We explained:
When the prosecution seeks to justify a warrantless search
by proof of voluntary consent, it is not limited to proof
that the consent was given by the defendant, but may
show that the permission to search was obtained from
a third party who possessed common authority over or
other sufficient relationship to the premises or effects
sought to be inspected.28
Gassaway testified that he asked the driver of the vehicle if
she would give the officers “permission to search the vehicle,
and she did.” As someone who “possessed common authority
over” the vehicle, the driver could provide voluntary consent
to search the premises.29 Any right that Hill possessed to be
free from unreasonable search of the area under the passenger’s
seat was waived by the driver’s consent. Therefore, we find
that there was no Fourth Amendment violation in conducting
the search.
25
Brief for appellant at 17-18.
26
Id. at 19. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
27
State v. Konfrst, 251 Neb. 214, 224, 556 N.W.2d 250, 259 (1996).
28
Id. at 224-25, 556 N.W.2d at 259.
29
See id.
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Finally, we need not address Hill’s contention that the search
was unreasonable because the officers lacked probable cause
to arrest him and search the vehicle incident to his arrest.
Regardless of Hill’s arrest, the driver consented to the search
of her vehicle. The handgun Hill wishes to suppress was found
in the vehicle pursuant to that consent.
We find that the district court did not err in overruling Hill’s
motion to suppress, because the search did not violate his
Fourth Amendment rights.
Hill’s first assignment of error is without merit.
2. Motion in Limine
Hill argues that the district court erred in overruling his
motion in limine because the expert testimony did not meet
the test under Daubert v. Merrell Dow Pharmaceuticals, Inc.,30
as it involved “samples containing mixtures for major con-
tributors only” and utilized a database that “does not include
Omaha as a sub-population” or “scientific parameters for
race.”31 The district court overruled Hill’s motion in limine,
finding that the DNA testing met the three prongs of the
Daubert test.
In State v. Bauldwin,32 we addressed the reliability of PCR-
STR analysis for mixed samples of DNA, the same analy-
sis used in this case. In our analysis, we stated the Daubert
standard:
A trial judge acts as a gatekeeper for expert scientific
testimony, and must determine (1) whether the expert
will testify to scientific evidence and (2) if that testi-
mony will be helpful to the trier of fact. This entails a
preliminary assessment whether the reasoning or method-
ology underlying the testimony is scientifically valid and
30
See Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 2.
31
Brief for appellant at 21-23.
32
State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
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whether that reasoning or methodology may properly be
applied to the facts in issue.33
Applying the Daubert standard to the PCR-STR analysis,
we found:
The State’s expert witnesses testified that the scien-
tific community has generally accepted the PCR-STR
methodology as a means to identify contributors to
mixed samples of DNA. The accreditation of each indi-
vidual laboratory rests, in part, on the analysts’ abil-
ity to pass proficiency testing regarding mixed DNA
samples. The DNA laboratory was accredited. Testimony
also showed that scientific literature had been published
about the PCR-STR methodology regarding mixed sam-
ples. Furthermore, we have repeatedly found that the
PCR-STR analysis itself produces sufficiently reliable
information to be admitted at trial. The Legislature
has also recognized the reliability of the PCR-STR
methodology.34
We further explained:
The inability of PCR-STR analysis to definitely label
the cell source of each DNA contributor in a mixed
sample does not affect the underlying validity of the
methodology, or its admissibility under the Daubert/
Schafersman framework. In essence, [the defendant]
claims that the PCR-STR methodology is not scientifi-
cally valid because it is not able to do more—it cannot
definitively identify the cell source for each contributor
to a mixed DNA sample. [The defendant’s] assertions,
however, go to the weight of the evidence, rather than to
its admissibility.35
33
Id. at 702, 811 N.W.2d at 287-88, citing Schafersman v. Agland Coop,
supra note 2.
34
Id. at 704, 811 N.W.2d at 289.
35
Id. (emphasis in original).
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In State v. Ellis,36 this court analyzed whether expert opinion
testimony regarding PCR-STR testing of mixed samples of
DNA was “‘unduly prejudicial.’” We explained:
[T]he purpose of examining each locus is to determine
two things: (1) whether the contributor of the reference
sample can be excluded as a contributor and (2) how
commonly one might expect the profile that is generated
to occur randomly in the population. In other words, the
initial question was not whether the alleles that were
found at each locus identified [the defendant] as the
contributor; instead, it was whether the testing excluded
[the defendant] as a possible contributor. And obviously,
an allele that could be found in both [the defendant’s]
and [the victim’s] genetic profile would not exclude [the
defendant] as a possible contributor.37
We then turned to the second step of the analysis and
stated that “the fact that the DNA sample was a mixture
clearly affected the calculation of how many people might be
expected to have genetic profiles consistent with the sample,”
however, “that goes to the weight of the evidence, not its
admissibility.”38 Thus, the court held that the district court did
not abuse its discretion in concluding that the DNA evidence
was admissible.
As in Bauldwin and Ellis, the State’s expert and a forensic
DNA analyst, Helligso, provided expert testimony on PCR-
STR testing of mixed DNA samples and supported her find-
ings with testimony that the laboratory was “accredited and
certified through the ASCLD,” that the PCR-STR method­
ology is subject to publication within the field and within the
general scientific community, that it is scientifically testable,
and that it allows her to make determinations with a reason-
able degree of scientific certainty. In regard to each piece of
36
State v. Ellis, supra note 4, 281 Neb. at 586, 799 N.W.2d at 285.
37
Id. at 587, 799 N.W.2d at 286.
38
Id. at 587-88, 799 N.W.2d at 286.
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DNA-tested evidence, Helligso stated whether Hill could “be
excluded as a possible contributor” based on the swabs of evi-
dence and the buccal swab from Hill.39 Helligso then utilized
the second step of the test in Ellis, a “frequency analysis,”
to determine the probability of the DNA match to another
individual. This analysis was broken down into the frequency
within different races.
Hill contends that Helligso may not extend “conclusions to
opine that a sample may indicate identity opinions [because]
the case law limits the conclusions that may be drawn,” and
he cites Ellis to support the proposition.40 However, Hill mis-
interprets Ellis. Hill addresses only the first prong of Ellis, as
to whether the testing excluded Hill as a possible contributor.41
Upon application of the second prong, the frequency analysis
provides how commonly one might expect the profile that is
generated to occur randomly in the population.42 As we found
in Bauldwin, the fact that PCR-STR testing “cannot defini-
tively identify the cell source for each contributor to a mixed
DNA sample” does not make it inadmissible.43 Instead, the
frequency of occurrence in mixed samples goes to the “weight
of the evidence.”44
This court has accepted “frequency analysis” under PCR-
STR methodology that analyzes the probability of the DNA
match to another individual by different races and found it to
be “reliable” and “relevant.”45 Furthermore, it is unclear what
Hill means by “the sub-population of Omaha.”46 Hill cites no
39
See State v. Ellis, supra note 4, 281 Neb. at 586, 799 N.W.2d at 285.
40
Brief for appellant at 22.
41
See State v. Ellis, supra note 4.
42
Id.
43
State v. Bauldwin, supra note 32, 283 Neb. at 704, 811 N.W.2d at 289.
44
See id.
45
See State v. Fernando-Granados, 268 Neb. 290, 312-13, 682 N.W.2d 266,
283 (2004).
46
Brief for appellant at 21.
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precedent to support his assertion, nor is there any case law
requiring the database to apply to a subpopulation from the
area of the crime scene in its DNA analysis. We find, as we did
in Bauldwin, that “the PCR-STR analysis itself produces suf-
ficiently reliable information to be admitted at trial.”47
The district court did not abuse its discretion in admitting
that testimony. Hill’s second assignment of error is with-
out merit.
3. State’s Factual Assertion in
R ebuttal Closing A rgument
Hill also contends that the district court erred in denying
his motion to strike a statement made by the State in rebuttal
closing argument, suggesting that a neighbor witnessed the
individual fleeing the scene lose his cap at or near the crime
scene, when in fact this was not an accurate recitation of the
facts as presented at trial. Hill takes issue with the following
lines of the State’s rebuttal closing argument:
What [do Francia] and [Nunn] say? There was conver-
sation about the hat because [cocounsel] and I, in putting
those witnesses on, had them describe what they saw, and
they both said, it seemed like one of them had a hat, and
then when I looked again, he didn’t have a hat. That’s
what they said.
[Hill’s counsel]: Objection. That’s not what they said.
Move to strike.
THE COURT: Overruled. The jurors will remember the
evidence as they remember the evidence.
[State’s counsel]: You’re the arbiters of the facts, and
take a look at it, they both talked about that, is that —
they both said, as they took their initial glances, it seems
that they — they had a hat and then it wasn’t.
The State contends that it was not an error for the district
court to overrule Hill’s objection, because
47
State v. Bauldwin, supra note 32, 283 Neb. at 704, 811 N.W.2d at 289.
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[t]here was no intent to mislead the jury by the statement,
it was doubtless an inadvertent remark which was the
result of a logical progression of facts — if [Hill’s] hat
was at the scene of the shooting, and [Hill] was not, then
he must have been there in sufficiently recent times so
that the hat was still at the crime scene.48
[9,10] Prosecutors have a duty to conduct criminal trials
in a manner that provides the accused with a fair and impar-
tial trial.49 A prosecutor’s improper comments during closing
argument can require reversal of a conviction if the comments
“‘prejudiced the defendant’s rights in obtaining a fair trial.’”50
[11-13] In determining whether a prosecutor’s conduct was
prejudicial, we ordinarily look to “‘the cumulative effect of
the improprieties, the strength of the evidence against the
defendant, and whether the district court took any curative
action.’”51 “‘[N]ot every variance between [a prosecutor’s]
advance description and the actual presentation constitutes
reversible error, when a proper limiting instruction has been
given’ and the remarks are not crucial to the State’s case.”52
Absent evidence to the contrary, it is presumed that a jury fol-
lowed the instructions given in arriving at its verdict.53
The State’s assertion in its rebuttal closing argument was
less than precise. Two witnesses testified that they saw a man
running from the scene, and they both mentioned the man
might have been wearing a hat. However, neither of the wit-
nesses testified that when they looked again, the man running
no longer wore a hat. In Hill’s closing argument, defense coun-
sel also addressed the factual issue and stated, “Now . . . there
we are, down to two people running who may or may not have
48
Brief for appellee at 31.
49
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
50
U.S. v. Darden, 688 F.3d 382, 388 (8th Cir. 2012).
51
Id.
52
State v. Iromuanya, supra note 49, 282 Neb. at 819, 806 N.W.2d at 427.
53
State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
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a connection with each other. . . . [W]e don’t know if they
dropped a hat.” Hill also stated in his closing argument:
Remember, if you remember . . . Dunn looked out,
looked around, did you see anyone heading facing [sic]
him? And he said no. So . . . Francia says he cannot detect
the race of the person because the hood is up, all the way
to — until they see them turn and there’s these lights.
And, again, I asked him, did you see a hat fly off?
Didn’t see a hat fly off. So we have three witnesses: One
who says the person with a bag had a hood up and may
have had a baseball hat underneath it; and the other wit-
ness who says they see somebody running also with a
hood up, can’t tell the race from behind, hood is down,
to be able to do that. None of them saw a hat fly off
the three people fleeing the scene that were — the three
people that were described as fleeing the scene.
The total record is over 1,800 pages in length. The State’s
closing argument was 42 pages long, and its rebuttal closing
argument was 23 pages long. The State called 27 witnesses
and offered 272 exhibits. The State’s inaccurate statements
in its rebuttal closing argument did not have a significant
cumulative effect, because the State was merely connecting
the extensive circumstantial evidence that had already been
presented to the jury. The State’s witnesses had presented
testimony that the cap was found on the same street where
Dunn was shot as officers reached the scene, that a man flee-
ing the scene might have been wearing a cap, and that one of
the men witnessed fleeing the scene took longer to cross the
bridge because, according to an eyewitness, he “probably . . .
dropped something.”
After the first statement, the district court admonished
the jurors to “remember the evidence as they remember the
evidence.” Furthermore, jury instruction No. 12 states that
“[s]tatements, arguments, and questions of the lawyers for the
State and the defendant” are not evidence. We hold that the
district court did not abuse its discretion in overruling Hill’s
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objection to the State’s statements in its rebuttal closing argu-
ment. Hill’s third assignment of error is without merit.
4. Ineffective Assistance
of Counsel
Next, we turn to whether Hill was denied effective assistance
of counsel. Under Nebraska law, in order to raise the issue of
ineffective assistance of trial counsel where appellate counsel
is different from trial counsel, a defendant must raise on direct
appeal any issue of ineffective assistance of trial counsel which
is known to the defendant or is apparent from the record, or the
issue will be procedurally barred on postconviction review.54
In this appeal, Hill asserts 10 ineffective assistance of counsel
claims directed at his trial counsel.
The fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can
be resolved. The determining factor is whether the record is
sufficient to adequately review the question.55 An ineffective
assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.56 We conclude that
the record is sufficient to address some, but not all, of Hill’s
ineffective assistance claims.
[14,15] In order to show ineffective assistance of counsel
under Strickland v. Washington,57 a defendant must show, first,
that counsel was deficient and, second, that the deficient per-
formance actually caused prejudice to the defendant’s case.58
The two prongs of this test may be addressed in either order,
and the entire ineffectiveness analysis should be viewed with
a strong presumption that counsel’s actions were reasonable.59
54
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
55
State v. Ramirez, 284 Neb. 697, 823 N.W.2d 193 (2012).
56
Id.
57
Strickland v. Washington, supra note 10.
58
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
59
Id.
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(a) Failure to Ask for Limiting
Instruction, Admonishment to
Jury, or Move for Mistrial
First, we address whether Hill was denied effective assist­
ance of counsel when his attorney failed to ask for a limiting
instruction, admonishment to the jury, or move for a mistrial
after the district court allowed the State to assert that two
witnesses testified that one of the people fleeing the shoot-
ing “had a hat,” and when they “looked again,” the person
“didn’t have a hat.” Hill’s trial counsel objected to the State’s
assertion of fact. Hill contends that trial counsel was ineffec-
tive for thereafter failing to object to the second inaccurate
statement by the State that both witnesses said that “as they
took their initial glances, it seems that they — they had a hat
and then it wasn’t,” and failing to move for a mistrial. Hill
contends that without the State’s comments, “there would
not be any evidence at all tying . . . Hill to the scene of
the shooting.”60
[16] A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial that is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial.61 The defendant must prove that the alleged error actu-
ally prejudiced him or her, rather than creating only the pos-
sibility of prejudice.62
In this case, we conclude that counsel was not deficient.
Defense counsel objected to the State’s comments. The judge
overruled counsel’s objection and admonished the jury. Any
motion for mistrial would have been futile. Moreover, as noted
above, the State’s comments did not rise to the level of pros-
ecutorial misconduct. As such, any deficiency by counsel was
not prejudicial.
60
Brief for appellant at 26.
61
State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).
62
Id.
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(b) Failure to Share and Discuss
Reports With Hill and Provide
Him With Discovery
Hill contends that he saw counsel on “less than 10 occasions
and most of those lasted less than 15 minutes” and that he
was “not provided with a copy of the reports,” nor did counsel
discuss any reports with him.63 We conclude that the record on
direct appeal is insufficient for us to resolve this claim, and we
therefore do not reach it.
(c) Failure to Provide Hill With
Depositions of Witness
Hill argues that counsel did not provide Hill with Gassaway’s
deposition, which prejudiced Hill by “depriving him of the
right to aid in his own defense.”64 It is not possible to evaluate
whether defense counsel was ineffective, because the record
contains insufficient evidence as to whether Hill was present at
Gassaway’s deposition or whether trial counsel provided Hill
with Gassaway’s deposition. Because the record is insufficient
to address this assignment of error, we decline to address it on
direct appeal.
(d) Failure to Take Depositions of
Witnesses and Police Officers
Hill argues that counsel failed to take the depositions of
Nunn; Francia; Francia’s brother; James Dailey, who lived
near the location of the crime; and officers present at the traf-
fic stop.
Hill mentions Francia’s brother in his argument, but does
not include him in the assignment of error. An alleged error
must be both specifically assigned and specifically argued
in the brief of the party asserting the error to be consid-
ered by an appellate court.65 Therefore, any alleged failure
63
Supplemental brief for appellant at 27.
64
Id. at 28.
65
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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by counsel to take Francia’s brother’s deposition is not pre-
served on review.
Hill contends that Dailey was a “key witness to the issue of
robbery”66; however, the record shows that Dailey heard gun-
shots while at his home and only saw an unidentified figure,
who was apparently Hill, stagger off Dailey’s doorstep. Dailey
did not leave his house or witness anyone else. Therefore, the
record refutes Hill’s claim with respect to Dailey and it is with-
out merit.
Hill further argues that counsel failed to depose “numerous
other police officers present at the site of the stop and involved
in the motion to suppress.”67 But in order to avoid dismissal
without an evidentiary hearing, Hill is required to specifically
allege what the testimony of these witnesses would have been,
had they been called in order.68 “Without such specific allega-
tions, the . . . court would effectively be asked to ‘“conduct a
discovery hearing to determine if anywhere in this wide world
there is some evidence favorable to defendant’s position.”’”69
We find that Hill’s description is not a sufficient allegation of
deficient performance.
We further find that the record is not sufficient to address
the claims that pertain to Nunn and Francia.
(e) Failure to Present Evidence of Alibi
Pursuant to Notice of Alibi
Hill argues that counsel filed a notice of alibi, but none of
Hill’s alibis were presented at trial. Hill argues that counsel
failed to introduce (1) testimony from Hill’s son’s nurse that
she met with Hill at the time of the shooting, (2) testimony
from Hill’s mother that she talked to Hill during the time
period and “she could have testified as to where [Hill] identi-
fied himself as being and the nature of the conversation” and
66
Supplemental brief for appellant at 28.
67
Id.
68
See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
69
Id. at 133, 853 N.W.2d at 867.
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that she “drove by his house” and “knew that he was home,”70
and (3) telephone records from Hill’s telephone.
We turn to the first claim. Hill contends that he met with
his son’s nurse at his home between 10 and 10:30 p.m., which
was the time the record shows the shooting occurred, and that
the home was located “many miles away from the scene of
the shooting.”71 We conclude that Hill’s first claim sufficiently
alleges deficient performance, but that his second and third
claims are without merit.
We turn next to the second and third claims. Hill contends
that Hill’s mother knew where Hill was located based on a tele-
phone conversation at the time. Thus, Hill’s mother’s knowl-
edge of Hill’s location would be based solely on what Hill told
her over the telephone. This is inadmissible hearsay, and the
claim is without merit.
Hill further contends that Hill’s mother “drove by his house”
and “knew that he was home.”72 However, Hill does not pro-
vide any basis as to how Hill’s mother knew that he was home.
We find that this claim is insufficiently pled.
Hill also claims that his telephone records would have shown
to the jury “who he talked to that night and for what period of
time.”73 But Hill does not provide any further explanation as to
how this could impact his alibi defense. We conclude that Hill
has not sufficiently alleged deficient performance.
(f) Failure to Obtain and Introduce
Hill’s Telephone Records
Hill also argues that counsel was ineffective for failing to
call as witnesses the people he talked to on the telephone,
“which would have proved an inability to be at the scene of the
murder.”74 We conclude, for the reasons stated above, that this
70
Supplemental brief for appellant at 29.
71
Id.
72
Id.
73
Id. at 30.
74
Id.
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claim does not identify deficient performance and has not been
sufficiently pled.
(g) Failure to Investigate and Hire DNA Expert
to Refute Findings of State’s DNA
Expert and to Educate Jury as to
Meaning of DNA Evidence
Hill contends that counsel was ineffective for failing to call
an expert to develop and contradict the State’s expert testimony
on the DNA results. Hill argues that “DNA is a complicated
matter” and that because there were major contributors in
mixed samples on the cap and on the handgun, another expert
was needed to explain “the significance of those statistics and
what does it mean in light of those DNA statistics being the only
things tying [Hill] to both the gun and the scene of the crime.”75
The record indicates that Helligso extensively explained DNA
testing in general terms and specifically explained PCR-STR
testing to the jury prior to describing the DNA test results. Hill
does not explain the portion of Helligso’s testimony that could
be refuted or what another expert could add to the testimony
that Helligso did not already explain. We find that this claim
has not been sufficiently pled.
(h) Failure to Properly Advise Hill of
His Right to Testify and Failure
to Call Hill as Witness
Hill contends that he “wanted to present a defense and to
testify” but that he waived his right to testify due to counsel’s
advice.76 We conclude that the record is insufficient to address
this claim.
(i) Failure to Present Any Defense
Hill argues that counsel was ineffective for failing to pre­
sent any defense. On direct appeal, an appellate court can
75
Id. at 30-31.
76
Id. at 32.
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determine whether the record proves or rebuts the merits of
a claim of ineffective assistance of trial counsel only if it
has knowledge of the specific conduct alleged to constitute
deficient performance.77 An appellant must make specific alle-
gations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel when raising an ineffective
assistance claim on direct appeal.78 Hill’s argument that trial
counsel failed “to present any defense” does not allege specific
conduct.79 Therefore, we look only to the specific defenses
further alleged by Hill.
Hill repeats several of the arguments we have already
addressed and adds that “the mother of one of his children
. . . would testify that he was never in the neighborhood of
the murder.”80 Hill further claims that she “was even excluded
from the trial throughout pursuant to the sequestration order, in
contemplation of her testimony.”81 Hill provides no explanation
as to what she would have said or how she could have sup-
ported Hill’s alibi on the night of the shooting. Nonetheless, we
find that Hill has not sufficiently pled this claim.
(j) Failure to Follow Through on
Motion for New Trial Based Upon
Inconsistent, Incongruent, and
Untenable Jury Verdict
Hill argues that counsel failed to recognize the “incongru-
ency and inconsistency” of the jury’s finding first degree mur-
der and not finding use of a weapon to commit a felony.82 Hill
contends that “[t]he failure to pursue this motion may have
foreclosed it from being considered on appellate [review] and
77
State v. Filholm, supra note 65.
78
Id.
79
Supplemental brief for appellant at 33.
80
Id.
81
Id.
82
Id. at 35.
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if so it was ineffective assistance of counsel.”83 The record
shows that the motion for new trial was withdrawn with the
consent of Hill.
Hill does not explain why the withdrawal of the motion con-
stituted ineffective assistance of counsel. He has not alleged
specific conduct to constitute deficient performance; thus, his
claim is not preserved for review. Hill’s fourth assignment of
error is without merit.
4. Motion
to Dismiss and Motion
Directed Verdict
for
Hill argues that the district court erred in overruling his
motion to dismiss and motion for directed verdict, because
there was no eyewitness testimony placing Hill at the scene
of the shooting, there was “insufficient evidence to convict”84
Hill, the DNA testing was “[q]uestionable science,”85 and the
“alleged loss of a hat by an assailant should not have been
allowed in argument to the jury.”86
Hill was tried by a jury on four counts and convicted of
first degree murder and two counts of possession of a deadly
weapon by a prohibited person. Hill did not offer any evidence
in his defense at trial. On February 23, 2016, Hill made a
motion to dismiss at the close of the State’s case and after the
jury conference. The court denied Hill’s motions.
As discussed above, we have concluded that the DNA
evidence was admissible.87 While there is no eyewitness tes-
timony, there was significant circumstantial evidence support-
ing Hill’s convictions, including DNA testing of the cap found
at the scene, DNA testing of the handgun found under Hill’s
seat, analysis that matched the spent bullet in Dunn’s jacket
83
Id.
84
Id. at 21.
85
Brief for appellant at 23.
86
Id. at 24.
87
See State v. Bauldwin, supra note 32.
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to the handgun found under Hill’s seat, and eyewitness tes-
timony of one or two suspects fleeing the scene of Dunn’s
shooting, one of whom might have been wearing a cap.
Whether the evidence presented by the State supports Hill’s
convictions was a matter for the finder of fact.88 Viewing the
evidence in the light most favorable to the State, we determine
the record reflects sufficient evidence to sustain the convic-
tions beyond a reasonable doubt.
Hill’s fifth assignment of error is without merit.
VI. CONCLUSION
The judgments and convictions of the district court are
affirmed.
A ffirmed.
Wright, J., not participating.
88
See id.