State v. Jenkins

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/09/2016 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. JENKINS
Cite as 294 Neb. 684
State of Nebraska, appellee, v.
Erica A. Jenkins, appellant.
___ N.W.2d ___
Filed September 9, 2016. No. S-14-1087.
1. Criminal Law: Federal Acts: Records. Under 18 U.S.C. § 2703(d)
(2012), the government may obtain a court order that requires a cellular
service provider to disclose a customer’s records upon a showing that
specific and articulable facts showing that there are reasonable grounds
to believe the information sought is relevant and material to an ongoing
criminal investigation.
2. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
3. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
protect individuals against unreasonable searches and seizures by the
government. These constitutional provisions do not protect citizens from
all governmental intrusion, but only from unreasonable intrusions.
4. Constitutional Law: Search and Seizure: States. The Fourth
Amendment’s protections are implicated whenever state action intrudes
on a citizen’s reasonable expectation of privacy.
5. Constitutional Law: Search and Seizure. Determining whether a
reasonable expectation of privacy exists normally involves answer-
ing two inquiries: first, whether the individual has exhibited an actual
(subjective) expectation of privacy, and, second, whether the indi-
vidual’s expectation is one that society is prepared to recognize as
“reasonable.”
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STATE v. JENKINS
Cite as 294 Neb. 684
6. ____: ____. For purposes of the Fourth Amendment, a search occurs
when the government violates a subjective expectation of privacy that
society recognizes as reasonable.
7. Constitutional Law. Under the third-party doctrine, there is no reason-
able expectation of privacy in personal information a defendant know-
ingly exposes to third parties. This is true even when the information is
revealed to the third party on the assumption that it will be used only
for a limited purpose and the confidence in the third party will not
be betrayed.
8. Constitutional Law: Records. Cell phone users can claim no reason-
able expectation of privacy in their service providers’ business records
documenting the cellular towers that route their calls.
9. Constitutional Law: Federal Acts: Search and Seizure. The State’s
acquisition of historical cell site location information pursuant to 18
U.S.C. § 2703(d) (2012) does not violate or implicate the Fourth
Amendment and is not a search under either the U.S. or Nebraska
Constitution.
10. Trial: Photographs. The admission of photographs of a gruesome
nature rests largely with the discretion of the trial court, which must
determine their relevancy and weigh their probative value against their
prejudicial effect.
11. Trial: Photographs: Appeal and Error. An appellate court reviews
the court’s admission of photographs of the victims’ bodies for abuse
of discretion.
12. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2008), relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice or if it is
needlessly cumulative.
13. Homicide: Photographs. If the State lays proper foundation, photo-
graphs that illustrate or make clear a controverted issue in a homicide
case are admissible, even if gruesome.
14. ____: ____. In a homicide prosecution, a court may admit into evidence
photographs of a victim for identification, to show the condition of the
body or the nature and extent of wounds and injuries to it, and to estab-
lish an element of the crime.
15. Photographs: Rules of Evidence. Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008), does not require the State to have a separate
purpose for every photograph.
16. ____: ____. Generally, when a court admits photographs for a proper
purpose, additional photographs of the same type are not unfairly
prejudicial.
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Nebraska Supreme Court A dvance Sheets
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STATE v. JENKINS
Cite as 294 Neb. 684
17. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
determine the plausibility of explanations, 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 essen-
tial elements of the crime beyond a reasonable doubt.
18. Robbery: Words and Phrases. A person commits robbery if, with the
intent to steal, he or she forcibly and by violence, or by putting in fear,
takes from the person of another any money or personal property of any
value whatever.
19. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
20. Prosecuting Attorneys: Pretrial Procedure: Evidence. Under Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the
prosecution has a duty to disclose all favorable evidence to a criminal
defendant prior to trial. Impeachment evidence, as well as exculpatory
evidence, falls within the Brady rule.
21. Judges: Motions for New Trial: Evidence: Witnesses: Verdicts. A
trial judge is accorded significant discretion in granting or denying a
motion for new trial, because the trial judge sees the witnesses, hears the
testimony, and has a special perspective on the relationship between the
evidence and the verdict.
22. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
23. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
24. Sentences: Prior Convictions: Habitual Criminals: Proof. In a habit-
ual criminal proceeding, the State’s evidence must establish with requi-
site trustworthiness, based upon a preponderance of the evidence, that
(1) the defendant has been twice convicted of a crime, for which he or
she was sentenced and committed to prison for not less than 1 year; (2)
the trial court rendered a judgment of conviction for each crime; and (3)
at the time of the prior conviction and sentencing, the defendant was
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STATE v. JENKINS
Cite as 294 Neb. 684
represented by counsel or had knowingly and voluntarily waived repre-
sentation for those proceedings.
25. Criminal Law: Habitual Criminals. To warrant enhancement under
the habitual criminal statute, Neb. Rev. Stat. § 29-2221 (Reissue 2008),
the prior convictions, except the first conviction, must be for offenses
committed after each preceding conviction, and all such prior convic-
tions must precede the commission of the principal offense.
26. Criminal Law: Convictions: Habitual Criminals. Where the sequence
of prior convictions is in issue, the rule is that each successive felony
must be committed after the previous felony conviction in order to count
toward habitual criminal status.
27. Sentences: Prior Convictions: Habitual Criminals. So long as each
successive felony is committed after the previous felony conviction, it is
immaterial to the habitual criminal analysis that an offender has not yet
finished serving his or her sentence on the previous felony.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Beau G. Finley, of Finley & Kahler Law Firm, P.C., L.L.O.,
and Sean M. Conway, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ., and Moore, Chief Judge.
Stacy, J.
I. SUMMARY OF CASE
Following a jury trial, Erica A. Jenkins was convicted of two
counts of robbery. She was sentenced to consecutive terms of
30 to 50 years’ imprisonment. This is her direct appeal.
Several issues are assigned as error, but the primary issue
presented is whether the State’s acquisition of Jenkins’ cell
phone records from her service provider amounted to a search
under the U.S. and Nebraska Constitutions. We find Jenkins
had no reasonable expectation of privacy in these records, and
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STATE v. JENKINS
Cite as 294 Neb. 684
we conclude the State’s acquisition of those records was not a
search implicating the Fourth Amendment. We find no merit
to Jenkins’ remaining assignments of error, and we affirm her
convictions and sentences.
II. FACTS
On August 11, 2013, the bodies of two men were found
in a pickup truck near a park in Omaha, Nebraska. The men
had each been shot in the head, the pockets in their pants
had been turned inside out, and their wallets were missing.
The men were later identified as Juan Uribe-Pena and Jorge
Cajiga-Ruiz.
A palmprint found on the pickup truck led police to Christine
Bordeaux, who was the State’s main witness at trial. Bordeaux
testified that on the evening of August 10, 2013, Jenkins’
brother, Nikko Jenkins (Nikko), suggested a plan for Bordeaux
and Jenkins to lure men to a place where Nikko would rob
them. According to Bordeaux, she and Jenkins agreed to “hit
a lick” or “go do a robbery” with Nikko. When asked at
trial whether she had any doubt that Jenkins knew the entire
night “was about getting money and robbing guys,” Bordeaux
responded, “There’s no doubt, no.”
Bordeaux testified that she and Jenkins left with Nikko
that night and that he drove them to an Omaha bar. Nikko
dropped the women off and parked nearby. The women were
approached by some men in a pickup truck who asked whether
the women “wanted to party.” Bordeaux and Jenkins got into
the pickup, and the men drove them to an Omaha apartment.
Once inside the apartment, Bordeaux asked the men whether
they had any money. One of the men told her not to worry,
“he was gonna have another friend come and bring his money,
possibly up to $1,000.” Jenkins then went into the bathroom
to call Nikko on her cell phone. About 30 minutes later,
Bordeaux and Jenkins left the apartment with two of the men
to buy more alcohol and pick up another woman. Bordeaux
testified she wanted to “get them out of the apartment” and
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STATE v. JENKINS
Cite as 294 Neb. 684
“go to the store . . . so Nikko could rob ’em.” They left the
apartment in a white pickup truck driven by one of the men.
Bordeaux rode in the front passenger seat of the pickup, and
Jenkins sat immediately behind her. Nikko followed the pickup
in another vehicle.
When the pickup stopped at the end of a road near a park,
Nikko approached with a gun and knocked on a window of
the pickup. Bordeaux and Jenkins got out of the pickup. Nikko
then demanded money from the men, shot them, and took their
wallets. According to Bordeaux, Nikko first shot the man in
the back seat and then shot the driver, who had moved over to
the passenger side of the pickup when he saw Nikko. After the
second shot, Jenkins screamed and ran. Bordeaux and Jenkins
waited in Nikko’s car while he gathered the shell casings.
Nikko eventually returned to the car carrying two wallets and
two shell casings.
After the shootings, Nikko drove Bordeaux and Jenkins to
a motel in Council Bluffs, Iowa, so they could switch vehicles
and change clothes. According to Bordeaux, after they changed
clothes, she and Nikko waited in the motel parking lot in
another vehicle while Jenkins tried to fix the taillights on her
vehicle. When a police cruiser pulled into the motel parking
lot, Nikko and Bordeaux drove away.
A Council Bluffs police officer testified he was patrolling
the motel parking lot at about 3:40 a.m. and contacted a black
female in a vehicle registered to Jenkins. She told the officer
she was having car trouble and explained her cousin had just
pulled out of the parking lot in another vehicle.
A cell phone found under the body of one of the victims
led police to Jose Oscar Ramirez-Martinez. Ramirez-Martinez
testified he was with the two victims, Uribe-Pena and Cajiga-
Ruiz, at an Omaha bar a few hours before the shooting.
According to Ramirez-Martinez, he and the two victims met
two women at the bar and eventually left with the women to
go to Uribe-Pena’s apartment. Ramirez-Martinez described one
woman as “white” and “blonde” and the other as “dark” and
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STATE v. JENKINS
Cite as 294 Neb. 684
“thin.” He testified the thin woman went into the bathroom
upon arriving at the apartment. Ramirez-Martinez testified he
was in the apartment about 10 minutes before leaving to get
more money. After leaving the apartment, Ramirez-Martinez
received a call from Uribe-Pena telling him they were driv-
ing with the women to find another female friend. Ramirez-
Martinez tried calling Uribe-Pena several times after that, but
received no answer. He later learned Uribe-Pena and Cajiga-
Ruiz had been killed.
Eventually, Jenkins was arrested and charged with two
counts of robbery and one count of criminal conspiracy. The
information also alleged Jenkins was a habitual criminal. In a
separate case, Nikko was charged with, and convicted of, two
counts of first degree murder in connection with the deaths of
Uribe-Pena and Cajiga-Ruiz.
After her arrest, Jenkins disclosed her cell phone number
to police. Police then obtained, from Jenkins’ cellular serv­
ice provider, certain cell phone records associated with that
number. The records included subscriber information and user
activity for connections to and from the account around the
time of the crime, including records regarding cellular site and
sector information. Police did not request or obtain produc-
tion of the content of any communications or files stored for
the account.
The cell phone records showed that calls involving Jenkins’
cell phone occurred at 1:33, 1:54, and 2:09 a.m. and were
routed through a cell tower one block from Uribe-Pena’s
apartment. A call from Jenkins’ cell phone at 2:17 a.m.
was routed through a cell tower near the crime scene. And
multiple calls from Jenkins’ cell phone made between 3:46
and 3:53 a.m. were routed through a cell tower located in
Council Bluffs. As such, the records provided evidence that
Jenkins’ cell phone was near the crime scene during the rel-
evant timeframe and provided evidence that corroborated wit-
ness testimony of Jenkins’ whereabouts before and after the
crime occurred.
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. JENKINS
Cite as 294 Neb. 684
Prior to trial, Jenkins moved to suppress the cell phone
records. She argued the State obtained the records pursuant
to a search warrant that was not supported by probable cause
and thereby violated her rights under the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska
Constitution. The district court held a hearing on the motion
and took the matter under advisement.
The next day, while the suppression motion was still under
advisement, the State obtained another search warrant for the
same cell phone records, this time supported by an affidavit
which more precisely described Jenkins’ involvement and her
use of the cell phone at the time of the crimes. The cellu-
lar serv­ice provider again produced the requested cell phone
records, and Jenkins filed a supplemental motion to suppress.
At the hearing on the supplemental motion, Jenkins did not
argue the affidavit supporting the second search warrant lacked
probable cause, but instead argued the State had impermissibly
supplemented its affidavit.
The district court denied both the original and supplemental
motions to suppress. The court relied on our opinion in State
v. Knutson1 to find that Jenkins had no reasonable expectation
of privacy in the cell phone records and thus concluded police
did not conduct a search implicating the Fourth Amendment
when officers obtained the records. Alternatively, the district
court found that even if a search under the U.S. and Nebraska
Constitutions occurred, the second search warrant was sup-
ported by probable cause.
Following a jury trial, Jenkins was found guilty of two
counts of robbery. The jury could not reach a unanimous
verdict on the separate count of criminal conspiracy. After an
enhancement hearing at which the court found Jenkins to be
a habitual criminal, she was sentenced to consecutive prison
terms of 30 to 50 years on each robbery count. Jenkins timely
1
State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
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Cite as 294 Neb. 684
appealed, and we granted her petition to bypass the Nebraska
Court of Appeals.
III. ASSIGNMENTS OF ERROR
Jenkins assigns, rephrased, that (1) the district court erred
in overruling her motion to suppress the cell phone records,
(2) the district court erred in admitting gruesome photographs,
(3) the district court erred in overruling her motion for new
trial, (4) the evidence at trial was insufficient to support her
convictions, and (5) the district court erred in finding her to be
a habitual criminal.
IV. ANALYSIS
1. Motion to Suppress Cell Phone R ecords
(a) Background
[1] In this case, police relied on the federal Stored
Communications Act2 to request and obtain Jenkins’ cell phone
records. Under the federal act, the government may obtain
a court order that requires a cellular service provider to dis-
close a customer’s records upon a showing that “specific and
articulable facts showing that there are reasonable grounds to
believe [the information sought is] relevant and material to
an ongoing criminal investigation.”3 Section 2703(d) does not
require the government to show probable cause in connection
with obtaining a court order.4
Here, the parties and the district court consistently refer
to the § 2703(d) order used to obtain the cell phone records
as a “search warrant,” but it is more properly character-
ized as a court order. Using the language of § 2703(d),
the district court made a finding that “the applicant has
offered specific and articulable facts showing that there are
2
18 U.S.C. §§ 2701 to 2711 (2012).
3
§ 2703(d).
4
See U.S. v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc), cert. denied
___ U.S. ___, 136 S. Ct. 479, 193 L. Ed. 2d 349.
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reasonable grounds to believe that the records . . . sought
are relevant and material to an ongoing criminal investiga-
tion.” The court then compelled the cellular service provider
to produce the cell phone records using the following lan-
guage: “YOU ARE, THEREFORE, ORDERED, pursuant
to Title 18, United States Code, Section 2703(d)[, to] turn
over to the Omaha, Nebraska Police Department the records
and other information [requested].” As such, although the
Stored Communications Act authorizes governmental entities
to obtain cell phone records using either warrants5 or court
orders,6 the records in this case were obtained using a court
order issued pursuant to § 2703(d).
On appeal, Jenkins does not argue that the court orders
obtained by police failed to satisfy the statutory require-
ments of the Stored Communications Act. Rather, she argues
that her rights under the Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution
were violated when her cell phone records were obtained by
police. Jenkins argues she has an expectation of privacy in
the cell phone records and contends the affidavit supporting
the first “warrant” lacked probable cause. Jenkins concedes
the second “warrant” was supported by an affidavit which
recited probable cause, but argues the affidavit was impermis-
sibly rehabilitated.
In response, the State argues Jenkins did not have a reason-
able expectation of privacy in the cell phone records, so offi-
cers did not conduct a search subject to Fourth Amendment
protection when they obtained the records. Alternatively, the
State argues that even assuming officers conducted a search
when they obtained the cell phone records, the second search
warrant was supported by probable cause and the motion to
suppress was properly overruled. The State further argues
that the exclusionary rule does not apply in this case, because
5
See § 2703(c)(1)(A).
6
See § 2703(d).
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either the good faith exception7 applies, the independent
source doctrine8 applies, or the inevitable discovery doc-
trine9 applies.
(b) Standard of Review
[2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.10
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.11
(c) Analysis
[3] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution protect indi-
viduals against unreasonable searches and seizures by the
government.12 These constitutional provisions do not pro-
tect citizens from all governmental intrusion, but only from
unreasonable intrusions.13 Here, the threshold question is
whether the State’s acquisition of Jenkins’ cell phone records
amounted to a search or seizure under the U.S. and Nebraska
Constitutions. Jenkins does not argue that Nebraska’s con-
stitutional provisions impose any higher standard than the
7
See, United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d
677 (1984); State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012);
State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010).
8
See State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
9
See State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).
10
State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015); State v. Hedgcock,
277 Neb. 805, 765 N.W.2d 469 (2009).
11
Id.
12
State v. Knutson, supra note 1.
13
State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
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Fourth Amendment, and we analyze her claims under familiar
Fourth Amendment principles.
[4-6] The Fourth Amendment’s protections are implicated
whenever state action intrudes on a citizen’s reasonable expec-
tation of privacy.14 Determining whether a reasonable expec-
tation of privacy exists normally involves answering two
inquiries: first, whether the individual has exhibited an actual
(subjective) expectation of privacy, and, second, whether the
individual’s expectation is one that society is prepared to rec-
ognize as “reasonable.”15 As such, for purposes of the Fourth
Amendment, a “search occurs when the government violates
a subjective expectation of privacy that society recognizes
as reasonable.”16
Before addressing whether Jenkins has a reasonable expec-
tation of privacy in her cell phone records, we pause to clarify
the nature of the records sought and produced in this case.17
The court orders compelled the cellular service provider to turn
over subscriber information and records of user activity for
connections made to and from the account, including “caller
identification records” and the “cellular site and sector guide”
for the prior 30-day period. As such, the court orders com-
pelled production of what is commonly referred to as “histori-
cal cell site location information” (CSLI). The court orders did
not compel production of the content of any communications
involving the cell phone, and nothing in our record suggests
any content-based information was provided. Nor did the his-
torical CSLI allow law enforcement to track Jenkins’ use of her
cell phone prospectively or in real time.
14
State v. Knutson, supra note 1.
15
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).
16
Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94
(2001).
17
See Smith v. Maryland, supra note 15, 442 U.S. at 741 (in deciding
whether the Fourth Amendment applies, “it is important to begin by
specifying precisely the nature of the state activity that is challenged”).
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At the hearing on the motion to suppress, the records cus-
todian for the cellular service provider testified that when a
cell phone is used to make or accept calls or text messages,
the serv­ice provider records the date and time of the transac-
tion, the cell phone numbers involved, and the beginning and
ending sector and cell tower site associated with the transac-
tion. This information is recorded at or near the time of each
transaction and is kept by the cellular service provider for all
accounts in the regular course of its business. The service pro-
vider stores the CSLI in a database for 18 months.
Jenkins asks us to find she had a reasonable expectation of
privacy in the cell phone records maintained by her service
provider. We rejected a similar claim in State v. Knutson.18
In Knutson, the State used a subpoena to obtain the defend­
ant’s cell phone records from his service provider. The records
showed the date and time of calls and text messages between
the defendant and a minor he was accused of assaulting,
but did not include the content of any communications. The
defend­ ant argued his rights under the Fourth Amendment
were violated because the State obtained the records from
his cellular service provider through a subpoena rather than a
search warrant supported by probable cause.
To determine whether the Fourth Amendment was impli-
cated, we considered whether the defendant in Knutson
had a reasonable expectation of privacy in business records
maintained by his service provider detailing the destination
number and times for calls and text messages he sent and
received. We applied the reasoning articulated by the U.S.
Supreme Court in Smith v. Maryland.19 There, the Court
applied the third-party doctrine and held that law enforcement
officers do not need a warrant to have a telephone company
install a pen register to record the numbers dialed from a
18
State v. Knutson, supra note 1.
19
Smith v. Maryland, supra note 15.
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person’s telephone, because the activity does not amount to a
search under the Fourth Amendment. The Court reasoned that
each time a customer uses a telephone, he or she voluntarily
conveys numerical information to the telephone company. By
doing so, the customer assumes the risk that the company
will reveal to police “the numbers dialed [and the] switch-
ing equipment that processed those numbers,” which the
Court described as “merely the modern counterpart of the
operator who, in an earlier day, personally completed calls for
the subscriber.”20
In Knutson, we applied the third-party doctrine and found
the defendant did not have a reasonable expectation of pri-
vacy in the cell phone records maintained by his service pro-
vider. And we concluded he had no Fourth Amendment claim
when the government obtained those records using a subpoena,
because there was no constitutional interest at stake.21
[7] Here, like in Knutson, we conclude the third-party
doctrine governs our analysis. The U.S. Supreme Court has
repeatedly said there is no reasonable expectation of privacy in
personal information a defendant knowingly exposes to third
parties.22 And this is true even when the information is revealed
to the third party on the assumption that it will be used only
for a limited purpose and the confidence in the third party will
not be betrayed.23
Applying the third-party doctrine to the facts of this case,
we conclude Jenkins did not have a reasonable expectation
20
Id., 442 U.S. at 744.
21
State v. Knutson, supra note 1.
22
State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013), citing Smith v.
Maryland, supra note 15; United States v. Miller, 425 U.S. 435, 96 S. Ct.
1619, 48 L. Ed. 2d 71 (1976); Couch v. United States, 409 U.S. 322, 93 S.
Ct. 611, 34 L. Ed. 2d 548 (1973); Hoffa v. United States, 385 U.S. 293, 87
S. Ct. 408, 17 L. Ed. 2d 374 (1966); and Lopez v. United States, 373 U.S.
427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963).
23
Id., citing United States v. Miller, supra note 22.
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of privacy in the historical CSLI maintained by her cellular
service provider. Each time she sent or received a call or text
message, her cellular service provider generated a record which
included the date and time of the communication and the sec-
tor and cell tower sites used to route the communication. This
historical CSLI was recorded and kept by the cellular service
provider in the ordinary course of business. The government
did not require Jenkins’ service provider to record or store this
information, and “[t]he fortuity of whether or not the [third
party] in fact elects to make a quasi-permanent record” of
information conveyed to it “does not . . . make any constitu-
tional difference.”24
In arguing that we should recognize a reasonable expecta-
tion of privacy on these facts, Jenkins claims the cell phone
records stored by her service provider contain “far more than
simply a call log,” because “such information can be used
to track [her] movements and location.”25 She points out the
records were used at trial to provide evidence of her general
location during the robbery and homicide. As such, she argues
our analysis of the records should be governed by global posi-
tion system (GPS) tracking cases such as U.S. v. Jones,26 rather
than by Smith.
In Jones, the FBI and local law enforcement secretly
installed a GPS tracking device on a private vehicle and moni-
tored the vehicle’s movements for 28 days. The GPS device
established the vehicle’s location within 50 to 100 feet and
communicated that location to a government computer. The
Jones Court concluded that the government physically intruded
on the defendant’s private property to install the GPS device
and that the government’s use of that device to monitor the
vehicle’s movements constituted a search and violated the
24
Smith v. Maryland, supra note 15, 442 U.S. at 745.
25
Brief for appellant at 31.
26
U.S. v. Jones, ___ U.S. ___, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012).
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Fourth Amendment.27 The Court highlighted the significance of
the governmental activity involved, stating:
It is important to be clear about what occurred in this
case: The Government physically occupied private prop-
erty for the purpose of obtaining information. We have
no doubt that such a physical intrusion would have been
considered a “search” within the meaning of the Fourth
Amendment when it was adopted.28
But the present case does not involve the issue of govern-
ment tracking, and the Court’s analysis in Jones tells us little
about whether the State’s acquisition of business records con-
taining historical CSLI from a cellular service provider is a
search within the meaning of the Fourth Amendment. Unlike
the GPS surveillance information collected by the government
in Jones, the historical CSLI obtained in the present case is
routinely collected by the service provider for all subscribers
and enables only general conclusions to be drawn regard-
ing the caller’s location when calls and texts are sent and
received. The historical CSLI in this case was not collected by
the government, did not involve a physical intrusion on pri-
vate property, and did not enable real-time tracking or permit
prosecutors to place Jenkins at a precise location at any point
in time.
It is worth mentioning that, given the landline technology
of telephones at the time of Smith, the records obtained by
the government in that case arguably contained more precise
location data than the CSLI at issue here, because landlines
are associated with a physical street address.29 The fact that
the business records in Smith showed exactly where the caller
was (in his home) at the time the calls were placed did not
preclude the Court from applying the third-party doctrine and
27
Id.
28
Id., 132 S. Ct. at 949.
29
See U.S. v. Davis, supra note 4.
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concluding he had no reasonable expectation of privacy in the
telephone records. Despite advances in technology, we see no
compelling reason to depart from the third-party doctrine just
because the business records at issue pertain to a customer’s
use of a cell phone rather than a landline telephone.
It is true that the technology used to route cell phone com-
munications may act in some respects like a tracking device,
but it is one which cellular customers knowingly and volun-
tarily carry and use, not one placed secretly on their person
or property by the government. And the routing information
from which general location information can later be gleaned
is information recorded and kept by the service provider in the
ordinary course of business, not at the behest of the govern-
ment. These distinctions are significant.30 Cases such as Jones,
which analyze direct government surveillance using GPS tech-
nology, do not answer the question whether the government
invades an individual’s reasonable expectation of privacy when
it obtains, from a third-party service provider, cell phone
records which include historical CSLI from which the govern-
ment can deduce general location information.31
Jenkins also argues that the U.S. Supreme Court’s recent
holding in Riley v. California32 compels the conclusion that
she has a reasonable expectation of privacy in her cell phone
records. We disagree.
In Knutson, when determining whether a Fourth Amendment
search occurs when the government obtains cell phone records
from a third-party service provider, we expressly rejected the
suggestion that this issue was controlled by cases involving
30
See, U.S. v. Graham, 824 F.3d 421 (4th Cir. 2016); U.S. v. Davis, supra
note 4; In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir.
2013); In re Electronic Communication Service to Disclose, 620 F.3d 304
(3d Cir. 2010).
31
Id.
32
Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430
(2014).
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searches of cell phones to obtain “content information.”33 We
adhere to this reasoning in the present case and see nothing in
Riley which compels a different conclusion.
The Court in Riley phrased the question presented as
whether the police may, without a warrant, search digital
information stored on a cell phone seized from an individual
who has been arrested. In Riley, the digital contents of cell
phones had been searched by police incident to arrest, and
the Court was required “to decide how the search incident to
arrest doctrine applies to modern cell phones, which are now
such a pervasive and insistent part of daily life that the prover-
bial visitor from Mars might conclude they were an important
feature of human anatomy.”34 The Court in Riley held that
police generally may not, without a warrant, search the digital
information stored on a cell phone seized from an individual
who has been arrested.35
The U.S. Supreme Court’s analysis in Riley is not par-
ticularly instructive here, because it pertains to governmental
searches of a cell phone’s contents. The present case does not
involve such a search. The Court made a clear distinction in
Smith between obtaining the content of communications and
obtaining noncontent information that enables service pro-
viders to transmit a communication.36 Here, the State did not
acquire the CSLI records by searching the contents of Jenkins’
cell phone, and the business records produced by the service
provider did not include the content of any communications.
So while Riley properly governs our analysis when police
33
State v. Knutson, supra note 1, 288 Neb. at 836, 852 N.W.2d at 319
(emphasis supplied).
34
Riley v. California, supra note 32, 134 S. Ct. at 2484.
35
Id.
36
Smith v. Maryland, supra note 15, 442 U.S. at 741 (“a pen register differs
significantly from the listening device employed in Katz [v. United States,
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)], for pen registers do
not acquire the contents of communications”) (emphasis supplied).
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acquire the digital contents of an individual’s cell phone,37 it
does not address whether the government conducts a search
when it acquires noncontent business records containing his-
torical CSLI from a person’s cellular service provider.
[8,9] Instead, as stated previously, the third-party doctrine
of Smith governs our analysis of the historical CSLI at issue
in this case. Like the pen register information in Smith, the
CSLI at issue here documents call routing information that
was gathered and kept by the service provider in the ordinary
course of business. These business records disclose only the
“‘“means of establishing communication”’” and not the con-
tents of any communication.38 And like the telephone customer
in Smith, we conclude Jenkins can claim no reasonable expec-
tation of privacy in her service provider’s business records
documenting the cell towers that routed her calls, because
“[t]he switching equipment that processed [her calls] is merely
the modern counterpart of the operator who, in an earlier day,
personally completed calls for the subscriber.”39 We hold the
State’s acquisition of historical CSLI pursuant to § 2703(d) did
not violate or implicate the Fourth Amendment. Our holding
in this regard is in accord with every federal circuit court to
have considered the Fourth Amendment question before us.40
Because we conclude the acquisition of historical CSLI is not
a search under either the U.S. or Nebraska Constitution, we
find no error in the district court’s denial of Jenkins’ motion
to suppress. Given our resolution of this assignment or error, it
is not necessary to address the other Fourth Amendment argu-
ments raised by the parties.
37
See State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).
38
Smith v. Maryland, supra note 15, 442 U.S. at 741.
39
Id., 442 U.S. at 744.
40
U.S. v. Graham, supra note 30; U.S. v. Davis, supra note 4; In re U.S. for
Historical Cell Site Data, supra note 30; U.S. v. Skinner, 690 F.3d 772
(6th Cir. 2012); In re Electronic Communication Service to Disclose, supra
note 30.
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2. Photographic Evidence
(a) Background
Over Jenkins’ objections, the trial court admitted three
photographs of the crime scene into evidence. Each photo-
graph depicts a pickup truck with the front and back doors
open. The legs and feet of one victim are visible in the
back seat. Another victim is seen slumped over in the front
passenger seat; a single exit wound on his head is discern-
ible. All three photographs were taken from a vantage point
some distance back from the truck and generally depict,
from different angles, the location and position of the pickup
on the street and the position of the victims’ bodies inside
the pickup.
Jenkins objected to the three photographs on rule 40341
grounds, arguing the probative value of the photographs was
substantially outweighed by the danger of unfair prejudice.
The record indicates the State offered the photographs to cor-
roborate Bordeaux’s testimony regarding the crime scene. After
confirming the State did not intend to offer additional photo-
graphs of the victims’ bodies, the district court overruled the
rule 403 objection and admitted the photographs into evidence.
Jenkins assigns this as error.
(b) Standard of Review
[10,11] The admission of photographs of a gruesome nature
rests largely with the discretion of the trial court, which
must determine their relevancy and weigh their probative
value against their prejudicial effect.42 We review the court’s
admission of photographs of the victims’ bodies for abuse
of discretion.43
41
See Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
42
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014). See, also, State v.
Robinson, 185 Neb. 64, 173 N.W.2d 443 (1970).
43
Id.
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(c) Analysis
On appeal, Jenkins argues the photographs were gruesome
and therefore more prejudicial than probative. And she argues
that even if the photographs were otherwise admissible, the
use of three photographs was more than was “‘absolutely
necessary.’”44
[12-14] Under rule 403, relevant evidence may be excluded
if its probative value is substantially outweighed by the dan-
ger of unfair prejudice or if it is needlessly cumulative.45
We have often observed that gruesome crimes produce grue-
some photographs.46 And we have held that if the State lays
proper foundation, photographs that illustrate or make clear
a controverted issue in a homicide case are admissible, even
if gruesome.47 In a homicide prosecution, a court may admit
into evidence photographs of a victim for identification, to
show the condition of the body or the nature and extent of
wounds and injuries to it, and to establish an element of
the crime.48
Jenkins was charged with robbery rather than with homi-
cide, but the photographs were relevant to show the location
and position of the robbery victims after the crimes and to cor-
roborate the testimony of the State’s key witness, Bordeaux.
The photographs also provided evidence that the victims’
property was taken from them “forcibly and by violence”49
and, as such, tended to establish one of the elements of the
charged crimes. The photographs of the pickup were all taken
44
Brief for appellant at 56.
45
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016); State v. Dubray,
supra note 42.
46
State v. Dubray, supra note 42, citing State v. Bjorklund, 258 Neb. 432,
604 N.W.2d 169 (2000), abrogated on other grounds, State v. Mata, 275
Neb. 1, 745 N.W.2d 229 (2008).
47
State v. Dubray, supra note 42.
48
Id.
49
See Neb. Rev. Stat. § 28-324(1) (Reissue 2008).
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from a considerable distance; there were no closeup photo-
graphs of the victims or their injuries.
[15,16] Regarding Jenkins’ argument that the three photo-
graphs were unnecessarily cumulative, we note that rule 403
does not require the State to have a separate purpose for every
photograph.50 Generally, when a court admits photographs for
a proper purpose, additional photographs of the same type
are not unfairly prejudicial.51 Here, the photographs were not
needlessly cumulative, because they each depicted the pickup
and the nearby roads from a slightly different angle and dis-
tance, putting the scene into context.52
On this record, the prejudicial effect of the crime scene
photographs did not substantially outweigh their probative
value and the number of photographs was not needlessly
cumulative. We find no abuse of discretion in admitting the
photographs into evidence.
3. Insufficient Evidence
(a) Background
Jenkins claims the evidence at trial was insufficient to sup-
port her robbery convictions. She argues that for a variety of
reasons, the testimony of Bordeaux and Ramirez-Martinez was
not credible and should not have been believed by the jury.
She also argues there was a lack of physical evidence linking
her to the crime because none of the fingerprints found at the
scene matched hers, none of the DNA obtained in the investi-
gation matched her profile, and police did not test any of her
clothing for gunshot residue.
(b) Standard of Review
[17] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination
50
State v. Oliveira-Coutinho, supra note 8; State v. Dubray, supra note 42.
51
See id.
52
See State v. Grant, supra note 45.
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thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility
of witnesses, determine the plausibility of explanations, or
reweigh the evidence; such matters are for the finder of fact.53
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.54
(c) Analysis
To the extent Jenkins’ arguments on appeal ask us to
reweigh the evidence or pass on the credibility of the wit-
nesses, we decline to do so, because those were matters for
the jury.55 Viewing the evidence in the light most favorable
to the prosecution, the evidence was sufficient to support the
jury’s verdict.
[18] A person commits robbery if, with the intent to steal,
he or she forcibly and by violence, or by putting in fear, takes
from the person of another any money or personal property
of any value whatever.56 In this case, an aiding and abetting
instruction was given to the jury that provided:
[Jenkins] can be guilty of robbery even though she
personally did not commit any act involved in the crime
so long as she aided someone else to commit it. [Jenkins]
aided someone else if:
1. [Jenkins] intentionally encouraged or intentionally
helped another person to commit the robbery; and
2. [Jenkins] intended that the robbery be committed;
or [Jenkins] expected the other person to commit the rob-
bery; and
53
State v. Weideman, supra note 22. See, State v. Erpelding, 292 Neb. 351,
874 N.W.2d 265 (2015); Clark v. State, 151 Neb. 348, 37 N.W.2d 601
(1949).
54
State v. Weideman, supra note 22. See State v. Erpelding, supra note 53.
55
See id.
56
§ 28-324.
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3. The robbery in fact was committed by that other
person.
Bordeaux testified that she and Jenkins agreed to lure
men to a place where Nikko could rob them, and she testi-
fied that Nikko robbed, and then murdered, Uribe-Pena and
Cajiga-Ruiz.
The CSLI evidence generally followed the timeline of events
as testified to by Bordeaux, Ramirez-Martinez, and a Council
Bluffs police officer. Bordeaux testified that Jenkins called
Nikko from the victims’ apartment once the plan was under-
way, and the evidence showed that calls involving Jenkins’ cell
phone were routed through a cell tower one block from Uribe-
Pena’s apartment between about 1:30 and 2:09 a.m. Shortly
thereafter, at 2:17 a.m., a call from Jenkins’ cell phone was
routed through a cell tower near the location where Uribe-Pena
and Cajiga-Ruiz were robbed and murdered. Bordeaux testified
that after the robbery, she, Jenkins, and Nikko drove to a motel
in Council Bluffs. A Council Bluffs police officer testified he
was patrolling the motel parking lot at approximately 3:40
a.m. and contacted a black female in a vehicle registered to
Jenkins. Several calls from Jenkins’ cell phone between about
3:45 and 3:50 a.m. were routed through a cell tower located in
Council Bluffs.
This evidence, if believed by the finder of fact, was more
than sufficient to convict Jenkins of robbery. Her assignment
to the contrary is without merit.
4. Motion for New Trial
(a) Background
Jenkins filed a motion for new trial based on an alleged
violation of Brady v. Maryland,57 claiming the State had an
undisclosed tacit agreement with Lori Sayles for her testi-
mony. Sayles was the only witness called by the defense at
57
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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trial. The State had endorsed Sayles as a witness, but did not
call her.
Sayles is the sister of Jenkins and Nikko and a cousin of
Bordeaux. Sayles testified that on August 10, 2013, she was
staying with her mother and other family members in a motel
room in Council Bluffs. Sayles testified that when she fell
asleep around 11 p.m., Jenkins, Nikko, and Bordeaux were
all in the motel room. When Sayles awakened at 4 a.m., she
saw Jenkins asleep in the motel room but did not see Nikko
or Bordeaux. Sayles was asked, “Do you have any infor-
mation that . . . Jenkins left at all that evening?” and she
responded, “No.”
On cross-examination, Sayles admitted that a couple of days
after the double murder, she talked with Jenkins about it and
that Jenkins compared it to a horror movie entitled “The Hills
Have Eyes.” She testified that Jenkins “never verbally said
[she] was there, but what she was saying will make her prob-
ably present.” Sayles also recalled Jenkins saying “she heard
gunshots and ran away.”
On redirect, Sayles admitted she was being held in jail
pending trial on felony charges in a separate criminal matter.
She was asked whether, by testifying as she did on cross-­
examination, she was hoping for dismissal of the charges in her
own case or favorable consideration at sentencing. She denied
that was her motivation.
Approximately 1 week after Sayles testified in Jenkins’
trial, Sayles’ attorney filed a motion for bond review asking
that Sayles be released on a recognizance bond. The State did
not object to the request, and the district court granted the
bond reduction.
Jenkins then moved for a new trial, claiming the State
failed to disclose a tacit agreement with Sayles “to release
. . . Sayles from custody as a result of her anticipated trial
testimony” and that doing so violated Brady. At the hearing on
the motion for new trial, Sayles’ defense attorney testified he
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had been representing Sayles since the inception of her felony
charges and that there had never been a plea agreement or an
agreement “of any kind” with the State that if Sayles testified
a certain way, she would receive any benefit.
The district court overruled Jenkins’ motion for new trial.
Regarding its earlier decision to release Sayles on a recogni-
zance bond, the court explained:
At the bond review, this Court was advised that the
minimum sentence for each of the charges against Ms.
Sayles was one year and that Ms. Sayles had been in jail
[for] over a year at the time of the . . . bond review. The
Court was further advised of her truthfulness at the trial,
that she had never actively participated in any crime,
that she had no criminal record, she was 18 years old
at the time of these crimes, and [her defense attorney]
requested that Ms. Sayles should be released on her own
recognizance. There was no objection by the Stat[e] of
Nebraska, and this Court released Ms. Sayles on her
own recognizance.
The district court acknowledged that the State’s decision not
to object at Sayles’ bond review hearing was circumstantial
evidence of a possible agreement, but found it was insufficient
to prove an agreement, particularly when both Sayles and her
counsel testified that Sayles had no agreement with the State.
Finding that no agreement had been proved to support a Brady
violation, the district court denied the motion for new trial.
Jenkins assigns this as error.
(b) Standard of Review
[19] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not
be disturbed.58
58
State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015).
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(c) Analysis
[20] In Brady, the U.S. Supreme Court held that the pros-
ecution has a duty to disclose all favorable evidence to a
criminal defendant prior to trial.59 In United States v. Bagley,60
the Court clarified that impeachment evidence, as well as
exculpatory evidence, falls within the Brady rule.61 Here,
Jenkins claims the State failed to disclose a tacit agree-
ment with Sayles which Jenkins could have used to impeach
Sayles’ credibility.
In State v. Rice,62 a prosecution witness charged with the
same murder as the defendant explained that he chose to
testify because he felt things would go easier for him if he
did, but he repeatedly denied there was any agreement with
the prosecution for his testimony. We held that while the evi-
dence established the witness had an expectation of leniency
in exchange for his testimony, it fell short of establishing an
express or implied promise by the State. We reach the same
conclusion here.
[21] Both Sayles and her defense attorney testified there
was no agreement with the State for Sayles’ testimony, and
Sayles denied she was hoping for leniency at sentencing or
dismissal of the charges in exchange for her testimony. A trial
judge is accorded significant discretion in granting or denying
a motion for new trial, because the trial judge sees the wit-
nesses, hears the testimony, and has a special perspective on
the relationship between the evidence and the verdict.63 On this
record, we find no abuse of discretion in the district court’s
denial of the motion for new trial.
59
See State v. Patton, 287 Neb. 899, 845 N.W.2d 572 (2014).
60
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481
(1985).
61
State v. Patton, supra note 59.
62
State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983).
63
State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
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5. H abitual Criminal Enhancement
(a) Background
Prior to sentencing, the court held a hearing on the habit-
ual criminal enhancement. The State offered, and the court
received, certified copies of two prior felony convictions:
a 2006 conviction for attempted robbery for which Jenkins
received a prison sentence of 4 to 8 years and a 2009 convic-
tion for unlawful possession with intent to deliver a controlled
substance for which she received a consecutive prison sentence
of 1 year. The district court found Jenkins was a habitual crimi-
nal. She assigns this as error.
(b) Standard of Review
[22,23] An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of dis-
cretion by the trial court.64 Statutory interpretation presents a
question of law, for which an appellate court has an obligation
to reach an independent conclusion irrespective of the determi-
nation made by the court below.65
(c) Analysis
Subject to exceptions not applicable to this case, Nebraska’s
habitual criminal statute, Neb. Rev. Stat. § 29-2221 (Reissue
2008), provides in relevant part:
(1) Whoever has been twice convicted of a crime,
sentenced, and committed to prison . . . for terms of
not less than one year each shall, upon conviction of a
felony committed in this state, be deemed to be a habitual
criminal and shall be punished by imprisonment . . . for
a mandatory minimum term of ten years and a maximum
term of not more than sixty years . . . .
[24] In a habitual criminal proceeding, the State’s evi-
dence must establish with requisite trustworthiness, based
64
State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
65
State v. Wang, 291 Neb. 632, 867 N.W.2d 564 (2015).
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upon a preponderance of the evidence, that (1) the defendant
has been twice convicted of a crime, for which he or she
was sentenced and committed to prison for not less than 1
year; (2) the trial court rendered a judgment of conviction
for each crime; and (3) at the time of the prior conviction
and sentencing, the defendant was represented by counsel
or had knowingly and voluntarily waived representation for
those proceedings.66
Here, the district court found the State had proved Jenkins
had two valid prior convictions for purposes of habitual crimi-
nal enhancement. On appeal, Jenkins does not suggest the evi-
dence regarding either prior conviction was lacking. Instead,
she argues that because she committed the 2009 felony while
still on parole for the 2006 felony, her second conviction
should not be considered valid for purposes of habitual crimi-
nal enhancement. In other words, she suggests that because
she had not finished serving the sentence imposed for her
2006 conviction when she committed the crime resulting in
her 2009 conviction, she cannot be found to be a habitual
criminal. She relies on language in State v. Ellis67 to support
her novel argument.
[25] In Ellis, we held that in order to warrant enhancement
under the habitual criminal statute, “the prior convictions,
except the first conviction, must be for offenses committed
after each preceding conviction, and all such prior convic-
tions must precede the commission of the principal offense.”68
Because both of Ellis’ prior convictions had been imposed at
the same time, we reversed the finding that he was a habitual
criminal and we remanded the cause for resentencing. In dis-
cussing the purpose of Nebraska’s habitual criminal statutes,
we observed:
66
State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012); State v. Epp, 278
Neb. 683, 773 N.W.2d 356 (2009).
67
State v. Ellis, 214 Neb. 172, 333 N.W.2d 391 (1983).
68
Id. at 176, 333 N.W.2d at 394.
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We believe that the purpose of enacting the habitual
criminal statute is to serve as a warning to previous
offenders that if they do not reform their ways they may
be imprisoned for a considerable period of time, regard-
less of the penalty for the specific crime charged. . . .
“‘Recidivist statutes are enacted in an effort to deter and
punish incorrigible offenders. . . . They are intended to
apply to persistent violators who have not responded to
the restraining influence of conviction and punishment.’
. . . ‘It is the commission of the second felony after
conviction for the first, and the commission of the third
felony after conviction of the second that is deemed to
make the defendant incorrigible.’ . . .”69
Jenkins focuses on this language to argue that, before a third
felony conviction can be considered valid under the habitual
criminal statute, a defendant must have “committed the first
offense, received the full social benefit or effect of that pun-
ishment, then committed a second offense, and received the
full social benefit or effect of that second punishment prior to
the commission of the third offense.”70
We reject this argument in its entirety. It misapplies our
comment in Ellis and is fundamentally inconsistent with the
language and the purpose of the habitual criminal statute.
The habitual criminal statute is designed to deter and punish
recidivism,71 but Jenkins’ interpretation would actually incen-
tivize recidivism by encouraging offenders to commit sub-
sequent crimes while still on probation or parole, in order to
immunize the subsequent crime from the possibility of habitual
criminal enhancement.
69
Id. at 175-76, 333 N.W.2d at 394 (emphasis in original), quoting State
v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979) (Hastings, J., dissenting;
Krivosha, C.J., and McCown, J., join), and Coleman v. Commonwealth,
276 Ky. 802, 125 S.W.2d 728 (1939).
70
Brief for appellant at 58.
71
State v. Ellis, supra note 67.
- 714 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. JENKINS
Cite as 294 Neb. 684
[26,27] As we stated in Ellis: “‘“[W]here the sequence of
prior convictions is in issue, the rule . . . is that each suc-
cessive felony must be committed after the previous felony
conviction in order to count towards habitual criminal status.”’
. . .”72 So long as each successive felony is committed after
the previous felony conviction, it is immaterial to the habitual
criminal analysis that an offender has not yet finished serving
his or her sentence on the previous felony. Jenkins’ argument
is meritless, and the district court did not abuse its discretion
in finding she was a habitual criminal.
V. CONCLUSION
For the foregoing reasons, we affirm the convictions and
sentences in all respects.
A ffirmed.
72
Id. at 176, 333 N.W.2d at 394.