State v. Wheeler , 308 Neb. 708 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/09/2021 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WHEELER
Cite as 308 Neb. 708State of Nebraska, appellee, v.
Marcus R. Wheeler, appellant.
___ N.W.2d ___
Filed March 26, 2021. No. S-19-781.
1. Trial: Expert Witnesses: Appeal and Error. An appellate court
reviews for abuse of discretion a trial court’s decision whether to admit
or exclude an expert’s testimony.
2. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
3. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
4. 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.
5. Trial: Expert Witnesses. Whether a witness is qualified as an expert is
a preliminary question for the trial court.
6. Expert Witnesses. When faced with a proffer of expert scientific testi-
mony, a trial judge must determine at the outset whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in issue. The trial court
should focus on the principles and methodology utilized by expert wit-
nesses, and not on the conclusions that they generate.
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STATE v. WHEELER
Cite as 308 Neb. 7087. Trial: Expert Witnesses. Before admitting expert opinion testimony,
the trial court must determine, inter alia, whether the expert’s knowl-
edge, skill, experience, training, and education qualify the witness as an
expert. A court must also determine whether the reasoning or method-
ology underlying the testimony is valid and whether that reasoning or
methodology can be properly applied to the facts in issue.
8. ____: ____. There is no exact standard for fixing the qualifications of
an expert witness, and a trial court is allowed discretion in determining
whether a witness is qualified to testify as an expert.
9. ____: ____. Experts or skilled witnesses will be considered qualified
if they possess special skill or knowledge respecting the subject mat-
ter involved superior to that of persons in general, so as to make the
expert’s formation of a judgment a fact of probative value.
10. ____: ____. A witness may qualify as an expert by virtue of either for-
mal training or actual practical experience in the field.
11. Criminal Law: Evidence: Appeal and Error. When a criminal defend­
ant challenges the sufficiency of the evidence upon which a conviction
is based, 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.
12. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
13. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
14. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
15. ____. A sentence should fit the offender and not merely the crime.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Jessica
C. West, and Douglas A. Johnson for appellant.
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308 Nebraska Reports
STATE v. WHEELER
Cite as 308 Neb. 708Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Marcus R. Wheeler appeals his convictions and sentences in
the district court for Douglas County for second degree mur-
der and use of a firearm to commit a felony. Wheeler claims
on appeal that the district court erred when it overruled his
motion in limine to exclude the testimony of a firearm and
toolmark examiner and when it later overruled his renewed
objection at trial. He also claims that there was not suffi-
cient evidence to support his convictions and that the court
imposed excessive sentences. We affirm Wheeler’s convictions
and sentences.
STATEMENT OF FACTS
On May 22, 2018, the State charged Wheeler with first
degree murder and use of a firearm to commit a felony in
connection with the shooting death of Kayviaun Nelson. The
charges against Wheeler arose from an incident that occurred
on April 18, when a group that included Wheeler was involved
in a confrontation with a group that included Nelson.
Wheeler’s trial began with opening statements and wit-
nesses on April 17, 2019. On April 18, the second day of trial,
Wheeler filed a motion in limine to exclude expert testimony
by Angela Harder, a senior forensic technician with the Omaha
Police Department and a witness the State expected to call in
the second week of the trial. Wheeler alleged in the motion that
Harder did not qualify as an expert in forensic toolmark analy-
sis and that there was no support for her anticipated testimony
that several shell casings found at the scene of the shooting
were fired from the same gun. Wheeler asserted to the court
that he had first been provided a copy of Harder’s curriculum
vitae on the evening of April 17 and that exchange was his
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STATE v. WHEELER
Cite as 308 Neb. 708first notice the State intended to present Harder as an expert in
forensic toolmark analysis.
Prior to Harder’s testimony at trial, the court held a hearing
outside the jury’s presence to consider Wheeler’s motion in
limine and foundational issues with regard to Harder’s testi-
mony. Wheeler called Harder as a witness, and she testified
regarding her position and experience with the Omaha Police
Department, including having worked as a firearm and tool-
mark examiner since 2008.
As part of Harder’s testimony, Wheeler offered into evi-
dence a report prepared by the President’s Council of Advisors
on Science and Technology (the PCAST report). The PCAST
report was dated September 2016 and was titled “Forensic
Science in the Criminal Courts: Ensuring Scientific Validity of
Feature-Comparison Methods?” Without objection by the State,
the court received the PCAST report into evidence solely for
purposes of the hearing. Upon questioning by Wheeler, Harder
testified that although she had not read the PCAST report in
its entirety, because it dealt with multiple disciplines, she was
familiar with the portions applicable to firearms and toolmarks.
In response to questioning by Wheeler, Harder acknowledged
that the PCAST report had criticized the methodology of tool-
mark identification that had been set forth by the Association
of Firearm and Tool Mark Examiners (AFTE), a professional
organization of which Harder was a member. Harder acknowl-
edged the criticism contained in the PCAST report, but she
testified that she adhered to the AFTE method and its position
that all toolmarks are unique.
Wheeler also questioned Harder regarding her procedures
for conducting toolmark comparisons of shell casings. She
generally testified that she used a comparison microscope
which allowed her to compare two items side by side. She first
broadly examined general characteristics to determine that they
were consistent, and if so, she then moved on to an exami-
nation of “individual characteristics that are caused by that
cartridge case coming in contact with working parts of a fire-
arm.” In a circumstance such as the present case that involved
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STATE v. WHEELER
Cite as 308 Neb. 708examination of several shell casings, Harder selected the shell
casing that “marked the best,” which she defined as that which
“displayed the best markings that were the clearest,” and com-
pared the others to that shell casing. Harder conceded that there
was “some subjectivity” involved in selecting the best shell
case and in making comparisons.
Wheeler also questioned Harder regarding aspects of her
education, training, and experience. Harder conceded that she
had not completed coursework in firearm and toolmark analy-
sis as part of either her undergraduate or her master’s level
college education. Harder further conceded that after she had
completed training in toolmark analysis in 2008, she had not
received further training until 2015. She testified that after
she had “completed the academy” in 2008, there was “not a
whole lot of further training available,” and that the training
she underwent in 2015 was “the next one that [she] had not
already experienced.” Harder also testified that while AFTE
offered a certification in toolmark examination, she had not
“gone through that process,” and that instead, she and her lab­
oratory took part in “the yearly proficiency test to demonstrate
proficiency in the area.” Harder further testified regarding peer
review of her work. She testified that the examiner conducting
a peer review received a copy of her report and therefore knew
the results of her examination.
The State also questioned Harder at the hearing. During the
State’s questioning, Harder generally testified that AFTE had
responded to the PCAST report and had taken issue with some
of its conclusions and recommendations regarding toolmark
analysis. Among AFTE’s criticisms of the PCAST report was
that it relied on a single laboratory study and had not con-
sidered other research conducted by multiple organizations.
Harder agreed with this and AFTE’s other criticisms of the
PCAST report. During the State’s questioning, Harder testi-
fied in more detail about training in toolmark analysis she had
received from 2007 to 2008 in a program sponsored by the
Bureau of Alcohol, Tobacco, Firearms and Explosives. She
also testified regarding the ongoing proficiency testing and
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STATE v. WHEELER
Cite as 308 Neb. 708peer reviews to which her skills and work were subjected, as
well as the extent of her experience conducting toolmark analy-
sis and presenting results in trials.
During questioning by both Wheeler and the State, Harder
testified regarding the procedures she used in examining the
shell casings in this case and the results of such examination.
She generally testified that the results of her examination were
that the seven shell casings that were found at the scene of the
shooting were all fired from the same gun. As discussed below,
Harder’s testimony was used by the State in support of its one-
gun theory of the case. Harder testified that she had completed
two examinations of the shell casings; that each examination
was peer reviewed, with the first being reviewed by one exam-
iner and the second being reviewed by a different examiner;
and that the peer reviewers agreed with her conclusions.
After the hearing, the district court filed an order in which it
ruled on Wheeler’s motion in limine and other issues involved
in the hearing. The court began by finding that the State had
complied with discovery requirements when it had disclosed
to Wheeler the report by Harder of her firearms examina-
tion and when it had endorsed Harder as a witness prior to
trial. The court noted that Wheeler had withdrawn part of his
initial challenge to Harder’s testimony. The court stated that
based on the operative motion in limine, Wheeler was not
challenging the scientific theory or methodology underlying
Harder’s testimony and instead was “challenging the founda-
tion as to how . . . Harder arrived at her conclusions.” The
court therefore concluded that it was within its discretion to
have an evidentiary hearing “to determine if proper foundation
exists for . . . Harder’s conclusion regarding [the shell cas-
ings found at the scene of the shooting] being fired from the
same firearm.”
Considering the testimony and evidence presented at the
hearing, the court concluded that proper foundation was pro-
vided based on Harder’s training and experience and the tes-
timony she provided at the hearing. After reviewing relevant
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WHEELER
Cite as 308 Neb. 708statutes and case law, the court noted Harder’s testimony
regarding the procedures she followed to examine the shell cas-
ings in this case, the results of her examination, and the peer
review of her results.
The court noted that Wheeler’s challenge to Harder’s testi-
mony relied strongly on the PCAST report. The court acknowl-
edged the criticisms set forth in the PCAST report, but the
court also noted the conclusion in the PCAST report that
whether firearm analysis should be deemed admissible based
on current evidence was a decision that belonged to the courts.
The court further noted the recommendation in the PCAST
report that in order to allow firearms analysis in court, it should
be shown that the expert has undergone rigorous proficiency
training; that the expert should disclose the results of such pro-
ficiency testing; and that the expert should disclose whether,
when performing the examination, he or she was aware of
any other facts of the case that might have influenced the
expert’s conclusions.
Applying these and other considerations, the court stated
that the type of ballistic and firearm testimony Harder pre-
sented in this case was not novel and was fairly routine in
cases involving firearms and that such testimony was com-
monly admitted in courts in Nebraska. The court found that
there was sufficient evidence to qualify Harder as an expert in
the area of ballistics and toolmark analysis, including evidence
that she had undergone yearly rigorous proficiency testing and
that the results of such proficiency had been disclosed to her
superiors in her laboratory. The court also noted Harder’s testi-
mony that she had very little knowledge regarding the history
of the shell casings in this case. The court found that Harder’s
testimony would assist the trier of fact and that “her opinions
are reliable and relevant based on her personal knowledge and
experience in toolmark analysis.” The court noted that the
weight to be given to Harder’s opinion was a matter for the
trier of fact to determine and that the weight given to her tes-
timony was a credibility determination that could be explored
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STATE v. WHEELER
Cite as 308 Neb. 708on cross-examination. The court concluded that Harder was
qualified to present her opinions and that her opinions would
provide relevant and reliable information that would assist the
trier of fact. The court therefore overruled Wheeler’s motion in
limine to exclude Harder’s testimony.
Wheeler renewed his objections when Harder testified at
trial. The court overruled Wheeler’s objections based on its rea-
soning following the initial hearing. Harder thereafter testified
regarding her examination of the shell casings and her opinion
that the shell casings were all fired from the same gun.
Other evidence presented by the State at trial consisted in
large part of testimony by witnesses to the events that resulted
in the shooting death of Nelson. As noted earlier, the evidence
was generally that the shooting occurred as part of an alterca-
tion between a group that included Wheeler and another group
that included Nelson. Witnesses at trial included members of
both groups, as well as bystanders. As Wheeler asserts in his
brief on appeal, the testimony of individual witnesses varied
and at points conflicted on issues such as the number of shots
that were fired and whether Wheeler had a gun. Specific tes-
timony and evidence will be discussed further in our analysis
below, particularly, our analysis of sufficiency of the evidence.
However, the testimony at trial set forth the following gen-
eral narrative.
On April 18, 2018, a group that included Wheeler and a
group that included Nelson found themselves in the parking
lot of a Dollar General store at the same time. Wheeler and
Nelson had dated in the past, but both were in new relation-
ships. Nelson’s group included her boyfriend, Andrell Goynes
(Andrell), and his mother, Shawtina Wynn (Shawtina). Nelson
had driven them to the Dollar General store so that Shawtina
could make some purchases; Nelson’s two young children
were also in the vehicle that she was driving. Shawtina went
into the store while Nelson, Andrell, and the children waited
in the parking lot. While waiting there, Andrell noticed that a
car occupied by Wheeler and his group was also in the park-
ing lot.
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STATE v. WHEELER
Cite as 308 Neb. 708Wheeler’s group included his girlfriend, Tyanna Laushman;
Tyanna’s two sisters, Tashian Hickman and Yasmen Laushman;
and Yasmen’s boyfriend, Daion Williams. Wheeler’s group was
in a car driven by Hickman. Hickman parked the car in the
parking lot of the Dollar General store and walked toward the
store. Wheeler also got out of the car, but he started to walk
toward Nelson’s vehicle. One of the occupants of Hickman’s
car testified that Wheeler had indicated that he had seen some-
one he wanted to fight and that Wheeler was making gestures
toward Andrell. Hickman told Wheeler to come into the store
with her, and he did, as did Williams and Tyanna.
After seeing Wheeler, Nelson drove her vehicle to a dif-
ferent spot in the parking lot, and Andrell called Shawtina to
see whether she was done with her shopping. Wheeler and his
companions, and later Shawtina, eventually came out of the
Dollar General store. Shawtina testified that when she came
out of the store, she saw two men and two women arguing
with Nelson and Andrell, who were seated in Nelson’s vehicle.
Shawtina got into Nelson’s vehicle, and Nelson drove out of
the parking lot.
The occupants of Nelson’s vehicle noticed that Hickman’s
car was following them. Hickman testified that she followed
Nelson’s vehicle because Wheeler, Tyanna, and Yasmen asked
her to. Shawtina contacted two of her other sons, Adren
Goynes-Wynn and Andre Goynes-Wynn, to tell them that
Nelson’s vehicle was being followed. Adren and Andre
instructed Shawtina to have Nelson pull her vehicle into the
parking lot of a nearby Walmart store. Adren and Andre were
at an apartment near the Walmart, and after speaking with
Shawtina, they went to the store. They came out of the store
when they saw Nelson’s vehicle pull into the parking lot.
Nelson parked her vehicle, and Andrell got out of the vehi-
cle. Adren and Andre were walking toward Andrell when
Hickman’s car pulled into the Walmart parking lot.
Hickman parked her car a few stalls away from Nelson’s
vehicle. Williams testified that when Hickman pulled into the
Walmart lot, he saw that Wheeler had a gun; Williams took
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STATE v. WHEELER
Cite as 308 Neb. 708the gun from Wheeler and told him he did not need it. Wheeler
got out of Hickman’s car, followed by the other occupants
of the car. Adren walked toward Hickman’s car; Adren and
Wheeler met up near Hickman’s car, and an altercation ensued
between Adren and Wheeler. During that altercation, Andrell
approached Williams. Williams was holding the gun but did
not point it at Andrell.
Williams testified that Wheeler came over to him and took
the gun from him against his will. Adren testified that he saw
Wheeler take the gun from Williams. Adren warned the oth-
ers that Wheeler had a gun, and Adren then took off running.
Andrell also testified that he saw Wheeler take the gun from
Williams and that he then told Nelson to drive off. Andrell saw
Wheeler pointing the gun at him, and he ran to the back of
Nelson’s vehicle. Andrell testified that at that point, Wheeler
started shooting and Andrell ran around the vehicle and toward
the Walmart store.
Williams testified that after Wheeler took the gun from him,
he saw Wheeler fire shots toward Adren, Andrell, and Shawtina.
Williams testified that Wheeler walked toward Adren, who
was located near Nelson’s vehicle. Williams observed that
Nelson was attempting to drive her vehicle away; she bumped
Wheeler with her vehicle, but he did not lose his balance.
Williams heard more gun shots when Wheeler was located at
the driver’s side of Nelson’s vehicle. Williams testified that
Wheeler got back into Hickman’s car, and Williams saw that
Wheeler had the gun. Hickman then drove her car out of the
parking lot.
Andrell testified that after having run from Wheeler and
toward the Walmart store, he saw Nelson’s vehicle moving
within the parking lot. He ran toward her vehicle but lost track
of it, and so he returned to the location where the altercation
had occurred. When he reached that spot, he saw Shawtina
and Andre there, but Wheeler and the car in which Wheeler’s
group were riding was no longer there. Andrell continued to
look for Nelson’s vehicle, and he saw a police vehicle mov-
ing through the parking lot. Andrell and Andre started jogging
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STATE v. WHEELER
Cite as 308 Neb. 708in the direction of the police vehicle, and Andrell then saw
Nelson’s vehicle. Before Andrell could reach Nelson’s vehicle,
he was stopped by a police officer. Andrell saw another police
officer pull Nelson out of the vehicle. More police vehicles
and officers arrived, and the police put Andrell, Andre, and
Shawtina into police vehicles for questioning.
Brent Kendall, an Omaha Police Department officer, arrived
at the Walmart parking lot and saw Nelson’s vehicle, which
appeared to have struck another vehicle in the parking lot
and was not moving. Kendall approached the vehicle and saw
Nelson inside it. The window of the driver’s side door was
open, and Kendall saw that Nelson’s head was back and her
eyes were open, but she seemed to have no expression on her
face. Kendall could not get Nelson to respond, but he felt a
faint pulse in her neck, so he removed her from the vehicle.
He and another officer observed what appeared to be a bullet
wound in her chest.
Paramedics thereafter took over care of Nelson and trans-
ported her to a hospital, where she died. An autopsy revealed
that Nelson had two gunshot wounds with entrance in her left
chest and exit in her right upper back. The doctor who per-
formed the autopsy opined that the gunshot wounds were the
cause of Nelson’s death.
After the shooting, but prior to the penultimate events in
the parking lot described above, Wheeler and the rest of his
group had left the Walmart parking lot in Hickman’s car.
Hickman dropped Wheeler, Williams, Tyanna, and Yasmen off
at Tyanna’s mother’s house. The four later left that house and
walked to another location, where they stayed after learning
that Nelson had died. The next day, Tyanna and Yasmen went
to police headquarters to speak with officers.
Warrants were issued for Williams and Wheeler. Williams
was located and taken into custody on April 19, 2018. Wheeler
was not located until April 24. When an officer first approached
Wheeler and told him to get on the ground, Wheeler took off
running. The officer pursued in his vehicle and caught up to
Wheeler and took him into custody.
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STATE v. WHEELER
Cite as 308 Neb. 708Physical evidence presented by the State included seven
shell casings that were recovered from the Walmart parking lot.
As noted above, Harder testified regarding her examination of
the shell casings and her determination that all seven shell cas-
ings were fired from the same gun. Bullets were not recovered
from either Nelson’s body or her vehicle, and the gun that was
used to fire the shots was not found or put into evidence.
The State presented testimony by Laura Casey, a senior
forensic technician with the Omaha Police Department who
processed Nelson’s vehicle after the shooting in April 2018.
Casey testified, inter alia, that the driver’s side window was
rolled almost all the way down and that the other windows
were rolled up. She also testified that there was an apparent
bullet hole in the extreme right edge of the front driver’s seat
and that there was a defect in the handle of the right rear pas-
senger door. Casey testified that a probe was used to determine
a possible bullet path between the driver’s seat and the rear
passenger door handle; she testified that the probing indicated
that the “areas of defect did line up.” Copper jacketing was
found on the rear floorboard; Casey testified that copper jack-
eting that covers a bullet or projectile will separate from the
rest of the projectile when it strikes or goes through an object.
Casey testified that no projectiles or fragments were recovered
from a search of the right rear passenger door.
In his defense, Wheeler presented testimony of two wit-
nesses who were in the Walmart parking lot at the time of
the shooting. One of the witnesses testified that she was in
the parking lot and saw an altercation in which a vehicle was
surrounded by a number of people. She saw the vehicle lurch
forward and a man who had been standing in front of the
vehicle jump out of the way. As he jumped, he raised his hands
and she saw that he had nothing in his hands. She saw another
man who had been on the driver’s side of the vehicle, and she
observed that he had what appeared to be a gun in his hands.
The witness identified Wheeler as being the man in front of the
vehicle who jumped and who had nothing in his hands.
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Cite as 308 Neb. 708Instructions given to the jury included a step instruction
regarding the charge of first degree murder and the lesser-
included offenses of second degree murder and manslaughter.
The court also gave a self-defense instruction. The jury acquit-
ted Wheeler of first degree murder, but it found him guilty
of the lesser-included offense of second degree murder. The
jury also found Wheeler guilty of use of a firearm to commit
a felony.
The court thereafter held a sentencing hearing at which it
considered the presentence investigation report, arguments by
Wheeler and the State, and a live statement by Nelson’s father.
The court sentenced Wheeler to imprisonment for 70 to 100
years for second degree murder and for 7 to 15 years for use
of a firearm. The court ordered the sentences to be served con-
secutive to one another.
Wheeler appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Wheeler claims that the district court erred when it over-
ruled his motion in limine and later overruled his objection to
Harder’s testimony regarding the results of her forensic tool-
mark examination. Wheeler also claims that there was not suf-
ficient evidence to support his convictions and that the district
court imposed excessive sentences.
STANDARDS OF REVIEW
[1] An appellate court reviews for abuse of discretion a trial
court’s decision whether to admit or exclude an expert’s testi-
mony. Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d
916 (2019). See, also, State v. Grant, 293 Neb. 163, 876
N.W.2d 639 (2016).
[2] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insuffi-
ciency of the evidence, or failure to prove a prima facie case,
the standard is the same: In reviewing a criminal conviction,
an appellate court does not resolve conflicts in the evidence,
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Cite as 308 Neb. 708pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact, and a conviction will
be affirmed, in the absence of prejudicial error, if the evidence
admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction. State v. Price, 306
Neb. 38, 944 N.W.2d 279 (2020).
[3,4] Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within
the statutory limits. See State v. Senteney, 307 Neb. 702, 950
N.W.2d 585 (2020). An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.ANALYSIS
District Court Did Not Abuse Its Discretion When
It Overruled Wheeler’s Motion in Limine and
Admitted Harder’s Testimony Regarding
Ballistics and Toolmark Testing.
Wheeler first claims that the district court erred when it
overruled his motion in limine and when it later overruled his
renewed objections to Harder’s testimony regarding her ballis-
tics and toolmark analysis. He argues that Harder’s testimony
should not have been admitted because (1) she did not qualify
as an expert under Neb. Rev. Stat. § 27-702 (Reissue 2016) and
(2) her testimony was unfairly prejudicial under Neb. Rev. Stat.
§ 27-403 (Reissue 2016). We conclude that the district court
did not err when it overruled Wheeler’s motion in limine and
allowed Harder’s testimony.
[5,6] Wheeler first contends that Harder was not qualified as
an expert under § 27-702, which provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or edu-
cation, may testify thereto in the form of an opinion or
otherwise.
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Cite as 308 Neb. 708Whether a witness is qualified as an expert is a preliminary
question for the trial court. Reiber v. County of Gage, 303 Neb.
325, 928 N.W.2d 916 (2019). When faced with a proffer of
expert scientific testimony, a trial judge must determine at the
outset whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or
determine a fact in issue. Id. The trial court should focus on the
principles and methodology utilized by expert witnesses, and
not on the conclusions that they generate. Id.[7] Under § 27-702 and our case law, before admitting
expert opinion testimony, the trial court must determine, inter
alia, whether the expert’s knowledge, skill, experience, train-
ing, and education qualify the witness as an expert. See State
v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016). A court
must also determine whether the reasoning or methodology
underlying the testimony is valid and whether that reasoning
or methodology can be properly applied to the facts in issue.
See id. In connection with the just recited proposition, we note,
as did the district court, that in this case, Wheeler dropped
his challenge to the methodology Harder used to perform her
toolmark analysis. Instead, Wheeler’s argument at trial and on
appeal focuses on what he alleges to be gaps or deficiencies in
Harder’s training and qualifications, and we therefore focus on
the district court’s analysis regarding Harder’s qualification as
an expert in toolmark analysis.
[8-10] There is no exact standard for fixing the qualifica-
tions of an expert witness, and a trial court is allowed discre-
tion in determining whether a witness is qualified to testify as
an expert. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
Experts or skilled witnesses will be considered qualified if
they possess special skill or knowledge respecting the subject
matter involved superior to that of persons in general, so as
to make the expert’s formation of a judgment a fact of proba-
tive value. Id. A witness may qualify as an expert by virtue
of either formal training or actual practical experience in the
field. Id.- 723 -
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STATE v. WHEELER
Cite as 308 Neb. 708In this case, the district court found that there was sufficient
evidence to qualify Harder as an expert in the area of ballistics
and toolmark analysis. And it did so even in the face of the
competing PCAST hypothesis. The court relied on evidence
of Harder’s training and her personal knowledge and experi-
ence, as well as the fact that she had been subjected to ongoing
proficiency testing. Wheeler cross-examined Harder with what
he asserted were shortcomings in her education and train-
ing. Harder conceded that she had not completed coursework
in firearm and toolmark analysis as part of her undergrad­
uate or master’s level college education and that she had not
gone through the AFTE certification. However, Harder testified
regarding training specific to toolmark analysis that she had
undergone subsequent to her formal college education, and she
testified that while she had not gone through the certification
process, the laboratory with which she was associated chose
instead to go through yearly proficiency testing in order to
ensure continued competence.
Given the evidence of Harder’s training and proficiency
testing, as well as evidence of her experience in the field of
ballistics and toolmark analysis, we determine that the dis-
trict court did not abuse its discretion when it concluded that
Harder was qualified as an expert in the area of ballistic and
toolmark analysis.
Wheeler also argues that Harder’s testimony should have
been excluded under § 27-403, which provides that relevant
evidence may be excluded if, inter alia, its probative value is
substantially outweighed by the danger of unfair prejudice.
Wheeler argues that Harder’s testimony was unfairly prejudi-
cial for two reasons: first, because the State presented her as
an expert when she was not qualified, and second, because the
State used her expert opinion as the basis for its theory that
only one gun was fired at the scene of the shooting.
With respect to the first argument, Wheeler was not preju-
diced by the presentation of a nonexpert, because Harder
was in fact an expert. With respect to the second argument,
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Cite as 308 Neb. 708Harder’s testimony in support of the State’s one-gun theory
was unfavorable, but not unfairly prejudicial.
Regarding the one-gun theory, Wheeler claims unfair preju-
dice because the State’s one-gun theory foreclosed his defense
theory that the shots that struck Nelson were not fired by him
but by some other person at the scene who also had a gun. As
he asserts with regard to his claim of insufficient evidence,
which we consider below, Wheeler contends that other than
Harder’s testimony, there was no credible evidence to support
the State’s one-gun theory, and that he presented evidence
which showed that there was at least one other gun and that
another person fired the shots that struck Nelson.
Harder’s testimony was probative of an issue in this case.
The State and Wheeler presented differing theories as to
whether more than one gun was fired during the altercation.
Seven shell casings were found at the scene, and Harder’s
opinion was that all seven were fired from the same gun.
Therefore, Harder’s testimony provided some evidence to sup-
port the State’s theory of one gun and to refute Wheeler’s
theory of multiple guns being fired. Harder’s testimony was
not unfairly prejudicial because her opinion was limited to the
specific shell casings that were tested, and she did not opine
on whether other guns may have been present or fired at the
scene. Her testimony was limited to the specific shell casings
that she tested.
Wheeler’s argument of unfair prejudice therefore is not
aimed so much at Harder’s testimony per se but at the State’s
use of her testimony to argue that it had proved the State’s
one-gun theory. To the extent Wheeler had evidence to refute
the State’s theory, Wheeler was able to present that evidence
and argue his competing theory to the jury. To the extent
Wheeler’s complaint was that the State overstated or misstated
Harder’s testimony and claimed that such testimony alone con-
clusively proved that there was only one gun at the scene, the
proper response would have been for Wheeler to object to any
closing arguments that he believed misstated the evidence. We
note in this respect that Harder’s testimony was not the only
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STATE v. WHEELER
Cite as 308 Neb. 708evidence the State relied on to present its theory; the State also
relied on witnesses who testified that they saw Wheeler in pos-
session of a gun but did not see any other guns. In any event,
Wheeler’s argument does not establish that Harder’s testimony
was in itself unfairly prejudicial or that it should have been
excluded pursuant to § 27-403.
We conclude that the district court did not abuse its discre-
tion when it determined that Harder qualified as an expert and
that the probative value of her testimony was not outweighed
by unfair prejudice. The district court therefore did not err
when it overruled Wheeler’s motion in limine and allowed
Harder to testify. We reject this assignment of error.
There Was Sufficient Evidence to
Support Wheeler’s Convictions.
Wheeler next claims that there was not sufficient evidence
to support his convictions. He argues that the evidence was not
sufficient in two general respects: (1) There was no evidence
that showed that shots fired by Wheeler were the shots that
killed Nelson, and (2) there was insufficient evidence to rebut
his claim of self-defense. We conclude that there was sufficient
evidence to support the jury’s verdicts.
[11] In reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the cred-
ibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact, and a conviction will be affirmed, in the
absence of prejudicial error, if the evidence admitted at trial,
viewed and construed most favorably to the State, is sufficient
to support the conviction. State v. Price, 306 Neb. 38, 944
N.W.2d 279 (2020). When a criminal defendant challenges the
sufficiency of the evidence upon which a conviction is based,
the relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.Wheeler first contends that there was not sufficient evi-
dence to show that he fired the shots that struck Nelson. He
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STATE v. WHEELER
Cite as 308 Neb. 708acknowledges that there was testimony that he was in posses-
sion of a gun at the time witnesses heard shots, but he notes a
conflict in the testimony because his defense witness testified
that she saw Wheeler in front of the vehicle without a gun in
his hands and that she saw a different man with a gun on the
driver’s side of the vehicle.
Wheeler emphasizes that his argument is not merely there
was a conflict in the evidence and that his argument cannot
be dismissed as a credibility determination or weighing of
evidence to be resolved by the jury. Instead, Wheeler argues
that there was no evidence from which a rational trier of fact
could find that any shots he might have fired while in front
of Nelson’s vehicle could have been the shots that struck and
killed Nelson. He asserts there was no specific evidence indi-
cating that he fired shots through the driver’s side window of
Nelson’s vehicle and that instead, the only evidence was that
he fired shots when he was in front of the vehicle. He argues
that this is significant, because the testimony of Casey, the
forensic technician who processed Nelson’s vehicle, indicated
that the bullets that struck Nelson were fired through the open
driver’s side window. He argues that shots fired from in front
of the vehicle could not have entered through the driver’s side
window; instead, such shots could only enter through the front
windshield and there was no evidence of bullets’ entering
through that trajectory.
The State notes, however, that there was testimony from
which the jury could find that Wheeler fired shots when he was
located on the driver’s side of Nelson’s vehicle. Edie Derry,
a bystander who was not part of either Wheeler’s group or
Nelson’s group, testified that she saw a man who pulled a gun
and aimed it “towards the two boys first and then spun around
towards the woman,” that the woman “had gotten into her
vehicle and was starting to pull away,” and that the man “fired
two shots into the driver’s side open window of the vehicle.”
Derry also testified that “[t]he shooter had curly hair or dread-
locks”; other evidence indicated that Wheeler had dreadlocks
on the day of the shooting.
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Cite as 308 Neb. 708Hickman testified that she saw Wheeler aiming a gun at
Andrell and that she put her head down and heard shots.
Hickman testified that she saw Wheeler in front of Nelson’s
vehicle and that then she saw Nelson’s vehicle “hitting”
Wheeler. Hickman testified that she heard more shots after
Nelson’s vehicle hit Wheeler. Yasmen also testified that she
saw Nelson’s vehicle moving forward and that the vehicle
“bumped” Wheeler. Yasmen testified that after Wheeler was
bumped, he “stumbles off and catches his balance and then
goes to the side and starts shooting towards the car.” Yasmen
clarified that although she could not see Wheeler firing the
gun, she saw that he was on the driver’s side of the vehicle
after being bumped and at that time she heard shots. Williams
similarly testified that he saw Nelson bump Wheeler with her
vehicle and that Wheeler ended up on the driver’s side of the
vehicle after he was bumped; Williams testified that he heard
additional shots when Wheeler was on the driver’s side of
the vehicle.
Therefore, there was evidence from which the jury could
find that shots were fired at a time when Wheeler was on the
driver’s side of the vehicle. The jury could infer that the shots
were fired by Wheeler and that the shots went through the open
driver’s side window and struck Nelson.
Because it was the jury’s province to determine credibility,
resolve conflicts, and weigh the evidence, we as an appellate
court consider only whether there was sufficient evidence to
support the finding of the jury as fact finder. There was evi-
dence from which the jury could have found that Wheeler fired
shots while he was on the driver’s side of Nelson’s vehicle.
To the extent that such evidence was not stronger or that there
was conflicting testimony, it was the jury’s duty to resolve
inconsistencies, to weigh the evidence, and to determine which
witnesses they found to be credible. We do not pass on the
credibility of witnesses on appeal, State v. Price, 306 Neb.
38, 944 N.W.2d 279 (2020), and because there was evi-
dence from which the jury could rationally find that Wheeler
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STATE v. WHEELER
Cite as 308 Neb. 708fired the shots that struck and killed Nelson, the evidence
was sufficient.
Wheeler also argues that the State did not present suffi-
cient evidence to rebut his claim of self-defense. In particular,
Wheeler notes there were some conflicts in the evidence on the
issue of self-defense. As urged by Wheeler, the district court
found evidence from which a jury could find that Wheeler was
defending himself against a threat imposed by Andrell, Adren,
and Andre and therefore instructed on self-defense. There was
testimony, however, particularly that of Andrell and Adren, that
they were running away from Wheeler when he fired shots.
Furthermore, there was evidence indicating that the shots that
hit Nelson were fired after the shots that were aimed at Andrell
and others. As such, the jury could have found that Wheeler
was not acting in self-defense when he fired the shots that
killed Nelson.
Again, the credibility and weight of witness testimony are
for the jury to determine, and witness credibility is not to be
reassessed on appellate review. See State v. Price, supra. Any
conflicts in the evidence or questions concerning the credibility
of witnesses are for the finder of fact to resolve. Id. Because
the jury found Wheeler guilty of second degree murder and
use of a deadly weapon to commit a felony, it apparently
disbelieved the evidence presented by Wheeler asserting that
he acted in self-defense. To the contrary, there was sufficient
evidence presented to support a finding that Wheeler did not
act in self-defense, and we will not reassess the jury’s finding
on appeal.
Wheeler also argues that at best, the evidence supported a
conviction for sudden quarrel manslaughter. However, there
was evidence that the altercation continued from one park-
ing lot to another, that Wheeler directed Hickman to follow
Nelson’s vehicle, and that Wheeler approached Nelson’s vehi-
cle and wanted to fight Andrell. Although there was evidence
in support of the version of events as urged by Wheeler, the
State presented evidence which contradicted his version of
events and from which the jury could have found that Wheeler
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STATE v. WHEELER
Cite as 308 Neb. 708fired the shots with the required intent for second degree
murder and that the shooting of Nelson did not result from a
sudden quarrel and, as previously noted, was not justified as
self-defense.
Viewing the evidence in the light most favorable to the
State, we conclude that the evidence was sufficient to support
Wheeler’s convictions for second degree murder and use of a
firearm to commit a felony. We therefore reject this assignment
of error.
District Court Did Not Abuse Its Discretion
When Imposing Sentences.
Wheeler finally claims that the district court imposed exces-
sive sentences. He contends that the court did not adequately
consider relevant mitigating factors, including his age. We find
no abuse of discretion in the sentencing.
Wheeler was convicted of second degree murder, a Class IB
felony under Neb. Rev. Stat. § 28-304(2) (Reissue 2016), and
use of a firearm to commit a felony, a Class IC felony under
Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016). The sentencing
range for a Class IB felony is imprisonment for a minimum of
20 years and a maximum of life, and the sentencing range for a
Class IC felony is imprisonment for a mandatory minimum of
5 years and a maximum of 50 years. Neb. Rev. Stat. § 28-105(Reissue 2016). The district court sentenced Wheeler to impris-
onment for 70 to 100 years for the second degree murder con-
viction and for 7 to 15 years for the weapon conviction, and
the court ordered the sentence for the weapon conviction to be
served consecutive to the sentence for the murder conviction,
as required by § 28-1205(3). The sentences imposed by the
court were therefore within statutory limits.
[12] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence
to be imposed. State v. Price, 306 Neb. 38, 944 N.W.2d 279- 730 -
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STATE v. WHEELER
Cite as 308 Neb. 708(2020). We therefore consider whether the court abused its dis-
cretion when it imposed those sentences.
[13,14] Wheeler argues that the district court abused its
discretion when it sentenced him because it did not adequately
consider relevant mitigating factors. In determining a sentence
to be imposed, relevant factors customarily considered and
applied are the defendant’s (1) age, (2) mentality, (3) educa-
tion and experience, (4) social and cultural background, (5)
past criminal record or record of law abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the crime. Id. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defendant’s
life. Id.[15] Wheeler argues that the court failed to give adequate
weight to mitigating factors, most notably his age but also
his mentality, social and cultural background, lack of criminal
record, and motivation. He argues that instead of giving due
consideration to these mitigating factors, the court placed too
much weight on the circumstances of the offense, particularly
the location of the shooting. Wheeler notes that we have said
that a sentence should fit the offender and not merely the crime.
See State v. Gray, 307 Neb. 418, 949 N.W.2d 320 (2020). He
argues that by emphasizing the circumstances of the offense
over the mitigating factors, the court abused its discretion by
tailoring the sentences to the crime rather than to him.
In arguing that the court did not adequately consider his
age, Wheeler cites Miller v. Alabama, 567 U.S. 460, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012), in which the U.S. Supreme
Court held that a sentence of mandatory life imprisonment
without parole for a juvenile violated the Eighth Amendment’s
prohibition on cruel and unusual punishment. Wheeler cites
Miller v. Alabama for its reasoning regarding the culpability
of adolescents. However, Wheeler was not sentenced to life
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STATE v. WHEELER
Cite as 308 Neb. 708imprisonment without parole, and the presentence investiga-
tion report indicates that Wheeler was born in June 1998. He
was 19 years old at the time of the offense and therefore was
neither a juvenile nor an adolescent.
Nevertheless, Wheeler’s relatively young age is a relevant
factor to be considered in sentencing. In this regard, we note
that the presentence investigation report and the argument
of Wheeler’s counsel at sentencing provided the court with
information regarding Wheeler’s age and the other relevant
factors urged by Wheeler as mitigating in favor of a lesser
sentence. At the sentencing hearing, the court stated that it had
considered all the relevant factors urged by Wheeler, includ-
ing “Wheeler’s age, mentality, education, experience, social
and cultural background, past criminal record, [and] motiva-
tion for the offense.” The court gave particular consideration
to Wheeler’s age, stating that it had given Wheeler “all of
the benefit of the doubt that [it] possibly [could] regarding
his youthful age,” that it had considered Wheeler’s age “an
extreme mitigating factor in his case,” and that it had given the
age factor “the utmost consideration.”
But the court also considered relevant factors such as the
“nature of the offense and the violence involved in the commis-
sion of the offense.” The court characterized the offense as “a
senseless killing that should have never happened” and noted
evidence that “[a]t least seven shots were fired . . . .” Wheeler
characterizes the court as placing too much emphasis on the
location of the shooting. In this regard, the court noted at the
sentencing that the shooting “happened at a crowded Walmart
parking lot where many innocent bystanders were just parking
their cars and walking in and out of the parking lot trying to go
into Walmart like we all do.” The court further “underscore[d]
that this happened at a crowded Walmart where people were
coming and going,” and the court noted that “Nelson was not
the intended victim in this case, she was completely innocent
and she suffered the consequences of a bullet that was meant
for somebody else.”
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Cite as 308 Neb. 708Wheeler characterizes the court’s statements as being an
indication that the court was emphasizing “protection of the
public” as a justification to impose a long term of imprison-
ment, and he argues that consideration for protection of the
public should focus on future protection and should consider
prospects for rehabilitation. Brief for appellant at 43. We read
the comment of the court regarding the public safety as a rel-
evant fact in connection with “the nature of the offense” and
“the amount of violence involved in the commission of the
crime.” See State v. Price, 306 Neb. 38, 61, 944 N.W.2d 279,
296 (2020). The court properly considered that by shooting
at persons involved in the altercation while in a busy park-
ing lot, Wheeler endangered not only his intended targets but
also Nelson and other unintended targets, as well as inno-
cent bystanders.
The court appropriately weighed these considerations
regarding the nature of the offense and the amount of violence
involved against Wheeler’s age and the other mitigating fac-
tors he advanced. We do not think the court ignored relevant
mitigating factors, considered inappropriate factors, or placed
undue emphasis on irrelevant circumstances. We find no abuse
of discretion.
We conclude that the sentences imposed by the court were
not an abuse of discretion, and we therefore reject Wheeler’s
claim that the district court imposed excessive sentences.
CONCLUSION
We conclude that the district court did not err when it
overruled Wheeler’s motion in limine and later overruled his
objection to Harder’s testimony regarding ballistics testing
and toolmark analysis. We further conclude that there was suf-
ficient evidence to support Wheeler’s convictions and that the
court did not abuse its discretion in sentencing Wheeler. We
therefore affirm Wheeler’s convictions and sentences.
Affirmed.