State v. Wheeler , 314 Neb. 282 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/19/2023 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. WHEELER
Cite as 314 Neb. 282State of Nebraska, appellee, v.
January T. Wheeler, appellant.
___ N.W.2d ___
Filed May 19, 2023. No. S-21-1036.
1. Effectiveness of Counsel: Records: Appeal and Error. 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.
2. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not
provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
3. Effectiveness of Counsel: Records: Proof: Appeal and Error. The
record is sufficient to resolve on direct appeal a claim of ineffective
assistance of counsel if the record affirmatively proves or rebuts either
deficiency or prejudice with respect to the defendant’s claims.
4. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, the defendant must show counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
5. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice in a claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.
6. Criminal Law: Rules of Evidence: Other Acts. In a criminal case,
Neb. Rev. Stat. § 27-404(1) (Cum. Supp. 2022) operates as a broad
exclusionary rule of relevant evidence that speaks to a criminal defend­
ant’s propensity to have committed the crime or crimes charged.
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STATE V. WHEELER
Cite as 314 Neb. 2827. Rules of Evidence: Other Acts. The purpose of Neb. Rev. Stat.
§ 27-404(1) (Cum. Supp. 2022) is that propensity evidence, despite
its relevance, creates the risk of a decision by the trier of fact on an
improper basis.
8. Trial: Verdicts: Appeal and Error. An error is prejudicial only when
it cannot be said to be harmless beyond a reasonable doubt. An error
is harmless beyond a reasonable doubt when the actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.
9. Trial: Convictions: Evidence. Where the evidence is cumulative and
other competent evidence supports the conviction, the improper admis-
sion or exclusion of evidence is harmless beyond a reasonable doubt.
10. Rules of Evidence: Other Acts. Neb. Rev. Stat. § 27-404(2) (Cum.
Supp. 2022) operates as an inclusionary rule of evidence. It provides
that evidence of other crimes, wrongs, or acts may be admissible for
purposes other than propensity.
11. Criminal Law: Trial: Proof: Other Acts. Proof of another distinct sub-
stantive act is admissible in a criminal prosecution when there is some
legal connection between the two upon which it can be said that one
tends to establish the other or some essential fact in issue.
12. Circumstantial Evidence: Words and Phrases. Circumstantial evi-
dence is evidence that, without going directly to prove the existence of
a fact, gives rise to a logical inference that such fact exists.
13. Rules of Evidence: Other Acts. Evidence is not an “other act” under
Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022) where it only tends to logi-
cally prove an element of the crime charged.
14. Courts: Judgments: Appeal and Error. The Nebraska Supreme Court
will not reverse a judgment of the Nebraska Court of Appeals that it
deems correct simply because its reasoning differs from that employed
by the Nebraska Court of Appeals.
Petition for further review from the Court of Appeals, Pirtle,
Chief Judge, and Bishop and Arterburn, Judges, on appeal
thereto from the District Court for Lancaster County, Lori A.
Maret, Judge. Judgment of Court of Appeals affirmed.
Timothy S. Noerrlinger, of Naylor & Rappl Law Office, for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
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STATE V. WHEELER
Cite as 314 Neb. 282Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
January T. Wheeler petitioned this court for further review
of the Nebraska Court of Appeals’ conclusion that the record
refuted two of his claims of ineffective assistance of counsel
for failure to object to improper evidence under Neb. Rev. Stat.
§ 27-404 (Cum. Supp. 2022) (rule 404). While our reasoning
differs in part from that employed by the Court of Appeals, our
conclusion is the same. Accordingly, we affirm.
FACTUAL BACKGROUND
The State charged Wheeler with three criminal counts:
assault in the first degree, 1 use of a firearm to commit a
felony, 2 and possession of a firearm by a prohibited person. 3
The information charged that these counts were committed
“on or about” December 6, 2020. Prior to trial, Wheeler filed
a motion for disclosure of the State’s intention to use evidence
of other crimes, wrongs, or acts subject to rule 404. The State
made no such disclosure and contended that none of its evi-
dence was subject to rule 404.
Trial Proceedings
It was undisputed that at approximately 12:30 a.m. on
December 6, 2020, Brandon “Tank” Wagner was shot three
times in a shared driveway outside a single-wide trailer where
Kristian “Slim” Hespen resided with his girlfriend. The fire-
arm used in the shooting was a tan Glock 9-mm pistol with
an extended magazine. The primary issue at trial was whether
Wheeler was the shooter.
1
Neb. Rev. Stat. § 28-308 (Reissue 2016).
2
Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016).
3
Neb. Rev. Stat. § 28-1206(1) and (3)(b) (Cum. Supp. 2022).
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STATE V. WHEELER
Cite as 314 Neb. 282Both Tank and Slim testified at trial on behalf of the State.
We summarize their testimony as to the events surrounding
the shooting, acknowledging that their testimony had many
internal inconsistencies, differed in various ways, and con-
flicted with the physical and forensic evidence produced by
the State.
In approximately November 2020, Wheeler and Tank were
introduced to each other by Slim. The three began a joint drug-
dealing venture. The venture soon ran into problems. Tank
believed Wheeler owed him money and drove to Slim’s trailer
to collect. Tank testified that he knew Wheeler was “there with
his gun” and came armed with a metal flashlight. Slim was
outside the trailer when Tank arrived.
According to Tank, he went up the porch steps to Slim’s
trailer, knocked, and immediately opened the door. When Tank
opened the door, he saw Wheeler “pointing the gun right at
the door.” Tank turned around and walked back down the
porch steps. When he was at the bottom of the steps, he was
shot twice in the back. Tank then turned around, saw Wheeler
with the Glock, ascended the steps, and started to swing his
flashlight at Wheeler. Tank “hit him a couple times,” causing
Wheeler to bleed from a head wound. Tank then wrestled with
Wheeler for the Glock, which went off, resulting in Tank sus-
taining a gunshot wound to his “gut.”
Slim testified that he heard four gunshots in quick suc-
cession. He turned and saw Tank fall in the driveway and
saw Wheeler “with the handgun, and [Wheeler] turned and
went inside.” Slim described the gun as “brown with an
extended clip.”
Tank was assisted to the passenger seat of his vehicle,
and Slim got into the driver’s seat. At this point, Wheeler
approached the driver’s-side window and gave the Glock to
Slim, instructing him to dispose of it. After receiving the Glock
from Wheeler, Slim drove away toward a hospital.
Weeks later, in an entirely unrelated case, police executed
a search warrant of an apartment wherein they discovered
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STATE V. WHEELER
Cite as 314 Neb. 282the Glock, which was later forensically linked to Tank’s shoot-
ing. Forensic testing found Wheeler’s blood inside the barrel
of the Glock.
In addition to Tank’s and Slim’s testimony regarding the
night of the shooting, the State elicited testimony from Tank
and Slim that Wheeler was previously seen in possession of
the Glock and that Wheeler had a reputation for possessing
a firearm. On direct examination, Tank testified that he had
previously seen the Glock on a table at Wheeler’s apartment.
Tank also testified that Wheeler was “known to carry the gun
and willing to shoot somebody” and that Wheeler “carries a
Glock 9 with an extended clip everywhere he goes.” Slim’s
direct testimony included that he had seen the Glock on a table
at Wheeler’s apartment and that Slim had “known [Wheeler] to
carry a gun.” Wheeler’s trial counsel did not object to any of
this testimony.
The jury returned a verdict of not guilty of assault in the
first degree and use of a firearm to commit a felony, but guilty
of possession of a firearm by a prohibited person. The district
court sentenced Wheeler to a term of 25 to 30 years’ imprison-
ment on the possession conviction.
Direct Appeal Before
Court of Appeals
On appeal, the Court of Appeals affirmed Wheeler’s con-
viction and sentence. 4 Wheeler assigned that the district court
erred in entering a guilty verdict unsupported by sufficient
admissible evidence, not allowing defense counsel to impeach
Tank with extrinsic evidence, and imposing an excessive sen-
tence. The Court of Appeals concluded that these assignments
failed because there was sufficient evidence, Tank was effec-
tively impeached without the related extrinsic evidence, and
the sentence was within statutory limits.
4
See State v. Wheeler, No. A-21-1036, 2022 WL 16557378 (Neb. App. Nov.
1, 2022) (selected for posting to court website).
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STATE V. WHEELER
Cite as 314 Neb. 282Wheeler also assigned that his trial counsel was ineffec-
tive for failing to object to Tank’s and Slim’s testimony that
Wheeler was previously seen with a gun, object to Tank’s testi-
mony of Wheeler’s character for possession of a firearm, offer
cell phone records to impeach Tank’s testimony, call three
other witnesses of the shooting, and properly impeach Tank’s
testimony. The Court of Appeals concluded that Wheeler pre-
served his claim of ineffective assistance of counsel for failing
to call the three witnesses, and the record refuted his other
four claims. In doing so, the Court of Appeals made no dis-
tinction between the testimony of the witnesses’ observations
of the Glock and Wheeler’s reputation for having and carrying
a gun.
ASSIGNMENT OF ERROR
Wheeler assigns that the Court of Appeals erred by rejecting
a claim of ineffective assistance of counsel for counsel’s failure
to object to improper rule 404 evidence.
STANDARD OF REVIEW
[1] When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform­
ance which is known to the defendant or is apparent from the
record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. 5 The fact that an inef-
fective assistance of counsel claim is raised on direct appeal
does not necessarily mean that it can be resolved. 6 The deter-
mining factor is whether the record is sufficient to adequately
review the question. 7
5
State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).
6
Id.7
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STATE V. WHEELER
Cite as 314 Neb. 282ANALYSIS
Wheeler contends his trial counsel was ineffective for failing
to object under rule 404 to trial testimony by Tank and Slim
that they observed the Glock in Wheeler’s apartment some-
time before the shooting and that Wheeler had a reputation
for carrying a firearm. The State counters that the testimony
was outside the scope of rule 404 and that to the extent it was
not, Wheeler’s claims fail because the evidence was cumula-
tive and, therefore, harmless. Ultimately, the Court of Appeals
agreed with the State and concluded that the evidence “consti-
tuted circumstantial evidence that Wheeler was in possession
of a firearm on or about December 6.” 8
[2,3] In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 9 The
record is sufficient to resolve on direct appeal a claim of inef-
fective assistance of counsel if the record affirmatively proves
or rebuts either deficiency or prejudice with respect to the
defendant’s claims. 10
[4,5] To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that
of a lawyer with ordinary training and skill in criminal law. 11
To show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. 12
8
State v. Wheeler, supra note 4, 2022 WL 16557378 at *11.
9
State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023).
10
Id.11
Id.12
State v. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022).
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STATE V. WHEELER
Cite as 314 Neb. 282A reasonable probability is a probability sufficient to under-
mine confidence in the outcome. 13
Because Wheeler challenges two distinct types of testimony,
we must address each separately.
Wheeler’s Reputation
Wheeler assigns that his trial counsel was ineffective for
failing to object to Tank’s testimony about his character for
possessing a firearm under rule 404. Tank testified that Wheeler
was “known to carry the gun and willing to shoot somebody”
and that Wheeler “carries a Glock 9 with an extended clip
everywhere he goes.” Wheeler argues that this direct testimony
of Wheeler’s reputation was inadmissible under rule 404.
[6,7] In a criminal case, rule 404(1) operates as a broad
exclusionary rule of relevant evidence that speaks to a criminal
defendant’s propensity to have committed the crime or crimes
charged. 14 The purpose of rule 404(1) is that such propensity
evidence, despite its relevance, creates the risk of a decision
by the trier of fact on an improper basis. 15 Accordingly, rule
404(1) renders all propensity evidence inadmissible unless it
is first offered by an accused, and even then, only when it evi-
dences a pertinent character trait. 16
The portions of Tank’s testimony to which Wheeler objects
invite a propensity inference that Wheeler committed the
crimes he was charged with because he is the type of person
to do so. Because rule 404 applied to this testimony, Wheeler’s
trial counsel could have objected to this testimony, and
13
Id.14
See, § 27-404(1); State v. Samuels, 205 Neb. 585, 289 N.W.2d 183 (1980).
See, also, State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
15
State v. Jenkins, 294 Neb. 475, 883 N.W.2d 351 (2016). See, State v.
Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016); State v. Martin, 198 Neb.
811, 255 N.W.2d 844 (1977); State v. Moore, 197 Neb. 294, 249 N.W.2d
200 (1976); State v. Casados, 188 Neb. 91, 195 N.W.2d 210 (1972).
16
See, also, Neb. Rev. Stat. § 27-405 (Reissue 2016).
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STATE V. WHEELER
Cite as 314 Neb. 282we assume without deciding that his counsel was deficient in
failing to do so.
[8,9] However, Wheeler must still have been prejudiced
by any deficiency of his counsel such that it undermines his
conviction. We have recognized that an error is prejudicial
only when it cannot be said to be harmless beyond a reason-
able doubt. 17 An error is harmless beyond a reasonable doubt
when the actual guilty verdict rendered in the questioned trial
was surely unattributable to the error. 18 Where the evidence is
cumulative and other competent evidence supports the convic-
tion, the improper admission or exclusion of evidence is harm-
less beyond a reasonable doubt. 19
Here, Tank’s testimony of Wheeler’s reputation for possess-
ing a gun was cumulative of Slim’s testimony that Wheeler
was known to carry a gun. Because Wheeler does not assign
that his trial counsel was ineffective for failing to object to
Slim’s similar testimony as to Wheeler’s reputation, his trial
counsel cannot be ineffective for failing to object to the cumu-
lative evidence of his reputation.
Further, as the Court of Appeals concluded below, other
competent evidence supports Wheeler’s conviction. Tank and
Slim identified Wheeler as the shooter and said that Wheeler
possessed the Glock when he gave it to Slim afterward. Tank
testified that he saw Wheeler in possession of the Glock when
he entered the trailer. Wheeler’s blood was also found inside
the barrel of the Glock. This competent evidence supports
Wheeler’s conviction.
Because Tank’s testimony as to Wheeler’s reputation was
cumulative, and other competent evidence exists to support
Wheeler’s conviction, there is not a reasonable probabil-
ity that but for his trial counsel’s failure to object to this
17
See, State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020); State v.
Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).
18
See State v. Miller, 312 Neb. 17, 978 N.W.2d 19 (2022).
19
See State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).
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Cite as 314 Neb. 282evidence, the result of the proceeding would have been differ-
ent. The record affirmatively rebuts Wheeler’s claim.
Prior Observations
Wheeler also assigns that his trial counsel was ineffec-
tive for failing to object to testimony from both Tank and
Slim regarding their observations of the Glock in Wheeler’s
apartment before the shooting. Wheeler contends that this
testimony concerned a prior bad act and was inadmissible
under rule 404(2). Specifically, Wheeler argues that the Court
of Appeals erred in its determination that Tank’s and Slim’s
testimony regarding their prior observations of the Glock in
Wheeler’s apartment was evidence of the crime Wheeler was
charged with committing “on or about” December 6, 2020.
Wheeler contends that the testimony is subject to rule 404(2)
because the timing of the sighting was ambiguous and vague.
While we agree that the timing of the sighting was somewhat
ambiguous and vague, the timing is not dispositive of the
issue. Evidence subject to rule 404(2) must be both an “other
act” and raise a propensity inference.
[10,11] Rule 404(2) operates as an inclusionary rule of
evidence. 20 It provides that evidence of other crimes, wrongs,
or acts may be admissible for purposes other than propen­
sity. 21 Proof of another distinct substantive act is admissible
in a criminal prosecution when there is some legal connection
between the two upon which it can be said that one tends to
establish the other or some essential fact in issue. 22
Upon objection to its admissibility, a proponent of evi-
dence offered pursuant to rule 404(2) is required to state on
the record the specific purpose or purposes for which the
20
See, § 27-404(2); State v. Williams, 247 Neb. 878, 530 N.W.2d 904 (1995);
State v. Robb, 224 Neb. 14, 395 N.W.2d 534 (1986).
21
§ 27-404(2). See State v. Torres, supra note 14.
22
State v. Casados, supra note 15. See State v. Meadows, 188 Neb. 287, 196
N.W.2d 171 (1972).
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Cite as 314 Neb. 282evidence is being offered, and the trial court must similarly
state, on the record, the purpose or purposes for which such
evidence is received. 23 In criminal cases, before the admission
of such evidence, the prosecution must prove to the court,
outside the presence of any jury, “by clear and convincing
evidence that the accused committed the crime, wrong, or
act.” 24 When admissible, upon a party’s request, the trial court
must instruct the jury as to the specific purposes for which the
evidence was received. 25
The information in this case alleged that Wheeler commit-
ted the crimes charged “on or about” December 6, 2020. We
have stated that the words “on or about” do not put the time
at large, but indicate that it is stated with approximate cer­
tainty. 26 The phrase is used in reciting the date of an occur-
rence to escape the necessity of being bound by an exact
date. 27 It means “approximately,” “about,” “without substantial
variance from,” or “near.” 28 The Legislature has provided that
an information shall not be deemed invalid “for stating the
time imperfectly.” 29 The timeframe indicated in the complaint
or information is imperative to allow the criminal defend­
ant to prepare a defense to the prosecution. 30 Accordingly,
23
State v. Torres, supra note 14. Compare Neb. Rev. Stat. § 27-414 (Reissue
2016).
24
§ 27-404(3). See 1993 Neb. Laws, L.B. 598.
25
Neb. Rev. Stat. § 27-105 (Reissue 2016). See, State v. Oldson, supra note
15; State v. Torres, supra note 14; State v. Ryan, 233 Neb. 74, 444 N.W.2d
610 (1989); State v. Easter, 174 Neb. 412, 118 N.W.2d 515 (1962).
26
State v. Metzger, 199 Neb. 186, 256 N.W.2d 691 (1977).
27
Id.28
Id. at 187, 256 N.W.2d at 692 (internal quotation marks omitted).
29
Neb. Rev. Stat. § 29-1501 (Reissue 2016). See Neb. Rev. Stat. § 29-1603(1)
(Reissue 2016).
30
State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989). See State v.
Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). See, also, Rema v. State, 52
Neb. 375, 72 N.W. 474 (1897).
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Cite as 314 Neb. 282this timeframe is also highly relevant to determining whether
offered evidence constitutes evidence of another act. 31 But it is
also not controlling. 32
We have long held that possession is a continuing offense. 33
A continuing offense is defined as a continuous, unlawful act
or series of acts set in motion by a single impulse and oper-
ated by an unintermittent force, however long a time it may
occupy; an offense which continues day by day; a breach of
the criminal law, not terminated by a single act or fact, but
subsisting for a definite period and intended to cover or apply
to successive similar obligations or occurrences. 34 The crime of
possession may be brief, if complete, or it may extend over a
period of time if uninterrupted. 35 Thus, when a prohibited per-
son’s possession of a firearm, actual or constructive, is uninter-
rupted, it constitutes a single offense. 36
[12,13] In this case, Wheeler challenges the testimony of
observations of a very distinctive firearm, a tan Glock with
an extended magazine, in his apartment. This distinctive fire-
arm, of which the witnesses had personal knowledge, is the
specific firearm involved in the crimes for which Wheeler
was charged. The testimony that the Glock was in Wheeler’s
apartment sometime before the shooting took place served as
circumstantial evidence that Wheeler committed the charged
crimes. Circumstantial evidence is evidence that, without
going directly to prove the existence of a fact, gives rise to
a logical inference that such fact exists. 37 Evidence is not an
“other act” under rule 404(2) where it only tends to logically
31
See id.32
See State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
33
See State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).
34
Id.35
Id.36
See id.37
State v. Keadle, 311 Neb. 919, 977 N.W.2d 207 (2022).
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Cite as 314 Neb. 282prove an element of the crime charged. 38 A logical inference
arising from the fact that the Glock was in Wheeler’s apart-
ment before the shooting is that Wheeler possessed and used
the Glock to shoot Tank on or about December 6, 2020.
Moreover, the fact that the Glock was observed in Wheeler’s
apartment at a time before the shooting occurred did not reflect
on his character. It did not invite a propensity inference that
Wheeler is the type of person to have committed the charged
crimes; rather, it only served as evidence that Wheeler was the
person who committed the crimes. Thus, because the evidence
did not give rise to a propensity inference, it was not subject
to rule 404. Hence, Wheeler’s trial counsel could not have
been deficient for failing to object to this evidence. The record
affirm­atively rebuts Wheeler’s claim.
Prior Cases
The parties suggest that this conclusion is in tension with
our decision in State v. Freemont. 39 To that effect, the State
requests that we disapprove or abrogate our Freemont decision,
which it contends we have already done implicitly in State v.
Salvador Rodriguez. 40
In Freemont, the defendant was charged with second degree
murder, use of a deadly weapon to commit a felony, and pos-
session of a deadly weapon by a prohibited person for events
occurring “‘on or about the 18th day of June, 2010.’” 41
The evidence adduced in that case showed that the victim
was engaged in an altercation with a third individual when
the defendant pulled a gun out of his backpack and shot the
38
See State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012) (Cassel,
Judge, concurring). See, also, U.S. v. Buckner, 868 F.3d 684 (8th Cir.
2017) (holding defendant’s prior possession and use of same firearm not
subject to Fed. R. Evid. 404(b)).
39
State v. Freemont, supra note 38.
40
State v. Salvador Rodriguez, 296 Neb. 950, 898 N.W.2d 333 (2017).
41
State v. Freemont, supra note 38, 284 Neb. at 213, 817 N.W.2d at 304
(Cassel, Judge, concurring).
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Cite as 314 Neb. 282victim. At trial, two witnesses were asked by the State whether
they had seen the defendant carry a gun prior to the day of
the shooting. The witnesses testified that they observed the
defend­ant engage in an altercation with another individual a
week before the shooting. During that altercation, the defend­
ant displayed a gun that he kept in his backpack. When the
defendant was apprehended, officers recovered a backpack, but
a gun was never recovered.
The issue in Freemont was whether the testimony of the
prior altercation and observations of the gun and backpack
were subject to rule 404(2). We determined that it was a
separate incident and not substantive evidence of the crimes
charged and, thus, fell under rule 404(2). The concurrence in
Freemont emphasized that the defendant was not only charged
with murder, but was also charged with possession, and rea-
soned that the prior observation of a gun similar to the one
used in the shooting bore directly on an element of the posses-
sion charge.
In reaching our decision in Freemont, we noted that the
prior incident occurred “several days or a week (the record
is unclear) before that date,” and we determined that it was
not part of the same transaction of the crimes charged. 42 But,
as we have noted on other occasions, we failed to discuss the
concept of continuing possession in Freemont. 43 Instead, we
focused our analysis on the fact that the prior altercation was
with an individual unrelated to the crimes charged and did not
provide any insight into the defendant’s killing of the victim.
We stated that “[t]he prior misconduct involved an altercation
with [the witness’] cousin, who played no part in [the victim’s]
murder,” and that therefore, the evidence was not part of the
same transaction. 44
42
Id. at 191, 817 N.W.2d at 290.
43
See State v. Salvador Rodriguez, supra note 40.
44
State v. Freemont, supra note 38, 284 Neb. at 192, 817 N.W.2d at 291
(emphasis supplied).
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Cite as 314 Neb. 282We now think that the concurrence’s analysis of the posses-
sion charge in Freemont was the better reasoned approach and
reject the reasoning of the majority as applied to possession
charges. In Salvador Rodriguez, we stated that “our holding
in Freemont is limited to circumstances where the offense of
possession is entirely different from the most serious charged
offense.” 45 That articulation was borne out of our discussion
in State v. Cullen, 46 wherein we distinguished the evidence
at issue from that in Freemont. We are now similarly per-
suaded that our limitation of Freemont in Salvador Rodriguez,
sourced from Cullen, is not always helpful to the “other acts”
analysis, and we disapprove of that articulation. Our holding
in Freemont did not rest on a level of similarity between the
prior altercation and the charged offenses or on a tiered system
of criminal seriousness. It was defined as a matter of character.
That analysis does not apply in Wheeler’s case, wherein the
evidence tends to prove the crimes charged. 47
Rule 404’s procedural protections should not be circum-
vented when there is a danger that a jury will improperly find
a criminal defendant guilty based on the type of person the
defendant is because of what the defendant has done. 48 That
danger is what a trial court must weigh when determining
whether the evidence is admissible and the proper limits of the
jury’s consideration of the evidence. 49 In this case, the evidence
tends to logically prove an element of the crime charged and
rule 404 is not implicated.
45
State v. Salvador Rodriguez, supra note 40, 296 Neb. at 969, 898 N.W.2d
at 348 (citing State v. Cullen, supra note 32).
46
State v. Cullen, supra note 32.
47
Cf. State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008) (Gerrard, J.,
concurring; Heavican, C.J., joins), opinion modified on denial of rehearing
276 Neb. 965, 767 N.W.2d 68 (2009).
48
See State v. Ash, 286 Neb. 681, 838 N.W.2d 273 (2013). See, also, U.S. v.
Green, 617 F.3d 233 (3d Cir. 2010).
49
§ 27-404(2) and (3).
- 297 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. WHEELER
Cite as 314 Neb. 282CONCLUSION
[14] The Nebraska Supreme Court will not reverse a judg-
ment of the Nebraska Court of Appeals that it deems correct
simply because its reasoning differs from that employed by
the Court of Appeals. 50 While our reasoning differs from that
employed by the Court of Appeals, our conclusion on the judg-
ment is the same. We accordingly affirm.
Affirmed.
50
State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018).