State v. Ash ( 2013 )

Nebraska Advance Sheets
STATE v. ASH 681
Cite as 286 Neb. 681Here, David’s motion was without merit because the district
court lacked jurisdiction. But, the fact that the district court
granted David’s motion indicates that such a legal position
should not be deemed frivolous. We conclude that the motion
was not brought in bad faith. We decline to award attorney fees
on appeal to the beneficiaries on the ground that the motion
was frivolous.
CONCLUSION
For the reasons discussed, we vacate the district court’s
order granting David costs, expenses, and attorney fees and
deny the beneficiaries’ request for attorney fees pursuant to
§ 25-824.
Vacated and dismissed.
Heavican, C.J., and Cassel, J., not participating.
State of Nebraska, appellee, v.
Vencil Leo Ash III, appellant.
___ N.W.2d ___
Filed October 18, 2013. No. S-12-753.
1. Criminal Law: Motions for Continuance: Appeal and Error. A decision
whether to grant a continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
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 determin-
ing admissibility.
4. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403(Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial court’s decision
will not be reversed absent an abuse of discretion.
5. Constitutional Law: Criminal Law: Pretrial Procedure: Evidence. A criminal
defendant has constitutional and statutory rights which mandate the timely disclo-
sure of the State’s evidence in a criminal case.
Nebraska Advance Sheets
682 286 NEBRASKA REPORTS
6. Pretrial Procedure: Evidence. Neb. Rev. Stat. § 29-1912(2) (Cum. Supp. 2012)
requires the State, upon request, to disclose evidence that is material to the prepa-
ration of a defense.
7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict.
8. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2012), does not apply to evidence of a defendant’s
other crimes or bad acts if the evidence is inextricably intertwined with the
charged crime. This rule includes evidence that forms part of the factual setting
of the crime, or evidence that is so blended or connected to the charged crime
that proof of the charged crime will necessarily require proof of the other crimes
or bad acts, or if the other crimes or bad acts are necessary for the prosecution to
present a coherent picture of the charged crime.
Appeal from the District Court for Kimball County: Derek
C. Weimer, Judge. Reversed and remanded for a new trial.
James R. Mowbray and Kelly S. Breen, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
Vencil Leo Ash III was charged with first degree murder in
the death of Ryan Guitron. Ash was found guilty following a
jury trial and was sentenced to life imprisonment. We reverse
Ash’s conviction and sentence and remand the cause for a
new trial.
FACTUAL BACKGROUND
On November 4, 2003, Guitron was reported missing by his
girlfriend. Guitron’s remains were discovered nearly 7 years
later, on April 8, 2010, on an abandoned farm in rural Kimball
County, Nebraska. The cause of death was determined to be
two gunshot wounds, one through the right eye and the other
through the back of the neck. The shots were later determined
Nebraska Advance Sheets
STATE v. ASH 683
Cite as 286 Neb. 681to be fired from a Hi-Point .380-caliber pistol purchased by
Ash’s sister. Guitron’s death was later found to have occurred
on October 15, 2003.
In August 2003, Guitron had been living in a trailer home
in Fort Collins, Colorado, with Ash and Kelly Meehan-Ash,
Ash’s then 15-year-old girlfriend (now his wife). Guitron, Ash,
and Meehan-Ash were methamphetamine users. After living
with Guitron for 3 to 4 weeks during August 2003, Ash and
Meehan-Ash moved to a tent near Grover, in Weld County,
Colorado. Ash testified that at this time, he retrieved the
.380-caliber pistol from his sister because Meehan-Ash wanted
some form of protection. The pistol was originally purchased
on August 1, 2003, in Walsenburg, Colorado. Ash was with his
sister during the purchase of this handgun.
Meehan-Ash’s Version of Events
At the time of trial, Ash and Meehan-Ash described two dif-
ferent versions of the events surrounding Guitron’s death, each
implicating the other as responsible for his murder. Meehan-
Ash testified that Guitron had stolen a pair of her underwear
and a bra and kept them with a pornographic magazine in a
backpack and that after Ash found these items in Guitron’s
closet, he threatened to kill Guitron because of it. According
to Meehan-Ash, on the day of the murder, Ash asked Guitron
to travel with Ash and Meehan-Ash to get methamphetamine.
Ash drove them in Guitron’s car to the abandoned farm where
Guitron’s body was later discovered. The three of them had
smoked methamphetamine during the car ride and again upon
arriving at the abandoned farm.
According to Meehan-Ash, once parked, all three got out of
the car and walked around the farm. They came upon parts of a
baby bed, and Ash asked Meehan-Ash to collect the parts and
take them back to the car. On her way back to the car, Meehan-
Ash testified, she heard a gunshot. She turned in the direction
of the two men and saw Ash standing over Guitron’s body,
holding the .380-caliber pistol. Meehan-Ash testified this was
the first time she had seen the pistol that day because Ash nor-
mally tucked the gun in his pants. Meehan-Ash stated she did
not hear or see a struggle or see any other weapon during the
Nebraska Advance Sheets
684 286 NEBRASKA REPORTS
incident. Ash then walked to the car to get some black gloves
and told Meehan-Ash he was going to bury Guitron under a
woodpile near the farm. After Ash covered up the body, they
left to get gas and drove back to Fort Collins.
Ash’s Version of Events
Ash denied Meehan-Ash’s story that Ash was aware Guitron
had stolen Meehan-Ash’s underwear and bra and that Ash
wanted revenge. Ash testified that he and Guitron were actu-
ally good friends. Ash testified that on the day of the murder,
the three of them went in Guitron’s car to get iodine, an ingre-
dient to make methamphetamine, from Guitron’s iodine source
so that Ash could “cook” more methamphetamine. Ash stated
that he missed a turn and that they ended up at the abandoned
farm where some old cars caught his eye. Ash also stated that
he left his sister’s .380-caliber pistol in a cooler that he put
in the back seat next to Meehan-Ash. Ash testified, as did
Meehan-Ash, that the three of them had smoked methamphet-
amine during the drive. He also agreed that they found a baby
bed while at the farm. Ash testified that after finding the baby
bed, Guitron went to the car and got a .22-caliber rifle and
then Ash and Guitron continued to search the property with-
out Meehan-Ash.
Ash testified that during their search, Guitron was going
to smoke more methamphetamine, but discovered that there
was no more methamphetamine left to smoke. Guitron then
claimed that “he was going to kill that fucking bitch,” refer-
ring to Meehan-Ash, and “took off running,” rifle in hand. Ash
went after Guitron, and he saw Guitron fire a shot from the
.22-caliber rifle at Meehan-Ash. Ash then knocked the rifle out
of Guitron’s hand, which caused another round to go off. The
two men struggled, and then Ash saw Meehan-Ash and heard
a shot. The men fell to the ground, and Ash heard another
shot. He then saw Guitron lying on the ground and Meehan-
Ash in the car, banging her head against the dashboard. Ash
testified, as did Meehan-Ash, that they then went to get gas.
Ash testified that they returned, however, to pick up the rifle
and retrieve from Guitron’s person the address of Guitron’s
iodine source.
Nebraska Advance Sheets
STATE v. ASH 685
Cite as 286 Neb. 681After the murder, Ash traded Guitron’s car for a Cadillac
Escalade. Meehan-Ash was with him during the trade. After
trading for the Escalade, Ash and Meehan-Ash returned to
Guitron’s trailer home in Fort Collins and loaded Guitron’s
property into the Escalade. On October 13, 2003, 2 days
before the murder, Ash had pawned Guitron’s “Raiders Pro
Line” leather jacket. Meehan-Ash claimed they had pawned the
jacket to get money for food. Ash testified that he probably had
pawned the jacket if his name was on the pawn ticket, but that
he did not remember doing so. On October 17, 2 days after the
murder, Ash pawned Guitron’s television.
On October 18, 2003, Ash was arrested on a warrant for
parole violations. The Escalade remained with Meehan-Ash
after Ash’s arrest. Meehan-Ash was arrested the next day on
a juvenile warrant, and the .380-caliber pistol was discov-
ered under Meehan-Ash’s bed at Ash’s sister’s house where
Meehan-Ash was living. The Escalade was towed on October
19. Several of Guitron’s possessions were removed from the
Escalade, including his credit card and various personal items
identified at trial as belonging to Guitron. The parts of the baby
bed gathered on the day of the murder were also removed from
the Escalade. Law enforcement retrieved the .380-caliber pistol
from Ash’s sister on November 24. It was not disputed that this
was the weapon used to shoot Guitron.
After Guitron’s disappearance, Ash was questioned by law
enforcement on several occasions. On November 4, 2003, Ash
indicated that he had last seen Guitron on October 17 and that
Guitron was supposed to pick him up to go work at an oil rig
the next day, but Guitron never showed up. And on March
18, 2004, Ash was interviewed by the lead investigator into
Guitron’s disappearance. At that time, Ash told the investiga-
tor that he was broke at the time of his arrest because he had
given Guitron large sums of money. Ash claimed that Guitron
was still alive and that he last saw him on October 18, 2003, at
Guitron’s trailer home. Ash denied killing Guitron, but at the
end of the interview, unsolicited, he asked whether they had
found Guitron’s body. Ash then stated that if Guitron was dead,
law enforcement would have found his body because it had
been quite some time since Guitron’s disappearance.
Nebraska Advance Sheets
686 286 NEBRASKA REPORTS
On April 2, 2010, Meehan-Ash was interviewed by law
enforcement on a different matter; however, she volunteered
at the interview that Ash had killed Guitron. Meehan-Ash was
then escorted by the lead investigator to try to locate the aban-
doned farm, but she failed to do so.
Following this interview, the lead investigator again inter-
viewed Ash on April 7, 2010. At this interview, Ash ini-
tially denied shooting Guitron, but then admitted to shoot-
ing Guitron twice to protect Meehan-Ash because Guitron
was shooting at her. Ash then directed law enforcement to
the abandoned farm. Guitron’s remains were later discov-
ered there.
Officers also located two .22-caliber rifle casings at the
abandoned farm. One casing was lying on top of the dirt, and
the other on top of some cement; neither casing was rusted.
Based on the locations of the two casings, law enforcement
determined that the casings could not have been ejected to
their respective locations from where Guitron had been shot, as
shown by physical evidence that still remained at the scene, or
from where his remains were located.
Later at trial, Ash testified that in order to protect Meehan-
Ash, he initially did not tell law enforcement that Meehan-
Ash shot Guitron. Ash further testified that Ash had promised
Meehan-Ash’s father that he, Ash, would take the blame for
Guitron’s murder. But according to Ash, while he was in jail, a
puppy in his care died and that event made Ash want to tell the
truth to law enforcement about who killed Guitron.
On November 1, 2011, the State filed an information charg-
ing Ash with the first degree murder of Guitron. Meehan-Ash
was the first endorsed witness listed on the information. In a
separate information, Meehan-Ash was charged with aiding
and abetting the first degree murder of Guitron. The cases were
consolidated for trial, and the trial was scheduled to begin June
25, 2012.
On June 15, 2012, Meehan-Ash agreed to submit to an off-
the-record proffer with the State. Meehan-Ash later agreed to
testify at trial consistent with that proffer. In exchange, the
State agreed to reduce Meehan-Ash’s charge of aiding and
abetting the first degree murder of Guitron to accessory after
Nebraska Advance Sheets
STATE v. ASH 687
Cite as 286 Neb. 681the fact. The State, Meehan-Ash, and Meehan-Ash’s attorney
signed this agreement. The discussion took place on June 20.
On June 22, 3 days before trial was scheduled to begin, the
State notified Ash’s counsel that Meehan-Ash had struck a deal
with the State, provided the State with an additional statement,
and would now be testifying at trial.
On June 22, 2012, a telephone hearing was held at which
Ash made an oral motion to continue trial. No bill of excep-
tions exists for this hearing, but the parties agree that the
district court denied the motion. At oral argument before this
court, counsel for Ash indicated that the district court judge
stated during the telephonic conference that he would not
be granting the motion at that time because it would be an
obstacle to the court to inform the persons already summoned
for jury service.
On June 25, 2012, prior to the commencement of trial,
Ash filed a written motion, again requesting a continuance
of the trial date, because counsel needed to complete addi-
tional pretrial discovery in light of Meehan-Ash’s June 22 plea
agreement. Defense counsel argued that his preparation, trial
strategy, and theory had to be adjusted for a surprise witness.
Counsel further argued that as there were hundreds of pages
of correspondence between Ash and Meehan-Ash, more than
10 hours of recorded conversations, and several interviews
of Meehan-Ash conducted by law enforcement, it would be
“impracticable and unduly onerous” to undertake re-review for
possible impeachment 3 days prior to trial. The State did not
file a written response.
On June 25, 2012, when the parties appeared for the first
day of trial, defense counsel orally renewed the motion to
continue. The court initially denied the motion, but ordered
that Meehan-Ash be produced for a deposition that evening.
The jury was selected for trial that day, a Monday, but the
actual trial did not commence. Arrangements were then made
for Ash’s counsel to take Meehan-Ash’s deposition Monday
evening before opening statements, and the presentation of the
evidence began on Tuesday.
After Meehan-Ash’s deposition was taken, defense counsel
renewed his motion to continue. Defense counsel stated that
Nebraska Advance Sheets
688 286 NEBRASKA REPORTS
during her deposition, Meehan-Ash had reported for the first
time that she was using methamphetamine before arriving at
the farm and while she was there. In addition, she reported
for the first time that during the period when the murder
occurred, she had experienced visual and tactile hallucinations
caused by her continual use of methamphetamine. Counsel
stated that Meehan-Ash’s statements were strong evidence
that she was suffering from a drug-induced psychosis and that
counsel needed time to find an expert who could explain the
significance of her statements and drug use: i.e., that a person
in a drug-induced psychosis can commit violent acts without
knowing it.
The State was present at Meehan-Ash’s deposition and
responded to defense counsel’s renewed motion on the record.
The State argued that there had been no representation what-
soever that on the day of the murder, Meehan-Ash was expe-
riencing hallucinations or that her memory about the murder
was affected by methamphetamine. The State further argued
that defense counsel had been aware through the pretrial
preparation that Meehan-Ash was using methamphetamine.
It argued that Meehan-Ash’s use of methamphetamine on the
day of the murder was not a surprise to Ash’s counsel, because
Ash, in his own statement, had told investigators that one rea-
son for the crime was the use of methamphetamine by Guitron,
Ash, and Meehan-Ash. Ash’s renewed motion to continue
was denied.
The motion was again renewed after the State’s direct
examination of Meehan-Ash. Defense counsel renewed his
past arguments on the matter and further argued that he needed
time to take the deposition of Aquilla Rios, an out-of-state
witness, for impeachment purposes. The State did not respond
to the motion, and it was denied. The record shows that on
cross-examination, Meehan-Ash stated that in 2009, she told
Rios about the murder, which was the first time she had told
anyone about it. She told Rios that Guitron had repeatedly
molested and raped her while she was living in his trailer
home, but she stated that she could not remember whether she
had told Rios about Ash’s finding her underwear and bra in
Guitron’s backpack.
Nebraska Advance Sheets
STATE v. ASH 689
Cite as 286 Neb. 681Also at the time of trial, Ash’s counsel objected to the
State’s offer and the district court’s admittance of a receipt
signed by Ash showing that 2 days before the murder, Ash
pawned a leather jacket belonging to Guitron. Ash’s counsel
argued the admission of this evidence violated Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2012), and
moreover, there had been no hearing on the admissibility of
this evidence. The State argued that this evidence was relevant
as to intent and premeditation and that the alleged “bad act” of
pawning Guitron’s jacket was so intertwined with the underly-
ing murder that under Nebraska’s evidence laws, the receipt
was admissible. The motion was ultimately denied.
Ash was convicted. He appeals.
ASSIGNMENTS OF ERROR
Ash assigns that the district court erred in (1) denying his
motion to continue trial and (2) admitting into evidence the
pawn receipt for an improper purpose and without a prior hear-
ing on admissibility.
STANDARD OF REVIEW
[1,2] A decision whether to grant a continuance in a criminal
case is within the discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion.1 A judicial
abuse of discretion exists only when the reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying a just result in matters submit-
ted for disposition.2
[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.3 It is within the discretion of the trial court to deter-
mine relevancy and admissibility of evidence of other wrongs
or acts under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-4031
State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
2
Id.3
State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
Nebraska Advance Sheets
690 286 NEBRASKA REPORTS
(Reissue 2008), and § 27-404(2), and the trial court’s decision
will not be reversed absent an abuse of discretion.4
ANALYSIS
Motion to Continue Trial
Ash first assigns that the district court abused its discretion
by denying his motion to continue trial based upon Meehan-
Ash’s plea agreement to testify, because her deal was struck
upon the eve of trial.
The basis of Ash’s argument on appeal is that his counsel
should not have to conduct a “night-time”5 investigation to
prepare for Meehan-Ash’s testimony. In arguing to the dis-
trict court on the motion to continue, Ash contended that he
needed additional time to investigate Meehan-Ash’s allega-
tions that she experienced hallucinations while using metham-
phetamine, as she had been doing the day of the murder. Ash
also contended that he needed additional time to interview
a new witness, a former coworker of Meehan-Ash, because
that coworker might have information regarding Meehan-Ash’s
allegations that she was coerced by Ash. We agree.
[5,6] A criminal defendant has constitutional and statu-
tory rights which mandate the timely disclosure of the State’s
evidence in a criminal case. Brady v. Maryland6 and Kyles v.
Whitley7 impose the constitutional mandate to disclose excul-
patory evidence. Neb. Rev. Stat. § 29-1912(2) (Cum. Supp.
2012) further requires the State, upon request, to disclose evi-
dence that is material to the preparation of a defense:
[W]hether a prosecutor’s failure to disclose evidence
results in prejudice depends on whether the informa-
tion sought is material to the preparation of the defense,
meaning that there is a strong indication that such
information will play an important role in uncovering
admissible evidence, aiding preparation of witnesses,
4
Id.5
Brief for appellant at 10.
6
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
7
Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).
Nebraska Advance Sheets
STATE v. ASH 691
Cite as 286 Neb. 681corroborating testimony, or assisting impeachment or
rebuttal.8
In State v. Kula,9 the State failed to turn over certain reports
generated during the course of the police investigation until
the first day of trial. We found the reports to be material and
held that the trial court abused its discretion in failing to grant
a continuance until the defendant could adequately investigate
the reports and prepare a defense:
Because the State did not produce the material reports
until the first day of trial, [the defendant] was unable to
outline certain witnesses’ testimony in his opening state-
ments. Furthermore, [the defendant’s] counsel should not
have been forced into investigating the content of the
reports by night while defending against a murder charge
by day. In effect, [the defendant’s] counsel was put in the
position of trying this case on the run.10
We find Kula instructive. It is true that the State endorsed
Meehan-Ash as a witness and that Ash knew Meehan-Ash used
methamphetamine. But until she reached a plea agreement with
the State, she would not have testified to facts that implicated
her in first degree murder. She specifically admitted during
cross-examination that she would not have testified against
Ash if the State had not made a plea agreement with her that
removed the possibility of a sentence of life imprisonment
without parole. Thus, investigating Meehan-Ash’s credibility
was not a defense issue until she reached an agreement to tes-
tify in exchange for a reduced charge.
Moreover, in overruling Ash’s motion for a continuance, the
court did not find that his attorney’s description of Meehan-
Ash’s statements in her deposition was inaccurate or false.
The new information about Meehan-Ash’s hallucinations was
obviously material to preparing a defense because it directly
8
State v. Kula, 252 Neb. 471, 486, 562 N.W.2d 717, 727 (1997). Accord,
State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004); State v. Castor, 257
Neb. 572, 599 N.W.2d 201 (1999).
9
State v. Kula, supra note 8.
10
Id. at 487, 562 N.W.2d at 727.
Nebraska Advance Sheets
692 286 NEBRASKA REPORTS
affected her credibility. Similarly, investigating Meehan-Ash’s
statements to Rios might have undermined Meehan-Ash’s cred-
ibility about Ash’s motive for the murder—finding her under-
wear and bra in Guitron’s backpack. Finally, investigating
Meehan-Ash’s statements to a coworker might have impeached
her statements at trial that she feared Ash and that he had
coerced her silence. And while defense counsel could have
taken steps to find an expert or investigate impeachment infor-
mation earlier, the need to take these steps did not arise until
the State reached a plea agreement for her testimony literally
on the eve of trial.
Although defense counsel cross-examined Meehan-Ash on
her relationship with Ash and her claim that he had coerced
her, without an opportunity to investigate, Ash could not dis-
cover whether she had made inconsistent statements to a third
party that would have impeached her testimony. The fact that
Ash’s trial counsel took reasonable steps under the circum-
stances to address Meehan-Ash’s testimony at trial does not
remedy the prejudice of not having an opportunity to conduct
an investigation.
Of course, not every “late” notice of an otherwise endorsed
witness will require the granting of a continuance. But the
State’s endorsement of a codefendant as a witness is not fair
notice that the codefendant will actually testify when the
defendant’s counsel reasonably believes that the codefendant
will invoke his or her privilege against self-incrimination. We
therefore hold that when the State reaches a plea agreement
with a codefendant to testify on the brink of trial and that testi-
mony is central to the State’s prosecution of a criminal defend­
ant, a trial court must, upon request, provide defense counsel
with an adequate opportunity to investigate facts relevant to
defending against the testimony. The failure to provide a con-
tinuance under such circumstances is prejudicial. We therefore
conclude that the district court erred in denying Ash’s motion
for continuance.
[7] Having concluded that the denial of the motion to
continue was reversible error, we must determine whether
the totality of the evidence admitted by the district court
was sufficient to sustain Ash’s conviction; if it was not, then
Nebraska Advance Sheets
STATE v. ASH 693
Cite as 286 Neb. 681double jeopardy forbids a remand for a new trial.11 But the
Double Jeopardy Clause does not forbid a retrial so long as
the sum of all the evidence admitted by a trial court, whether
erroneously or not, would have been sufficient to sustain a
guilty verdict.12
After reviewing the record, we conclude that the evidence
presented at trial was sufficient to support the verdict against
Ash. As such, we conclude that double jeopardy does not pre-
clude a remand for a new trial, and we therefore reverse, and
remand for a new trial.
P rior Bad Acts Evidence
Ash next assigns that the district court erred in admitting the
pawn receipt showing that Ash pawned Guitron’s jacket 2 days
before Guitron’s murder. Though we reverse, and remand as
a result of the district court’s failure to grant Ash’s requested
continuance, we address this assignment of error as it is likely
to recur on retrial.13
On appeal, Ash contends that the pawn receipt was inad-
missible as evidence of other bad acts, namely theft, under
§ 27-404(2). Ash further asserts that the State failed to show
that the evidence was admissible for a proper purpose under
§ 27-404(2). And Ash argues that no hearing on the admis-
sibility of this bad acts evidence was held as required by
§ 27-404(3).
Section 27-404 provides in relevant part:
(2) Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he or she acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident.
11
See State v. Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012).
12
Id.13
See, e.g., State v. Beeder, 270 Neb. 799, 707 N.W.2d 790 (2006),
disapproved on other grounds, State v. McCulloch, 274 Neb. 636, 742
N.W.2d 727 (2007).
Nebraska Advance Sheets
694 286 NEBRASKA REPORTS
(3) When such evidence is admissible pursuant to
this section, in criminal cases evidence of other crimes,
wrongs, or acts of the accused may be offered in evidence
by the prosecution if the prosecution proves to the court
by clear and convincing evidence that the accused com-
mitted the crime, wrong, or act. Such proof shall first be
made outside the presence of any jury.
Ash objected to the admission of the pawn receipt at trial
on the basis of § 27-404(2). The district court overruled
Ash’s objection, finding that the evidence was inextricably
intertwined with the crime charged because it formed the
factual setting for the crime and, as such, did not fall under
§ 27-404(2).
[8] Indeed, Nebraska law provides that § 27-404(2) does
not apply to evidence of a defendant’s other crimes or bad acts
if the evidence is inextricably intertwined with the charged
crime:
This rule includes evidence that forms part of the factual
setting of the crime, or evidence that is so blended or
connected to the charged crime that proof of the charged
crime will necessarily require proof of the other crimes or
bad acts, or if the other crimes or bad acts are necessary
for the prosecution to present a coherent picture of the
charged crime.14
But we disagree that evidence of Ash’s theft 2 days before
the murder was inextricably intertwined with the charged
crime.
As our inextricably intertwined rule implies, courts may
generally admit evidence of a criminal defendant’s uncharged
bad act under this exception because exclusion would render
the evidence of the charged crime confusing or incomplete.15 It
14
State v. Freemont, supra note 3, 284 Neb. at 192, 817 N.W.2d at 290-91.
Accord, State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011); State
v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010); State v. Wisinski, 268
Neb. 778, 688 N.W.2d 586 (2004). Cf. State v. Robinson, 271 Neb. 698,
715 N.W.2d 531 (2006).
15
See 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 404.20[2][b] (Joseph M. McLaughlin ed., 2d ed. 2011) (citing
federal cases).
Nebraska Advance Sheets
STATE v. ASH 695
Cite as 286 Neb. 681is the close entanglement of the evidence that creates the need
to present evidence of facts that are inconsequential to prov-
ing the charged crime. In addition, federal courts hold that a
defendant’s other bad act is inextricably intertwined with the
charged offense “when both acts are part of a single criminal
episode, or when the other acts were necessary preliminaries to
the crime charged.”16
Most of our case law is consistent with these rules. It shows
that we have upheld the admission of intrinsic evidence in the
following circumstances: (1) The defendant’s other bad acts
showed his pattern of sexually abusing a child or exposing the
child to sexually explicit material17; (2) the defendant destroyed
evidence of the crime soon afterward18; (3) the defendant’s
arrest for a different theft resulted in the discovery of evidence
of the charged theft, and the evidence established that the items
were stolen19; and (4) the defendant was using a controlled sub-
stance at the time that the crime was committed.20
But none of these fact patterns are similar to this case.
The theft of Guitron’s jacket was not part of the factual set-
ting for the murder, nor did it occur in the same immediate
timeframe. So, it was not intrinsic because of its entanglement
with the charged murder. Alternatively, it was not part of the
same transaction as the murder, it was not a preliminary step
in the murder, and it was not a consequential fact to establish
the murder.
Instead, to the extent that the theft was admissible for a pur-
pose other than to show Ash’s bad character, it was relevant to
show his motive: He committed the murder because he needed
money. But the State’s theory of Ash’s motive was revenge.
And even if we accepted Ash’s need for money as a second-
ary motive—an issue that we do not decide—the State neither
16
Id. at 404-44.
17
See, State v. Baker, supra note 14; State v. McPherson, 266 Neb. 734, 668
N.W.2d 504 (2003).
18
See State v. Robinson, supra note 14.
19
State v. Wisinski, supra note 14.
20
See, State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002); State v.
Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
Nebraska Advance Sheets
696 286 NEBRASKA REPORTS
informed the court that it was offering the evidence to show
Ash’s motive nor proved its allegations in a hearing outside of
the jury’s presence. This case illustrates that applying the inex-
tricably intertwined exception too broadly would eviscerate the
procedural protections that apply to evidence presented under
§ 27-404(2).21 We conclude that the court abused its discretion
in admitting evidence of the theft under the inextricably inter-
twined exception.
CONCLUSION
The judgment and sentence of the district court are reversed,
and the cause is remanded for a new trial.
R eversed and remanded for a new trial.
21
See State v. Freemont, supra note 3.
Heavican, C.J., concurring in part, and in part dissenting.
I concur with the majority’s determination that the dis-
trict court erred when it failed to grant Ash’s motion to con-
tinue. I write separately because I disagree with the majority’s
determination that the admission of the pawn receipt violated
Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum.
Supp. 2012).
This court has often excluded certain evidence from the
limitations set forth by rule 404(2)1:
“‘“‘[W]here evidence of other crimes is “so blended
or connected, with the one[s] on trial [so] that proof of
one incidentally involves the other[s]; or explains the
circumstances; or tends logically to prove any element
of the crime charged,” it is admissible as an integral part
of the immediate context of the crime charged. When the
other crimes evidence is so integrated, it is not extrinsic
and therefore not governed by Rule 404 . . . . As such,
prior conduct that forms the factual setting of the crime
is not rendered inadmissible by rule 404. . . . The State
1
State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Wisinski,
268 Neb. 778, 688 N.W.2d 586 (2004); State v. Aguilar, 264 Neb. 899, 652
N.W.2d 894 (2002).
Nebraska Advance Sheets
STATE v. ASH 697
Cite as 286 Neb. 681is entitled to present a coherent picture of the facts of the
crime charged, and evidence of prior conduct that forms
an integral part of the crime charged is not rendered inad-
missible under rule 404 merely because the acts are crimi-
nal in their own right, but have not been charged. . . . A
court does not err in finding rule 404 inapplicable and in
accepting prior conduct evidence where the prior conduct
evidence is so closely intertwined with the charged crime
that the evidence completes the story or provides a total
picture of the charged crime. . . .’”’”2
More recently, in State v. Freemont,3 this court began mov-
ing away from this exception in favor of a broader application
of rule 404(2). In Freemont, a decision in which I did not par-
ticipate, the defendant was charged with second degree murder,
use of a deadly weapon to commit a felony, and possession of
a deadly weapon by a prohibited person. This court concluded
that the testimony stating that several days before the murder
at issue, the defendant, who was a felon, had been in the pos-
session of a firearm was inadmissible under rule 404(2). The
majority concluded that this evidence was not excepted from
the rule under the “inextricably intertwined” exception, hold-
ing that “the prior misconduct did not provide any insight into
[the defendant’s] reason for killing” the victim and “was not
part of the same transaction and occurred several days or a
week before” the murder.4 This court also expressed concern
that holding otherwise would “open the door to abuse” of the
exception, noting that several federal courts have limited or
rejected the exception.5
In a concurring opinion, Judge Cassel disagreed with the
majority’s conclusion that the testimony in question was not
substantive evidence of the charged crimes, noting the fact
that the defendant had a gun shortly before the date of the
underlying charges was “powerful circumstantial evidence that
2
State v. Robinson, supra note 1, 271 Neb. at 714, 715 N.W.2d at 549.
3
State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
4
Id. at 192, 817 N.W.2d at 291.
5
Id.
Nebraska Advance Sheets
698 286 NEBRASKA REPORTS
he or she possessed it on the day of the charge. This evidence
does not speak to the defendant’s character; rather, it is evi-
dence tending to prove that he or she possessed the gun on the
date charged.”6
The concurrence further notes that “the majority’s approach
would require a rule 404 analysis simply because the observa-
tions were not on the precise day of the charged crime.”7 The
concurrence continues:
In the case before us, the evidence is not so removed in
time as to lose its temporal connection to the charged
date of possession. While I concede that such an interval
exists, it is clear to me that a matter of a few days or a
week is well within the relevant time.8
I am persuaded by the arguments set forth by the concur-
rence in Freemont, and I would not have joined the majority’s
opinion in that case. I find the arguments set forth by Judge
Cassel in his concurrence to be applicable to the circumstances
of this case. In my view, there is still a place for the inextrica-
bly intertwined exception.
I would find the evidence of the pawn receipt inextrica­
bly intertwined with the crime charged. Under our case law,
where evidence of other crimes is “‘“‘“‘so blended or con-
nected with the one[s] on trial . . .’ . . . ,”’”’” that evidence
“‘“‘“‘tends logically to prove any element of the crime
charged.’ . . .”’”’”9 In this case, that is just what the pawn
receipt did.
The State’s theory of the case was that Ash’s motive was
both to exact revenge for the sexual assault of Meehan-Ash
and to rob Guitron. Evidence presented at trial showed that Ash
and Meehan-Ash were in need of cash. Ash pawned Guitron’s
jacket, which was one of Guitron’s prized possessions, just
2 days before the murder. The day after the murder, Ash
exchanged Guitron’s car for an Escalade and then retrieved his
6
Id. at 212, 817 N.W.2d at 303 (Cassel, Judge, concurring).
7
Id.
8
Id.
9
State v. Robinson, supra note 1, 271 Neb. at 714, 715 N.W.2d at 549.
Nebraska Advance Sheets
STATE v. ASH 699
Cite as 286 Neb. 681and Meehan-Ash’s possessions from Guitron’s trailer. At that
time, Ash helped himself to more of Guitron’s possessions,
pawning Guitron’s television and apparently keeping the rest.
When considered with this other evidence showing that Ash
robbed Guitron, the pawn receipt tends to show Ash’s intent
and premeditation to commit first degree murder, an element
necessary to the State’s charge of first degree murder.
In addition to tending logically to prove any element of
the crime charged,10 so-called intrinsic or inextricably inter-
twined evidence is admissible despite rule 404(2) where it
forms the factual setting of the crime.11 And all the evidence
does just that: forms the factual setting of the crime and pre­
sents to the jury the relevant and material actions of Ash and
Meehan-Ash immediately before, during, and after the murder.
This evidence showed that a few days before, the day of, and
immediately after the murder, Ash and Meehan-Ash took items
belonging to Guitron for material and financial gain. Such evi-
dence was necessary for the State to present a coherent picture
of the charged crime of premeditated murder. And because the
pawning of the jacket occurred just days before the murder, in
my view, the incident had not yet lost any temporal connection
to Guitron’s murder.
In its opinion, the majority notes this evidence would likely
be admissible as independently relevant under rule 404(2)
following a hearing under rule 404(3), and indeed provides
a framework to the State and trial court to achieve just
that end. But this framework is unnecessary because, in my
view, rule 404(2) does not apply to prohibit the admission of
this evidence.
For these reasons, I respectfully dissent from the majority’s
determination that the admission of the pawn receipt violated
rule 404(2).
Cassel, J., joins in this concurrence and dissent.
10
Id.11
Id.