State v. Elseman

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respondent violated disciplinary rule § 3-318, conduct rules
§§ 3-503.3(a) and 3-508.4(a) and (d), and his oath of office as
an attorney licensed to practice law in the State of Nebraska.
Respondent has waived all additional proceedings against him
in connection herewith. Upon due consideration, the court
approves the conditional admission and enters the orders as
indicated below.
CONCLUSION
Respondent is publically reprimanded. Respondent is
directed to pay costs and expenses in accordance with Neb.
Ct. R. §§ 3-310(P) and 3-323(B) within 60 days after the
order imposing costs and expenses, if any, is entered by
the court.
Judgment of public reprimand.
State of Nebraska, appellee, v.
Ryan M. Elseman, appellant.
___ N.W.2d ___
Filed January 3, 2014. No. S-12-1077.
1. Trial: Evidence: Appeal and Error. Because authentication rulings are neces-
sarily fact specific, a trial court has discretion to determine whether evidence has
been properly authenticated. An appellate court reviews a trial court’s ruling on
authentication for abuse of discretion.
2. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict
only when there is a complete failure of evidence to establish an essential ele-
ment of the crime charged or the evidence is so doubtful in character, lacking
probative value, that a finding of guilt based on such evidence cannot be sus-
tained. If there is any evidence which will sustain a finding for the party against
whom a motion for directed verdict is made, the case may not be decided as a
matter of law, and a verdict may not be directed.
3. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency 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. 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 ele-
ments of the crime beyond a reasonable doubt.
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4. Rules of Evidence: Proof. Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901(1)
(Reissue 2008), does not impose a high hurdle for authentication or identi-
fication. 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 proponent has satisfied the requirement of
rule 901(1).
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
Donald L. Schense, of Law Office of Donald L. Schense,
for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Ryan M. Elseman appeals his convictions in the district
court for Douglas County of first degree murder and use of a
deadly weapon to commit a felony. Elseman claims that the
court erroneously admitted evidence regarding the content of
certain text messages. He also claims that the court committed
plain error when it overruled his motions for a directed verdict
and that there was not sufficient evidence to support his con-
victions. We affirm Elseman’s convictions and sentences.
STATEMENT OF FACTS
The charges against Elseman arose from an incident in
which he shot and killed Kristopher Winters. The State alleged
that Elseman shot Winters during an attempted robbery.
Elseman was among a group of people who were at the
home of Nicholas Ely on July 6, 2011. Elseman’s girlfriend’s
sister, Emily G., was also part of the group. Elseman left
the house with Emily, Ely, and Marqus Patton with a plan to
go swimming at Patton’s apartment complex. The four were
picked up by Drake Northrop. Emily had previously bought
marijuana from Winters, and she suggested that the group go
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to Winters’ house to get some marijuana. At some point, it was
decided that the group would rob Winters.
Emily directed Northrop to Winters’ house, and they arrived
there around noon. There was no response when Emily knocked
on Winters’ door, but a friend of Winters arrived at the door.
Emily went into the house with the friend after she told him
she was there to buy marijuana. Once inside, Emily sent
Elseman a text message saying, “I’m in.” She sent another
message saying that Winters had a friend with him and that the
doors were open.
Northrop, Elseman, Ely, and Patton entered the house
through an open door. Elseman and Patton had guns. The
men walked into a room occupied by Winters and his friend.
Elseman pointed his gun and said, “‘You know what it is.’”
When Winters charged Elseman, Patton used his gun to hit
Winters in the head. Winters stumbled but then pushed Patton
up against a wall. Patton told Elseman to shoot Winters, and
Elseman did. After the shots were fired, Northrop, Elseman,
Ely, and Patton ran out of the house and drove away, leav-
ing Emily behind. Northrop dropped the other three off at
Patton’s apartment.
Winters died as a result of the gunshot wounds, and
Elseman was charged with first degree murder and use of a
deadly weapon to commit a felony. The first degree murder
count was charged alternatively as premeditated murder and
as felony murder. The State’s witnesses at Elseman’s trial
included Emily and Northrop. Neither Patton nor Ely testified
at Elseman’s trial.
Emily testified that while the group was driving to Winters’
house, she was talking to her sister on a cell phone and over-
heard others in the car talking about a robbery. She testified
that she had been told to send a text message to let Elseman
know when she got into the house and to let him know whether
the doors were open and how many people were in the house.
Emily could not recall whether it was Elseman or someone else
who had told her to send the text messages.
Emily testified that although she heard what sounded like
gunshots when she was in the basement of Winters’ house,
she was not in a position to see the shooting. After hearing the
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gunshots, she saw that Winters was holding his neck and she
saw blood. She testified that she left the house and that as she
was walking away, she received a text message from Elseman
telling her to “get out of there because there was like a lot of
cops around.” She testified that Elseman also texted to her
a telephone number she was to call to have “somebody that
wouldn’t snitch pick [her] up.” Before Emily could meet up
with that person, the police stopped her and spoke with her and
eventually took her to the police station.
During Emily’s testimony, the State asked questions about
the cell phone she used to send text messages to Elseman.
Emily testified that she had Elseman’s number programmed
into the cell phone, but that she did not recall his number.
After establishing that Emily could refresh her memory of
Elseman’s number by looking at her cell phone, the State gave
her the phone to check her contact list for Elseman’s number.
When the State asked Emily what Elseman’s number was,
Elseman objected based on foundation and argued that there
was no evidence regarding the chain of custody of the cell
phone. The court initially sustained the objection but over-
ruled it after the State argued that the cell phone was being
used only for the purpose of refreshing Emily’s memory of
Elseman’s telephone number. Emily then recited Elseman’s
number based on her memory that had been refreshed by
viewing the contact list on the cell phone.
Northrop testified that on July 6, 2011, Ely asked Northrop
to give him a ride to Patton’s apartment to go swimming.
Northrop went to Ely’s house to pick him up; Northrop also
gave a ride to Patton, Elseman, and Emily. Patton sat in the
front passenger seat, and Ely and Elseman sat in the back, with
Emily in the middle. Northrop testified that during the drive,
he agreed to go along with a plan to “go to a house and hit
a lick.” Northrop testified that “hit a lick” meant a robbery.
He also testified that the plan was made by Ely, Emily, and
Elseman. He specifically testified that Elseman said that “it
would be easy, and the guy wouldn’t fight back.”
Emily directed Northrop to the house. Northrop heard Emily
and Elseman make a plan that Emily would get into the house
and would leave the doors unlocked or open and then send a
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text message to Elseman to let them know how many people
were inside. The four men waited outside while Emily went to
the house. Northrop testified that while they were waiting, he
saw Elseman look at his cell phone and then Elseman told the
others that Emily had the doors open and that there were two
people inside.
Northrop, Elseman, Ely, and Patton entered the house
through a garage door. After they entered the house, Northrop
saw that Elseman and Patton had guns. The four walked down
a hallway, and when they reached a room at the end of the
hallway, Elseman walked into the room first. Northrop saw
Elseman point a gun and heard him say, “‘You know what it
is.’” Northrop then saw Winters “attack” Elseman by “kind
of like grabbing him to wrestle with him.” Northrop testified
that Patton “pistol-whipped” Winters, which Northrop testi-
fied entailed Patton’s hitting Winters in the head with the butt
of Patton’s gun. Northrop saw Winters stumble back and grab
a chair, and then he saw Winters use the chair to ram Patton
against the wall. Northrop testified that at that point, Patton
told Elseman to shoot Winters. Elseman then shot Winters.
Northrop saw Winters fall onto some steps, and then Northrop,
Elseman, Ely, and Patton ran out of the house and back to
Northrop’s vehicle.
Northrop drove the men away from Winters’ house and to
Patton’s apartment. While driving, Northrop observed Elseman
making calls and sending text messages in an attempt to find
someone to pick up Emily. Northrop dropped Elseman, Ely,
and Patton at Patton’s apartment and then went to his girl-
friend’s house.
Nicholas Palma testified that on July 6, 2011, he made plans
to go swimming with his friends Ely and Patton. Before he left
to go swimming at Patton’s apartment complex, he received a
call from Ely and the plan was changed such that Palma was to
pick up Emily, whom Palma had met the night before at Ely’s
home. Palma did not find Emily at the location he had been
told he would find her, and so he went to Patton’s apartment.
When he got there, he saw Elseman, Ely, and Patton. Palma
testified that while they were talking about events that had
occurred earlier in the day, Elseman “[s]aid that he had shot
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somebody in the neck” and “that he wouldn’t let his homeys
take the charge for this. He would do life.”
The State also presented testimony by law enforcement offi-
cers who investigated Winters’ killing. Some of the testimony
focused on text messages sent between individuals involved
with the attempted robbery and shooting. Nicholas Herfordt,
an Omaha police officer, testified regarding his training with
respect to extracting data from cell phones. As part of the
investigation of Winters’ killing and the attempted robbery,
Herfordt recovered data from the cell phones of the parties,
including Emily, who were involved in the incident. Herfordt
testified regarding the procedures he used to extract data.
Herfordt stated on cross-examination that the information he
could retrieve from a cell phone would not indicate who had
made or received a particular call.
Donald Ficenec, a sergeant with the Omaha Police
Department, testified that as part of the investigation of
Winters’ death, Ficenec compiled telephone records that had
been obtained for various persons involved in the case. Such
records showed the date and time of voice calls made between
cell phones, but did not show the content of such calls. With
regard to text messages, the records showed the content as well
as the date and time.
Ficenec testified regarding the date, time, and duration of
certain telephone calls and the date, time, and content of text
messages that were relevant to this case. Ficenec testified
regarding text messages sent between Emily’s and Elseman’s
cell phones around the time that Winters was shot. Elseman
made foundation objections to certain questions regarding the
content of text messages sent from Elseman’s cell phone to
Emily’s cell phone. The court overruled the objections. On
cross-examination, Ficenec stated that although the telephone
records could tell the content of text messages and the date
and time the messages were sent, the records did not name
the specific person who sent and received the messages, only
the telephone numbers from which and to which the messages
were sent.
Dave Schneider, a police detective on the team that inves-
tigated Winters’ death, testified that he had obtained a search
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warrant for Emily’s cell phone and that he had looked through
the contents of the phone. He documented certain text mes-
sages that he observed on Emily’s cell phone, particularly those
around the time that Winters was shot. He noted certain mes-
sages to a person that was listed in Emily’s contact list under
the name “Ryan.” Elseman objected based on foundation to the
State’s questions regarding the content of text messages sent
from Emily’s cell phone to the contact listed as “Ryan” and
from the contact listed as “Ryan” to Emily’s cell phone. The
court overruled Elseman’s objections.
A coroner’s physician who performed the autopsy on Winters
testified that Winters had a gunshot wound that indicated a bul-
let had entered the right back side of Winters’ head and exited
left of the center of his chin. The physician testified that the
bullet partially severed Winters’ carotid artery, which caused
significant hemorrhaging and ultimately caused Winters to
bleed to death.
After the State rested its case, Elseman moved for a directed
verdict on both counts. The district court sustained the motion
with regard to the premeditated murder alternative for the
first degree murder charge but overruled the motion as to
felony murder and use of a deadly weapon to commit a felony
charges. Elseman chose not to testify in his defense, and he
rested his defense without presenting any evidence. Elseman
renewed his motion for a directed verdict as to the remaining
charges, and the court overruled the motion.
The court instructed the jury with regard to felony murder
and use of a deadly weapon to commit a felony. After delibera-
tions, the jury returned verdicts of guilty on both counts. The
court thereafter sentenced Elseman to consecutive terms of
imprisonment for life for the murder conviction and for 25 to
30 years for the use of a weapon conviction.
Elseman appeals his convictions.
ASSIGNMENTS OF ERROR
Elseman claims, renumbered and restated, that the district
court erred (1) when it admitted evidence of the content of text
messages sent to and from Elseman and (2) when it overruled
his motions for directed verdict on felony murder and use of a
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deadly weapon to commit a felony. He also claims that there
was not sufficient evidence to support his convictions.
STANDARDS OF REVIEW
[1] Because authentication rulings are necessarily fact spe-
cific, a trial court has discretion to determine whether evidence
has been properly authenticated. We review a trial court’s rul-
ing on authentication for abuse of discretion. State v. Nolan,
283 Neb. 50, 807 N.W.2d 520 (2012), cert. denied ___ U.S.
___, 133 S. Ct. 158, 184 L. Ed. 2d 78.
[2] In a criminal case, a court can direct a verdict only
when there is a complete failure of evidence to establish an
essential element of the crime charged or the evidence is so
doubtful in character, lacking probative value, that a finding
of guilt based on such evidence cannot be sustained. State v.
Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013). If there is
any evidence which will sustain a finding for the party against
whom a motion for directed verdict is made, the case may
not be decided as a matter of law, and a verdict may not be
directed. Id.
[3] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion 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. Id. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Id.
ANALYSIS
The Content of Text Messages
Was Authenticated.
Elseman first claims that the court erred when it admit-
ted evidence regarding the content of text messages sent to
and from Elseman’s cell phone around the time of the killing
because the text message evidence was admitted without sat-
isfying the authentication requirement of Neb. Evid. R. 901,
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Neb. Rev. Stat. § 27-901(1) (Reissue 2008). Rule 901 states,
in relevant part: “The requirement of authentication or iden-
tification 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.” We determine that the
authentication requirement was met, and there is no error in
this regard.
[4] We have stated that rule 901 does not impose a high
hurdle for authentication or identification. State v. Taylor,
282 Neb. 297, 803 N.W.2d 746 (2011). A proponent of evi-
dence is not required to conclusively prove the genuineness
of the evidence or to rule out all possibilities inconsistent
with authenticity. Id. 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). Id.
The evidence about which Elseman complains includes
Emily’s testimony regarding the content of text messages sent
between herself and Elseman near the time Winters was killed.
He also complains of evidence about which police investiga-
tors testified regarding text messages found on Emily’s cell
phone. Elseman’s concern stems from the fact that it could not
be ruled out that some other person sent or received the mes-
sages while using Elseman’s cell phone.
In State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011),
we considered a rule 901 challenge to the admission of evi-
dence of the content of e-mail correspondence purportedly
written by the defendant. We stated that e-mails could be
authenticated by evidence such as
the e-mail address[, t]he signature or name of the sender
or recipient in the body of the e-mail[, e]vidence that
an e-mail is a timely response to an earlier message
addressed to the purported sender[, or] the contents of the
e-mail and other circumstances [that] may be utilized to
show its authorship.
281 Neb. at 860, 800 N.W.2d at 229. We further stated in
Pullens that “[t]he possibility of an alteration or misuse by
another of the e-mail address generally goes to weight, not
admissibility.” Id.
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The reasoning we used with regard to the evidence of
e-mail correspondence in Pullens applies to the rule 901
challenge to the evidence of the content of text messages in
this case. Under rule 901, the State as the proponent of the
evidence was not required to conclusively prove that Elseman
authored the messages or to rule out that someone else may
have written the messages using Elseman’s cell phone. Courts
in other jurisdictions have held that electronic messages such
as e-mails and text messages may be authenticated by cir-
cumstantial evidence establishing that the evidence was what
the proponent claimed it to be. See State v. Thompson, 777
N.W.2d 617 (N.D. 2010) (collecting cases). We determine that
in this case, the State provided sufficient evidence to authenti-
cate the text messages.
With regard to the specific evidence of which Elseman com-
plains, we note that Emily testified regarding Elseman’s tele-
phone number based on her own memory, which was refreshed
by looking at her cell phone. She also testified from her own
memory regarding the content of text messages between her-
self and Elseman. It was clear that the foundation for Emily’s
testimony was her own memory regarding messages she had
sent to and received from Elseman. Rule 901, upon which
Elseman relies on appeal, did not prohibit Emily from testify-
ing regarding her memory of messages sent between herself
and Elseman.
Elseman also complains of the testimony of three law
enforcement offiers involved in the investigation in this case—
Herfordt, Ficenec, and Schneider. Herfordt testified only to
the techniques he used to extract data from Emily’s cell
phone; he did not testify regarding the content of text mes-
sages, and Elseman made no objection based on foundation or
authentication regarding Herfordt’s testimony. Elseman notes
and we recognize that Herfordt testified that data extracted
from the cell phone did not indicate who actually sent the
messages. The jury was allowed to take this testimony into
consideration. Elseman shows no error in the court’s allowing
Herfordt’s testimony.
Ficenec and Schneider testified regarding the content of
text messages extracted from Emily’s cell phone. The two
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witnesses testified regarding the content of text messages and
the telephone numbers from which and to which messages
were sent. Although the number from which messages were
sent and received was the number that Emily identified as
belonging to Elseman, neither law enforcement officer testi-
fied that it was Elseman who sent the message, and both
conceded that the data extracted from the cell phone could not
verify who sent the message. The officers provided testimony
regarding how they obtained the information extracted from
the cell phone.
Because the officers testified regarding messages sent
between only certain numbers and they did not purport to
identify the specific persons who sent the messages, we deter-
mine that rule 901, upon which Elseman relies on appeal,
did not prohibit the court from admitting such testimony.
For purposes of rule 901, there was sufficient testimony to
establish that the evidence was what the State claimed it to
be—messages sent between certain telephone numbers. It
was then within the jury’s province to determine whether it
could be reasonably inferred that Elseman sent or received
the messages.
The authentication requirement of rule 901 was met, and we
determine that the district court did not err on the basis of rule
901 when it admitted testimony by Emily and by the police
officers regarding the content of the text messages. We reject
this assignment of error.
There Was Sufficient Evidence to
Support Elseman’s Convictions.
Elseman claims that the district court erred when it over-
ruled his motions for directed verdict on the charges of felony
murder and use of a deadly weapon to commit a felony and, in
any event, that there was not sufficient evidence to support his
convictions. We find no merit to these claims.
In considering Elseman’s assigned error regarding the
amount of evidence, we note that where a defendant in a
criminal case has moved for a directed verdict which is
overruled and the defendant does not put on evidence, he
or she has preserved the ruling for appeal, as Elseman did
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in this case. Cf. State v. Seberger, 284 Neb. 40, 815 N.W.2d
910 (2012).
In this case, Elseman twice unsuccessfully moved for
directed verdict. In a criminal case, a court can direct a verdict
only when there is a complete failure of evidence to establish
an essential element of the crime charged or the evidence is so
doubtful in character, lacking probative value, that a finding
of guilt based on such evidence cannot be sustained. State v.
Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013). If there is
any evidence which will sustain a finding for the party against
whom a motion for directed verdict is made, the case may
not be decided as a matter of law, and a verdict may not be
directed. Id. Referring to our statement of facts and as recited
below in our sufficiency of the evidence analysis, there is
evidence which would sustain a finding for the State against
whom the motions for directed verdict were made. We cannot
say as a matter of law that the case should not have been sub-
mitted to the jury. The overrulings of Elseman’s motions for
directed verdict were not error.
Elseman next challenges the sufficiency of the evidence.
In his appellant’s brief, Elseman makes only general asser-
tions that there was not enough evidence to support his
convictions. Elseman does not identify specific elements of
either crime of which he was convicted that were not proved.
Accordingly, we give an overview of the evidence and we
find it sufficient.
Elseman was convicted of first degree murder and use of
a weapon to commit a felony. The court directed a verdict in
favor of Elseman with regard to the premeditated murder alter-
native for first degree murder; but with regard to the felony
murder alternative, the jury was correctly instructed that in
order to find Elseman guilty of first degree felony murder,
it needed to find that Elseman intended to commit a robbery
and that in the course of committing or attempting to commit
that robbery, Elseman killed Winters. The jury was correctly
instructed that in order to find Elseman guilty of use of a
deadly weapon to commit a felony, it must find that Elseman
committed first degree murder and that he intentionally used a
deadly weapon in the commission of the murder.
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There was testimony from witnesses in this case that, if
believed by the jury, established that Elseman intended to rob
Winters; that during the attempted commission of that robbery,
Elseman shot and killed Winters; and that Elseman intention-
ally used a deadly weapon to shoot Winters. We note particu-
larly the testimony of Emily, Northrop, and Palma recounted in
our statement of facts. Such testimony indicated that Elseman
and others formed a plan to rob Winters and that they took
steps to carry out the robbery, including gaining access to
Winters’ house. There was evidence which shows that while in
Winters’ house to carry out the robbery, Elseman used a gun to
shoot Winters and that Winters died from the gunshot wounds
inflicted by Elseman.
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 essen-
tial elements of the crime beyond a reasonable doubt. State v.
Eagle Bull, supra. The evidence admitted in this case was suf-
ficient to support Elseman’s convictions for first degree murder
and use of a deadly weapon to commit a felony. We find no
merit to this assignment of error.
CONCLUSION
Because the content of the text messages was properly
authenticated under rule 901, we conclude that the district
court did not err on this basis when it admitted evidence
regarding the content of text messages between Elseman and
Emily. We conclude the district court did not err when it over-
ruled Elseman’s motions for directed verdict. We further con-
clude that there was sufficient evidence to support Elseman’s
convictions. We affirm Elseman’s convictions and sentences
for first degree murder and use of a deadly weapon to commit
a felony.
Affirmed.
McCormack, J., participating on briefs.