State v. Casterline , 293 Neb. 41 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
03/18/2016 09:18 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. CASTERLINE
Cite as 293 Neb. 41
State of Nebraska, appellee, v.
A ndrew Casterline, appellant.
___ N.W.2d ___
Filed March 18, 2016. No. S-15-045.
1. Criminal Law: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact.
2. ____: ____: ____. The relevant question when an appellate court
reviews a sufficiency of the evidence claim is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
3. 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.
4. Trial: Evidence: Appeal and Error. An appellate court reviews the
trial court’s conclusions with regard to evidentiary foundation and wit-
ness qualification for an abuse of discretion.
5. Jury Instructions. Whether the jury instructions given by a trial court
are correct is a question of law.
6. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the conclusion
reached by the lower court.
7. Robbery: Words and Phrases. A person commits robbery if, with the
intent to steal, he forcibly and by violence, or by putting in fear, takes
from the person of another any money or personal property of any
value whatever.
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8. Aiding and Abetting. A person who aids, abets, procures, or causes
another to commit any offense may be prosecuted and punished as if he
were the principal offender.
9. Aiding and Abetting: Proof. Aiding and abetting requires some partici-
pation in a criminal act which must be evidenced by word, act, or deed,
and mere encouragement or assistance is sufficient to make one an aider
or abettor. No particular acts are necessary, however, nor is it necessary
that the defendant take physical part in the commission of the crime or
that there was an express agreement to commit the crime.
10. ____: ____. Evidence of mere presence, acquiescence, or silence is not
enough to sustain the State’s burden of proving guilt under an aiding and
abetting theory.
11. Homicide: Robbery: Intent: Time. There is no statutory requirement
that the intent to rob be formed at any particular time as long as the
homicide occurs as the result of acts committed while in the perpetration
of the robbery.
12. Evidence: Proof. The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence suf-
ficient to support a finding that the matter in question is what its propo-
nent claims.
13. Rules of Evidence: Proof. Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901
(Reissue 2008), does not impose a high hurdle for authentication or
identification.
14. ____: ____. A proponent of evidence is not required to conclusively
prove the genuineness of the evidence or to rule out all possibilities
inconsistent with authenticity. If the proponent’s showing is sufficient
to support a finding that the evidence is what it purports to be, the pro-
ponent has satisfied the requirement of Neb. Evid. R. 901(1), Neb. Rev.
Stat. § 27-901(1) (Reissue 2008).
15. Trial: Evidence. Authentication rulings are necessarily fact specific,
so a trial court has discretion to determine whether evidence has been
properly authenticated.
16. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
17. Trial: Evidence: Appeal and Error. On appeal, a defendant may not
assert a different ground for his objection to the admission of evidence
than was offered at trial.
18. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
19. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
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are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
Appeal from the District Court for Webster County: Stephen
R. Illingworth, Judge. Affirmed.
Charles D. Brewster, of Anderson, Klein, Swan & Brewster,
for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ., and R iedmann, Judge.
Wright, J.
I. NATURE OF CASE
Andrew Casterline appeals from his convictions following
a jury trial for first degree murder, use of a deadly weapon
to commit a felony, and burglary. He claims the evidence
was insufficient to support his convictions for the first two
offenses. He also assigns that the district court erred in admit-
ting certain evidence and in including certain language in
its instructions to the jury. For the reasons set forth below,
we affirm.
II. BACKGROUND
Casterline moved to Guide Rock, Nebraska, with his mother,
Shelley Casterline (Shelley), who wanted to start a new life
after she was released from prison. Shelley had maintained an
“on again, off again” relationship with Ronald Jamilowski, the
father of her twin daughters. Casterline lived with Shelley and
Jamilowski for a few months, but then moved into the house
next door, which was another property Jamilowski owned.
Jamilowski’s mother, Virginia Barone, who was the victim,
lived nearby.
The relationship between Casterline, Shelley, Jamilowski,
and Barone was quite volatile. Although they saw each
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other daily, none of them got along very well. Shelley and
Jamilowski had tried to rekindle their relationship, but they
argued and got into physical altercations frequently, due mostly
to Jamilowski’s drinking. Shelley and Barone often fought
about money and about Shelley’s relationship with Jamilowski,
of which Barone apparently did not approve. Casterline got
into arguments with Shelley, and he was known to have
“hated” Jamilowski.
1. Events Surrounding K illing
During the early evening on October 3, 2013, Casterline
went to Hastings, Nebraska, to run errands with his friend,
Trevor Marihugh, who lived across the street from Casterline,
Shelley, and Jamilowski. They took Marihugh’s vehicle, because
Casterline’s was not working. Both Casterline and Marihugh
were abusing prescription medications, and Marihugh ended
up getting arrested for driving under the influence. Around 3
a.m. the next day, Casterline called Shelley and said that he
needed a ride home from Hastings because Marihugh was in
jail. Shelley woke up Jamilowski and Barone, because Barone
was the only one with a car, and the three of them drove to
Hastings to pick up Casterline. On the way back to Guide
Rock, Jamilowski and Casterline were fistfighting in the back
seat, while Shelley and Barone were arguing in the front seat.
Barone even pulled over at one point and tried to throw Shelley
out of the vehicle. They continued to Guide Rock, and they all
went to their respective homes.
Just after 9 a.m., Casterline was seen using Barone’s auto-
matic teller machine (ATM) card at a bank in Superior,
Nebraska. A bank employee testified that she went out to
service the ATM and observed a young man standing at the
ATM and an older white or light-colored vehicle parked close
by. She identified Casterline as the man at the ATM. She
observed a middle-aged woman sitting in the passenger seat,
who was later determined to be Shelley, and there were vari-
ous things in the back seat, including a guitar case. The bank
employee testified that it was very obvious that Casterline did
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not want her to see what he was doing. After about 5 min-
utes, the woman in the passenger seat got out and spoke to
Casterline, at which point they both got back into the vehicle
and drove away.
The transaction history for Barone’s account confirmed that
several transactions occurred on Barone’s account on the morn-
ing of October 4, 2013. A “debit balance inquiry” occurred at
9:18 a.m., followed by a withdrawal of $500 at 9:19 a.m. There
were several more attempted withdrawals over the next couple
of minutes, but those attempts were denied due to the $500
daily ATM withdrawal limit. The bank employee explained that
in order to withdraw cash from an ATM using a debit card, one
must have the personal identification number (PIN) for that
card, which is selected by the card owner and is not retained by
the bank. In the event a customer loses his or her PIN, the card
must be canceled and a new card must be ordered, because it is
not possible for the bank to retrieve a PIN; that information is
destroyed as soon as the card is created.
Throughout that day, Casterline and Shelley stopped at vari-
ous places to get more money—including the Wal-Mart stores
in Hastings; Grand Island, Nebraska; and York, Nebraska—
where they used Barone’s debit card to make numerous small
purchases and got large sums of cash back with each pur-
chase. Between their purchases and withdrawals, Casterline
and Shelley stole more than $2,000 from Barone, which nearly
emptied her bank account. At approximately 1:30 p.m., they
stopped at a pawn shop in Grand Island and sold several things,
including a television, a video game system with 13 games,
and an amplifier for a guitar, for which they received a total
of $309.
While traveling in Barone’s vehicle on Interstate 80 near
Plattsmouth, Nebraska, Casterline and Shelley were stopped
about 7:40 p.m. for a traffic violation. The officer who made
the stop testified that Casterline appeared to be under the influ-
ence of prescription drugs. He observed that Casterline’s nails
were dirty and he had several nicks and cuts on his hands.
Casterline told the officer that the vehicle belonged to his
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grandmother and that she was letting him borrow it to go to his
grandfather’s funeral in Pennsylvania. Casterline was arrested
for driving under the influence and taken to the Plattsmouth
jail. Shelley was released, but Barone’s vehicle was impounded
because Shelley did not have a valid driver’s license.
At approximately 9:30 p.m., Marihugh returned home to
Guide Rock and discovered that his house had been burglar-
ized. Several things were missing, including his television, his
video game system with several games, two laptop computers,
two guitars, and an amplifier. He reported the burglary to law
enforcement, who discovered that some of the items stolen
from his house had been sold to a pawn shop in Grand Island
by Casterline and Shelley. Marihugh testified that he did not
give Casterline or Shelley permission to go into his house and
take any items.
The next morning, law enforcement received a telephone
call from one of Barone’s neighbors requesting a welfare
check at Barone’s house. A sheriff’s deputy entered the home
with the neighbor and found that several pieces of furniture
had been knocked over. The officer followed a trail of blood
to a back room and found Barone dead under a pile of boards.
Barone had sustained multiple stab wounds and several cuts on
her fingers, which appeared to be defensive wounds from try-
ing to block a sharp object. She had some small drops of blood
on her face, which suggested that she may have been breath-
ing for some time after she was stabbed and had breathed
out blood.
Investigators observed a bloodstain on a rug in the living
room, a shoe in the living room with blood on it, blood smears
which appeared to be drag marks leading from the living room
to the room where Barone’s body was found, and drops of
blood on the porch area outside the front door. The telephone
appeared to have been ripped out of the wall, and a number
of things were lying in the driveway where Barone normally
parked her vehicle. Investigators found no financial devices
in Barone’s purse, and her vehicle, a white 1995 Pontiac,
was missing.
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During the investigation, Jamilowski arrived at Barone’s
house and was detained for questioning. After speaking with
Jamilowski, law enforcement officers identified Casterline
and Shelley as suspects in Barone’s death. They learned that
Casterline had been arrested the night before in Cass County
while driving Barone’s vehicle, but had since been released, and
that he and Shelley were believed to be heading east through
Iowa in a stolen Jeep. Police were able to track Shelley’s cell
phone to a location near Newton, Iowa. Authorities in Iowa
were notified and performed a traffic stop on the stolen Jeep,
and identified the occupants as Casterline and Shelley.
Upon searching Casterline, officers located $322 cash, sev-
eral Wal-Mart and ATM receipts, and Barone’s debit card.
Shelley had over $2,000 in her purse. A search of the Jeep
revealed a bag with Marihugh’s name on it, two laptop comput-
ers, and a knife with a 4-inch blade inside the glovebox. The
owner of the Jeep testified that none of those items were in the
Jeep when it was stolen from a parking lot in Plattsmouth the
day before.
Casterline and Shelley were arrested and taken to a detention
center in Iowa. At the time of booking, officers observed vari-
ous injuries. Shelley had a bruise on her right arm and some
small scrapes on her right wrist and index finger. Casterline
had a bruise above his eye, cuts on the thumb and fingers of
his right hand, an abrasion on his left forearm, and dried blood
on his right palm. Officers collected DNA samples and finger-
nail scrapings from Casterline and Shelley and collected the
clothing that they were wearing. Casterline was reluctant to
give the officers his clothing.
2. Investigation
Casterline and Shelley were interviewed by investigators
the following day. Shelley initially denied having anything to
do with Barone’s death, but later admitted to killing Barone.
She claimed Casterline had nothing to do with it. Shelley
told investigators that when they got back from Hastings, she
and Casterline went to Barone’s house and the three of them
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argued. Barone was blaming Shelley for Jamilowski’s prob-
lems, at which point Casterline told Barone to shut up or he
would knock her out.
Shelley stated that she grabbed a knife and began stabbing
Barone, then dragged Barone into another room and covered
her body with boards. She said that Casterline was there when
she killed Barone but that he had nothing to do with the killing.
However, she acknowledged that she was taking blame for the
murder in order to “save [Casterline’s] life.”
When Casterline was interviewed, he claimed that he and
Shelley had nothing to do with Barone’s death and that he
had no idea Barone was dead. He later admitted that he was
at Barone’s house when Barone and Shelley got into an argu-
ment, but claimed that he went home during the argument
and did not know how Barone died. Later during the inter-
view, however, Shelley began screaming from another room
that she killed Barone, at which point Casterline stated that
Shelley did it but maintained that he had nothing to do with
Barone’s death.
Investigators performed DNA testing on the knife found
in the Jeep and the clothing that Casterline and Shelley were
wearing when they were apprehended. They compared those
results to known DNA samples from Casterline, Shelley,
Barone, Jamilowski, and Marihugh. They located DNA on the
blade of the knife and on three pieces of clothing: Casterline’s
jeans, Casterline’s shoe, and Barone’s sweatpants. The DNA
on the knife was a mixture of two individuals, with Casterline
being the major contributor and everyone except Shelley being
excluded as the minor contributor. The DNA on Casterline’s
jeans tested positive for blood and was a mixture of two con-
tributors, with Barone being the major contributor and every-
one except Casterline being excluded as the minor contributor.
The DNA on Casterline’s shoe also tested positive for blood
and matched the DNA profile of Barone only. The DNA on
Barone’s sweatpants was inconclusive as to the major contribu-
tor, but everyone except Casterline, Shelley, and Barone being
excluded as a minor contributor.
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The forensic pathologist who conducted the autopsy con-
cluded that Barone’s death was a homicide. The autopsy
revealed that Barone sustained 22 stab wounds, which varied
from 1⁄2 to 81⁄2 inches in depth. The angle of the stab wounds
also varied. Seven of the wounds were inflicted at a downward
trajectory, and 13 were inflicted at an upward trajectory. The
pathologist testified that more than one knife may have been
used to stab Barone, although she could not confirm whether
that was actually the case. She explained that it is possible for
a knife to inflict wounds deeper than its blade length, due to
the way the body reacts when it is punctured. She concluded
that the cause of Barone’s death was stab wounds to the chest,
upper arm, and abdomen, which caused her to bleed out and
die from loss of blood.
3. Shelley’s Testimony
Shelley testified for the defense. She testified that she alone
killed Barone and that Casterline had nothing to do with it. She
explained that shortly after they arrived home from Hastings,
she walked to Barone’s house with the intention of retriev-
ing her cell phone, which she had left in Barone’s car. She
and Barone got into an intense argument that was about to
turn physical, when Casterline entered the house looking for
Shelley. Shelley told Casterline to get out of the house, which
he did. Shelley then grabbed a knife and stabbed Barone multi-
ple times. Shelley said Casterline came back into the house and
saw Barone lying on the floor. She decided to drag Barone’s
body into another room and convinced Casterline to help her.
Shelley then told Casterline to pack his things because they
were leaving town. She admitted that before leaving, they went
to Marihugh’s house and took several items of his personal
property, and then left town in Barone’s car. She admitted they
used Barone’s debit card to obtain money at an ATM and by
doing “cash back” transactions at three Wal-Mart stores in cen-
tral Nebraska.
At trial, several details of Shelley’s testimony were inconsist­
ent with what she told investigators when she was interviewed
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in Iowa following her arrest. For example, she testified at trial
that Casterline was not at Barone’s house when she stabbed
Barone, whereas in her prior interview, she said that he was
present during the killing. She testified that Casterline helped
her move Barone’s body after the stabbing, but in her prior
interview she said that she alone moved the body. Finally, she
testified at trial that she took Barone’s ATM card and called the
bank to get the PIN, whereas in her prior interview, she said
that she knew nothing about the use of Barone’s ATM card and
that investigators would have to talk to Casterline about that.
Shelley acknowledged several of the inconsistencies on cross-
examination, but stated that her trial testimony was the truth
and that she must have been misremembering things during
her prior interview due to having been under the influence of
prescription drugs at that time.
On cross-examination, Shelley acknowledged that she wrote
a letter to one of her daughters stating that two knives may
have been involved in the murder, but claimed at trial that that
was not true and that she was just misremembering what hap-
pened. Shelley acknowledged that she told her daughter that
Barone struck Casterline, but claimed at trial that that was not
true either and that she lied to her daughter. Shelley acknowl-
edged that prior to trial, she wrote a letter to her daughter, who
in turn wrote to Casterline, about there being blood on him
because Shelley made him move the body, but Shelley denied
that she was attempting to coordinate their testimony.
4. Verdicts and Sentencing
The jury found Casterline guilty on all three charges.
Casterline was sentenced to consecutive terms of life imprison-
ment for first degree murder, 49 to 50 years’ imprisonment for
use of a deadly weapon to commit a felony, and 19 to 20 years’
imprisonment for burglary. This timely appeal followed.
III. ASSIGNMENTS OF ERROR
Casterline assigns, combined and restated, that the dis-
trict court erred in (1) finding sufficient evidence to sustain
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his convictions for first degree murder and use of a deadly
weapon to commit a felony; (2) admitting into evidence with-
out proper foundation a letter that was purportedly written by
Casterline while in jail following his arrest; (3) admitting into
evidence, over Casterline’s relevance objection, the knife that
was found in the Jeep in which Casterline and Shelley were
traveling when they were apprehended; and (4) improperly
instructing the jury on the elements of first degree murder,
second degree murder, and manslaughter by adding language
that Casterline was guilty if he acted “either alone or by
aiding another,” and by refusing Casterline’s proposed ele-
ments instructions.
IV. STANDARD OF REVIEW
[1,2] In reviewing a criminal conviction for a sufficiency
of the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact.1 The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.2
[3,4] When 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.3 An appellate court reviews the trial court’s
conclusions with regard to evidentiary foundation and witness
qualification for an abuse of discretion.4
1
State v. Escamilla, 291 Neb. 181, 864 N.W.2d 376 (2015).
2
Id.
3
State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
4
State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).
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[5,6] Whether the jury instructions given by a trial court
are correct is a question of law.5 When reviewing questions of
law, an appellate court resolves the questions independently of
the conclusion reached by the lower court.6
V. ANALYSIS
1. Sufficiency of Evidence
Casterline claims there was insufficient evidence to sustain
his convictions for first degree murder and use of a deadly
weapon to commit a felony. He does not dispute that the evi-
dence was sufficient to find him guilty of burglary.
In reviewing a criminal conviction for a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact.7 The relevant question for
an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.8
(a) Essential Elements
[7] Casterline was charged with first degree murder under
the alternative theories of premeditated murder and felony
murder. In order to find him guilty of first degree murder, the
State had to prove that Casterline killed Barone, either alone
or by aiding another, and that he did so either (1) purposely
and with deliberate and premeditated malice or (2) while in the
perpetration of a robbery.9 A person commits robbery if, with
5
State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).
6
Id.
7
State v. Escamilla, supra note 1.
8
Id.
9
See Neb. Rev. Stat. § 28-303 (Reissue 2008).
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the intent to steal, he forcibly and by violence, or by putting in
fear, takes from the person of another any money or personal
property of any value whatever.10
Casterline was also charged with use of a deadly weapon to
commit a felony, which, in this case, was the murder of Barone.
To find him guilty of this offense, the State had to prove that
Casterline, either alone or by aiding another, knowingly and
intentionally used a deadly weapon to murder Barone.
[8-10] The jury was instructed in this case that it could con-
vict Casterline of these crimes either as the principal offender
or as an aider and abettor. A person who aids, abets, procures,
or causes another to commit any offense may be prosecuted
and punished as if he were the principal offender.11 Aiding and
abetting requires some participation in a criminal act which
must be evidenced by word, act, or deed, and mere encourage-
ment or assistance is sufficient to make one an aider or abet-
tor.12 No particular acts are necessary, however, nor is it neces-
sary that the defendant take physical part in the commission
of the crime or that there was an express agreement to commit
the crime.13 Yet, evidence of mere presence, acquiescence, or
silence is not enough to sustain the State’s burden of proving
guilt under an aiding and abetting theory.14
(b) Evidence Against Casterline
We review the State’s evidence against Casterline to deter-
mine whether any rational trier of fact could have found the
essential elements of first degree murder and use of a deadly
weapon to commit a felony beyond a reasonable doubt. We
conclude that the record contains sufficient evidence to sustain
Casterline’s convictions on both counts.
10
Neb. Rev. Stat. § 28-324(1) (Reissue 2008).
11
Neb. Rev. Stat. § 28-206 (Reissue 2008).
12
State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).
13
Id.
14
Id.
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At trial, the evidence showed that Casterline stole Barone’s
vehicle and used her debit card to steal nearly $2,000 from her
bank account, which occurred the day before Barone was found
dead. Although Shelley claimed responsibility for the stab-
bing, there was blood on Casterline’s shoe and pant leg which
matched Barone’s DNA. There was no blood or DNA found
on Shelley’s clothing. Additionally, Shelley told police that
Casterline was present during the killing and there was evi-
dence that more than one knife may have been used due to the
varying depths and trajectories of the stab wounds. Shelley’s
letter to her daughter indicated that more than one knife may
have been used. Police found a knife with a 4-inch blade in
the vehicle in which Casterline and Shelley were traveling
when they were apprehended. The blade of the knife contained
Casterline’s DNA.
A rational trier of fact could conclude that Shelley and/or
Casterline used force, violence, and/or fear to obtain Barone’s
car keys, debit card, and PIN at some point before, during,
or shortly after the stabbing, while Barone was still alive.
Contrary to Shelley’s testimony that she obtained Barone’s
PIN by calling the bank, there was testimony from a bank
employee that it was impossible for the bank to retrieve a
customer’s PIN, because the bank destroys that information
after the card is created. Thus, the evidence supports a find-
ing that Casterline aided and abetted or used force to obtain
Barone’s PIN from Barone before she died. This evidence is
sufficient to support a finding that Casterline, either alone or
by aiding Shelley, killed Barone during the commission of
a robbery.
[11] Casterline argues that there was no evidence that he
intended to rob Barone until after the murder had been com-
pleted by Shelley. Even if this fact was true, it would not
absolve him of liability for felony murder. There is no statutory
requirement that the intent to rob be formed at any particu-
lar time as long as the homicide occurs as the result of acts
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committed while in the perpetration of the robbery.15 Barone’s
death occurred while in the perpetration of a robbery, because
the act that killed her, the stabbing, was closely connected in
time and place with the robbery, so the act and the robbery
may be considered one continuous occurrence.
Regarding Casterline’s conviction for use of a deadly
weapon to commit a felony, the evidence was undisputed that
Barone was stabbed to death. The 22 stab wounds varied from
1
⁄2 to 81⁄2 inches in depth and were inflicted at two different tra-
jectories, suggesting that more than one knife may have been
used. When Casterline and Shelley were apprehended, officers
located a knife in the vehicle in which they were traveling,
and Casterline’s DNA was located on the blade of the knife.
Casterline argues that the evidence failed to prove that he was
in possession of a weapon while a felony was being commit-
ted. We find that a rational trier of fact could conclude that he
was. Even if the jury concluded that Casterline did not actu-
ally wield a knife during the stabbing, it could have found him
guilty of aiding and abetting Shelley’s use of a knife to commit
the murder.16
We conclude that there was sufficient evidence to sustain the
jury’s guilty verdicts.
2. A dmissibility of Letter
Casterline argues that the district court erred in admitting
a letter purportedly written by him to Jamilowski while he
was in jail in Iowa following his arrest. Casterline objected
to the admission of the letter and claims it should have been
excluded because the State failed to lay sufficient founda-
tion under Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901
(Reissue 2008).
15
See State v. Montgomery, 191 Neb. 470, 215 N.W.2d 881 (1974).
16
See, State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012); State v. Leonor,
supra note 12.
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(a) Additional Relevant Facts
The letter in question was received into evidence during
the testimony of the chief jailer at the detention center in
Iowa where Casterline and Shelley were held after their arrest.
The jailer testified regarding the jail’s policy to monitor all
mail unless it is privileged, such as attorney-client commu-
nications. A jailer scans the mail for inappropriate materials
and then documents all incoming and outgoing mail in the
jail’s computerized database. The letter in question was docu-
mented as outgoing mail in the database. A printout from the
database entitled “Jasper County Sheriff Inmate Activity Log
Report” was received into evidence. It contains Casterline’s
full name, inmate number, and jail cell number, and reflects
that he mailed this letter to Jamilowski on October 10, 2013.
The return address on the letter contains Casterline’s name and
address at the jail. The letter, in its entirety, states:
Hey Ronnie this is aj writing you. For what reason I don’t
know I never did like you because of the way you treated
my mother. you are an alcoholic but’s its okay to be. you
spent 12 years in prison. Well me and mom are locked up
because she needed money and a car to get away from
you that is how much she hated you but anyways Im get-
ting some of the Blame for her mistakes. I have just heard
what happened to your mom and Im so sorry I couldn’t
Imagine losen mine. But the cops are trying to blame me
for that, but you know who really did it. I am writing you
with simpity because I care about you and want you to
write me back I still consider you a father. And when I get
out of jail I would like to move back to guide rock. Tell
Trevor my mom is the one who took his stuff you know
how she is and tell trevor I dont wanna lose his friendship
and tell him he can write me too he is like my brother.
Candy and Sam wont talk to me on the phone can you
send me there addresses and give them mine please? Well
Ronnie Im going to leave it up to you to forgive me but
please forgive and write back. lol put down that bottle.
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And dont forget to tell trevor and everybody how sorry I
am for my moms mistakes. you know Im not that person.
Soo take care of yourself and pay your bills.
PS. Send me a picture of my sisters and mom.
(b) Analysis
[12-14] The requirement of authentication or identifica-
tion as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in
question is what its proponent claims.17 Rule 901 does not
impose a high hurdle for authentication or identification.18 A
proponent of evidence is not required to conclusively prove
the genuineness of the evidence or to rule out all possibilities
inconsistent with authenticity.19 If the proponent’s showing
is sufficient to support a finding that the evidence is what it
purports to be, the proponent has satisfied the requirement of
rule 901(1).20
[15] A proponent may authenticate a document under rule
901(2)(a) by the testimony of someone with personal knowl-
edge that it is what it is claimed to be, such as a person
familiar with its contents.21 But that is not the exclusive
means. Under rule 901(2)(d), a proponent may authenticate
a document by circumstantial evidence, or its “‘[a]ppear-
ance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.’”22
Authentication rulings are necessarily fact specific, so a trial
court has discretion to determine whether evidence has been
properly authenticated.23
17
§ 27-901(1).
18
State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).
19
Id.
20
Id.
21
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
22
Id. at 473, 755 N.W.2d at 82.
23
See State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
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We find that the foundational evidence set forth above
was sufficient to support a finding under rule 901 that the
letter was what it purported to be, a letter from Casterline to
Jamilowski. In addition to the testimony of the chief jailer,
the substance of the letter provides further authentication,
because it contained personal information and facts of which
others would not likely have knowledge. We find that the
letter was sufficiently authenticated, and the district court
did not abuse its discretion in overruling Casterline’s founda-
tion objection.
3. A dmissibility of K nife
Casterline argues that the district court erred by admitting
into evidence, over his relevance objection, the knife that
was found in the Jeep in which he and Shelley were traveling
when they were apprehended in Iowa. He further argues that
even if relevant, the knife should have been excluded under
Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008),
because its probative value was outweighed by the danger of
unfair prejudice.
[16,17] The State argues that Casterline has waived this
issue because he failed to timely object to the knife at trial.
The record supports the State’s assertion that Casterline did
not object to the knife on relevance grounds until after two
witnesses had testified about the knife’s being found in the
glovebox and two pictures of the knife had been offered and
received into evidence without objection. It is well settled that
failure to make a timely objection waives the right to assert
prejudicial error on appeal.24 The record further reflects that
Casterline did not raise an objection to the knife on grounds
of rule 403 at any point during the trial. On appeal, a defend­
ant may not assert a different ground for his objection to the
admission of evidence than was offered at trial.25
24
See State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
25
State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014).
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Even if these objections had not been waived, we conclude
the knife was clearly relevant and admissible under rule 403,
given that it was found in the vehicle Casterline was driving,
it contained Casterline’s DNA, and the victim in this case was
stabbed to death. The district court did not err in admitting the
knife into evidence.
4. Jury Instructions
Casterline makes two arguments with respect to the jury
instructions. First, he argues that the district court improperly
instructed the jury on the elements of first degree murder, sec-
ond degree murder, and manslaughter by adding language that
he was guilty of those crimes if he acted “either alone or by
aiding another.” He argues that that language is not contained
in the pattern jury instructions and improperly emphasized the
prosecution’s theory of aiding and abetting.
Second, Casterline argues that the district court erred by
refusing his proposed elements instruction, which was taken
directly from the Nebraska pattern jury instructions and was
identical to the court’s instructions except that it omitted the
language “either alone or by aiding another.” Casterline argues
this language clearly confused the jury, as evidenced by the
fact that the jury submitted a written question to the trial court
during deliberations, which stated: “Could we get a copy of the
State Law that states how you are guilty by association?”
[18,19] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.26 All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.27
26
State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
27
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
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To establish reversible error from a court’s refusal to give a
requested instruction, an appellant has the burden to show that
(1) the tendered instruction is a correct statement of the law,
(2) the tendered instruction is warranted by the evidence, and
(3) the appellant was prejudiced by the court’s refusal to give
the tendered instruction.28
The district court instructed on the alternate theories of
either premeditated murder or felony murder. The jury was
instructed as follows:
[T]he charge may be based on either premeditated mur-
der or felony murder, and it matters not if some jurors
arrive at a verdict of guilty of First Degree Murder based
on proof of premeditated murder and some jurors arrive
at the same verdict based on proof of felony murder so
long as each juror is convinced that the State has proved
beyond a reasonable doubt that the defendant committed
either premeditated murder or felony murder.
The jury was then instructed on the elements of premedi-
tated murder and felony murder as follows:
The elements which the State must prove by evi-
dence beyond a reasonable doubt in order to convict . . .
Casterline of First Degree Murder, are:
I.) PREMEDITATED MURDER
. . . That . . . Casterline, either alone or by aiding
another, killed . . . Barone . . . on or about October 4,
2013 . . . in Webster County, Nebraska . . . purposely . . .
with deliberate and premeditated malice.
II.) FELONY MURDER
. . . That . . . Casterline, either alone or by aiding
another, killed . . . Barone . . . on or about October 4,
2013 . . . in Webster County, Nebraska . . . during the
perpetration of or an attempt to perpetrate the crime
of burglary and/or the crime of robbery; and . . . [t]hat
such burglary, attempted burglary, robbery or attempted
28
State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
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robbery respectively, consisted of each and every one of
the following elements.
The instruction also set forth the elements of burglary, attempted
burglary, robbery, and attempted robbery.
The State argues that the additional language, “either alone
or by aiding another,” was correct because one who aids and
abets a crime may be held liable as the principal. We agree. A
person who aids, abets, procures, or causes another to commit
any offense may be prosecuted and punished as if he were the
principal offender.29 We have previously upheld an elements
instruction containing nearly identical language.30 We find that
the additional language complained of was warranted by the
evidence, was a correct statement of the law, and, when read
in conjunction with the other instructions, adequately presented
the law of felony murder and an aider and abettor’s criminal
liability as principal.
We also reject Casterline’s argument that the district court
erred in refusing to give his proposed instruction, which was
identical to the district court’s instruction except that it omitted
the language “either alone or by aiding another.” Because we
found no error in the inclusion of this language in the district
court’s instruction, Casterline was not prejudiced by the dis-
trict court’s refusal to give his proposed instruction omitting
this language.
VI. CONCLUSION
For the reasons set forth above, we affirm the judgment of
the district court.
A ffirmed.
McCormack, J., not participating.
29
§ 28-206.
30
See State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).