State v. Kidder , 299 Neb. 232 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/25/2018 12:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KIDDER
Cite as 299 Neb. 232
State of Nebraska, appellee, v.
M atthew J. K idder, appellant.
___ N.W.2d ___
Filed March 9, 2018. No. S-16-1124.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. 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. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 2016), and the trial court’s decision will not
be reversed absent an abuse of discretion.
3. Criminal Law: Convictions: Appeal and Error. In criminal cases,
the purpose of harmless error review is to ensure convictions are not
set aside for small errors or defects that have little, if any, likelihood of
having changed the result of the trial.
4. Criminal Law: Appeal and Error. Harmless error jurisprudence rec-
ognizes that not all trial errors, even those of constitutional magnitude,
entitle a criminal defendant to the reversal of an adverse trial result.
5. Convictions: Appeal and Error. It is only prejudicial error, that is,
error which cannot be said to be harmless beyond a reasonable doubt,
which requires that a conviction be set aside.
6. Appeal and Error. When determining whether an alleged error is so
prejudicial as to justify reversal, courts generally consider whether the
error, in light of the totality of the record, influenced the outcome of
the case.
7. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the jury actually rested its verdict. The inquiry is
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STATE v. KIDDER
Cite as 299 Neb. 232
not whether in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error.
8. Trial: Evidence: Appeal and Error. In conducting harmless error
analysis an appellate court looks to the entire record and views the erro-
neously admitted evidence relative to the rest of the untainted, relevant
evidence of guilt.
9. Verdicts: Evidence: Appeal and Error. Overwhelming evidence of
guilt can be considered in determining whether the verdict rendered
was surely unattributable to the error, but overwhelming evidence of
guilt is not alone sufficient to find the erroneous admission of evi-
dence harmless.
10. Evidence: Appeal and Error. When conducting harmless error review,
an appellate court may consider whether the improperly admitted evi-
dence was cumulative and tended to prove the same point as other prop-
erly admitted evidence.
11. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
12. Sentences. A sentence validly imposed takes effect from the time it
is pronounced, and any subsequent sentence fixing a different term is
a nullity.
13. ____. Any attempt to modify a sentence validly imposed is of no effect,
and the original sentence remains in force.
Appeal from the District Court for Douglas County:
K imberly Miller Pankonin, Judge. Affirmed in part, and in
part vacated and remanded with directions.
Thomas C. Riley, Douglas County Public Defender, L. Robert
Marcuzzo, Douglas A. Johnson, and Natalie M. Andrews for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
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STATE v. KIDDER
Cite as 299 Neb. 232
Stacy, J.
Matthew J. Kidder appeals his convictions for first degree
murder and use of a deadly weapon to commit a felony. We
affirm his convictions, but find plain error in the sentence
imposed on the conviction for use of a deadly weapon to
commit a felony. We therefore vacate that sentence only and
remand the cause with directions.
FACTS
On June 25, 2015, Jessica Nelson’s mother received a tele-
phone call advising that Nelson had not shown up for work.
Her mother went to Nelson’s house to check on her and dis-
covered Nelson’s body partially submerged in the bathtub,
unclothed, with the water running. She was curled up in a
fetal position, and one hand was clutching a cell phone charg-
ing cord. Nelson’s clothes were piled in the tub near her feet.
Blood was pooled under Nelson’s head, and there was a liga-
ture mark on her neck.
Police officers arrived and processed the scene as a homi-
cide. Investigators found no point of forced entry into the
home. They took photographs and collected Nelson’s cell
phone, the charging cord, and the clothes from the bathtub.
Blood was found outside the bathroom, in the living room,
and in Nelson’s bedroom. Swabs were taken of the cell phone
cord and the various biological substances found throughout
the house. Investigators noticed Nelson’s right thumbnail was
bent back, so they also swabbed under her fingernails and took
fingernail clippings.
An autopsy revealed bruises and abrasions on Nelson’s
neck, hemorrhaging in her eyes, and a ligature mark on her
neck that was consistent with the cell phone cord. The cause of
death was strangulation. There was also evidence Nelson had
been sexually assaulted. She had a laceration and bruising in
her vaginal area, as well as contusions to her head, abdomen,
and bowel.
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STATE v. KIDDER
Cite as 299 Neb. 232
Text Messages From K idder
Nelson’s cell phone was analyzed, and detectives found
what they described as “eerie” text message conversations
with a telephone number later confirmed to belong to Kidder.
Nelson and Kidder had known each other since childhood.
The text conversation began on February 4, 2015. The first
message arranged for Kidder to shovel snow from Nelson’s
driveway. For the next several months, Kidder texted Nelson,
often suggesting they meet up. Typically, Nelson either turned
Kidder down or did not respond.
On April 16, 2015, Kidder texted saying he needed some-
place to “h[a]ng out” while he waited to run an early morn-
ing errand, and he asked if he could stop at Nelson’s house.
Nelson agreed, but stated she would likely still be asleep
and would leave the door unlocked. She told Kidder he
could watch television, nap on the couch, or use the chairs
outside while he waited. Later, the following text conversa-
tion occurred:
[Kidder:] Ill admit, a little part of me wanted to run in
and doggy pile you, but i didnt feel like being stabbed or
beat up. Lol.
[Nelson:] Lol yeah that def would’ve happened. Im a
grouch when my sleep is interrupted unless you’re [my
son], then I’m less grouchy lol[.]
[Kidder:] Lol.
Maybe next time.
[Nelson:] If you want to die.
I do keep a good sized knife in my nightstand drawer.
[Kidder:] Challenge accepted.
....
We will need to lay down some ground rules though.
No hair pulling, no biting. Lol.
[Nelson:] Or you could just leave me alone when I’m
sleeping. Save us all the hassle[.]
Kidder continued to text Nelson regularly, and some of
Kidder’s messages were sexual in nature. On June 19, a few
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days before the murder, Kidder sent Nelson the following
sequence of text messages:
[Kidder:] Scale of feeling playful stabby to murdered
on my sleep.
Yeah. Trying to make a joke, and now shes mad at
me. Lol.
In*
I figured itd be a funny “breaking the ice” joke since
every other guy sends dick pics for their first or all com-
munication and im the one who asked off
the wall questions.
Nelson did not respond to these text messages; nor did she
respond to the text message Kidder sent several days later, on
the evening of June 24, asking, “Who’s down to hang out or
catch a movie saturday night?”
DNA Evidence
Forensic analysts found two DNA profiles on the cell phone
cord collected from the crime scene. Nelson could not be
excluded as one of the contributors, and Kidder could not be
excluded as the other contributor. The probability of someone
other than Nelson and Kidder being the contributors of the
DNA profiles on the cell phone cord was 1 in 254 million for
Caucasians, 1 in 14.3 billion for African Americans, and 1 in
1.68 billion for American Hispanics.
The swab taken from under the fingernails on Nelson’s
left hand revealed similar results: Two profiles were present,
Nelson could not be excluded as the contributor for one, and
Kidder could not be excluded as the contributor for the other.
The probability of someone other than Nelson and Kidder
being the contributors to the DNA found under Nelson’s left
fingernail was 1 in 101 million for Caucasians, 1 in 10.6 bil-
lion for African Americans, and 1 in 936 million for American
Hispanics.
A mixture of DNA was found under Nelson’s right thumb-
nail, which was bent back. Nelson could not be excluded
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Cite as 299 Neb. 232
as the major contributor, and Kidder could not be excluded
as the minor contributor. The probability of someone other
than Kidder being the minor contributor was 1 in 1,550 for
Caucasians, 1 in 33,330 for African Americans, and 1 in 5,800
for American Hispanics. The analyst testified that the lower
probabilities were a function of the fact that only a partial DNA
profile was developed.
Historical Cell Site
Location Information
Detectives obtained Kidder’s cell phone records from his
service provider. Using historical cell site location informa-
tion, detectives determined that Kidder’s cell phone used a cell
tower in the area near Nelson’s home at 11:56 p.m. on June 24,
2015, and again at 12:02 a.m. on June 25. Almost 30 minutes
later, at 12:29 a.m., Kidder’s cell phone used cell towers in the
vicinity of his residence.
K idder’s Statements
Several days after the murder, police interviewed Kidder.
They noticed he had a cut on his hand, consistent with a
fingernail. Kidder said he received the cut while working on
June 24, 2015, but he did not report it to his employer. Kidder
explained that he worked from 3 to 11:40 p.m. most weekdays
and that he checked Facebook during his breaks. Kidder’s
workplace was near Nelson’s house. Kidder provided police
with a DNA sample and exemplar fingerprints and allowed
police to download information from his cell phone.
Several weeks later, Kidder was taken to a police sta-
tion for additional questioning about Nelson’s murder. After
waiving his Miranda1 rights, Kidder was asked about Nelson
and stated:
I kinda classify women into like three stages: ones I could
be friends with, ones I just want to see naked, and ones I
1
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
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Cite as 299 Neb. 232
want to sleep with. . . . [Nelson] was kinda in between I
want to see her naked and no feelings . . . just because she
had a nice rack. . . . She had nice boobs.
Kidder repeatedly denied visiting Nelson’s home on June 24,
2015—the night of the murder. But he told police he was at
her home on June 23 to help her move furniture, and he made
a point of mentioning he sweated heavily on Nelson’s couch
and mattress. At the conclusion of the interview, Kidder was
arrested for Nelson’s murder.
While Kidder was in jail, he called his father. The jail
call was recorded. During the call, Kidder admitted he was
at Nelson’s house for about 20 minutes on the night she
was killed.
K idder’s Statements
to Cellmate
While in jail, Kidder shared a cell with Randy Anderson
for approximately 20 hours. Afterward, Anderson contacted
police and offered to testify about statements Kidder made
to Anderson while they were cellmates. When Anderson con-
tacted police, he was awaiting sentencing on plea-based con-
victions for burglary and making terroristic threats.
At trial, Anderson testified that Kidder told him the fol-
lowing: On June 24, 2015, Kidder saw Nelson’s Facebook
post about being home alone. After getting off work around
midnight, Kidder went to Nelson’s home and knocked on the
side door. Nelson unlocked the chain on the door and let him
in. Almost immediately, Kidder somehow caused an injury
to Nelson’s face. She screamed, and Kidder began strangling
her with his hands. As they struggled, Nelson cut Kidder’s
hand with her fingernail. Eventually Nelson lost consciousness.
Kidder then took her to the bedroom and removed her sweat-
pants. Kidder did not directly admit that he sexually assaulted
Nelson, but he did admit that he strangled her to death with
the cell phone cord, then placed her in the bathtub and ran the
water to “rins[e] DNA.”
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STATE v. KIDDER
Cite as 299 Neb. 232
Anderson also knew several details about the crime and
the crime scene before they became public knowledge. For
example, Anderson knew that (1) after the murder, Kidder
washed his shoes and stuffed them with newspaper to dry
them; (2) Nelson had a chain lock on her door; (3) Nelson was
in the fetal position in the bathtub; (4) Nelson had an L-shaped
sectional couch that was cut during the assault; and (5) Nelson
was wearing sweatpants the night she was killed.
Evidence From K idder’s
Laptop Computer
After Kidder was arrested, police obtained a warrant to
search Kidder’s home. One of the items seized pursuant to the
warrant was a laptop computer found in Kidder’s bedroom.
A few days later, police obtained a second search warrant,
authorizing an examination of Kidder’s laptop computer to
search and copy the following data: user account information,
media files such as images and videos, document files, Internet
browsing history and associated cache files, email messages,
and chat and instant messages.
While searching Kidder’s Internet browsing history files,
a forensic analyst found that Kidder’s laptop computer was
used to search an Internet pornography website using terms
like “strangled,” “forced fucked,” “fucked by intruder,” and
“pantyhose bound.” Because the searches were conducted
while the laptop computer was in private browsing mode, the
available history was limited. But the forensic analyst was
able to determine the website was accessed between June 20
and July 17, 2015. The analyst also determined that a video
titled “Psycho-Thrillers presents Waitress Kidnapped, Raped,
and Strangled” had been downloaded on July 17. That video
depicted a man kidnapping a waitress, forcing her to have sex
at gunpoint, strangling her with a belt when she resisted, and
continuing to sexually assault her after she was dead. Three
other videos with similar content were also found on Kidder’s
laptop computer.
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STATE v. KIDDER
Cite as 299 Neb. 232
Motions to Suppress and
Motion in Limine
Kidder moved to suppress the evidence obtained from the
search of his laptop computer, arguing that neither search war-
rant was supported by probable cause. In addition, he argued
the warrant to search the laptop computer was overbroad and
insufficiently particular.
Kidder also filed a motion in limine seeking to exclude the
evidence obtained from his laptop computer. He argued the
evidence was hearsay, irrelevant, and unfairly prejudicial. He
also argued a Neb. Evid. R. 4042 hearing was necessary to
determine the admissibility of the evidence because it involved
prior bad acts.
The district court overruled the motions to suppress. It
found that the search warrants were supported by probable
cause or, alternatively, that either the good faith exception or
the independent source doctrine applied. Regarding testimony
about the Internet browsing history and violent pornography,
the district court found it was admissible without a rule 404
hearing because it was “intrinsic evidence forming the factual
setting of the crime or forming an integral part of the crime.”
The court did not permit the videos to be shown to the jury or
received into evidence. But at trial, the forensic analyst was
permitted, over objection, to testify about the search terms
found in Kidder’s Internet browsing history and to describe,
in general terms, the content of the downloaded video that
depicted a woman being sexually assaulted, strangled to death
with a belt, then further assaulted.
Evidence of Prior
Sexual Assault
The jury heard evidence that in 2008, Kidder had sexually
assaulted one of his friends in her home. Kidder had gone to
the woman’s home, claiming to be locked out of his house.
2
See Neb. Rev. Stat. § 27-404 (Reissue 2016).
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She let him in, and after a few minutes of talking, Kidder
grabbed the woman and threw her to the ground. He got on top
of her and placed his hands on her neck. She began to scream,
so Kidder moved his hands to her mouth and nose, closing her
airways. She briefly shoved his hands off and screamed “no,”
but Kidder’s hands returned over her face and his grip got
tighter. Eventually, she shoved Kidder’s hands off again, but
this time she told him “okay.” Kidder then sexually assaulted
the woman and left. Kidder subsequently entered a plea of no
contest to a charge of attempted first degree sexual assault.
The district court in the instant case ruled that evidence of the
2008 sexual assault was admissible under Neb. Evid. R. 414,
Neb. Rev. Stat. § 27-414 (Reissue 2016). No error is assigned
to this ruling on appeal.
Verdicts and Sentencing
The jury found Kidder guilty on count I, first degree murder,
and on count II, use of a deadly weapon to commit a felony.
The district court imposed a sentence of life imprisonment on
count I. On count II, the court initially imposed a consecutive
prison sentence of 50 to 50 years but, after a sidebar confer-
ence requested by defense counsel, reduced the term to 20 to
20 years. The State urges us to find plain error on this basis,
so we set out the pertinent portion of the sentencing colloquy
in its entirety:
[The court:] So, it is the judgment and sentence of
this Court . . . that you be imprisoned in an institution
under the jurisdiction of the Nebraska Department of
Correctional Services for a period of life on Count [I]
and 50 to 50 years on Count [II]. Both sentences to be
served consecutively. I’ll give you credit of 475 days you
have against that sentence.
Also pursuant to Nebraska statute, you’ll be required
to give a sample of your DNA.
Is there anything further?
[Defense counsel]: Your Honor, may I approach?
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THE COURT: You may.
[Defense counsel]: Thank you.
(Off-the-record discussion at the bench)
THE COURT: For clarification for the record, the
offense date in this case is June 25th, 2015, which was
two months prior to the law change. The law changed on
Class [II] felonies in August of 2015, making it a one to
50. This was prior to the law change, which then brings
the penalty range on the Class [II] as a 1 to 20.
So, therefore, I am going to clarify and in con-
formance with the proper statute, the Count [II], the
judgment and sentence of the Court is that you be
sentenced under an institution under the jurisdiction of
the Nebraska Department of Correctional Services for
a period of 20 to 20, which is the maximum sentence
for the law at that time. Those two sentences will [run]
consecutively.
The trial court entered a sentencing order reflecting the life
sentence pronounced on count I and the modified sentence
of 20 to 20 years’ imprisonment on count II. Kidder timely
appealed his convictions.
ASSIGNMENTS OF ERROR
Kidder assigns, restated, that the district court erred in (1)
overruling his motion to suppress evidence acquired as a result
of seizing and searching his laptop computer and (2) over-
ruling his motion in limine and permitting the State to offer
testimony about his Internet browsing history.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.3
Regarding historical facts, an appellate court reviews the trial
3
State v. Hidalgo, 296 Neb. 912, 896 N.W.2d 148 (2017).
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court’s findings for clear error.4 But whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.5
[2] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or
acts under rule 404(2), and the trial court’s decision will not be
reversed absent an abuse of discretion.6
ANALYSIS
Both of Kidder’s assigned errors pertain to the admission
of evidence discovered through forensic analysis of his lap-
top computer. He argues it was error to admit this evidence
because it was obtained using search warrants that lacked
probable cause and were overly broad and insufficiently par-
ticular. He also argues that a rule 404 hearing was required to
determine the admissibility of such evidence.
The State counters that the search warrants were supported
by probable cause and were sufficiently particular, and it
argues no rule 404 hearing was necessary because the lap-
top computer evidence was inextricably intertwined with the
charged crimes. Alternatively, the State argues that any error in
admitting the evidence was harmless.
For the reasons discussed below, we agree any error was
harmless and thus do not address the merits of whether the
evidence was properly admitted.
H armless Error
[3] Pursuant to Neb. Evid. R. 103, Neb. Rev. Stat. § 27-103(1)
(Reissue 2016), “[e]rror may not be predicated upon a rul-
ing which admits or excludes evidence unless a substantial
4
Id.
5
Id.
6
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016), cert. denied ___
U.S. ___, 137 S. Ct. 1212, 197 L. Ed. 2d 254 (2017).
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right of the party is affected[.]” When it comes to eviden-
tiary error, this statutory authority forms the foundation for
this court’s harmless error jurisprudence. Generally speak-
ing, in criminal cases, the purpose of harmless error review
is to ensure convictions are not set aside “‘for small errors or
defects that have little, if any, likelihood of having changed the
result of the trial.’”7
[4,5] Harmless error jurisprudence recognizes that not all
trial errors, even those of constitutional magnitude, entitle a
criminal defendant to the reversal of an adverse trial result.8 It
is only prejudicial error, that is, error which cannot be said to
be harmless beyond a reasonable doubt, which requires that a
conviction be set aside.9
[6,7] When determining whether an alleged error is so preju-
dicial as to justify reversal, courts generally consider whether
the error, in light of the totality of the record, influenced the
outcome of the case.10 In other words, harmless error review
looks to the basis on which the jury actually rested its verdict.11
The inquiry is not whether in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but
whether the actual guilty verdict rendered was surely unattrib-
utable to the error.12
[8-10] In conducting this analysis, an appellate court looks
to the entire record and views the erroneously admitted evi-
dence relative to the rest of the untainted, relevant evidence
of guilt.13 Overwhelming evidence of guilt can be considered
7
State v. Britt, 293 Neb. 381, 423-24, 881 N.W.2d 818, 847 (2016).
8
State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
9
Id.
10
Id.
11
State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
12
Id.
13
State v. Britt, supra note 7; State v. DeJong, 287 Neb. 864, 845 N.W.2d
858 (2014); State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
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in determining whether the verdict rendered was surely unat-
tributable to the error, but overwhelming evidence of guilt is
not alone sufficient to find the erroneous admission of evidence
harmless.14 An additional consideration is whether the improp-
erly admitted evidence was cumulative and tended to prove the
same point as other properly admitted evidence.15
The record in this case demonstrates that any error in
overruling the motion to suppress and the motion in limine
was harmless. Both motions related exclusively to evidence
obtained from Kidder’s laptop computer. That evidence
showed that sometime between June 20 and July 17, 2015,
Kidder used explicit terms to search with his laptop com-
puter for violent pornographic videos depicting acts that were
similar to the manner in which Nelson was killed. We must
consider this evidence relative to the rest of the evidence of
Kidder’s guilt.
First, there was uncontroverted physical evidence establish-
ing Kidder’s guilt. Kidder’s DNA was found on Nelson’s fin-
gernails and on the cell phone cord used to strangle her. A few
days after Nelson’s body was discovered, Kidder was observed
to have a cut on his hand consistent with a fingernail mark,
and when Nelson’s body was discovered, her thumbnail was
bent back.
Next, there was detailed evidence of a confession. Kidder’s
cellmate testified that Kidder confessed to Nelson’s murder.
The cellmate’s credibility was strengthened by the fact that he
knew details about the crime and the crime scene that had not
been released to the public.
Finally, in addition to the physical evidence and the confes-
sion, there was considerable circumstantial evidence estab-
lishing Kidder had both the motive and the opportunity to
commit the crimes. Kidder left work shortly before the crimes
14
State v. Britt, supra note 7; State v. DeJong, supra note 13.
15
State v. Britt, supra note 7; State v. Trice, 292 Neb. 482, 874 N.W.2d 286
(2016).
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occurred, and cell site location information placed his cell
phone in the vicinity of Nelson’s home around the time she
was assaulted and strangled. Kidder also admitted to his father,
in a recorded telephone conversation, that he was at Nelson’s
house for about 20 minutes on the night of the murder. Kidder
admitted to investigators he wanted to “see [Nelson] naked,”
and Kidder’s text messages to Nelson contained sexual over-
tures that were either rebuffed or ignored. There was evidence
that in 2008, Kidder had choked and sexually assaulted a friend
after she allowed him into her home. Likewise, Nelson was a
friend of Kidder’s and there were no signs of forced entry into
Nelson’s home.
The untainted, relevant evidence of Kidder’s guilt was over-
whelming, and the laptop computer evidence was cumulative
of other relevant evidence tending to prove motive. Thus, even
if the evidence obtained from Kidder’s laptop computer was
erroneously admitted at trial, we find the guilty verdicts were
surely unattributable to that evidence. Any error in admit-
ting the evidence from Kidder’s laptop computer was harm-
less beyond a reasonable doubt. We therefore reject both of
Kidder’s assignments of error and affirm his convictions.
Plain Error in Sentencing
The State asks that we find plain error in the sentence
imposed on count II. It contends the trial court’s initial sen-
tence to a prison term of 50 to 50 years was validly imposed
and took effect as soon as it was pronounced and that the
court’s subsequent reduction of the term to 20 to 20 years’
imprisonment was a nullity. We agree.
[11] Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial
right and, if uncorrected, would result in damage to the integ-
rity, reputation, and fairness of the judicial process.16
16
State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
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The judge’s remarks during sentencing suggest that during
an off-the-record sidebar discussion, the court was advised
that the sentence it had just pronounced on count II was out-
side the penalty range for Class II felonies. But the sentence
originally imposed was not outside the penalty range.
On count II, Kidder was found guilty of use of a deadly
weapon, other than a firearm, to commit a felony.17 At the
time of Kidder’s offense, and at the time of his sentencing,
this crime was classified as a Class II felony,18 punishable by
a minimum of 1 year’s and a maximum of 50 years’ impris-
onment.19 Thus, the court’s initial pronouncement on count II
(imposing 50 to 50 years’ imprisonment) was valid, and the
question becomes whether the subsequent modification of that
valid sentence was plain error.
[12,13] We have consistently applied the rule that a
sentence validly imposed takes effect from the time it is
pronounced,20 and we have explained that any subsequent
sentence fixing a different term is a nullity.21 We have applied
this rule to attempts to modify a valid pronouncement during
the sentencing hearing22 and to attempts to modify a valid
sentence that has been put into execution.23 Thus, any attempt
17
See Neb. Rev. Stat. § 28-1205(1)(a) and (b) (Reissue 2016).
18
§ 28-1205(1)(b).
19
Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
20
See, State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014); State v. Clark,
278 Neb. 557, 772 N.W.2d 559 (2009); State v. Schnabel, 260 Neb. 618,
618 N.W.2d 699 (2000); State v. Kinney, 217 Neb. 701, 350 N.W.2d 552
(1984); State v. Cousins, 208 Neb. 245, 302 N.W.2d 731 (1981); State
v. Snider, 197 Neb. 317, 248 N.W.2d 342 (1977), overruled on other
grounds, State v. Cousins, supra note 20.
21
State v. Kinney, supra note 20; State v. Cousins, supra note 20; State v.
Snider, supra note 20.
22
See, State v. Kinney, supra note 20; State v. Cousins, supra note 20.
23
See, State v. Clark, supra note 20; State v. Schnabel, supra note 20.
- 248 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KIDDER
Cite as 299 Neb. 232
to modify a sentence validly imposed is of no effect, and the
original sentence remains in force.24
It is possible, in limited circumstances, to correct an inad-
vertent mispronouncement of a valid sentence before the
defendant has left the courtroom,25 but that is not the circum-
stance here. The district court did not mispronounce its initial
sentence of 50 to 50 years’ imprisonment on count II. To the
contrary, it is evident from the judge’s sentencing remarks
that she intended to sentence Kidder to the maximum term
of imprisonment authorized by the law. Because the sentence
originally pronounced was valid, it took effect as soon as it was
pronounced and any attempt thereafter to modify it to a term
of 20 to 20 years’ imprisonment was plainly erroneous and of
no legal effect.
We thus vacate that portion of the sentencing order impos-
ing a term of 20 to 20 years’ imprisonment on count II and
remand the cause to the district court with directions to rein-
state the valid term originally pronounced on that count.
CONCLUSION
For the foregoing reasons, we reject Kidder’s assignments
of error and affirm his convictions. We find plain error in
modifying the term of the sentence validly imposed on count
II and therefore vacate that portion of the sentencing order
and remand the cause to the district court with directions to
reinstate the term of 50 to 50 years’ imprisonment originally
pronounced. In all other respects, the judgment of the district
court is affirmed.
A ffirmed in part, and in part vacated
and remanded with directions.
K elch, J., not participating in the decision.
Wright, J., not participating.
24
Id.
25
See State v. Clark, supra note 20.