State v. Embree ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/07/2023 08:06 AM CST
- 609 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609State of Nebraska, appellee, v.
Colin B. Embree, appellant.
___ N.W.2d ___
Filed March 7, 2023. No. A-22-259.
1. Rules of Evidence: Appeal and Error. When the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
2. ____: ____. A Neb. Rev. Stat. § 27-414 (Reissue 2016) ruling is analo-
gous to a ruling on a motion in limine in that neither constitutes a final
ruling on the admissibility of the evidence.
3. Trial: Witnesses: Appeal and Error. The exclusion or sequestration of
a witness is within the discretion of the trial court, and the ruling on a
sequestration motion will not be overturned absent evidence of prejudice
to a moving party.
4. Rules of Evidence: Proof. While Neb. Rev. Stat. § 27-615(3) (Reissue
2016) requires a showing that a person is essential to the presentation
of the cause, it does not require the party to present any evidence on
the matter.
5. Evidence. Evidence is relevant if it has any tendency to make the exis-
tence of any fact that makes the determination of the action more or less
probable than without the evidence.
6. Trial: DNA Testing: Evidence. Unless the State presents the statisti-
cal significance of DNA testing results that shows a defendant cannot
be excluded as a potential source in a biological sample, the results
are irrelevant.
7. Sexual Assault: DNA Testing: Evidence: Jurors. In an alleged sexual
assault described by a female victim as involving her genital area and
a male perpetrator, the presence of male DNA near the victim’s genital
area is relevant to whether the assault occurred as the victim described,
and such evidence is not outweighed by a danger of confusing the
- 610 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609issues or misleading the jurors even if the DNA is of insufficient quan-
tity or quality to obtain a profile.
8. Trial: Prosecuting Attorneys: Appeal and Error. An objection made
during closing arguments without a motion for mistrial does not
preserve any error for appellate review resulting from the prosecu-
tor’s remarks.
9. Constitutional Law: Jury Trials: Appeal and Error. Although one or
more trial errors might not, standing alone, constitute prejudicial error,
their cumulative effect may be to deprive the defendant of his or her
constitutional right to a public trial by an impartial jury.
10. Effectiveness of Counsel: Appeal and Error. A defendant must spe-
cifically allege deficient performance of counsel, and the appellate court
will not scour the remainder of the brief in search of such specificity.
Appeal from the District Court for Nemaha County: Julie D.
Smith, Judge. Affirmed.
Ryan P. Watson, of Wagner, Meehan & Watson, L.L.P., for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Moore, Riedmann, and Bishop, Judges.
Riedmann, Judge.
I. INTRODUCTION
Colin B. Embree was convicted by a jury of first degree
sexual assault in the district court for Nemaha County. Embree
appeals his conviction and alleges several errors challenging
the district court’s sequestration order and evidentiary rulings.
He also asserts he received ineffective assistance of counsel.
We find no merit to the arguments raised on appeal; therefore,
we affirm the conviction.
II. BACKGROUND
On March 21, 2020, the victim, S.J., who was born in 2001,
went to the house of her father in Auburn, Nebraska, at the
behest of her stepmother. S.J.’s stepmother relayed to S.J. that
- 611 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609her cousin, Embree, was coming to visit. Shortly after S.J.’s
arrival, her boyfriend at the time, Dominick M., arrived at the
house. S.J., her father and stepmother, Embree, and Dominick
then walked to a neighbor’s house where everyone except
Dominick consumed alcohol, and they all got in a hot tub.
After leaving the neighbor’s house, S.J. stopped at her car
on the way back to her father’s house to get some dry clothes,
including a pair of blue shorts. She wore the shorts without
underwear that night, which was a usual practice for her.
After changing into the dry clothes, she went into the living
room where her two sisters and a neighbor girl were sleeping.
S.J. lay down in front of the couch and fell asleep sometime
between 12:30 and 12:45 a.m. Dominick left at that time.
S.J. stated that she woke up around 2:30 a.m. with someone
penetrating her vagina from behind. She tried to push the indi-
vidual off, but he pinned her arms. After pulling away, she saw
Embree at her feet. She got up, grabbed her phone and shoes,
and left through the back door of the house. She believed
Embree followed her to the door, telling her to wait for him,
but he did not leave the house after her.
Once outside, S.J. called Dominick and pled for him to pick
her up because she did not feel safe. She also sent multiple text
messages to him and “FaceTimed” her cousin, Jayden F., who
testified that when she answered, she heard S.J. crying and
claiming Embree “raped” her. Jayden then ran to S.J.’s father’s
house, which was only a short distance away.
According to Dominick, he arrived within 5 minutes of
S.J.’s phone call. S.J. was in the driveway, crying uncontrol-
lably and emotionally distraught. After S.J. told Dominick that
Embree raped her, Dominick ran inside the house to alert S.J.’s
father and stepmother, but he could not wake her father, and
her stepmother stated, “That could never happen. Tell her to
get back inside.”
Dominick drove S.J. and Jayden to Nemaha County Hospital
(NCH). According to Dominick and Jayden, S.J. acted errati-
cally during the car ride. She tried to tie the strings of her
- 612 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609sweatshirt around her neck, tried to jump out of the moving
car, cried uncontrollably, and kept repeating that her family
would never believe her and would blame her for what hap-
pened. When they arrived at NCH, S.J. tried to run away, but
Jayden convinced her to go inside.
At NCH, S.J. was medically screened by a physician assist­
ant, Alan Smyth, for any life-threatening injuries. According
to Smyth, NCH did not have the facilities to conduct a sexual
assault nurse examination (SANE exam), so he contacted a
hospital in Lincoln, Nebraska, that conducted such exams.
Smyth also stated he did not question S.J., but she told him
she was sexually assaulted. Someone at NCH contacted law
enforcement, and Deputy Harold Silvey made contact with S.J.,
Jayden, and Dominick shortly after their arrival.
Nancy Pew conducted the SANE exam at the Lincoln hos-
pital. She is a certified sexual assault nurse examiner. As such,
she conducts sexual assault examinations, which consist of
interviewing the reporting person, performing forensic testing,
and explaining reporting options.
Pew testified that during the SANE exam of S.J., she
obtained a general description of the sexual assault from S.J.
Pew then collected evidence from S.J. She swabbed multiple
areas on S.J. for DNA, including vaginal-cervical, anal-rectal,
external genitalia, and mons pubis. She collected S.J.’s blue
shorts for testing. Pew indicated that although S.J. had con-
sumed alcohol in the last 12 hours, she was alert throughout
the SANE exam. S.J. did not present with any physical injuries,
which Pew testified was common in her experience conducting
SANE exams. Pew turned over all the evidence she collected to
law enforcement, and it was taken to the Nebraska State Patrol
Crime Laboratory.
Silvey informed Deputy Nate Boden of S.J.’s disclosure.
Boden proceeded to S.J.’s father’s residence to arrest Embree,
arriving about 5 a.m. on the morning of the assault. When
Boden arrived, Embree and the three young girls were all still
asleep in the living room. After interviewing S.J.’s stepmother,
- 613 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609law enforcement transported Embree to the Nemaha County
sheriff’s office and interviewed him.
Embree told law enforcement that he went into the living
room after S.J. had fallen asleep and had lain down on the floor
not far from S.J. He told them that after having lain down,
S.J.’s stepmother came into the living room and fell asleep on
the couch. He denied S.J.’s allegations. Embree was charged
with first degree sexual assault and pled not guilty.
After a 4-day jury trial, Embree was convicted of first
degree sexual assault. Shortly after his conviction, his counsel
moved for a new trial, which was denied. The court sentenced
Embree to 10 to 20 years’ imprisonment. Embree appeals.
Further relevant facts will be discussed below.
III. ASSIGNMENTS OF ERROR
Embree assigns, renumbered, that the district court erred in
(1) finding there was clear and convincing evidence to support
prior acts evidence under Neb. Rev. Stat. § 27-414 (Reissue
2016), (2) finding that prior acts evidence was not unduly
prejudicial under Neb. Rev. Stat. § 27-403 (Reissue 2016), (3)
failing to sequester S.J. from trial, (4) failing to exclude DNA
results under § 27-403, and (5) allowing the prosecutor to state
Embree was a contributor of the DNA during closing argu-
ments. He also asserts that the district court’s errors amount
to cumulative error and that he received ineffective assistance
of counsel.
IV. ANALYSIS
1. C.B.’s Testimony
(a) Additional Facts
After Embree’s arrest and S.J.’s disclosure to law enforce-
ment, S.J. received a message over social media from C.B.
C.B. explained that she was Embree’s former girlfriend and
that she believed S.J. was telling the truth about the sexual
assault because the same thing happened to her. She had
learned of the assault when someone in Embree’s family
- 614 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609reached out to her to ask if he was capable of such an act. S.J.
responded by asking C.B. to speak with the deputies investi-
gating the case and the county prosecutor.
After meeting with C.B., the State filed a motion to endorse
her as an additional witness. The State then requested a hearing
on a motion to admit evidence of Embree’s prior offenses of
sexual assault under § 27-414 (Rule 414 hearing). It aimed to
admit evidence of two prior uncharged sexual assaults against
a former girlfriend, C.B.
At the Rule 414 hearing, the State called C.B. to testify. She
relayed that the first incident occurred in the summer of 2018
while Embree and C.B. were in a dating relationship and liv-
ing together. C.B. testified she was bending over the couch,
when Embree ripped her pants down and penetrated her anally.
She said that she told him no and was crying throughout, but
he continued for roughly 5 minutes. C.B. testified that after
Embree stopped, she went to bed, and that she did not have a
reason for not reporting the incident. By December, C.B. and
Embree had agreed to break up, so C.B. moved out.
The second incident occurred in May 2019. C.B. was visit-
ing Embree’s roommate, with whom she had remained friends.
Embree came home earlier than C.B. expected and cornered
her in a bathroom. He tried to pull C.B.’s pants down, but she
rebuffed his advances. Embree eventually gave up and went
to the garage to smoke a cigarette. When she thought he had
finished smoking his cigarette, C.B. went out to the garage
to smoke one herself. Instead, Embree returned to the garage
and tried to kiss her. When she tried to stand up to leave, he
pushed her back down, ripped her pants down, and penetrated
her anally. She repeatedly told him no and cried. Embree did
not stop until he ejaculated.
C.B. testified that she texted a group of her close friends
the day after the second incident and told them what had hap-
pened. In the group message, she briefly described the event
and told them that she did not want Embree to engage in
any sexual activity with her. She said she tried to push him
- 615 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609away, but he would only hold her tighter. Embree’s counsel
objected to the admission of the group message on a lack of
foundation because the text message came from an unidentified
phone and it was unclear what number the message came from.
The district court overruled the objection.
The district court also admitted message screenshots between
C.B. and S.J. where C.B. told S.J. the same thing happened
to her. Defense counsel objected to the specific message in
which S.J. said, “I am beyond sorry this happened to you” as a
hearsay. The State conceded it did not offer the exhibit as sub-
stantive evidence, so the district court overruled the defense’s
hearsay objection. The district court found the State had met
its burden of establishing by clear and convincing evidence the
sexual assaults on C.B. occurred. But it noted it would bifur-
cate the Rule 414 hearing, so the § 27-403 balancing would
occur at trial before C.B. testified.
Prior to C.B.’s testimony at trial, the district court performed
the § 27-403 balancing under § 27-414(3). The district court
noted that there were dissimilarities between the assaults on
C.B. and S.J., but there were more similarities. Overall, the
court found that C.B.’s testimony was not more prejudicial
than probative, so the evidence was admissible.
C.B.’s testimony mirrored the information she provided at
the Rule 414 hearing. She explained that during the assaults,
she did not try to fight back and just “froze.” She also testified
that during her relationship with Embree, he would try to have
sexual intercourse with her while she was asleep approximately
twice a week, but these interactions were consensual.
(b) Standard of Review
[1] When the Nebraska Evidence Rules commit the eviden-
tiary question at issue to the discretion of the trial court, we
review the admissibility of evidence for an abuse of discretion.
State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). A trial
court exercises its discretion in determining whether evidence
is relevant and whether its prejudicial effect substantially
- 616 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609outweighs its probative value. Id. An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. Id.(c) Rule 414 Hearing
When the State aims to admit prior sexual assault offenses
to show the propensity of the defendant, § 27-414 provides
a roadmap to admission. Under § 27-414(1), the State must
prove by clear and convincing evidence that the accused com-
mitted the offense. The State must meet this standard of proof
at a hearing conducted outside the presence of a jury. See
§ 27-414(3). State v. Valverde, 286 Neb. 280, 835 N.W.2d 732(2013), allows the district court to bifurcate the § 27-414 rul-
ing, by having the Rule 414 hearing for the State to establish by
clear and convincing evidence that the prior offense occurred,
then the district court conducts the § 27-414(3) and § 27-403
balancing tests at trial. Embree claims error at both stages.
Embree assigns that the district court erred by finding there
was clear and convincing evidence of prior sexual assault
offenses because C.B. was not credible and the exhibits
received lacked foundation. We determine Embree has failed
to preserve this error. See State v. Martinez, 306 Neb. 516,
946 N.W.2d 445 (2020), abrogated on other grounds, State v.
Matteson, 313 Neb. 435, ___ N.W.2d ___ (2023).
In Martinez, the defendant filed a motion requesting that
the State disclose what evidence it intended to offer at trial of
“‘other crimes, wrongs and/or acts of the defendant’” and for
an evidentiary hearing. 306 Neb. at 520, 946 N.W.2d at 453. At
the evidentiary hearing, the State offered the testimony of the
victim, who claimed the defendant began sexually assaulting
her in Mexico when she was 5 years old, prior to the charged
offense. The court held the evidence was admissible under
Rule § 27-414. State v. Martinez, supra. At trial, the witness
testified to the same events. Id.- 617 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609[2] On appeal, the defendant in Martinez assigned error to
the court’s admission of the prior sexual assault, claiming it
did not meet the clear and convincing standard. The Nebraska
Supreme Court refused to address the issue, finding that the
defendant’s failure to object to the testimony at trial waived the
error. Id. It recognized it “makes no difference” that the district
court conducted the entire Rule 414 hearing after the trial had
begun. State v. Martinez, 306 Neb. at 534, 946 N.W.2d at 461.
It analogized the § 27-414 ruling to that of a ruling on a motion
in limine, stating that neither constitutes a final ruling on the
admissibility of the evidence. Therefore, it concluded that
when the matter came before the jury, our procedure required
an objection in order to provide the trial court with the final
opportunity for reconsideration before the evidence reached the
jury. State v. Martinez, supra.Here, Embree did not object to C.B.’s testimony at trial.
Therefore, he waived any alleged error. But because he did
object to the admission of the exhibit reflecting a group text
message at trial on the basis of foundation, we address this
assigned error.
Embree objected to the group message for a lack of founda-
tion and the text messages between S.J. and C.B. on hearsay at
the Rule 414 hearing. At trial, he objected to the group mes-
sage on foundation: “It’s not coming from the correct phone
and I can’t trust whosever phone this did come from.” As to
the text messages between S.J. and C.B., Embree’s counsel
objected on reliability and “improper bolstering.” Embree now
appeals, assigning only that the district court erred because the
exhibits received at the Rule 414 hearing lacked foundation.
Because Embree did not make a foundational objection to the
text messages between S.J. and C.B. during the Rule 414 hear-
ing, we address only his foundational objection to the group
message exhibit. See State v. Martinez, supra.Embree argues that the group message C.B. sent did not
have adequate foundation because at the time the exhibit
was offered and received, there was no evidence of when the
- 618 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609message was sent and the exhibit itself did not state the time
and date of the message. The record refutes this argument.
Prior to offering the exhibit at the Rule 414 hearing, the
prosecutor provided C.B. with a copy of the exhibit and asked
her to identify it. She responded, “This is a message that I had
sent personally to five of my friends the day after it happened.”
Counsel clarified by asking, “When you say ‘it,’ the incident,
the assault that took place in the garage?” C.B. responded
affirmatively. Prior to the exhibit’s being offered at trial, C.B.
again testified that the exhibit was a message that she sent the
day after the second assault. Contrary to Embree’s argument,
C.B. did provide testimony as to when the message was sent.
Because Embree makes no other argument regarding founda-
tional deficiencies of the offer, we find no abuse of discretion
in the overruling of Embree’s foundational objection. We do
not address his reliability and bolstering objections made at
trial because he does not assign the ruling on them as error
on appeal.
(d) § 27-414(3) Balancing
Embree argues that C.B.’s testimony was more prejudicial
than probative. He contends that unlike what happened to S.J.,
the two sexual assaults that C.B. testified to involved anal pen-
etration, occurred during a dating relationship, and happened
without other people present. He concludes that since S.J. was
vaginally penetrated, Embree was her cousin, and other people
were asleep in the room while the attack occurred, the prior
sexual assault offenses are too dissimilar to be admitted under
§ 27-414(3). Additionally, he argues the prior acts lack eviden-
tiary support and are too remote from each other.
Under § 27-414(3), the district court must conduct a
§ 27-403 balancing test and may consider additional relevant
factors, such as: “(a) the probability that the other offense
occurred, (b) the proximity in time and intervening circum-
stances of the other offenses, and (c) the similarity of the other
acts to the crime charged.” The court must admit the evidence
of prior sexual assault offenses unless the risk of prejudice
- 619 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609substantially outweighs the probative value of the evidence.
See § 27-414(3). Ultimately, the admission of evidence con-
cerning the other conduct should be determined on a case-by-
case basis. See State v. Valverde, 286 Neb. 280, 835 N.W.2d
732 (2013).
As stated above, Embree did not object to C.B.’s testimony
when it was offered at trial. Pursuant to State v. Martinez,
306 Neb. 516, 946 N.W.2d 445 (2020), abrogated on other
grounds, State v. Matteson, 313 Neb. 435, ___ N.W.2d ___
(2023), he therefore waived any error on its admissibility.
2. Witness Sequestration
(a) Additional Facts
Before beginning its case in chief, the State asked that all
witnesses be sequestered, except for Boden as a trial assist­
ant and S.J. as the named victim in the information. Embree
objected to S.J.’s presence in the courtroom. He argued that
under Neb. Rev. Stat. § 27-615 (Reissue 2016), S.J. could
not be an essential witness, which would be the only avenue
through which she could be excepted from the sequestration
order. He also argued that allowing S.J. to sit through the trial
would allow her to correct inconsistencies from her own story
and bolster her own credibility, which would impact Embree’s
right to a fair trial.
Relying on State v. Eynon, 197 Neb. 734, 250 N.W.2d 658(1977), the district court allowed S.J. to remain in the court-
room, stating that it would not impact Embree’s right to a
fair trial.
On appeal, Embree contends that his Sixth Amendment right
to a fair trial was infringed when the district court allowed S.J.
to remain in the courtroom for the duration of the trial. He
argues this allowed her to “craft and reiterate her statements
in concert with other witnesses before her.” Brief for appellant
at 19-20. Embree’s argument turns on whether S.J.’s presence
was essential because she can only be exempt from the seques-
tration order if she is essential under § 27-615.
- 620 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609(b) Standard of Review
[3] The exclusion or sequestration of a witness is within the
discretion of the trial court, and the ruling on a sequestration
motion will not be overturned absent evidence of prejudice to a
moving party. See State ex rel. NSBA v. Miller, 258 Neb. 181,
602 N.W.2d 486 (1999).
(c) Discussion
[4] For sequestration of witnesses, the general rule is wit-
nesses shall be excluded from the courtroom upon a party’s
motion or by the court sua sponte. See id. Section 27-615
provides three exceptions to the general rule. For purposes
of Embree’s argument, the general rule does not apply to “a
person whose presence is shown by a party to be essential to
the presentation of his cause.” Id. While § 27-615(3) requires
a showing that a person is essential to the presentation of the
cause, it does not require the party to present any evidence on
the matter. See In re Interest of Gabriel B., 31 Neb. App. 21,
976 N.W.2d 206 (2022).
The State argued that S.J. was essential to the presentation
of its case because she was the named victim in the informa-
tion and Embree’s defense involved disputing S.J.’s credibility.
In State v. Eynon, supra, the Supreme Court held that the vic-
tim was an essential witness for trial in which the defendant
was charged with burglary with intent to commit rape. While
not a criminal case, State ex rel. NSBA v. Miller, supra, also
provides guidance and further supports the holding in State
v. Eynon, supra. In State ex rel. NSBA v. Miller, supra, the
Supreme Court relied on Eynon in holding that an attorney’s
former client was an essential witness in a disciplinary pro-
ceeding because she was the complaining witness. S.J. is the
complaining witness and the victim of the sexual assault; thus,
she is an essential witness under both Eynon and Miller.
Furthermore, S.J.’s attendance at trial did not prejudice
Embree’s right to a fair trial. See State v. Bautista, 193
- 621 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609Neb. 476, 227 N.W.2d 835 (1975) (recognizing that denial of
motion to sequester will not be disturbed in absence of preju-
dice to accused). There was no evidence that S.J. “craft[ed]
and reiterate[d] her statements in concert with other witnesses
before her.” See brief for appellant at 19-20. The only wit-
nesses that testified before her were Pew, Smyth, and a clinical
psychologist who had not met with S.J. Furthermore, Embree
had an opportunity to challenge S.J.’s credibility on cross-
examination if she contradicted her previous deposition testi-
mony or any of the reports provided by law enforcement and
medical staff. Since S.J. was an essential witness and Embree
did not show how her presence in the courtroom impacted his
right to a fair trial, the district court did not abuse its discretion
in allowing S.J. to remain in the courtroom for the duration
of trial.
Both parties argue the interplay of rights between § 27-615,
the Nebraska Crime Victim’s Reparations Act under Neb. Rev.
Stat. § 81-1848 (Cum. Supp. 2022), and Neb. Const. art. I,
§ 28. Section 81-1848(1)(c) addresses the rights of victims,
stating a victim shall have the right
[t]o be present throughout the entire trial of the defendant,
unless the victim is to be called as a witness or the court
finds sequestration of the victim necessary for a fair trial.
If the victim is to be called as a witness, the court may
order the victim to be sequestered.
This allows the court to sequester a victim witness but does
not require it. And, as stated above, § 27-615(3) excepts from
a sequestration order a witness who is essential to the presen-
tation of the case. Likewise, Neb. Const. art. I, § 28, provides
a victim “the right to be present at trial unless the trial court
finds sequestration necessary for a fair trial for the defendant.”
Here, the court found Embree’s right to a fair trial would not
be compromised by S.J.’s presence; therefore, sequestration
was not necessary, and the court did not abuse its discretion in
allowing S.J. to remain in the courtroom.
- 622 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 6093. DNA Evidence
(a) Additional Facts
Elizabeth Young, a forensic scientist in the biology unit of
the Nebraska State Patrol Crime Laboratory, testified to the
DNA results at trial. Young tested S.J.’s blue shorts and the
swabs collected from the sexual assault kit. S.J. testified that
after she put on the blue shorts, she did not come into any
physical contact with Embree that would explain his DNA on
her shorts before she fell asleep.
There were six sets of swabs tested from S.J.’s sexual assault
kit: four sets of swabs of S.J.’s intimate areas and two sets of
swabs from the blue shorts she wore that night. Young marked
and tested multiple areas on S.J.’s shorts that could potentially
produce enough DNA to test. The intimate area swabs and
stains on the interior waistband and interior crotch of the shorts
tested positive for male DNA.
Young testified that on the interior waistband on the shorts,
there was a mixture of DNA that included S.J., Embree, and
an unrelated, unknown male. She stated it is 413 billion times
more likely the DNA mixture originated from S.J., Embree,
and an unknown male rather than S.J. and two unknown
males. She also identified a mixture of DNA and spermatozoa
with S.J. as the major contributor and two uninterpretable
male DNAs in the crotch of the blue shorts and on the mons
pubis swabs.
As Young began discussing the results of the other intimate
area swabs, Embree objected to her testimony regarding any
DNA results of uninterpretable minor contributors. After a
lengthy sidebar, the district court decided Young could testify
only to the DNA mixtures that included S.J. and two unin-
terpretable DNAs. The district court concluded that the DNA
mixtures with S.J.’s DNA and two other DNAs were relevant
because S.J. had previously testified that any spermatozoa
found could only come from two males: Embree or Dominick.
But the district court did not allow Young to testify about the
other intimate area swabs, because they contained only one
- 623 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609interpretable source of DNA, which could be from either of the
men S.J. testified could have left the DNA.
Embree claims the DNA found in the spermatozoa in S.J.’s
shorts and mons pubis swabs did not identify him or Dominick,
so it provided no probative value to the jury and should have
been excluded under § 27-403. He claims the court erred in
allowing this evidence. We disagree.
(b) Standard of Review
When the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, we review
the admissibility of evidence for an abuse of discretion. State v.
Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). A trial court
exercises its discretion in determining whether evidence is rel-
evant and whether its prejudicial effect substantially outweighs
its probative value. Id. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.(c) Discussion
[5] All relevant evidence is admissible except as otherwise
provided by law. State v. Abligo, 312 Neb. 74, 978 N.W.2d 42(2022). Evidence is relevant if it has any tendency to make the
existence of any fact that makes the determination of the action
more or less probable than without the evidence. See id. Under
§ 27-403, relevant evidence may be excluded “if its proba-
tive value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Unfair prejudice means
an undue tendency to suggest a decision based on an improper
basis. State v. Abligo, supra.[6] In State v. Johnson, supra, the Supreme Court held
that the district court committed harmless error by admitting
a DNA expert’s testimony that was misleading. The expert
- 624 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609testified as to DNA located on two acrylic nails located in
the murder victim’s duplex and on the rope tied around the
victim’s ankles. The expert stated she could not exclude
the defendant as a minor contributor of the DNA found on one
of the acrylic nails but provided no statistical significance of
that. As to the DNA on the rope, she could not draw any con-
clusions regarding the minor contributor, and as to the second
acrylic nail, she found a “‘possible mixture’” with a minor
contributor. Id. at 877, 862 N.W.2d at 773. Finding error in the
admission of the evidence, the court stated:
[The expert’s] testimony that there may have been
a minor contributor’s DNA on the second nail was not
probative of the source of the DNA. And her testimony
that she could not draw any conclusions about the partial
minor profile she found from the rope sample followed
her earlier testimony that her inconclusive testing results
from the first acrylic nail meant she could neither include
nor exclude [the defendant] as the minor contributor.
Nor did she explain why the partial minor profile from
the rope did not exclude [the defendant], despite con-
tradictions with his profile. And if this court cannot say
with certainty whether [the defendant] should have been
excluded or included, we assume that the jurors could
have concluded from her testimony that [the defendant]
was a possible source. So her testimony was either irrel-
evant or improperly suggested that the DNA evidence was
stronger than it actually was.
State v. Johnson, 290 Neb. 862, 882-83, 862 N.W.2d 757,
773-74 (2015) (emphasis omitted). The court enunciated the
following principle: “[W]e hold that unless the State presents
the statistical significance of DNA testing results that shows a
defendant cannot be excluded as a potential source in a biologi-
cal sample, the results are irrelevant.” Id. at 883, 862 N.W.2d
at 774.
The Johnson court concluded, however, that given the
expert’s concession of the inconclusiveness of her samples
- 625 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609coupled with the defendant’s overwhelming evidence of guilt,
the error was harmless. The concurrence observed that while
inconclusive DNA results are normally not admissible, there are
circumstances where they may become admissible. See State v.
Johnson, supra (Cassel, J., concurring; Heavican, C.J., joins).
We find the case before us involves such circumstances.
[7] We base our conclusion in part on State v. Wood, 310
Neb. 391, 966 N.W.2d 825 (2021). In Wood, the Supreme
Court held that counsel was not ineffective in failing to object
to an expert’s testimony about the presence of uninterpretable
male DNA on an 8-year-old victim’s external vaginal swabs
because such evidence was relevant and admissible in an
alleged sexual assault case. Distinguishing the issue and facts
of the case before it from those in State v. Johnson, supra,
the Wood court stated that in Johnson, “[a]t issue was expert
testimony that the defendant’s DNA profile could be neither
included nor excluded from a mixed DNA sample from one of
the victim’s fingernails.” State v. Wood, 310 Neb. at 433, 966
N.W.2d at 857. In Wood, however, the expert testified conclu-
sively that male DNA was present. The court explained:
In an alleged sexual assault described by a female vic-
tim as involving her genital area and a male perpetrator,
the presence of male DNA near the victim’s genital area
is relevant to whether the assault occurred as the victim
described, and such evidence is not outweighed by a
danger of confusing the issues or misleading the jurors
even if the DNA is of insufficient quantity or quality to
obtain a profile. Here, the presence of male DNA on the
external vaginal swabs of the victim’s external vaginal
area made the truth of the victim’s allegations more
probable, even if the DNA did not identify [the defend­
ant] specifically.
Id. at 434-35, 966 N.W.2d at 857-58.
In the case before us, S.J. alleged that Embree sexually
assaulted her, but she also explained that Dominick and
Embree could be the only sources of spermatozoa found in or
- 626 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609around her vaginal area. Young’s testimony that some of the
DNA samples revealed a mix of DNA from two separate male
contributors makes the truth of S.J.’s allegations more prob-
able, even if the DNA did not identify Embree specifically.
Therefore, following guidance from State v. Wood, supra, we
conclude that the admissibility of Young’s inconclusive DNA
results fits within the circumstances contemplated by the con-
currence in State v. Johnson, supra (Cassel, J., concurring;
Heavican, C.J., joins), and such evidence is not outweighed
by a danger of confusing the issues or misleading the jurors.
Young was clear in her testimony that she could neither
include nor exclude Embree as a minor contributor from the
samples taken from S.J.’s mons pubis area or from the crotch
of S.J.’s shorts. Therefore, the court did not abuse its discretion
in admitting evidence of the inconclusive DNA results.
4. Prosecutorial Misconduct
(a) Additional Facts
During the State’s closing argument, it implied that Embree
was one of the sources of the uninterpretable DNA found in
the interior crotch of S.J.’s shorts. Specifically, the prosecu-
tor stated:
What else did the DNA show? Spermatozoa, sperm,
semen. Where does that come from? It can only come
from a male. That was on the interior crotch of her shorts.
There were two spots. They analyzed one. A mixture of
two males. Again, who were the two possible — the only
two possible individuals: Dominick —
Embree objected because he believed it was an improper impli-
cation or inference, as well as contradictory to the case law.
The district court overruled Embree’s objection. The prosecu-
tor continued, further stating that there had been no evidence
to rebut any of S.J.’s testimony, and she testified there were
only two possible sources for the DNA found: Embree and
Dominick. Embree did not move for a mistrial.
- 627 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609Embree argues that the district court erred by allowing the
prosecutor to claim Embree was a contributor of the DNA
found in the interior crotch of S.J.’s shorts and on the mons
pubis swabs. We find Embree has failed to preserve this error.
(b) Standard of Review
When a defendant has not preserved a claim of prosecutorial
misconduct for direct appeal, we will review the record only
for plain error. State v. Price, 306 Neb. 38, 944 N.W.2d 279(2020). An appellate court may find plain error on appeal when
an error unasserted or uncomplained of at trial, but plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. Id.Generally, we will find plain error only when a miscarriage of
justice would otherwise occur. Id.(c) Discussion
[8] An objection made during closing arguments without
a motion for mistrial does not preserve any error resulting
from the prosecutor’s remarks for appellate review. See State
v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). Since
Embree failed to preserve his claim for prosecutorial miscon-
duct, we review only for plain error. See State v. Price, supra.To determine whether the State engaged in prosecutorial
misconduct based on statements made during closing argu-
ments, a reviewing court first determines whether the prosecu-
tor’s remarks were improper. Id. Then, if necessary, it deter-
mines the extent to which the improper remarks had prejudicial
effect on the defendant’s right to a fair trial. Id. Prosecutorial
misconduct encompasses conduct that violates legal or ethi-
cal standards for various contexts because the conduct could
undermine a defendant’s right to a fair trial. Id. Prosecutors
have a duty to conduct fair and impartial criminal trials
and to not inflame the prejudices or excite the passions of
the jury against the accused. See id. A prosecutor’s con-
duct will not amount to misconduct if it does not mislead
- 628 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 609and unduly influence the jury. See id. A prosecutor cannot
express his or her personal belief or opinion as truth or fal-
sity of any testimony, evidence, or guilt. See id. However, a
prosecutor is permitted to present a spirited summation that a
defense theory is illogical or unsupported by the evidence if
those comments rest on reasonably drawn inferences. See State
v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).
The prosecutor’s statements do not conflict with the evi-
dence presented. Although Young was unable to testify as to
the identity of the DNA contributors on S.J.’s mons pubis area
and the crotch of her shorts, S.J. identified the only two pos-
sible contributors as Embree and Dominick. The prosecutor’s
argument, therefore, is based upon reasonably drawn infer-
ences from the evidence, and we find nothing improper in
making them. Accordingly, we find no plain error when the
district court overruled Embree’s objection to the State’s clos-
ing arguments.
5. Cumulative Error
Embree argues the district court’s errors were cumulative in
depriving him of a fair trial.
(a) Standard of Review
Whether cumulative error deprived the defendant of his or
her Sixth Amendment right to trial by an impartial jury pre­
sents a question of law to be reviewed de novo. State v. Smith,
292 Neb. 434, 873 N.W.2d 169 (2016).
(b) Discussion
[9] Although one or more trial errors might not, standing
alone, constitute prejudicial error, their cumulative effect may
be to deprive the defendant of his or her constitutional right
to a public trial by an impartial jury. State v. Anders, 311
Neb. 958, 977 N.W.2d 234 (2022). However, since we found
no error above, Embree’s argument for cumulative error is
without merit. See State v. Garcia, 302 Neb. 406, 923 N.W.2d
725 (2019).
- 629 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. EMBREE
Cite as 31 Neb. App. 6096. Ineffective Assistance
of Counsel
Lastly, Embree assigns he received ineffective assistance
of counsel.
(a) Standard of Review
Alleged errors of the lower court must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the errors to be considered by the appellate court. State v.
Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
(b) Discussion
[10] Embree fails to meet the specificity requirements for
assigning a claim of ineffective assistance of counsel under
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019); therefore,
we do not need to reach the merits of his claim. A defendant
must specifically allege deficient performance of counsel, and
the appellate court will not scour the remainder of the brief in
search of such specificity. See id. Embree merely assigns his
“trial counsel was ineffective” without specifying how he was
ineffective. Brief for appellant at 22. This does not meet the
requirement of Mrza; thus, we do not review his claim.
V. CONCLUSION
For the aforementioned reasons, we affirm Embree’s
conviction.
Affirmed.