State v. Johnson , 31 Neb. Ct. App. 207 ( 2022 )

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STATE V. JOHNSON
Cite as 31 Neb. App. 207State of Nebraska, appellee, v.
Antoine C. Johnson, appellant.
___ N.W.2d ___
Filed July 26, 2022. No. A-21-611.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
cretion with respect to sanctions involving discovery procedures, and
their rulings thereon will not be reversed in the absence of an abuse
of discretion.
5. Double Jeopardy: Lesser-Included Offenses: Appeal and Error.
Whether two provisions are the same offense for double jeopardy pur-
poses presents a question of law, on which an appellate court reaches a
conclusion independent of the court below.
6. Rules of Evidence: Judicial Notice: Trial. A fact is adjudicative if the
fact affects the determination of a controverted issue in litigation.
7. Judicial Notice. Judicial notice of an adjudicative fact may be taken at
any stage of the proceedings.
8. Criminal Law: Juries: Judicial Notice. In a criminal case, the jury
may, but is not required to, accept as conclusive any fact judicially
noticed.
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Cite as 31 Neb. App. 2079. Pretrial Procedure: Prosecuting Attorneys: Evidence: Impeachment:
Words and Phrases. The prosecution has a duty to disclose all favor-
able evidence to a criminal defendant prior to trial. Favorable evidence
includes both exculpatory and impeachment evidence.
10. Criminal Law: Due Process: Witnesses. The existence of an agree-
ment to testify by a witness under threats or promises of leniency made
by the prosecutor is relevant to the credibility of such witness, and
failure to bring that to the attention of the jury denies the defendant due
process of law.
11. Prosecuting Attorneys: Evidence. Where the prosecution delays dis-
closure of evidence, but the evidence is nonetheless disclosed at trial,
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963), is not violated.
12. Constitutional Law: Criminal Law: Pretrial Procedure. While Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
and Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490(1995), impose a constitutional mandate for disclosure in criminal cases,
a statutory design such as Neb. Rev. Stat. § 29-1912 (Cum. Supp. 2020)
can exact more than the constitutional minimum, so that courts must
focus on information potentially useful to the defense.
13. Pretrial Procedure: Prosecuting Attorneys: Evidence. Under Neb.
Rev. Stat. § 29-1912 (Cum. Supp. 2020), whether a prosecutor’s failure
to disclose evidence results in prejudice depends on whether the infor-
mation sought is material to the preparation of the defense, meaning that
there is a strong indication that such information will play an important
role in uncovering admissible evidence, aiding preparation of witnesses,
corroborating testimony, or assisting impeachment or rebuttal.
14. Criminal Law: Pretrial Procedure. Discovery in a criminal case is
generally controlled by either a statute or a court rule.
15. Pretrial Procedure: Evidence. Pursuant to Neb. Rev. Stat. § 29-1912(1)
(Cum. Supp. 2020), following a proper discovery request, the State has
an obligation to disclose information which is material to the presenta-
tion of a defense to the charge against the defendant.
16. Criminal Law: Courts. When a court sanctions the government in a
criminal case for its failure to obey court orders, it must use the least
severe sanction that will adequately punish the government and secure
future compliance.
17. Rules of Evidence: Other Acts: Proof. Neb. Rev. Stat. § 27-405(2)
(Reissue 2016) permits a defendant to place specific examples of a
person’s prior violent conduct before the jury to the extent that such
evidence of a person’s violent character is relevant to the proof of a
defendant’s self-defense claim.
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Cite as 31 Neb. App. 20718. Rules of Evidence: Other Acts. Under Neb. Rev. Stat. § 27-404(2)
(Supp. 2019), evidence of a defendant’s other crimes, wrongs, or acts
may be admissible for purposes of demonstrating the defendant’s con-
sciousness of guilt.
19. ____: ____. Under Neb. Rev. Stat. § 27-404(3) (Supp. 2019), the pros-
ecution must state the specific purpose or purposes for which the evi-
dence is offered, and the trial court must similarly state the purpose or
purposes for which the evidence is received.
20. ____: ____. When receiving evidence pursuant to Neb. Rev. Stat.
§ 27-404(2) (Supp. 2019), the trial court must consider whether the
evidence is independently relevant and whether the probative value
of the evidence is substantially outweighed by the danger of unfair
prejudice.
21. Criminal Law: Judgments: Appeal and Error. An appellate court will
affirm a trial court’s ruling that the defendant committed an uncharged
extrinsic crime or bad act if, viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found
with a firm conviction the essential elements of the uncharged crime or
bad act.
22. Other Acts: Evidence: Appeal and Error. Just as when reviewing a
sufficiency of the evidence claim regarding a conviction, an appellate
court, when reviewing the sufficiency of an extrinsic crime or bad act,
does not resolve conflicts in the evidence, pass on the credibility of wit-
nesses, or reweigh the evidence.
23. Double Jeopardy. The Double Jeopardy Clause protects against three
distinct abuses: (1) a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after conviction,
and (3) multiple punishments for the same offense.
24. Constitutional Law: Double Jeopardy. The protection provided by
Nebraska’s double jeopardy clause is coextensive with that provided
by the U.S. Constitution.
25. Statutes: Double Jeopardy: Legislature: Intent: Sentences. Where
two statutory provisions proscribe the same offense, they are construed
not to authorize cumulative punishments in the absence of a clear indi-
cation of contrary legislative intent.
26. Double Jeopardy: Legislature: Intent. The statutory elements test
set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180,
76 L. Ed. 306 (1932), does not apply when there is clear legislative
intent regarding whether conduct involves a single offense or mul-
tiple offenses.
27. Double Jeopardy: Legislature: Intent: Sentences. When the Legislature
has demonstrated an intent to permit cumulative punishments, the
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STATE V. JOHNSON
Cite as 31 Neb. App. 207Double Jeopardy Clause is not violated as long as the court imposes the
cumulative punishments in a single proceeding.
28. Statutes: Judicial Construction: Legislature: Intent: Presumptions.
Where a statute has been judicially construed and that construction has
not evoked amendment, it will be presumed that the Legislature acqui-
esced to the court’s determination of the Legislature’s intent.
29. Criminal Law: Weapons: Political Subdivisions: Sentences. Any per-
son committing the felony of discharging a firearm in a city of the first
class pursuant to Neb. Rev. Stat. § 28-1212.04 (Reissue 2016) shall be
subjected to cumulative punishments in a single proceeding for both
the offense of discharging a firearm and the offense of using a deadly
weapon to commit that felony.
30. Double Jeopardy: Legislature: Statutes: Trial: Sentences. Where a
legislature specifically authorizes cumulative punishment under two
statutes, regardless of whether those two statutes proscribe the “same”
conduct under Blockburger v. United States, 284 U.S. 299, 52 S. Ct.
180, 76 L. Ed. 306 (1932), a court’s task of statutory construction ends
and cumulative punishment under such statutes in a single trial may
be imposed.
Appeal from the District Court for Hall County: John H.
Marsh, Judge. Affirmed.
Gerard A. Piccolo, Hall County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Moore, Bishop, and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Following a jury trial, Antoine C. Johnson was convicted
of one count of attempted second degree murder, one count of
first degree assault, one count of discharge of a firearm in a
city of the first class, and three corresponding counts of use of
a deadly weapon (firearm) to commit a felony. Johnson appeals
his convictions and sentences, claiming several evidentiary
errors. He also contends that imposing consecutive sentences
on the offenses of discharge of a firearm and corresponding
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Cite as 31 Neb. App. 207use of a firearm to commit a felony violates the Double
Jeopardy Clauses of the U.S. and Nebraska Constitutions
because the two offenses “are the same crime, double punish-
ment.” We affirm.
II. BACKGROUND
On May 27, 2020, Johnson, along with Gary Zierke III, Roy
Rodriguez, and April Hardy, traveled from Lincoln, Nebraska,
to Grand Island, Nebraska. The evidence conflicts concern-
ing their purposes in traveling to Grand Island, although trial
testimony generally indicated that Johnson and Zierke were
looking to purchase methamphetamine in Grand Island. The
four individuals left between 9 and 10 p.m. Rodriguez drove
a Chevrolet Trailblazer, while Hardy, his “fiancee” of 20
years, sat in the front passenger seat; Johnson and Zierke rode
in the back seat. Rodriguez and Hardy were familiar with
both Johnson and Zierke, but Johnson and Zierke were not
acquainted with each other.
The group arrived in Grand Island between 11 p.m. and mid-
night, and Zierke directed Rodriguez to a residence belonging
to his cousin, Ricardo Aguilar. Tara Aguilar, a cousin to both
Ricardo and Zierke, also lived at this residence. After finding a
place to park, Zierke entered the residence. Approximately 15
minutes later, Johnson exited the Trailblazer and knocked on the
door. A “young lady” answered and “gestured” Johnson inside.
He was directed toward a bedroom wherein he found Zierke,
Tara, and Ricardo talking amongst themselves. The three were
“alarmed” by Johnson’s entry, although Johnson apologized
and explained that it was a misunderstanding. Ricardo told
Johnson to “get out” of his home, and he, along with Zierke,
proceeded to escort Johnson outside. Zierke and Ricardo went
back inside, but Zierke came out again a few minutes later.
Johnson gave Zierke the money pooled to purchase metham-
phetamine, and Zierke again went inside the residence.
At some later point, unbeknownst to Johnson, Zierke left
with Tara and her two daughters in a borrowed vehicle. Ricardo
and his girlfriend subsequently left the residence, and Johnson
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Cite as 31 Neb. App. 207approached the two, wanting to know where Zierke was. The
record is conflicted concerning the nature of the conversa-
tion between Johnson and Ricardo, although testimony indi-
cated that Johnson was frustrated due to the delay in Zierke’s
return. Ricardo, Rodriguez, and Hardy observed Johnson to
have something underneath his shirt, and Ricardo believed
Johnson to be carrying a firearm. Ricardo informed Johnson
that Zierke had left with Tara just a few minutes prior. After
a brief exchange, Ricardo entered the Trailblazer, followed
by Johnson, although the record is conflicted as to whether
Ricardo did so voluntarily.
At Johnson’s urging, Ricardo called Tara to find out where
Zierke had gone. Either Tara or Zierke answered, and Ricardo
directed Rodriguez as he drove to meet up with Tara and
Zierke. The two groups met near an intersection, parking near
each other. Johnson and Zierke left their respective vehicles
and approached each other. Johnson demanded that Zierke
return his money, and the subsequent argument ended when
Johnson drew a revolver and fired one shot at Zierke, strik-
ing him in the head. Eyewitness accounts conflict as to what
transpired between Johnson and Zierke during this encounter,
and we note that Johnson claimed that Zierke “sprint[ed]”
toward Johnson in a threatening manner while yelling that he
was “going to beat [Johnson’s] fucking ass.” At some point
during the exchange, Ricardo ran from the Trailblazer, but
he returned to the scene after Johnson shot Zierke. Following
the shooting, Johnson ran back to the Trailblazer, and he,
Rodriguez, and Hardy drove off. Tara subsequently contacted
law enforcement, and Zierke was taken to a hospital for emer-
gency treatment.
Johnson, Rodriguez, and Hardy headed back to Lincoln fol-
lowing the shooting. As they drove, Johnson repeatedly made
statements such as “[Y]’all don’t know who I am” and “[Y]ou
don’t know me.” On the way back to Lincoln, a Nebraska
state trooper initiated a traffic stop of the Trailblazer. During
the stop, Johnson, who was seated in the back seat, fled from
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Cite as 31 Neb. App. 207the vehicle through a nearby field. The trooper unsuccessfully
pursued Johnson and returned to the Trailblazer a few min-
utes later. Rodriguez and Hardy were placed under arrest, and
law enforcement discovered a gun underneath the vehicle’s
driver’s seat. Approximately 16 hours later, law enforcement
arrested Johnson.
On July 28, 2020, the State filed an information in the Hall
County District Court charging Johnson with attempted first
degree murder (count I), a Class II felony, in violation of Neb.
Rev. Stat. §§ 28-303(1) and 28-201(1)(b) (Cum. Supp. 2020);
first degree assault (count III), a Class II felony, in violation
of Neb. Rev. Stat. § 28-308(1) (Reissue 2016); kidnapping
(count V), a Class IA felony, in violation of Neb. Rev. Stat.
§ 28-313(1) (Reissue 2016); discharge of a firearm in a city of
the first class (count VII), a Class IC felony, in violation of Neb.
Rev. Stat. § 28-1212.04 (Reissue 2016); robbery (count IX), a
Class II felony, in violation of Neb. Rev. Stat. § 28-324(1)
(Reissue 2016); and five counts of use of a deadly weapon to
commit a felony (counts II, IV, VI, VIII, and X), a Class IC
felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a) and
(c) (Reissue 2016). The State subsequently filed an amended
information on August 12, dismissing counts IX and X while
retaining all other counts.
A jury trial was held from May 10 to 18, 2021. Evidence
was adduced, as set forth above; witnesses included, among
others, Johnson, Zierke, Rodriguez, Hardy, Ricardo, Tara, and
several members of law enforcement. We will describe specific
testimony and exhibits in our analysis below as relevant to
the issues on appeal. Following deliberation, the jury found
Johnson guilty of attempted second degree murder, first degree
assault, discharge of a firearm in a city of the first class, and
three counts of use of a deadly weapon (firearm) to commit a
felony corresponding to the previous felonies. The jury found
Johnson not guilty on the count of kidnapping and the corre-
sponding count of use of a deadly weapon (firearm) to commit
a felony.
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Cite as 31 Neb. App. 207A sentencing hearing was held on July 21, 2021. The dis-
trict court sentenced Johnson to 20 to 30 years’ imprisonment
on count I (attempted second degree murder); 10 to 20 years’
imprisonment on count III (first degree assault); and 10 to 20
years’ imprisonment on count VII (discharge of a firearm in a
city of the first class). The court ordered these sentences to be
served concurrently. The court further sentenced Johnson to 5
to 10 years’ imprisonment on each count of use of a deadly
weapon (firearm) to commit a felony (counts II, IV, and VIII)
and ordered these sentences to run consecutively to each other
and to the sentences imposed for counts I, III, and VII. All four
of the firearm convictions are Class IC felonies, each requiring
a mandatory minimum sentence of 5 years’ imprisonment. The
sentences imposed resulted in an aggregate sentence of 35 to
60 years’ imprisonment. Johnson objected to the consecutive
sentences imposed for counts VII and VIII on double jeop-
ardy grounds.
Johnson appeals.
III. ASSIGNMENTS OF ERROR
Johnson claims, reordered, that the district court erred in
(1) taking judicial notice of the population of Grand Island
and admitting exhibit 53, (2) failing to disqualify Tara from
testifying due to the State’s failure to disclose her coopera-
tion agreement pursuant to the court’s discovery order, (3) not
allowing Ricardo’s prior convictions into evidence, (4) admit-
ting evidence under Neb. Rev. Stat. § 27-404 (Supp. 2019)
regarding an incident in the courthouse during the course of
trial, and (5) imposing consecutive sentences on counts VII
and VIII, in violation of the Double Jeopardy Clause because
they are “double punishment” for the same crime.
IV. STANDARD OF REVIEW
[1,2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
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Cite as 31 Neb. App. 207admissibility. State v. Figures, 308 Neb. 801, 957 N.W.2d 161(2021). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. State v. Figures, supra.[3] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. State v. Wheeler, 308 Neb. 708, 956 N.W.2d
708 (2021).
[4] Trial courts have broad discretion with respect to sanc-
tions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion.
State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
[5] Whether two provisions are the same offense for double
jeopardy purposes presents a question of law, on which an
appellate court reaches a conclusion independent of the court
below. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
V. ANALYSIS
1. Judicial Notice of Grand Island’s
Population and Classification
Johnson claims the district court erred in taking judicial
notice of the population of Grand Island and its classification.
(a) Background
During trial and upon the State’s motion, the district court
took judicial notice that the population of the “City of Grand
Island [was] between 5,000 and 100,000 residents,” “mak-
ing it a City of the First Class.” The court’s decision was
premised on the receipt of exhibit 53, which contains a pic-
ture of a sign designating Grand Island’s population as 48,520
and multiple pages from the website of the U.S. Census
Bureau setting forth Grand Island’s population parameters
based on the 2010 decennial census (48,520) and a popula-
tion estimate as of July 1, 2019 (51,267). Johnson objected
to exhibit 53 on the “grounds of hearsay and foundation as
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Cite as 31 Neb. App. 207to hearsay,” and he objected to the court’s judicial notice of
Grand Island’s population and classification without further
elaboration. He also noted that exhibit 53 was never disclosed
by the State prior to trial.
(b) Analysis
On appeal, Johnson alleges that “[t]he State failed to pro-
vide enough ‘proof’” from which the district court could take
judicial notice of Grand Island’s population and corresponding
classification. Brief for appellant at 31. He argues that under
Neb. Rev. Stat. § 16-101 (Cum. Supp. 2020) (defining cities
of the first class as having more than 5,000 and not more than
100,000 inhabitants “as determined by the most recent federal
decennial census or the most recent revised certified count
by the United States Bureau of the Census”), as incorporated
through § 28-1212.04 (discharge of firearm in city of first
class), a city’s classification as a city of the first class may only
be proved as set forth in § 16-101. Johnson claims that exhibit
53 fails to satisfy the statutory requirements and that therefore,
the district court lacked an appropriate basis to take judicial
notice of Grand Island’s population and classification.
[6-8] Neb. Rev. Stat. § 27-201(2) (Reissue 2016) permits a
trial court to take judicial notice of adjudicative facts that are
“not subject to reasonable dispute,” such that those facts are
either “generally known within the territorial jurisdiction of
the trial court” or otherwise “capable of accurate and ready
determination by resort to sources whose accuracy cannot rea-
sonably be questioned.” A fact is adjudicative if the fact affects
the determination of a controverted issue in litigation. State
v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989). Judicial
notice of an adjudicative fact may be taken at any stage of the
proceedings. Id. In a criminal case, the jury may, but is not
required to, accept as conclusive any fact judicially noticed.
See § 27-201(7).
While Johnson asserts that the proof provided by the State
was insufficient to support the district court’s judicial notice
of Grand Island’s population and classification, we cannot say
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Cite as 31 Neb. App. 207the court erred in this matter. Johnson’s argument emphasizes
that “[t]here [was] nothing verifying” that the census informa-
tion in fact came “from the Census Bureau or a governmental
record.” Brief for appellant at 30. However, the State asserted
that exhibit 53 included “Census Bureau data” from the cor-
responding federal government website. These pages also cite
to the 2010 decennial census conducted by the federal govern-
ment and further provide a link to the specific web page on
the U.S. Census Bureau website setting forth Grand Island’s
population metrics. Upon our review, we find that the popu-
lation of Grand Island would certainly be a fact “generally
known within the territorial jurisdiction” of the Hall County
District Court and thus would be an adjudicative fact subject
to judicial notice. See § 27-201. However, to the extent that
§ 16-101, as incorporated through § 28-1212.04, may require
that a city’s classification be proved solely through the “most
recent federal decennial census or the most recent revised cer-
tified count by the United States Bureau of the Census,” we
find that exhibit 53 sufficiently satisfies any such requirement
in this case. Accordingly, the district court did not err in taking
judicial notice of Grand Island’s population and classification
as a city of the first class.
2. State’s Late Disclosure of
Cooperation Agreement
Johnson claims the district court erred in not disqualifying
Tara from testifying when the State failed to timely turn over
Tara’s cooperation agreement with the State to Johnson in com-
pliance with the court’s pretrial discovery order.
(a) Background
On August 12, 2020, Johnson filed multiple pretrial motions
concerning various discovery matters, including a “Motion
for Discovery” that included a request for, in pertinent part,
“[e]xculpatory evidence” as required under Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United
States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342- 218 -
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Cite as 31 Neb. App. 207(1976); and Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995). The district court subsequently
entered an order on August 19 granting Johnson’s motions,
including the “Motion for Discovery,” and giving the State 30
days to comply with the order.
Jury selection commenced and concluded on Monday, May
10, 2021. The following morning, prior to when the jury was
brought into the courtroom, Johnson’s counsel orally motioned
the court to order that “Tara . . . not be allowed to testify”
at trial. Defense counsel stated that “on Friday,” he had just
received the cooperation agreement concerning Tara from the
State. The cooperation agreement was dated December 17,
2020, and indicated that Tara agreed to testify for the State in
exchange for beneficial outcomes in unrelated cases pending
against her.
In response, the State argued that Johnson’s counsel was
put “on notice” of the cooperation agreement during Tara’s
deposition on November 6, 2020. Our record does not include
Tara’s deposition, but the State related that upon inquiry by
Johnson’s counsel, Tara stated that she was “going to get some
kind of benefit out of” her agreement to testify and that the
benefit might be “for [her] case that [she had] pending.” The
State then “intercepted” Tara’s response during the deposition
and “explained that [the State and Tara hadn’t] reached a final
conclusion” regarding any cooperation agreement. The State
stated that it typically holds cooperation agreements until just
before trial “to make sure the case is actually going to proceed
to trial.” The district court thereafter overruled the motion to
disqualify Tara’s testimony.
(b) Analysis
Johnson contends the district court erred in allowing Tara
to testify over his motion to disqualify. While he concedes
the district court had “a great deal of discretion” in handling
failures to comply with discovery orders, the court’s decision
to “impose[] no sanction whatsoever, despite the State admit-
ting it was not going to comply with the Court’s order until the
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Cite as 31 Neb. App. 207day before trial,” amounted to an abuse of discretion. Brief for
appellant at 32.
[9-11] We initially address an alleged error raised and argued
by Johnson at oral argument, but as pointed out by the State in
response, was not raised in Johnson’s initial brief; namely,
that the State’s late delivery of Tara’s cooperation agreement
to Johnson violated Brady v. Maryland, supra. “In Brady, the
U.S. Supreme Court held that the prosecution has a duty to
disclose all favorable evidence to a criminal defendant prior
to trial. Favorable evidence includes both exculpatory and
impeachment evidence.” State v. Howard, 29 Neb. App. 860,
870-71, 961 N.W.2d 560, 570 (2021). See, also, State v. Patton,
287 Neb. 899, 845 N.W.2d 572 (2014) (existence of agreement
to testify by witness under threats or promises of leniency
made by prosecutor is relevant to credibility of such witness
and failure to bring that to attention of jury denies defendant
due process of law). However, where the prosecution delays
disclosure of evidence, but the evidence is nonetheless dis-
closed during trial, Brady is not violated. State v. Clifton, 296
Neb. 135, 892 N.W.2d 112 (2017). Accordingly, because Tara’s
cooperation agreement was disclosed prior to trial and Tara
was questioned about the agreement by both the prosecutor and
defense counsel during trial, the constitutional requirements of
Brady are not implicated in this appeal.
[12,13] Notably, while Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Kyles v. Whitley, 514
U.S 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995), “impose a
constitutional mandate for disclosure in criminal cases, a statu-
tory design for discovery such as § 29-1912 can exact more
than the constitutional minimum, so that courts must focus on
information potentially useful to the defense.” State v. Kula,
252 Neb. 471, 486, 562 N.W.2d 717, 727 (1997). In Kula,
the Nebraska Supreme Court concluded that the appellant was
prejudiced by the district court’s failure to grant a continuance
when the State waited until the first day of trial to produce
police reports that would have led the defense to discover
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Cite as 31 Neb. App. 207witnesses and account for their testimony prior to trial. In
focusing on discovery requirements, the court stated:
Under § 29-1912, whether a prosecutor’s failure to dis-
close evidence results in prejudice depends on whether
the information sought is material to the preparation
of the defense, meaning that there is a strong indica-
tion that such information will play an important role in
uncovering admissible evidence, aiding preparation of
witnesses, corroborating testimony, or assisting impeach-
ment or rebuttal.
State v. Kula, 252 Neb. at 486, 562 N.W.2d at 727. We there-
fore place our focus on the discovery requirements as assigned
and argued by Johnson.
[14-16] Discovery in a criminal case is generally controlled
by either a statute or a court rule. State v. Short, 310 Neb. 81,
964 N.W.2d 272 (2021). Trial courts have broad discretion
with respect to sanctions involving discovery procedures, and
their rulings thereon will not be reversed in the absence of an
abuse of discretion. Id. Neb. Rev. Stat. § 29-1919 (Cum. Supp.
2020) provides:
If, at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed
to comply with sections 29-1912 to 29-1921 or an order
issued pursuant to [those sections], the court may:
(1) Order such party to permit the discovery or inspec-
tion of materials not previously disclosed;
(2) Grant a continuance;
(3) Prohibit the party from calling a witness not dis-
closed or introducing in evidence the material not dis-
closed; or
(4) Enter such other order as it deems just under the
circumstances.
Pursuant to Neb. Rev. Stat. § 29-1912(1) (Cum. Supp. 2020),
following a proper discovery request, the State has an obliga-
tion to disclose information which is material to the presen-
tation of a defense to the charge against the defendant. See
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Cite as 31 Neb. App. 207State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
When a court sanctions the government in a criminal case for
its failure to obey court orders, it must use the least severe
sanction that will adequately punish the government and
secure future compliance. State v. Short, supra. The Nebraska
Supreme Court has described its preference for a continuance
in such situations where the continuance could cure any preju-
dice caused by the government’s noncompliance. See id.Upon our review of the record, we are not persuaded that
Johnson was prejudiced by the State’s delay in turning over
its cooperation agreement with Tara such that the district court
should have disqualified her from testifying. We are unable
to discern from this record, nor does Johnson explain, how
receiving the cooperation agreement earlier was material to
the preparation of Johnson’s defense, such that it would have
played an important role in uncovering admissible evidence,
aided in the preparation of witnesses, aided with corroborating
testimony, or assisted in impeachment or rebuttal. See State
v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997). We also note
that Johnson’s counsel did not contest the State’s description
of the deposition held on November 6, 2020. The deposi-
tion responses read into the record by the State indicated that
Johnson’s counsel was made aware of the cooperation agree-
ment at that time. Moreover, the State turned over the coopera-
tion agreement prior to trial, and the fact that Tara was receiv-
ing a benefit in exchange for her testimony was brought to the
jury’s attention by both the State and Johnson during Tara’s
testimony. We also observe, as Johnson concedes on appeal,
that he could have requested a continuance as a cure to any
prejudice suffered, yet he failed to do so.
We are also not persuaded by the State’s excuse for the
delay in producing the cooperation agreement to Johnson in
compliance with the district court’s discovery order; however,
in this instance, the State’s delay did not result in prejudice to
Johnson because the cooperation agreement was not material
to the preparation of his defense for the reasons stated above.
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Cite as 31 Neb. App. 207Therefore, we cannot say the district court abused its discretion
in allowing Tara to testify.
3. Admissibility of Ricardo’s
Prior Convictions
Johnson next claims that the district court erred in prevent-
ing the impeachment of Ricardo’s testimony with evidence
of Ricardo’s prior convictions pursuant to Neb. Rev. Stat.
§ 27-405 (Reissue 2016).
(a) Background
During the course of the State’s direct examination of
Ricardo, he testified that he had a past history of violent behav-
ior, including his involvement in several fights when he was
younger. Ricardo also testified that when Johnson approached
him outside of his home after their first encounter inside, he
had thoughts of striking Johnson with the beer bottle in his
hand “to defend [him]self ” due to his belief that Johnson was
carrying a firearm.
During cross-examination, Johnson’s counsel wished to
reference Ricardo’s prior criminal history and put into evi-
dence records of Ricardo’s prior convictions for violent crimes
(marked as exhibits 42 and 44 through 47) as demonstrating
Ricardo’s violent character. Following an offer of proof out-
side the presence of the jury, the court ruled that these exhibits
were admissible only upon Ricardo’s denial of the conduct
underlying these records; the exhibits were otherwise inad-
missible. Upon cross-examination into his history of violent
behavior, Ricardo denied committing kidnapping and robbery
in January 2010, and exhibit 42, which contained records of
Ricardo’s convictions for these offenses, was received into
evidence. Ricardo similarly denied having committed robbery
in an incident in September 2010, although exhibit 46, which
contained the records of his conviction for this offense, was
not offered into evidence upon Ricardo’s denial. On further
examination, Ricardo conceded to having previously engaged
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Cite as 31 Neb. App. 207in multiple specific instances of violent conduct in 2010,
2009, and 1996. Ricardo further acknowledged having been
incarcerated for an unspecified period between 2010 and the
time of trial.
(b) Analysis
Johnson argues that the district court erred in not allowing
evidence of Ricardo’s prior convictions to be used to dem-
onstrate specific instances of Ricardo’s violent character. He
asserts that this evidence was admissible under § 27-405 and
that the cases State v. Sims, 213 Neb. 708, 331 N.W.2d 255(1983), and State v. Lowe, 244 Neb. 173, 505 N.W.2d 662(1993), permit the “presentation of specific incidents of a wit-
ness[’] conduct.” Brief for appellant at 33. Johnson does not
provide any elaboration or additional context concerning his
argument in his initial brief. Ordinarily, an argument that does
little more than restate an assignment of error does not sup-
port the assignment, and an appellate court will not address
it. See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
Nevertheless, since Johnson provides further explanation in his
reply brief, we will address why we find no error by the district
court in its handling of Ricardo’s past convictions.
[17] Section 27-405(2) provides that “[i]n cases in which
character or a trait of character of a person is an essential ele-
ment of a charge, claim, or defense, proof may also be made
of specific instances of his conduct.” This rule permits a
defendant to place specific examples of a person’s prior violent
conduct before the jury to the extent that such evidence of a
person’s violent character is relevant to the proof of a defend­
ant’s self-defense claim. See State v. Sims, supra (evidence of
homicide victim’s assault of another individual was relevant to
defendant’s claim that victim was first aggressor).
While the record and Johnson’s initial brief are not clear
concerning the relevance of Ricardo’s violent character, he
argues in his reply brief that this evidence was relevant to
his self-defense claim because he “could reasonably conclude
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Cite as 31 Neb. App. 207. . . that [Ricardo], [Tara], and [Zierke] were all in ‘the scam’
together and . . . were a threat to him.” Reply brief for appel-
lant at 6. He notes several pieces of testimony that he claims
indicated Ricardo was party to the alleged scheme, including
the evidence that (1) Zierke led the group to Ricardo’s home;
(2) Zierke, Ricardo, and Tara were having a conversation in
the bedroom before Zierke and Ricardo removed Johnson from
the residence; and (3) Ricardo fled from the scene of the shoot-
ing and refused to cooperate with police.
However, the record does not indicate that Johnson raised a
self-defense claim during trial concerning Ricardo’s conduct.
Rather, Johnson’s self-defense claim addressed only Zierke’s
alleged conduct at the encounter just prior to the shooting.
Moreover, there was no evidence offered at trial indicating
that Ricardo threatened Johnson or that Johnson ever per-
ceived Ricardo as a threat in the moments leading up to the
shooting. Trial testimony uniformly indicated that Ricardo
ran from the Trailblazer during the encounter between Zierke
and Johnson and that Ricardo returned to the scene only after
Johnson had shot Zierke. There were conflicting accounts as
to when precisely Ricardo returned, insofar as Johnson tes-
tified that Ricardo was “standing right there” immediately
after he shot Zierke, whereas Tara and Ricardo testified that
he returned after Johnson, Rodriguez, and Hardy left in the
Trailblazer. Nothing in the record supports Johnson’s argument
that Ricardo’s violent character was relevant to his self-defense
claim, because Ricardo was not involved in the encounter that
ended with Johnson’s shooting Zierke. Accordingly, we con-
clude that the district court did not abuse its discretion in rul-
ing exhibits 44 through 47 otherwise inadmissible if Ricardo
did not deny the underlying violent conduct.
4. § 27-404 Evidence
Johnson claims the district court erred in admitting evidence
under § 27-404 concerning an encounter between Johnson,
Rodriguez, and Hardy during trial.
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Cite as 31 Neb. App. 207(a) Background
On May 13, 2021, an incident occurred in the courthouse
involving Johnson, Rodriguez, and Hardy with multiple cor-
rections officers present. Rodriguez and Hardy were seated
near the courthouse’s elevator after the close of testimony. As
Johnson was escorted by corrections officers to the elevator, he
made statements toward Rodriguez and Hardy, as well as sub-
sequent statements in the presence of the corrections officers.
Accounts of Johnson’s statements conflict, and we proceed to
summarize the testimony provided during the § 27-404 hearing
held on May 14.
Sean Bramble was one of the corrections officers assigned
to transport Johnson to and from the courthouse during trial.
Bramble testified that as he escorted Johnson to the elevator,
Johnson “made a statement that [Rodriguez] was smirking at
him” and became upset, although he “didn’t hear quite every-
thing” Johnson said at the elevator. Bramble did not remember
whether either Rodriguez or Hardy said anything to Johnson.
However, Bramble recalled that when Johnson and the officers
were in the tunnel below the courthouse, Johnson stated that
“he had addresses of where [Rodriguez and Hardy] live, and
he could have their heads whenever he wanted to.” Bramble
believed that this statement was “less of a threat” and rather
“something [Johnson] could do if he wanted to.”
Gregory Thompson was also assigned to transport Johnson
to and from the courthouse on May 13, 2020. Thompson tes-
tified that as Johnson was escorted to the elevator, Johnson
“turned back towards” Rodriguez and Hardy and began speak-
ing to them. Thompson loudly told Johnson, “No talking,” mul-
tiple times “to drown out any conversation trying to be had.”
Thompson was not able to make out anything said by Johnson
to Rodriguez and Hardy. However, Thompson recalled that in
the tunnel below the courthouse, Johnson said that he “still
[knew] where [Rodriguez and Hardy] live and [that] if [he]
wanted [he] could have them whacked.” Thompson considered
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Cite as 31 Neb. App. 207this “more of a . . . broad statement” than a threat, but he still
found Johnson’s statement “[c]oncerning.”
Rodriguez recalled that he and Hardy were waiting near the
courthouse elevator that evening for the prosecutor to “come
tell [them] what to do.” Rodriguez testified that as officers
escorted Johnson to the elevator, Johnson “said his brother’s
coming after [him],” which Rodriguez understood to mean
that Johnson’s brother was going “[t]o go shoot up [his] house
. . . or come kill [him or his] family.” Rodriguez considered
this statement to be a threat.
Hardy similarly recalled waiting for the prosecutor near
the courthouse elevator. Hardy testified that as Johnson was
escorted to the elevator, she “understood [Johnson] to say,
[‘T]hat’s fucked up, man, and my brother’s going to get
you.[’]” Hardy believed this statement to be a threat that
Johnson’s brother was “going to probably attempt to do some-
thing to us for testifying.” She testified that she was not look-
ing at Johnson when he made these statements, as she was
talking to Rodriguez at that moment.
Johnson testified that as he left the courtroom toward the
courthouse elevator, he saw that Rodriguez “was smirking at
[him].” Johnson then said in response, “[M]other fucker, that’s
fucked up. Why you sitting there smirking at me, bro? That’s
just fucked up, man.” Johnson recalled that when he entered
the elevator, he “still was expressing . . . that it was wrong that
[Rodriguez] was sitting there smirking at [him] like that.” He
later said that “if [he] wanted to do something to [Rodriguez
and Hardy], [he] could have just sent the paperwork and had
something done.” Johnson did not dispute the testimonies of
Bramble and Thompson concerning his statements, but he
denied saying “anything about [his] brother” and “hav[ing] the
ability to have something done” to Rodriguez and Hardy.
After considering the offered testimony, the district court
found by clear and convincing evidence that Johnson “made
statements, including statements to the corrections officers,
that he could have something happen to the witnesses; and that
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Cite as 31 Neb. App. 207he made statements to witnesses Rodriguez and Hardy that his
brother was going to get them.” The court found these state-
ments “relevant towards consciousness of guilt,” but chose
to exclude the “statements [by Johnson] to the corrections
officers” pursuant to Neb. Rev. Stat. § 27-403 (Reissue 2016)
due to the risk of “the jury just accepting [those statements] as
bad character on the part of [Johnson].” The court thereafter
permitted Rodriguez and Hardy to testify to Johnson’s state-
ments with the jury present. Johnson requested permission to
call the corrections officers to testify to rebut the testimonies of
Rodriguez and Hardy, and the court granted this request. The
witnesses thereafter testified before the jury consistently with
their prior testimony.
(b) Analysis
Johnson argues that the district court abused its discretion in
finding that the State proved by clear and convincing evidence
that he had threatened Rodriguez and Hardy at the courthouse
elevator. He claims that because “only two out of five wit-
nesses testified to . . . Johnson’s brother coming to get them,”
the State failed to meet the clear and convincing evidence stan-
dard under § 27-404. Brief for appellant at 32.
[18] Section 27-404(1) generally prohibits the admission
of “[e]vidence of a person’s character or a trait of his or her
character . . . for the purpose of proving that he or she acted
in conformity therewith on a particular occasion[.]” However,
“[e]vidence of other crimes, wrongs, or acts . . . may . . . be
admissible for other purposes . . . .” § 27-404(2). Such pur-
poses may include demonstrating a defendant’s consciousness
of guilt. See State v. Burries, 297 Neb. 367, 900 N.W.2d 483(2017) (defendant’s letter to witness was intended to threaten
her prior to her testimony at trial, and letter was relevant to
show his consciousness of guilt).
[19,20] Pursuant to § 27-404(3), “evidence of other crimes,
wrongs, or acts of the accused may be offered in evidence by
the prosecution if the prosecution proves to the court [outside
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Cite as 31 Neb. App. 207the presence of the jury] by clear and convincing evidence
that the accused committed the crime, wrong, or act.” The
prosecution must state the specific purpose or purposes for
which the evidence is offered, and the trial court must simi-
larly state the purpose or purposes for which the evidence
is received. See State v. Burries, supra. The court must then
consider whether the evidence is independently relevant and
whether the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice. See id.[21,22] Johnson’s argument on appeal contests solely
whether the State satisfied its burden to prove by clear and
convincing evidence that Johnson made threatening statements
toward Rodriguez and Hardy. An appellate court will affirm a
trial court’s ruling that the defendant committed an uncharged
extrinsic crime or bad act if, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found with a firm conviction the essential ele-
ments of the uncharged crime or bad act. See State v. Kofoed,
283 Neb. 767, 817 N.W.2d 225 (2012). Further, just as when
reviewing a sufficiency of the evidence claim regarding a
conviction, an appellate court, when reviewing the sufficiency
of an extrinsic crime or bad act, does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh
the evidence. See id. (holding that standard for reviewing
sufficiency of evidence claims regarding conviction applies
equally to reviewing sufficiency of evidence claims in context
of § 27-404).
Johnson’s argument essentially asks this court to reweigh
the credibility of the testimony provided at the § 27-404 hear-
ing. As previously set forth, it is not within the scope of our
appellate review to resolve conflicts in the evidence presented
at a § 27-404 hearing or to otherwise pass on the credibility of
the witnesses who testified. See State v. Kofoed, supra. Rather,
we must view the evidence in the light most favorable to the
prosecution. See id. Upon our review of the offered testimony,
we find that a rational fact finder could have determined with
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Cite as 31 Neb. App. 207a firm conviction that Johnson made threatening statements to
Rodriguez and Hardy. Accordingly, the district court did not
abuse its discretion in admitting the testimonies of Rodriguez
and Hardy.
5. Double Jeopardy
Johnson argues that the consecutive sentences imposed by
the district court for count VII (discharge of a firearm in a city
of the first class) and count VIII (use of a deadly weapon to
commit a felony) violate the Double Jeopardy Clauses of the
U.S. and Nebraska Constitutions. The Double Jeopardy Clause
of the Fifth Amendment to the U.S. Constitution provides, “No
person shall . . . be subject for the same offence to be twice
put in jeopardy of life or limb . . . .” “The 5th Amendment’s
protection against double jeopardy applies to states through the
14th Amendment to the U.S. Constitution.” State v. Bedolla,
298 Neb. 736, 742-43, 905 N.W.2d 629, 634 (2018). Johnson
contends that because the statutes pertinent to discharge of
a firearm and use of a deadly weapon (firearm) to commit a
felony “have the same elements,” imposing punishment for
both offenses violates double jeopardy. Brief for appellant at
35. Johnson suggests that our analysis should center on the
“statutory elements test” of Blockburger v. United States, 284
U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), which calls for
“comparing the elements of each crime of which [a] defendant
is convicted.” Brief for appellant at 34. However, as discussed
below, it is unnecessary to engage in such an analysis.
[23-25] The Double Jeopardy Clause protects against
three distinct abuses: (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the
same offense. State v. McBride, 252 Neb. 866, 567 N.W.2d
136 (1997). “The protection provided by Nebraska’s dou-
ble jeopardy clause is coextensive with that provided by the
U.S. Constitution.” State v. Dragoo, 277 Neb. 858, 862, 765
N.W.2d 666, 670 (2009) (under Blockburger, where same act
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Cite as 31 Neb. App. 207or transaction constitutes violation of two distinct statutory
provisions, test to determine whether there are two offenses or
only one is whether each provision requires proof of fact which
other does not). See, also, Whalen v. United States, 445 U.S.
684, 689, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980) (Double
Jeopardy Clause at “very least precludes federal courts from
imposing consecutive sentences unless authorized by Congress
to do so”; power to define criminal offenses and prescribe
punishments to be imposed reside wholly with Congress).
“[W]here two statutory provisions proscribe the ‘same offense,’
they are construed not to authorize cumulative punishments in
the absence of a clear indication of contrary legislative intent.”
Whalen v. United States, 445 U.S. at 692.
At issue are Johnson’s convictions for discharge of a fire-
arm in a city of the first class (count VII), a Class IC felony,
in violation of § 28-1212.04, and a corresponding count of
use of a deadly weapon to commit a felony (count VIII), also
a Class IC felony, in violation of § 28-1205(1)(a) and (c).
Section 28-1212.04 states, in relevant part:
Any person, within . . . any city of the first class
. . . who unlawfully, knowingly, and intentionally or reck-
lessly discharges a firearm, while in any motor vehicle or
in the proximity of any motor vehicle that such person
has just exited, at or in the general direction of any per-
son, dwelling, building, structure, [or] occupied motor
vehicle . . . is guilty of a Class IC felony.
Section 28-1205 provides, in relevant part:
(1)(a) Any person who uses a firearm, a knife, brass or
iron knuckles, or any other deadly weapon to commit any
felony which may be prosecuted in a court of this state
commits the offense of use of a deadly weapon to commit
a felony.
(b) Use of a deadly weapon, other than a firearm, to
commit a felony is a Class II felony.
(c) Use of a deadly weapon, which is a firearm, to
commit a felony is a Class IC felony.
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(3) The crimes defined in this section shall be treated
as separate and distinct offenses from the felony being
committed, and sentences imposed under this section
shall be consecutive to any other sentence imposed.
....
(5) For purposes of this section:
....
(b) Use of a deadly weapon includes the discharge,
employment, or visible display of any part of a firearm,
a knife, brass or iron knuckles, any other deadly weapon,
or a destructive device during, immediately prior to, or
immediately after the commission of a felony or com-
munication to another indicating the presence of a firearm
[or] any other deadly weapon, . . . immediately prior to,
or immediately after the commission of a felony, regard-
less of whether such firearm [or other] deadly weapon,
or destructive device was discharged, actively employed,
or displayed.
Johnson argues that the statutory elements of counts VII
and VIII are identical, insofar as the “use” of the firearm in
this case resulted from Johnson’s “discharge” of that same
firearm in a city of the first class. Brief for appellant at 34. He
asserts, “[I]t is hard to envision a situation where the firearm’s
discharge is not a use of the firearm. One cannot discharge a
firearm without using it.” Id. Since “[b]oth statutes have the
same elements,” id. at 35, he contends that under the statu-
tory elements test set forth in Blockburger v. United States,
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), he may
not be consecutively sentenced for discharging a firearm in a
city of the first class and use of that same firearm to commit
a felony. Notably, Johnson does not address § 28-1205(5)(b),
other than briefly referencing it to say that it “defines ‘use’ to
include discharge.” Reply brief for appellant at 7. However, as
set forth above, § 28-1205(5)(b) specifically states that “[u]se
of a deadly weapon includes the discharge, employment, or
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Cite as 31 Neb. App. 207visible display of any part of a firearm, . . . during, immedi-
ately prior to, or immediately after the commission of a felony
. . . regardless of whether such firearm . . . was discharged,
actively employed, or displayed.” Based on that statutory lan-
guage, merely employing or displaying any part of a firearm
immediately prior to, during, or immediately after committing
the underlying offense of discharging a firearm constitutes
use of a deadly weapon regardless of whether the firearm
was discharged, actively employed, or displayed. Therefore,
while Johnson’s assertion that “it is hard to envision a situa-
tion where the firearm’s discharge is not a use of the firearm,”
brief for appellant at 34, may be true, it does not necessar-
ily follow that the use of a firearm requires the discharge of
that firearm.
[26,27] Regardless, “the Blockburger test does not apply
when there is clear legislative intent regarding whether con-
duct involves a single offense or multiple offenses.” State
v. Ballew, 291 Neb. 577, 590, 867 N.W.2d 571, 582 (2015)
(Blockburger test is aid to statutory interpretation and is
not controlling where there is clear indication of legislative
intent). “[W]hen the Legislature has demonstrated an intent to
permit cumulative punishments, the Double Jeopardy Clause
is not violated as long as the court imposes the cumulative
punishments in a single proceeding.” State v. Dragoo, 277
Neb. 858, 864, 765 N.W.2d 666, 671 (2009). See, also, State
v. Mata, 273 Neb. 474, 481, 730 N.W.2d 396, 401-02 (2007)
(statute establishing crime of using deadly weapon to com-
mit felony expressly provides Legislature intended such use
remain independent offense from underlying felony; “‘no
question that the Legislature intended that one using a deadly
weapon be subjected to cumulative punishments for commit-
ting the underlying felony and for the use of the weapon to
commit it’”).
The Nebraska Supreme Court has previously rejected
Johnson’s argument that separate punishment for discharg-
ing and using the same firearm violates the Double Jeopardy
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Cite as 31 Neb. App. 207Clause. In State v. McBride, 252 Neb. 866, 567 N.W.2d 136(1997), the appellant claimed that he was twice put in jeopardy
by being separately punished for both discharging and using
the same firearm. The Nebraska Supreme Court held that the
Double Jeopardy Clause did not bar cumulative punishments
for unlawful discharge of a firearm under Neb. Rev. Stat.
§ 28-1212.02 (Reissue 1995) and use of a firearm to commit
a felony under § 28-1205 (Reissue 1995). In so holding, the
court reiterated that “‘[i]f the statute clearly and affirmatively
indicates that the legislature intended that the defendant be
punished cumulatively under both charges and the sentences
for both charges are imposed in a single trial, the Double
Jeopardy Clause is not offended.’” State v. McBride, 252 Neb.
at 882, 567 N.W.2d at 147 (quoting State v. McHenry, 250
Neb. 614, 550 N.W.2d 364 (1996)).
McBride observed that § 28-1205(3) provided that the “crime
of using a deadly weapon to commit a felony ‘shall be treated
as [a] separate and distinct [offense] from the felony being
committed, and sentences imposed under this section shall be
consecutive to any other sentence imposed.’” State v. McBride,
252 Neb. at 882, 567 N.W.2d at 147. The court further noted
that “the crime of using a deadly weapon to commit a felony
applies to ‘[a]ny person who uses a firearm . . . to commit any
felony.’” State v. McBride, 252 Neb. at 882, 567 N.W.2d at
147 (quoting § 28-1205(1)). Based on this statutory language,
the Nebraska Supreme Court concluded that “there can be no
question that the Legislature intended that one using a deadly
weapon be subjected to cumulative punishments for commit-
ting the underlying felony and for the use of the weapon to
commit it.” State v. McBride, 252 Neb. at 882, 567 N.W.2d at
147. The court determined that the separate sentences imposed
for discharging and using the same firearm did not violate the
Double Jeopardy Clause.
[28] Notably, § 28-1205 was not amended for more than
a decade after the Nebraska Supreme Court’s decision in
McBride, thus indicating the Legislature’s acceptance of the
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Cite as 31 Neb. App. 207court’s determination of its intent. See Drought v. Marsh, 304
Neb. 860, 937 N.W.2d 229 (2020) (where statute has been judi-
cially construed and that construction has not evoked amend-
ment, it will be presumed that Legislature acquiesced to court’s
determination of Legislature’s intent). However, in 2009,
§ 28-1205 underwent several revisions. Section 28-1205(1)
previously included both “use[]” and “possess[ion]” of a
deadly weapon, but the 2009 amendment moved possession of
a deadly weapon to its own section and imposed lower felony
classifications to “possession” offenses compared to “use”
offenses. Importantly, § 28-1205(3) (Reissue 2016) remained
unchanged, leaving intact the treatment of use and possession
of a deadly weapon as separate and distinct offenses from the
felony being committed and also leaving intact the requirement
that sentences be consecutive to any other sentence imposed.
Finally, § 28-1205(5)(b), set forth previously, was added to
the statute. The Legislature’s retention of § 28-1205(3) and its
addition of § 28-1205(5)(b) confirmed its intent to make use of
a firearm a separate offense from discharge of a firearm.
[29] Regarding § 28-1212.02, the unlawful discharge of a
firearm statute at issue in State v. McBride, 252 Neb. 866, 567
N.W.2d 136 (1997), we note that it was minimally modified
in 2009, primarily to change the offense’s classification from
a Class III felony to a Class ID felony. Section 28-1212.04,
the unlawful discharge of a firearm statute applicable in this
case, was enacted post-McBride in 2009; it created a separate
offense for discharge of a firearm in certain cities and counties
and made the offense a more serious Class IC felony. Notably,
the Legislature did not include in § 28-1212.04 any language
creating an exception to § 28-1205(3), which, as discussed, had
previously been interpreted by the Nebraska Supreme Court
to require treating use of a firearm to commit a felony as a
separate and distinct offense from the felony being commit-
ted, specifically the offense of discharging a firearm, and to
require that sentences imposed be consecutive. Accordingly,
we construe §§ 28-1212.04 and 28-1205(3) pursuant to the
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Cite as 31 Neb. App. 207holding in McBride construing §§ 28-1212.02 and 28-1205(3)
(Reissue 1995). Therefore, any person committing the felony
of discharging a firearm in a city of the first class shall be
subjected to cumulative punishments in a single proceeding
for both the offense of discharging a firearm and the offense
of using a deadly weapon (firearm) to commit that felony. See
State v. McBride, supra.[30] Further analysis under Blockburger v. United States,
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), is not neces-
sary. See State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999)
(where Legislature specifically authorizes cumulative punish-
ment under two statutes, regardless of whether those statutes
proscribe “same” conduct under Blockburger, court’s task of
statutory construction ends and cumulative punishment under
such statutes in single trial may be imposed). Accordingly, we
find no error in the sentences imposed by the district court.
VI. CONCLUSION
For the reasons set forth above, we find that the district court
did not err in its evidentiary rulings and in sentencing Johnson.
Accordingly, we affirm Johnson’s convictions and sentences.
Affirmed.