State v. Prior

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/19/2022 09:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. PRIOR
Cite as 30 Neb. App. 821State of Nebraska, appellee, v.
Stephen R. Prior, appellant.
___ N.W.2d ___
Filed April 12, 2022. No. A-20-888.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When 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.
2. Property: Appeal and Error. A trial court’s finding that an item of per-
sonal property has been abandoned, and thus not subject to a reasonable
expectation of privacy, is reviewed for clear error.
3. Rules of Evidence: Other Acts: Appeal and Error. An appellate court
reviews the admission of evidence of other acts under Neb. Rev. Stat.
§ 27-404(2) (Supp. 2019) by considering (1) whether the evidence was
relevant, (2) whether the evidence had a proper purpose, (3) whether
the probative value of the evidence outweighed its potential for unfair
prejudice, and (4) whether the trial court, if requested, instructed
the jury to consider the evidence only for the purpose for which it
was admitted.
4. 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.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. PRIOR
Cite as 30 Neb. App. 8215. Evidence: Appeal and Error. The relevant question for an appellate
court on review of the sufficiency of evidence 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.
6. 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.
7. ____: ____. In reviewing a sentence imposed within the statutory limits,
an appellate court considers whether the sentencing court abused its dis-
cretion in considering and applying the relevant factors as well as any
legal principles in determining the sentence to be imposed.
8. Sentences. Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either concurrently
or consecutively.
9. 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.
10. Search and Seizure. When individuals voluntarily abandon property,
they forfeit any expectation of privacy in the property that they might
otherwise have had.
11. Constitutional Law: Search and Seizure. Because the Fourth
Amendment does not protect voluntarily abandoned property, a war-
rantless search or seizure of abandoned property does not violate the
Fourth Amendment.
12. ____: ____. A search for Fourth Amendment purposes occurs when the
government violates a subjective expectation of privacy that society
recognizes as reasonable.
13. Constitutional Law: Property: Search and Seizure. Once a defend­
ant abandons an item of personal property and makes it available to
the police or the public, he or she does not retain a reasonable expec-
tation of privacy in the property for purposes of Fourth Amendment
protection.
14. Constitutional Law: Property: Search and Seizure: Police Officers
and Sheriffs: Proof: Intent. To show abandonment of personal prop-
erty for purposes of the Fourth Amendment, the State must establish by
a preponderance of the evidence that the defendant’s voluntary words or
conduct would lead a reasonable officer to believe the defendant relin-
quished his or her property interests in the item. This is an objective
test based on the information available to the officer, and the defendant’s
subjective intent to later reclaim the item is irrelevant.
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30 Nebraska Appellate Reports
STATE v. PRIOR
Cite as 30 Neb. App. 82115. Property: Search and Seizure. When determining whether property
has been abandoned, courts consider the totality of the circumstances,
and pay particular attention to the nature and location of any physical
relinquishment of the property and any explicit denials of ownership.
16. Trial: Evidence: Appeal and Error. An objection must be specifically
stated, and on appeal, a defendant may not assert a different ground for
his or her objection to the admission of evidence than was offered to the
trier of fact.
17. Identification Procedures: Police Officers and Sheriffs: Motions
to Suppress. Suppression of identification evidence on the basis of
undue suggestion is appropriate only where the witness’ ability to make
an accurate identification is outweighed by the corrupting effect of
improper police conduct.
18. Trial: Identification Procedures. When no improper law enforcement
activity is involved, it suffices to test the reliability of identification tes-
timony at trial, through the rights and opportunities generally designed
for that purpose, such as the rights to counsel, compulsory process, and
confrontation and cross-examination of witnesses.
19. Convictions: Appeal and Error. Appellate courts will not reverse a
criminal conviction in the absence of prejudice to the defendant.
20. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
21. Evidence: Appeal and Error. A trial court has the discretion to deter-
mine the relevancy and admissibility of evidence, and such determina-
tions will not be disturbed on appeal unless they constitute an abuse of
that discretion.
22. Trial: Evidence: Other Acts. It is within the discretion of the trial court
to determine relevancy and admissibility of evidence of other wrongs or
acts, and the trial court’s decision will not be reversed absent an abuse
of that discretion.
23. Evidence: Other Acts: Appeal and Error. An appellate court reviews
the admission of evidence of other acts by considering whether the evi-
dence was relevant, whether the evidence had a proper purpose, whether
the probative value of the evidence outweighed its potential for unfair
prejudice, and whether the trial court, if requested, instructed the jury to
consider the evidence only for the purpose for which it was admitted.
24. Trial: Witnesses: Service of Process. Process to secure attendance of
witnesses from another state may not be issued unless the testimony
proposed to be elicited from such witnesses is relevant to the issues to
be tried.
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STATE v. PRIOR
Cite as 30 Neb. App. 82125. Trial: Pleadings: Evidence. It is proper to sustain a motion in limine to
prevent reference to or the offer of evidence concerning matters which
are entirely extraneous or irrelevant to the issues of the case.
26. 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 element of the crime charged or the evidence is so doubt-
ful in character, lacking probative value, that a finding of guilt based
on such evidence cannot be sustained. 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.
27. Sentences. When imposing a sentence, a sentencing judge should cus-
tomarily consider the defendant’s (1) age, (2) mentality, (3) education
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 commission of the crime. However, the sentenc-
ing court is not limited to any mathematically applied set of factors.
28. ____. 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.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
Thomas P. Strigenz, Sarpy County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Moore, Arterburn, and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Stephen R. Prior appeals seven felony convictions and two
misdemeanor convictions related to a home invasion rob-
bery and sexual assault and the sentences imposed thereon.
Specifically, he contends that the district court erred in finding
he did not have an expectation of privacy in an abandoned
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. PRIOR
Cite as 30 Neb. App. 821bag found outside of an apartment complex, overruling his
motion to suppress the victim’s in-court voice identification of
him, allowing the State to adduce evidence of Prior’s physi-
cal characteristics, admitting witness testimony of prior bad
acts, denying his request to secure attendance of ­out-of-state
witnesses, denying his motion for directed verdict, and impos-
ing excessive sentences. For the reasons set forth herein,
we affirm.
II. STATEMENT OF FACTS
1. Facts Giving Rise to Prior’s Arrest
At 9 p.m. on October 18, 2017, W.R., who lived alone,
returned to her home from work. After parking her vehicle in
her garage, W.R. retrieved her mail and placed her garbage can
and recycling at the curb. After performing these routine activi-
ties, W.R. entered her home and closed her garage door. She
then cooked dinner, took a shower, and went to sleep. The nor-
mality of the evening ended at approximately 11:30 p.m., when
a stranger, who wore a black mask extending from his nose to
his neck while brandishing a black semiautomatic handgun,
woke W.R. by shining a light in her eyes. The perpetrator told
W.R. that he “just want[ed her] money” and forced W.R. into
the kitchen where her purse was located. When the perpetrator
told W.R. to throw the money on the table, W.R. noticed that
the perpetrator was wearing black gloves.
The perpetrator then forced the victim to an exercise room
near the garage, where he told the victim to face the wall with
her hands up. Although the perpetrator left, he returned shortly
thereafter, telling the victim that “we’re going to go upstairs,
and I’m going to be here for a while.” The perpetrator forced
the victim upstairs to her bedroom and directed W.R. not to
look at him. The perpetrator directed W.R. to “[p]ut her face in
the pillow,” after which he removed W.R.’s clothing and used
rope to bind W.R.’s wrists and ankles. Although the perpetra-
tor blindfolded the victim with her pillowcase, it was not tied
tightly and W.R. was able to see around it.
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STATE v. PRIOR
Cite as 30 Neb. App. 821After W.R. was blindfolded, the perpetrator removed his
mask and gloves and proceeded to kiss, touch, and digitally
penetrate W.R. without her consent. The perpetrator also forced
W.R. to perform oral sex on him, after which he retrieved a
condom and then vaginally penetrated W.R. without her con-
sent. At some point throughout the encounter, the individual
pulled out the knife in his front pocket and cut the ropes bind-
ing W.R.
Following the assault, the perpetrator forced W.R. to take a
shower, telling her that “you’re going to wash your mouth out
with water at least two times” and that “you’re going to stay
in there at least five minutes, and then I’m going to be gone.”
After a few minutes, the perpetrator returned to the bathroom
stating, “I’m still here.” W.R. complied with the perpetrator’s
demands, staying in the shower for about 10 minutes until
she could no longer hear him, after which she immediately
dressed and drove to a friend’s home. En route, W.R. called
her friend and explained what had happened. During the call,
W.R. expressed fear about reporting the assault due to the per-
petrator’s threats to kill her. However, W.R.’s friend reported
the assault, and by the time W.R. arrived at her friend’s home,
paramedics and the police were present.
W.R. was able to provide law enforcement with specific
details regarding the assault and the perpetrator because the
blindfold had not been tied tightly and did not completely block
W.R.’s vision during the assault. W.R., who at the time was a
medical resident, described the perpetrator as a white male
who had disheveled “grayish brown” hair; was approximately
50 to 60 years old; smelled of cigarette smoke; did not have
pubic hair; was circumcised; had approximately a ­1-centimeter
horizontal scar on his abdomen, which W.R. believed to be a
laparoscopic scar; had a tight and distended abdomen; and had
what appeared to be another scar running down his chest and
“around the left side of his belly button.” W.R. provided the
same identifying characteristics to a sketch artist in order to
help identify her assailant.
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STATE v. PRIOR
Cite as 30 Neb. App. 821W.R. also informed law enforcement that she had observed
a knife in the right front pocket of the perpetrator’s black jeans
and that the rope used to bind her was white, about 1 centime-
ter in diameter, and made from an unknown soft material that
she knew was not twine. The perpetrator wore a black T-shirt,
a black sweatshirt, and a pair of glasses with either no frames
around the bottom or very thin frames. W.R. stated that she
assumed that the perpetrator obtained the condom from a dark-
colored bag, about the size of a backpack, that he had placed
near her bed.
W.R. reported that although the perpetrator wore a mask part
of the time, she could hear and understand him clearly when
he spoke. W.R. reported to law enfocement that the perpetrator
asked her, “[I]s this the first you’ve heard [of] me?” and then
said, “You need to be more careful. Your garage door didn’t
close all the way.” She testified he also said that “if [she] ever
told anybody that he would come and find [her] and kill [her].”
W.R. told law enforcement that she felt terrified throughout the
encounter and believed she was going to die.
2. Investigation
While W.R. provided information to law enforcement, other
officers went to the victim’s home which showed no signs
of forced entry. Officers noted that the bedding in one of the
bedrooms was disheveled and that there was water alongside
the shower door. Law enforcement collected evidence from
W.R.’s home, including a “bunched up” condom that was
found in bedroom linens where the assault occurred. The con-
dom appeared to contain a “moisture,” which officers could
not identify without testing. Law enforcement also collected
three strands of gray hair located on the bedroom floor and a
half empty bottle of water. Law enforcement also located eight
stains in the bedroom, none of which presumptively tested
positive for semen. During this period of time, another officer
serving as “stand by” noticed a suspicious white, “four-door
sedan with LED lights” outside of W.R.’s residence. As the
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STATE v. PRIOR
Cite as 30 Neb. App. 821officer approached the vehicle, it sped out of the area. Attempts
to locate the vehicle were unsuccessful.
During a canvass of W.R.’s neighborhood, law enforcement
received information regarding a suspicious white vehicle that
sped away from W.R.’s home on the day of the assault. A
neighbor told officers that Prior had previously lived in the
area. The neighbor stated that Prior drove a white Lexus sport
utility vehicle with a damaged front quarter panel, that Prior
would drive through the neighborhood at least two to three
times per week, and that he had last seen Prior’s vehicle at
about 6 a.m. on October 18, 2017. The neighbor also provided
law enforcement with two videos from his home surveillance
camera: a video from October 17 at 6:15 a.m. and a second
video from October 18 at 6:20 a.m. After determining that
Prior was the registered owner of a white 2009 Lexus sport
utility vehicle with Nebraska license plates, officers conducted
an independent search into Prior and reviewed “field care
interviews.” One of those interviews led law enforcement to
Jacquilyn B., who lived in W.R.’s neighborhood and had previ-
ously reported to law enforcement an interaction that she had
had with Prior.
Based on W.R.’s description and Prior’s resemblance to that
description, officers presented W.R. with a photographic lineup
containing six photographs, including one photograph of Prior.
W.R. immediately eliminated three of the photographs, but
was otherwise unable to affirmatively identify her assailant
from the three remaining photographs. The three remaining
photographs included the photograph of Prior. Following the
­photographic lineup, Prior was identified as a person of interest
and law enforcement was instructed to be on the lookout for
Prior and/or his white Lexus.
3. Vehicle Surveillance
On October 19, 2017, a deputy located Prior’s Lexus in
the parking lot of an apartment complex that was a short dis-
tance from W.R.’s home. Upon approaching the unoccupied
Lexus, the deputy observed various items inside the vehicle,
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STATE v. PRIOR
Cite as 30 Neb. App. 821including boltcutters, a brown wallet, binoculars, duct tape, a
pair of women’s underwear, leather work gloves, a “messenger
type bag,” white rope, water jugs, and a sleeping bag. While
a search warrant of Prior’s Lexus was obtained, Sgt. Greg
Monico, along with another officer, conducted surveillance
of the vehicle. During their surveillance, they heard branches
snapping in the tree line behind them. The pair exited their
vehicle, identified themselves as law enforcement, and ordered
the individual to exit the tree line. Although the individual fled
instead of complying with the officers’ demands, the officers
observed that the individual was wearing a “blue windbreaker
style jacket,” a head covering, dark-colored pants, and a knife
sheath on his or her right side. After losing sight of the indi-
vidual, officers called for backup, and during an approximately
10-minute time period, Prior’s vehicle was not under surveil-
lance. Despite having established a perimeter around the apart-
ment complex, a “K-9” search of the area, and the search of
a nearby creekbed, the individual was not located. After the
search, the bottom of Monico’s pants and his boots were soaked
and muddy and cockleburs were stuck to his shoelaces.
After obtaining the warrant to search Prior’s Lexus, law
enforcement impounded the vehicle, searched it, and seized
several pieces of white rope, condoms, two folding knives,
blue nitrile gloves, metal handcuffs, a flashlight, a purse, a
wallet, two pairs of black gloves, six pairs of glasses, binocu-
lars, and a stethoscope. Law enforcement also took swabs of
the steering wheel and gearshift and lifted a fingerprint from
inside the vehicle.
4. Arrest
On October 20, 2017, Prior was arrested pursuant to a war-
rant at the home of his friend, Donovan Skow. Officers spoke
to Skow and Kathy Higgins, who was also present. Skow told
law enforcement that Prior stated that he was in trouble or
that the police were after him due to the police’s belief that
Prior was stalking someone. Higgins reported that she was
Prior’s friend and that, during certain periods of time over
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STATE v. PRIOR
Cite as 30 Neb. App. 821the previous month, he had been living with her. Higgins indi-
cated that on October 20, she received a call from Prior asking
for a ride because his vehicle had broken down. When she
arrived, Higgins observed that Prior was wearing a black cap,
had a knife sheath or holder, and looked “rugged, . . . tired,
dirty, [and] muddy.” She drove Prior to her home, and then
she left to go to an appointment. When Higgins returned, she
noticed that her apartment blinds were closed and that Prior
had been watching the news about law enforcement’s search
for a suspect. Higgins also informed officers that some of
Prior’s personal property remained at her home even though
he had not been living there for the previous week. She further
stated that Prior had been using her red Chevrolet Aveo since
October 20. During a search of the Aveo conducted pursuant to
Higgin’s consent, officers seized a pair of eyeglasses, a knife
inside a black knife sheath, and wet and muddy dark-colored
jeans that were consistent with the officers’ description of the
individual fleeing from the apartment complex on October 19.
Officers also seized a black gaiter mask, which covers only
the lower half of one’s face, which was covered in cockleburs
similar to those found on Monico’s shoelaces after he searched
the creekbed for the fleeing individual. During a search of
Higgins’ home to locate Prior’s property, conducted pursuant to
a warrant, officers seized a pair of gloves, 9-mm ammunition,
several knives, and various jackets.
After Prior’s arrest, he was booked into jail and strip
searched. The deputy performing that search noted that Prior’s
“genitals [sic] region, testicles, shaft, and above the penis were
all cleanly shaven. [Prior’s] penis was circumcised and [he]
had a small scar, approximately half an inch on the left hip.”
5. Bag Located at Apartment Complex
On October 21, 2017, a resident of the same apartment
complex where surveillance of Prior’s Lexus had occurred
noticed a bag by the garages of the complex and observed that
no one had approached the bag during a 5-hour timeframe.
The bag was located directly east of where the surveillance of
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STATE v. PRIOR
Cite as 30 Neb. App. 821Prior’s Lexus had occurred. The following day, after noticing
the bag remained in the same place, the apartment complex
resident grabbed the bottom of the bag and dumped out the
contents. The contents of the bag included cigarettes, a black
pouch, a flashlight, zip ties, white rope, a bandage wrap, “KY
Jelly” lubricant, a 9-mm semiautomatic handgun loaded with
ammunition, and Prior’s driver’s license and Social Security
card. The apartment complex resident recognized Prior from
news coverage regarding the commission of a crime and noti-
fied his father, who contacted law enforcement. At the time
law enforcement responded to the call, Prior had already been
taken into custody. The bag and its contents were collected as
evidence and were tested for DNA.
6. Postarrest Interviews With Prior
Following Prior’s October 20, 2017, arrest, police inter-
viewed him two times. During the first interview, which
occurred on October 20, Prior denied involvement and stated
that on October 19, he was walking to stretch out his legs
before going to sleep. Prior stated that he slept in his vehicle
and that on the evening of October 19, someone approached
his vehicle with a bag and took items from his vehicle, but
fled when confronted by Prior. Prior told officers that he had
noticed a large police presence in the area and decided not to
go back to his vehicle that day.
During the second interview on October 22, 2017, which
was conducted at Prior’s request, Prior again denied involve-
ment, but he stated that he had been distributing marijuana
and stealing food from open garages. Prior confirmed that he
previously resided in W.R.’s neighborhood and admitted to
being in the area to drive by his mother’s house. Prior repeated
that he had noticed a large police presence on October 19,
but added that he walked to a gas station where he called
Higgins to request a ride. Prior acknowledged that he owned a
white Lexus and that he returned to the apartment complex on
October 20, but he denied having a bag or being in the woods
near the apartment complex. During the second interview, after
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STATE v. PRIOR
Cite as 30 Neb. App. 821granting Prior’s request for a “smoke break,” officers collected
Prior’s used cigarette butt to test it for DNA.
7. Search Warrant for Prior’s
Identifying Characteristics
In late October 2017, law enforcement sought a court order
to obtain Prior’s physical characteristics. In support of an ex
parte court order allowing law enforcement to obtain identify-
ing personal characteristics from Prior, including hair samples,
digital voice recordings, and DNA evidence, the law enforce-
ment officer’s affidavit set forth the following facts: that Prior
matched W.R.’s description of her assailant, that video surveil-
lance and witness testimony had placed Prior in the area on the
day of the assault, that items found inside the bag located at
the apartment complex near W.R.’s residence included Prior’s
driver’s license, and that evidence had been located contain-
ing Prior’s DNA. The affidavit further set forth that W.R.
had provided information regarding her assailant’s identifying
marks and characteristics and that, when Prior was arrested
and booked into jail, officers noticed identifying characteristics
similar to those described by W.R. The affidavit also stated that
the officer believed that Prior would not willingly comply with
a request to obtain evidence from his person because Prior had
invoked his Miranda rights. After the court granted the request
to obtain Prior’s physical characteristics, law enforcement col-
lected hair samples, buccal swabs, photographs, and other iden-
tifying characteristics from Prior.
8. Information and Pretrial Motions
In November 2017, the State charged Prior with 12 offenses
related to the home invasion and sexual assault: count 1, first
degree sexual assault; count 2, burglary; count 3, robbery;
count 4, as amended, use of a firearm to commit a felony; count
5, first degree false imprisonment; count 6, possession of a
firearm by a prohibited person; count 7, possession of a stolen
firearm; count 8, terroristic threats; count 9, theft by receiving
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Cite as 30 Neb. App. 821stolen property; count 10, first degree trespass; count 11, theft
by unlawful taking; and count 12, habitual criminal. Prior to
the trial, the State dismissed count 7, possession of a stolen
firearm, and count 9, theft by receiving stolen property.
(a) Motions to Suppress
Before trial, Prior moved to suppress evidence, including the
search of his bag, evidence obtained during the strip search of
his person during the jail booking procedure, evidence obtained
pursuant to the court’s ex parte order requiring him to pro-
vide physical characteristics, and W.R.’s voice identification of
Prior as her assailant. The parties entered into a limited stipu-
lation as it related to Prior’s motion to suppress W.R.’s voice
identification of Prior. The stipulation indicated that W.R.
attended pretrial hearings, during which she identified Prior as
her assailant. The parties agreed that although the State was
aware of W.R.’s presence at the pretrial hearing, neither the
State nor law enforcement had requested W.R.’s attendance for
the purpose of making an identification. Further, the State did
not provide notice to Prior or defense counsel that W.R. would
be attending the pretrial hearing.
The district court denied each of Prior’s motions, including
finding that Prior lacked standing to challenge the search of
the bag because Prior had abandoned the bag and therefore did
not have a reasonable expectation of privacy in the bag or its
contents; that the strip search performed during the booking
process was conducted pursuant to the Sarpy County sheriff’s
office’s standard operating procedures (SOP), which proce-
dures were reasonable to maintain the safety and security of
those entering the facility and were closely tailored to prevent
contraband from entering the facility; that the affidavit in sup-
port of the ex parte order established probable cause for the
search warrant for Prior’s person; that Prior was given a copy
of the court order; and that any objection to the search was
waived by Prior’s consent. Regarding W.R.’s voice identifica-
tion of Prior, the district court stated:
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Cite as 30 Neb. App. 821The manner and means of identification were not sugges-
tive, and there is indicia of the reliability prior to in court
identification, W.R. had ample opportunity to hear [Prior]
speak. She was adequately able to describe the same to
law enforcement as to the tone, inflection, and narrative
of her assailant’s voice. It occurred over a lengthy period
of time. She has the requisite degree of attention and
degree of certainty in the matter.
(b) State’s Motions in Limine
Prior to trial, the State filed motions in limine requesting a
hearing to determine the admissibility of evidence concerning
Prior’s September 23, 2016, contact with Jacquilyn and his
actions on October 13, 2017, related to Angelique C. The State
alleged that Prior’s contact with Jacquilyn and his October
13 actions
may be considered admissible evidence under [Neb. Rev.
Stat. §] 27-404 [(Supp. 2019)] and therefore a hearing is
necessary for the State to provide proof of [Prior’s] acts to
demonstrate that said acts show proof of Prior’s motive,
opportunity, intent, preparation, plan, knowledge, iden-
tity, or absence of mistake or accident, and are therefore
admissible under [Neb. Rev. Stat. §] 27-401 [(Reissue
2016)] and/or 27-404.
Following a hearing, the court sustained the State’s motions
in limine, finding the evidence of Prior’s previous conduct
was admissible.
(c) Motion to Secure Out-of-State Witnesses
In August 2020, Prior filed a motion to secure the attend­
ance of three law enforcement officers from Kansas, alleging
that they were material witnesses to Prior’s defense. The affi-
davit by Prior’s counsel suggested that each of the witnesses
could testify regarding the similarities of the instant case to
that of cases involving a serial rapist in Kansas and that this
evidence would support Prior’s claim that he was not the
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STATE v. PRIOR
Cite as 30 Neb. App. 821perpetrator of the charged offenses. After reviewing the affida-
vit, the court overruled Prior’s motion to secure the attendance
of the requested witnesses.
9. Trial
The trial was held in September 2020. The State called 23
witnesses whose testimony was consistent with the facts laid
out above. The State’s witnesses included W.R., Jacquilyn,
Angelique, and Monico. We describe short summaries of por-
tions of the testimony of those individuals and the DNA evi-
dence adduced by the State as it relates to specific assignments
of error raised by Prior.
(a) W.R.
W.R. testified consistent with the facts above and provided
an in-court voice identification of Prior. On December 31,
2018, and July 1, 2020, W.R. attended two pretrial hearings
open to the public related to the charges against Prior. Prior
was not notified that W.R. was present at the hearings, but
W.R. attended in order to prepare for the possibility of testify-
ing at trial. During the December 2018 hearing, Prior, although
represented by counsel, spoke. During the July 2020 hearing,
Prior represented himself, but was assisted by standby counsel.
W.R. testified that after hearing Prior speak during the pretrial
hearings, she immediately recognized his voice as being the
same voice she heard on the night of her assault. W.R. testified
that she was “positive it’s the same person” and that she would
“never forget his voice.”
(b) Jacquilyn
Prior to Jacquilyn’s testimony regarding her previous
encounter with Prior, the court gave a limiting instruction
that Jacquilyn’s testimony was “not to prove the character of
a person in order to show they acted in conformity with, but
[the jury] may consider this for other purposes such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
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Cite as 30 Neb. App. 821identity, or absence of mistake, or accident in this.” Jacquilyn
testified that she lived in the same area as W.R. When describ-
ing the September 23, 2016, encounter, Jacquilyn testified that
as she returned home and pulled her vehicle into her garage, a
white four-door Lexus pulled up behind her in her driveway.
Jacquilyn testified that she exited her vehicle and met the
individual in her driveway. The individual identified himself
as Prior and provided her with a business card. During the
conversation, Prior asked Jacquilyn several “uncomfortable
personal questions” and told her that she needed to be more
careful, notifying her and demonstrating to her that a side win-
dow to her home was unlocked. He offered to fix her broken
doorbell and asked her how she protects herself. The encounter
ended with Jacquilyn’s calling the 911 emergency dispatch
service. The State offered a recording of Jacquilyn’s 911 call,
which was received over Prior’s objection.
(c) Angelique and Monico
Like Jacquilyn’s testimony, Angelique’s testimony was
accompanied by a limiting instruction from the court. Angelique
testified that on October 13, 2017, an unknown individual
approached the back door of her home. Angelique had a door-
bell security system, which is motion sensor activated and
records when it senses movement. Angelique contacted law
enforcement and provided them with the video taken from her
doorbell security system. In the video, which was received
and played over Prior’s objection, an individual unsuccessfully
attempted to open the back door of Angelique’s home while
wearing a mask around his neck. Monico identified Prior as
the man depicted in the doorbell security video who attempted
to open Angelique’s door. Monico further testified that he rec-
ognized the bag that Prior had on his person in the doorbell
security video as being the same bag as the one found at the
apartment complex. Monico also identified the mask that Prior
was wearing around his neck as being consistent with the gaiter
mask located in Higgins’ vehicle.
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Cite as 30 Neb. App. 821(d) DNA Evidence
During the trial, evidence was adduced regarding the results
of DNA evidence obtained during the course of this case,
including DNA obtained from the condom found at W.R.’s
bedroom, rope found in Prior’s vehicle, the gaiter mask found
in Higgins’ vehicle, and items found within the abandoned bag,
including rope and black zip ties.
Regarding the DNA found on the condom, W.R. was not
excluded as the major contributor and Prior was not excluded
as a partial profile contributor. The State adduced evidence
that the probability of an unrelated individual matching the
profile consistent with W.R.’s profile was 1 in 187 octillion
and that the probability of an unrelated individual matching
the profile that is consistent with Prior’s DNA profile was 1
in 251,000.
Regarding DNA found on the rope seized from Prior’s vehi-
cle, Prior was not excluded as the major contributor and W.R.
was not excluded as a partial contributor. The State adduced
evidence that the probability of an unrelated individual match-
ing Prior’s DNA profile was 1 in 239 septillion and that the
probability of an unrelated individual matching W.R.’s profile
was 1 in 2.33 billion.
Regarding DNA found on the gaiter mask, Prior was not
excluded as a major contributor and W.R. was not excluded
as a partial contributor. The probability of another individual
matching Prior’s profile was 1 in 761 octillion, and the prob-
ability of another individual matching W.R.’s profile was 1 in
504 million.
Regarding DNA found on items in the abandoned bag, nei-
ther Prior nor W.R. could be excluded as contributors of that
DNA. The probability of another individual matching Prior’s
DNA profile was 1 in 761 octillion. Additionally, regarding
the DNA found on the rope located inside the abandoned bag,
W.R. was not excluded as a full profile contributor and the
probability of another individual matching that same profile
was 1 in 16.9 million. Regarding the DNA located on black
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Cite as 30 Neb. App. 821zip ties found in the abandoned bag, the probability that an
unrelated individual would match Prior’s DNA profile was 1
in 6.60 septillion and the probability that another individual
would match W.R.’s profile was 1 in 1.75 trillion.
Finally, regarding DNA located on the 9-mm semiautomatic
handgun, Prior and W.R. were not excluded as contributors.
The probability of another individual matching the same DNA
profile of Prior was 1 in 11.2 sextillion, and the probability of
another individual matching the DNA profile of W.R. was 1
in 5.69 quadrillion. Prior’s DNA was also obtained from the
interior of the handgun, with a probability of another individual
matching the same DNA profile being 1 in 761 octillion.
In sum, W.R. and Prior were included as possible contribu-
tors on the DNA collected from the condom located inside
W.R.’s home on her bed; the white rope located on the floor-
board of Prior’s white Lexus; the black gaiter mask found in
Higgins’ vehicle; and the additional rope, black zip ties, and
a 9-mm semiautomatic handgun located in the abandoned bag
found at the apartment complex where Prior’s vehicle was
located. Additional items were tested and found to contain
DNA consistent with Prior’s DNA profile, including several
items found inside that same bag and Prior’s Lexus.
10. Jury Verdicts and Sentencing
Following the trial, the jury found Prior guilty of all nine
charged offenses. Thereafter, the court determined that Prior
was a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221(Reissue 2016) and proceeded to sentencing. The court reviewed
the presentence investigation report for which Prior refused to
provide any information. The district court considered the
nature and circumstances underlying the crimes; the history,
character and condition of Prior; the presentence investigation
report, which included the victim impact statements; and the
parties’ arguments. The district court determined that a term of
imprisonment was necessary for the protection of the public.
The court imposed the following terms of imprisonment:
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Cite as 30 Neb. App. 821Sentence of
Count Offense Imprisonment
1 First Degree Sexual Assault 45 to 50 years
2 Burglary 15 to 20 years
3 Robbery 20 to 30 years
4 Use of Firearm to Commit Felony 45 to 50 years
5 First Degree False Imprisonment 10 to 20 years
6 Possession of Firearm by Prohibited Person 20 to 30 years
8 Terroristic Threats 10 to 20 years
10 First Degree Trespass 1 year
11 Theft by Unlawful Taking ($500 or less) 6 months
The court stated that each felony conviction “has been found
to be enhanceable to the habitual criminal, which is [a] man-
datory minimum of ten years that runs on the sentence. The
sentence therefore is a period of 165 years to 220 years.” The
sentences on all counts were ordered to be served consecu-
tively, Prior was granted 1,163 days’ credit for time served,
and he was ordered to comply with the Nebraska Sex Offender
Registration Act. Prior has timely appealed to this court and is
represented by the same counsel that represented him during
his trial and sentencing.
III. ASSIGNMENTS OF ERROR
Prior assigns, restated, that the district court erred in (1)
finding that Prior lacked standing to challenge the search of
his bag, because he had abandoned it; (2) overruling Prior’s
motion to suppress/motion in limine regarding voice identi-
fication; (3) allowing the State to adduce evidence of Prior’s
physical characteristics; (4) allowing Neb. Rev. Stat. § 27-404(Supp. 2019) testimony of Jacquilyn and Angelique; (5) deny-
ing Prior’s motion to secure out-of-state witnesses; (6) denying
Prior’s motion for directed verdict due to insufficiency of the
evidence; and (7) imposing excessive sentences.
IV. STANDARD OF REVIEW
[1] When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth
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Cite as 30 Neb. App. 821Amendment, an appellate court applies a two-part standard of
review. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
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. State v. Garcia, supra.[2] A trial court’s finding that an item of personal property
has been abandoned, and thus not subject to a reasonable
expectation of privacy, is reviewed for clear error. See State v.
Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020).
[3] An appellate court reviews the admission of evidence of
other acts under § 27-404(2) by considering (1) whether the
evidence was relevant, (2) whether the evidence had a proper
purpose, (3) whether the probative value of the evidence out-
weighed its potential for unfair prejudice, and (4) whether the
trial court, if requested, instructed the jury to consider the evi-
dence only for the purpose for which it was admitted. State v.
Newman, 4 Neb. App. 265, 541 N.W.2d 662 (1996).
[4,5] 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,
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 favorably to the
State, is sufficient to support the conviction. State v. Hassan,
309 Neb. 644, 962 N.W.2d 210 (2021). The relevant question
for an appellate court on review of the sufficiency of evidence
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. See State v. Garcia, supra.- 841 -
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Cite as 30 Neb. App. 821[6,7] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. Id. In reviewing a sentence imposed within the
statutory limits, an appellate court considers whether the sen-
tencing court abused its discretion in considering and applying
the relevant factors as well as any legal principles in determin-
ing the sentence to be imposed. State v. Rogers, 297 Neb. 265,
899 N.W.2d 626 (2017).
[8] Generally, it is within a trial court’s discretion to direct
that sentences imposed for separate crimes be served either
concurrently or consecutively. State v. Brown, 302 Neb. 53,
921 N.W.2d 804 (2019).
V. ANALYSIS
1. Standing to Challenge
Search of Bag
Prior’s first assigned error is that the district court erred in
finding that he lacked standing to challenge the search of the
bag found outside of the apartment complex, because the bag
had been abandoned. He contends:
The evidence is clear that [Prior] was arrested prior to
the witnesses seeing the bag. The bag was full of [Prior’s]
personal items and in a place and location that he was
going to return to in order to retrieve it. He clearly had
a legitimate expectation of privacy in the invaded place
with the only issue being whether or not he voluntarily
abandoned it.
Brief for appellant at 16-17.
The State asserts that although defense counsel had discus-
sions with the court at trial about continuing objections made
in connection with his motion to suppress, Prior failed to make
specific objections at appropriate times during the trial when
certain contents of the bag were discussed by different wit-
nesses. Assuming, without deciding, that Prior preserved his
objection to the warrantless search of the bag at the time of
trial, we address Prior’s specific assignments that he retained
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Cite as 30 Neb. App. 821a legitimate expectation of privacy in the bag discovered which
required a warrant to search the bag.
[9-11] 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.
State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014). However,
when individuals voluntarily abandon property, they forfeit
any expectation of privacy in the property that they might
otherwise have had. State v. Vasquez-Arenivar, 18 Neb. App.
265, 779 N.W.2d 117 (2010). Because the Fourth Amendment
does not protect voluntarily abandoned property, a warrantless
search or seizure of abandoned property does not violate the
Fourth Amendment. State v. Vasquez-Arenivar, supra. See, also,
State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020) (once
defendant abandons item of personal property making it avail-
able to police or public, defendant does not retain reasonable
expectation of privacy in that property for purposes of Fourth
Amendment protection).
[12-15] In adopting a framework for determining when
property has been abandoned, the Nebraska Supreme Court
reasoned and held as follows:
Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. A search for
Fourth Amendment purposes occurs when the government
violates a subjective expectation of privacy that society
recognizes as reasonable. But it is well-settled that once
a defendant abandons an item of personal property and
makes it available to the police or the public, he or she
does not retain a reasonable expectation of privacy in the
property for purposes of Fourth Amendment protection.
In [U.S. v.] Basinski, [226 F.3d 829 (7th Cir. 2000),]
the Seventh Circuit held: “To demonstrate abandonment,
the government must establish by a preponderance of the
evidence that the defendant’s voluntary words or con-
duct would lead a reasonable person in the searching
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Cite as 30 Neb. App. 821officer’s position to believe that the defendant relin-
quished his property interests in the item searched or
seized. . . . Because this is an objective test, it does
not matter whether the defendant harbors a desire to
later reclaim an item; we look solely to the external
­manifestations of his intent as judged by a reasonable
person possessing the same knowledge available to the
government agents. . . . We look at the totality of the
circumstances, but pay particular attention to explicit
denials of ownership and to any physical relinquishment
of the property.”
Basinski also explained: “There are three general types
of abandonment cases, which are based on these two
indicia of abandonment. The first type is characterized
by the presence of a fleeing defendant who relinquishes
an object to make his flight easier or because discarding
the item might make it easier for him to later claim that
he never possessed it. . . . Because he has disposed of the
property in a location that affords easy access to the pub-
lic, a reasonable person would believe that the defend­
ant’s possessory interest in the property is so eroded that
anyone has a right to retrieve it. The second type of case
is closely related to the first, for in so-called ‘garbage
cases’ the defendant places material in or near a refuse
receptacle that is readily accessible to the public, and in
which he usually places other discarded materials. . . .
By this conduct and the location of the receptacle, the
defend­ant leads reasonable people to believe that he no
longer cares what becomes of his trash, or articles mis-
taken for trash. In the third type of case, the defendant
is usually caught red-handed with or near a container
of contraband, whereupon he denies that the container
or its contents are his. . . . Taken at face value, this denial
makes it reasonable to conclude that the defendant claims
no possessory interest in the items.”
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Cite as 30 Neb. App. 821Similarly, the Eighth Circuit explained in [U.S. v.]
Nowak[, 825 F.3d 946 (8th Cir. 2016),] how courts are
to determine when personal property is abandoned:
“Whether property has been abandoned ‘is determined
on the basis of the objective facts available to the inves-
tigating officers, not on the basis of the owner’s subjec-
tive intent.’ . . . We consider the dual factors of whether
the defendant physically relinquished his property and
whether he denied ownership of it. . . . However, a ver-
bal denial of ownership is not necessary for a finding of
abandonment, and we reach our ultimate conclusion based
on the totality of the circumstances.” Nowak further held
that “[w]hether property is discarded in a public, private,
or semi-private place is a factor in considering whether
the property has been abandoned . . . .”
We agree with the reasoning of Basinski and Nowak,
and we adopt a similar test for determining abandonment.
We now hold that to show abandonment of personal
property for purposes of the Fourth Amendment, the State
must establish by a preponderance of the evidence that
the defendant’s voluntary words or conduct would lead a
reasonable officer to believe the defendant relinquished
his or her property interests in the item. This is an objec-
tive test based on the information available to the officer,
and the defendant’s subjective intent to later reclaim the
item is irrelevant. When determining whether property
has been abandoned, courts consider the totality of the
circumstances, and pay particular attention to the nature
and location of any physical relinquishment of the prop-
erty and any explicit denials of ownership. We note this
test is, in substance, the test applied by the district court
in this case.
State v. Dixon, 306 Neb. 853, 861-64, 947 N.W.2d 563, 571-73
(2020). See, also, U.S. v. Sanders, 130 F.3d 1316 (8th Cir.
1997) (holding that defendant’s statements to officers that he
did not own bag found on bus on which he was traveling con-
stituted abandonment for purposes of Fourth Amendment).
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Cite as 30 Neb. App. 821After reviewing the record, we find that the circumstances
attendant with the bag discovered by the apartment complex
resident and reported to police meet the characteristics of two
of the three general types of abandonment cases described by
the Seventh Circuit and adopted by the Nebraska Supreme
Court. First, the bag was located by the apartment complex
resident, who was a member of the public, and the bag was in
plain view, near the garages of an apartment complex. Having
noticed the bag the previous day, the apartment complex resi-
dent then approached the bag and dumped out its contents in
order to determine whether he could identify the owner. He
noticed that the bag included Prior’s driver’s license and Social
Security card and recognized Prior from news coverage regard-
ing the commission of a crime. He notified his father, who
contacted law enforcement. The location of the bag was near
the area where police previously discovered Prior’s vehicle and
where they searched the woods after hearing someone in the
woods who then fled from police. Under these circumstances,
we find it reasonable for the police to conclude that the person
who fled from them was Prior, who had relinquished the bag
to make flight easier or because discarding the bag might make
it easier for him to later claim that he never possessed it or its
contents. Second, during one of Prior’s postarrest interviews,
he denied ownership of the bag police claimed was found near
the area in which they had performed surveillance and located
Prior’s Lexus, making it reasonable to conclude that Prior
claimed no possessory interest in the bag or its contents. Under
these circumstances, we find the court did not clearly err in
finding that the State provided, by a preponderance of the evi-
dence, that Prior had abandoned the bag and in denying Prior’s
motion to suppress. This assignment of error fails.
2. Motion to Suppress Voice Identification
Prior next asserts that the district court erred in overrul-
ing his motion to suppress W.R.’s pretrial voice identification
of him as her assailant, which identification occurred during
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Cite as 30 Neb. App. 821a pretrial hearing. In his motion to suppress, Prior asserted
that W.R.’s voice identification of him was improper and
violated his right to due process and his Sixth Amendment
right to counsel. The district court overruled his objection and
allowed W.R. to testify to having recognized Prior’s voice as
the voice of her assailant when she heard him speak at the
pretrial hearings.
[16] On appeal, Prior assigned error to this ruling, but
he also now asserts that the identification violated his Fifth
Amendment right against self-incrimination. As we have long
held, an objection must be specifically stated, and on appeal,
a defendant may not assert a different ground for his or her
objection to the admission of evidence than was offered to
the trier of fact. State v. Childs, 309 Neb. 427, 960 N.W.2d
585 (2021). Accordingly, we decline to address Prior’s claim
regarding a violation of his Fifth Amendment right against
self-incrimination.
In asserting his due process and Sixth Amendment claim,
Prior focuses on United States v. Wade, 388 U.S. 218, 87 S. Ct.
1926, 18 L. Ed. 2d 1149 (1967), which held that postindictment
identification procedures arranged by law enforcement—con-
ducted without notice to, and in the absence of, defense coun-
sel—were violative of the Sixth Amendment right to counsel.
Prior presents no argument that W.R.’s identification of his
voice involved an unnecessarily suggestive procedure or that
it lacked reliability. As such, we narrowly examine Prior’s spe-
cific claim that the pretrial voice identification process violated
Prior’s Sixth Amendment right to counsel.
In United States v. Wade, supra, the U.S. Supreme Court
addressed the question of whether courtroom identifications at
trial should be excluded when the accused was exhibited to the
witness before trial at a postindictment lineup conducted for
identification purposes without notice to, and in the absence of,
the accused’s appointed counsel. In analyzing the dangers asso-
ciated with postindictment lineups conducted for identification
purposes without counsel, the U.S. Supreme Court stated:
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Cite as 30 Neb. App. 821Williams & Hammelmann, in one of the most comprehen-
sive studies of such forms of identification, said, “[T]he
fact that the police themselves have, in a given case, little
or no doubt that the man put up for identification has
committed the offense, and that their chief pre-occupation
is with the problem of getting sufficient proof, because he
has not ‘come clean,’ involves a danger that this persua-
sion may communicate itself even in a doubtful case to
the witness in some way . . . .” Identification Parades,
Part I, [1963] Crim. L. Rev. 479, 483.
United States v. Wade, 388 U.S. at 235. In so finding, the U.S.
Supreme Court ultimately held:
Since it appears that there is grave potential for preju-
dice, intentional or not, in the pretrial lineup, which may
not be capable of reconstruction at trial, and since pres-
ence of counsel itself can often avert prejudice and assure
a meaningful confrontation at trial, there can be little
doubt that for [the defendant] the postindictment lineup
was a critical stage of the prosecution at which he was “as
much entitled to such aid [of counsel] . . . as at the trial
itself.” Powell v. Alabama, 287 U. S. 45, 57.
United States v. Wade, 388 U.S. at 236-37.
Prior suggests that the U.S. Supreme Court’s holding in
Wade should apply to W.R.’s voice identification of him, which
did not involve a state or police organized lineup or voice
identification procedure. We disagree that such an extension is
warranted on the facts of this record.
[17,18] The U.S. Supreme Court’s holding in Wade was
premised upon the concern of undue suggestion associated
with the conduct of a state or police in connection with such
organized practices. But as the Nebraska Supreme Court
held in State v. Nolan, 283 Neb. 50, 63, 807 N.W.2d 520,
535 (2012):
Suppression of identification evidence on the basis of
undue suggestion is appropriate only where the witness’
ability to make an accurate identification is outweighed
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Cite as 30 Neb. App. 821by the corrupting effect of improper police conduct.
When no improper law enforcement activity is involved,
it suffices to test the reliability of identification testimony
at trial, through the rights and opportunities generally
designed for that purpose, such as the rights to coun-
sel, compulsory process, and confrontation and cross-­
examination of witnesses.
Here, W.R.’s voice identification of Prior was not the result
of an identification procedure arranged by law enforcement.
W.R. attended a public pretrial hearing of her own volition.
Under these circumstances, the dangers suggested by the U.S.
Supreme Court in Wade, which entitled the defendant the right
to have counsel present, were not at issue here. Because no
improper law enforcement activity was involved, it was suf-
ficient to test the reliability of W.R.’s identification testimony
at trial. We further note that Prior’s counsel, acting as either
counsel or standby counsel, was in attendance at both of these
hearings. Prior’s claim that the court erred in failing to sup-
press W.R.’s voice identification testimony procured through
her voluntary attendance at a pretrial hearing not arranged by
law enforcement fails.
3. Denial of Motion to Suppress
Physical Characteristics
Next, Prior alleges that the district court erred in overrul-
ing his motion to suppress evidence of his personal charac-
teristics which were obtained (1) during a strip search of his
person when he was booked into the Sarpy County jail (Prior
claims that police did not follow the SOP) and (2) pursuant
to a second search conducted in connection with the district
court’s October 24, 2017, ex parte order (Prior claims other
abnormalities). We note that Prior’s assignment of error relates
only to law enforcement’s obtaining his physical characteris-
tics, not samples of his hair or DNA. The State again argues
that this assigned error was not preserved notwithstanding the
general discussion about preserving objections made in Prior’s
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Cite as 30 Neb. App. 821motions to suppress. Assuming, without deciding, that this
error was properly preserved, we consider it.
Prior first simply argues that
the Court erred in allowing the physical characteristics
taken pursuant to the strip search of [Prior] when he was
booked into the Sarpy County Jail. In [its] Order, the
Court found that the policies and procedures allowed said
identifying characteristics to be taken. However, this was
in contravention of the actual policy.
Brief for appellant at 28. We disagree. A copy of the SOP was
admitted into evidence. The SOP explicitly states that if an
inmate “is charged with a crime of violence, escape, burglary,
or use of a weapon,” it provides reasonable suspicion for strip
searches at admission to the jail. Prior was arrested and charged
with multiple crimes, including first degree sexual assault, bur-
glary, and use of a weapon to commit a felony. These charges
provided reasonable suspicion for law enforcement to strip
search Prior upon booking him into jail. Section IV(D)(6)(f) of
the SOP provides that during a strip search,
[t]he employee shall visually inspect the inmate for con-
traband and/or any identifying scars, marks or tattoos,
and/or any evidence of contagious disease. Areas to be
inspected shall include:
(1) Hair, ears, mouth, and nose
(2) Arms, armpits, and hands
(3) Abdomen, breasts, back, legs, and feet
(4) Outer genital and anal areas.
The deputy that conducted the strip search of Prior in con-
nection with Prior’s booking noted the key physical character-
istics on Prior’s stomach and groin area that were described
by W.R. as being present on her assailant. Because the SOP
explicitly authorized the deputy conducting the strip search
to identify such personal characteristics, Prior’s argument that
they were identified in contravention of this policy fails.
Prior next argues that the court should have suppressed
his physical characteristics obtained pursuant to the separate
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Cite as 30 Neb. App. 821search conducted in connection with the court’s ex parte order
for abnormalities associated with procurement of that order.
Neb. Rev. Stat. § 29-3302 (Reissue 2016) provides:
Judges and magistrates may issue orders authorizing
identification procedures for the purpose of obtaining
identifying physical characteristics in accordance with
the procedures specified in sections 29-3301 to 29-3307.
An order may be issued by any judge of the district
court, Court of Appeals, or Supreme Court for service
and execution anywhere within the State of Nebraska.
An order may also be issued by any judge of the county
court or other magistrate for service within the county
of issuance.
However, Neb. Rev. Stat. § 29-3304 (Reissue 2016) provides:
No order shall be required or necessary where the
individual has been lawfully arrested, nor under any
circumstances where peace officers may otherwise law-
fully require or request the individual to provide evi-
dence of identifying physical characteristics, and no order
shall be required in the course of trials or other judi-
cial proceedings.
Prior argues that in procuring the order under § 29-3302,
the State failed to show that Prior would have failed to provide
the desired evidence and that there was no evidence indicat-
ing a copy of the order was given to him at the time it was
executed. But Prior’s argument fails for two reasons. First,
the physical evidence was lawfully obtained from the strip
search associated with Prior’s booking, making it unnecessary
to further obtain this authority under § 29-3302. That concept
is captured by § 29-3304, which explicitly provides that no
order is required or necessary where the individual has been
lawfully arrested or under circumstances where peace officers
otherwise lawfully require or request the individual to provide
evidence of such characteristics. Because Prior was arrested
and the SOP lawfully allowed the strip search in which Prior’s
physical characteristics could be, and were, identified, the
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Cite as 30 Neb. App. 821separate ex parte order was unnecessary and the abnormalities
suggested by Prior were of no consequence.
[19] Second, Prior’s claim of abnormality in not request-
ing permission to review his physical characteristics before
seeking an order or serving him with a copy of the order are
without consequence. Assuming, without deciding, that Prior
would have consented to the search without the order or that a
copy of the order was not presented to him upon execution, we
determine that neither circumstance would have resulted in the
State’s failing to procure the physical attributes complained of.
We fail to see how Prior’s argument that he would have con-
sented to the search without an order would somehow bar evi-
dence procured with an order or which was otherwise validly
obtained through the strip search conducted before. Appellate
courts will not reverse a criminal conviction in the absence of
prejudice to the defendant. State v. Kirby, 198 Neb. 646, 254
N.W.2d 424 (1977). This argument fails.
4. Testimony of Jacquilyn and Angelique
Prior next assigns that the district court erred in allowing the
testimony of Jacquilyn and Angelique, which was a violation
of § 27-404.
[20] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).
[21,22] A trial court has the discretion to determine the rele­
vancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion. State v. Jennings, 305 Neb. 809, 942 N.W.2d
753 (2020). Additionally, it is within the discretion of the trial
court to determine relevancy and admissibility of evidence of
other wrongs or acts, and the trial court’s decision will not be
reversed absent an abuse of that discretion. State v. Newman,
4 Neb. App. 265, 541 N.W.2d 662 (1996) (abuse of judicial
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Cite as 30 Neb. App. 821discretion means that reasons or rulings of trial court are
clearly untenable, unfairly depriving litigant of substantial right
and denying just result in matters submitted for disposition).
[23] An appellate court reviews the admission of evidence
of other acts by considering whether the evidence was relevant,
whether the evidence had a proper purpose, whether the proba-
tive value of the evidence outweighed its potential for unfair
prejudice, and whether the trial court, if requested, instructed
the jury to consider the evidence only for the purpose for
which it was admitted. Id.Section 27-404 provides, in pertinent part:
(1) Evidence of a person’s character or a trait of his or
her character is not admissible for the purpose of proving
that he or she acted in conformity therewith on a particu-
lar occasion, except:
(a) Evidence of a pertinent trait of his or her charac-
ter offered by an accused, or by the prosecution to rebut
the same;
(b) Evidence of a pertinent trait of character of the
victim of the crime offered by an accused or by the pros-
ecution to rebut the same, or evidence of a character trait
of peacefulness of the victim offered by the prosecution
in a homicide case to rebut evidence that the victim was
the first aggressor. In a sexual assault case, reputation,
opinion, or other evidence of past sexual behavior of the
victim is governed by section 27-412; or
(c) Evidence of the character of a witness as provided
in sections 27-607 to 27-609.
(2) Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he or she acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident.
(3) When such evidence is admissible pursuant to
this section, in criminal cases evidence of other crimes,
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Cite as 30 Neb. App. 821wrongs, or acts of the accused may be offered in evidence
by the prosecution if the prosecution proves to the court
by clear and convincing evidence that the accused com-
mitted the crime, wrong, or act. Such proof shall first be
made outside the presence of any jury.
Here, the State filed a motion in limine to determine the
admissibility of the testimony of Jacquilyn and Angelique
under § 27-404. In connection with the motion, the State argued
that the events described by Jacquilyn and Angelique should be
admissible because they provided evidence of motive, opportu-
nity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident as allowed under § 27-404(2). The court
found that the testimony as to Jacquilyn was admissible as rele­
vant to show motive, opportunity, and/or intent, preparation, or
plan. Further, the court found that the probative value of the
evidence outweighed any prejudicial effect. Likewise, the court
found that the testimony of Angelique was admissible given
the location of the events which occurred and the nature of
the circumstances to show proof of motive, opportunity, intent,
preparation, plan, and identity, and that the value of the testi-
mony was not outweighed by the prejudicial effect.
At trial, Jacquilyn and Angelique testified about encoun-
ters they had experienced with Prior. Jacquilyn testified that
as she drove her vehicle into her garage, Prior pulled up his
Lexus behind her in her driveway and began asking her ques-
tions that made her feel uncomfortable. Jacquilyn testified to
Prior’s indicating that her back doorbell was broken and that
her window was unlocked. He asked her how she protects
herself. Jacquilyn then called 911 to report the encounter.
Angelique testified that an individual, later identified by police
as Prior, attempted to open her back door 6 days prior to the
home invasion robbery and sexual assault of W.R. Angelique’s
doorbell security camera captured the attempt on video, and
the police were contacted. The officers were able to identify
Prior and noticed a bag similar to the one described by W.R.
The State offered this evidence for a limited purpose, and the
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Cite as 30 Neb. App. 821court accompanied the testimony with limiting instructions that
it was not to be used to show propensity character evidence.
Prior argues that under § 27-404(2), “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he or she acted in conformity
therewith.” Although Prior acknowledges the remainder of
§ 27-404(2) provides that “[i]t may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident,” he argues that the testimony amounted to propen-
sity evidence and was not admissible for another purpose.
Section 27-404 is a rule of inclusion, as opposed to exclu-
sion, and permits the use of other relevant acts for purposes
other than to prove that the person acted in conformity with
their prior acts. See State v. Newman, 250 Neb. 226, 548
N.W.2d 739 (1996). This court has held:
In the case at hand, the trial court instructed the jury
that [testimony by two individuals] was to be received
for the limited purpose of placing [the defendant] in the
area described on the date and time described, and for no
other purpose. We find that not only could the evidence
be admitted for that limited purpose, but it could also be
introduced for purposes of establishing identity and plan-
ning. [The defendant’s] only defense was that the victim
identified the wrong man as her assailant. Placing [the
defendant] within blocks of the crime, within hours of the
crime, seemingly stalking one woman to her apartment
building and approaching another woman near another
apartment building, is relevant to the sexual assault of the
victim, and therefore there was no abuse of discretion by
the trial court in admitting the evidence.
State v. Newman, 4 Neb. App. 265, 281, 541 N.W.2d 662,
674 (1996).
Similar to the evidence in Newman, the evidence of the
prior actions described by Jacquilyn and Angelique were
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Cite as 30 Neb. App. 821relevant and admissible because they placed Prior in the same
neighborhood as W.R. within a relevant timeframe, perform-
ing similar acts of unauthorized attempted entry into the
homes of females in the area, in opposition to Prior’s stated
defense of misidentification. This testimony provides evidence
of identity and planning, thereby rendering it relevant to this
specific charge. Nor do we find that this relevant evidence
was unfairly prejudicial to Prior. The district court did not
abuse its discretion in admitting testimony from both Jacquilyn
and Angelique.
5. Denial of Request to Secure
Out-of-State Witnesses
In his next assignment of error, Prior contends that the
district court erred in overruling his motion to secure three
­out-of-state witnesses for his defense.
Neb. Rev. Stat. § 29-1908 (Reissue 2016), which governs
the court’s ability to secure out-of-state witnesses, provides
in part:
If a person in any state, which by its laws has made
provision for commanding persons within its borders to
attend and testify in criminal prosecutions, or grand jury
investigations commenced or about to commence, in this
state, is a material witness in a prosecution pending in a
court of record in this state, or in a grand jury investiga-
tion which has commenced or is about to commence, a
judge of such court may issue a certificate under the seal
of the court stating these facts and specifying the number
of days the witness will be required.
[24,25] Process to secure attendance of witnesses from
another state may not be issued unless the testimony proposed
to be elicited from such witnesses is relevant to the issues to be
tried. State v. Casados, 201 Neb. 726, 271 N.W.2d 849 (1978).
It is proper to sustain a motion in limine to prevent reference to
or the offer of evidence concerning matters which are entirely
extraneous or irrelevant to the issues of the case. Id.- 856 -
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Cite as 30 Neb. App. 821Here, Prior filed a motion to secure the attendance of three
law enforcement officers from Kansas. In the motion, Prior
contended that the witnesses were material and requested that
the court order them to attend and testify at trial. At the hear-
ing on the motion, Prior explained that the witnesses would
be able to testify regarding a series of rapes that had occurred
in Kansas. The court requested that Prior submit an affidavit
regarding how the witnesses were material. After receiving the
affidavit, the court overruled the motion.
After reviewing the affidavit provided by Prior’s counsel
to the court in support of his motion to secure the attendance
of the three Kansas law enforcement officers, we agree with
the district court that Prior failed to demonstrate the officers
would provide relevant testimony of matters which were not
extraneous to the case. In reaching that conclusion, we note
that within the affidavit, Prior’s counsel failed to provide any
evidence that the alleged Kansas serial rapist had ever been
found to act outside of that state, that there was no testimony
the alleged Kansas rapist had any physical characteristics simi-
lar to those described by W.R., and that the affiant was lacking
in any specific evidence that could be considered exculpatory
of Prior.
In addition, in State v. Cain, 223 Neb. 796, 393 N.W.2d 727(1986), the Nebraska Supreme Court stated that a denial of
defendant’s request for subpoenas to compel attendance of wit-
nesses expected to testify to a police informant’s alleged prior
use of drugs was harmless beyond a reasonable doubt, where
tape recordings provided overwhelming evidence of defend­
ant’s violations of controlled substance laws. Likewise, even if
the testimony sought by Prior by his motion could have been
found to be somehow relevant to Prior’s defense, overruling
the motion to secure the witnesses’ attendance was harmless
error due to the overwhelming amount of evidence of Prior’s
guilt, including, but not limited to, the DNA evidence linking
Prior to the assault, testimony that Prior was seen in the area
on both days the assault took place, video surveillance which
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Cite as 30 Neb. App. 821captured Prior’s vehicle in the area, a voice identification of
Prior by W.R., evidence of Prior’s physical characteristics
consistent with W.R.’s description of her assailant, evidence
that Prior had been involved in at least two reported prior
inter­actions in the area over the last year, evidence that W.R.’s
assailant smelled of cigarette smoke accompanied by evidence
that Prior smoked cigarettes, and the physical evidence col-
lected from Prior’s vehicle, Higgins’ home and vehicle, and
Prior’s abandoned bag. Even if we found that the district court
erred in failing to grant Prior’s motion for out-of-state wit-
nesses, such error was harmless. This assigned error fails.
6. Denial of Motion for Directed Verdict
Prior alleges that the district court erred when it denied his
motion for a directed verdict based on the insufficiency of the
evidence. He contends that the State’s case was based upon
circumstantial evidence, the State’s DNA evidence was weak,
and the court “was swayed by emotion and sympathy and not
enough hard evidence to find [Prior] guilty beyond a reason-
able doubt.” Brief for appellant at 38.
[26] 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.
Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016). 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.Here, the State presented evidence from W.R. regarding the
offenses and the description of the perpetrator. W.R. identi-
fied Prior’s voice as the voice of her assailant, stating she
was “positive” that it was the same individual and that she
“would never forget that voice.” Video evidence and witness
testimony placed Prior near the area on the day that W.R.
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Cite as 30 Neb. App. 821was assaulted, and the abandoned bag included items match-
ing the description of items used during the assault of W.R.
Additionally, Prior could not be excluded as a contributor of
DNA evidence collected at the crime scene, located in the
abandoned bag, and located in both Prior’s vehicle and the
vehicle he had borrowed from Higgins in the days preceding
his arrest. Further, W.R.’s DNA was found on items located
in Prior’s bag. Viewing this evidence presented in the light
most favorable to the State, a reasonable trier of fact could
have found the State proved the elements of the charged
offenses beyond a reasonable doubt. Since there was evidence
to sustain a finding for the State, the district court properly
denied Prior’s motion for a directed verdict. This assignment of
error fails.
7. Excessive Sentences
Prior’s final assignment of error is that the sentences
imposed were excessive. Specifically, he contends that the
district court abused its discretion (a) by failing to give proper
weight and consideration to sentencing factors and (b) in
imposing consecutive sentences because his offenses, although
each having unique requirements, all stemmed from the same
set of facts.
(a) Consideration of Sentencing Factors
Before addressing Prior’s claim that the district court abused
its discretion by failing to give proper weight and consid-
eration to sentencing factors, we review Prior’s convictions
and sentences imposed. Prior was convicted of seven felonies
and two misdemeanors. The court determined that Prior was
a habitual criminal and sentenced him on his felony convic-
tions pursuant to § 29-2221, which requires a mandatory
minimum of 10 years’ imprisonment and a maximum of 60
years’ imprisonment.
Prior was convicted of seven felonies and sentenced as
follows: 45 to 50 years’ imprisonment for first degree sexual
assault, 15 to 20 years’ imprisonment for burglary, 20 to 30
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Cite as 30 Neb. App. 821years’ imprisonment for robbery, 45 to 50 years’ imprison-
ment for use of a firearm to commit a felony, 10 to 20 years’
imprisonment for first degree false imprisonment, 20 to 30
years’ imprisonment for possession of a firearm by a prohib-
ited person, and 10 to 20 years’ imprisonment for terroristic
threats. See, Neb. Rev. Stat. § 28-319 (Reissue 2016) (first
degree sexual assault); Neb. Rev. Stat. § 28-507 (Reissue 2016)
(burglary); Neb. Rev. Stat. § 28-324 (Reissue 2016) (robbery);
Neb. Rev. Stat. § 28-1205 (Reissue 2016) (use of firearm to
commit felony); Neb. Rev. Stat. § 28-314 (Reissue 2016) (first
degree false imprisonment); Neb. Rev. Stat. § 28-1206 (Supp.
2017) (possession of firearm by prohibited person); Neb. Rev.
Stat. § 28-311.01 (Reissue 2016) (terroristic threats). Each of
these sentences is within the enhanced sentencing range set
by the habitual criminal statute of a mandatory minimum of
10 years’ imprisonment to a maximum of 60 years’ imprison-
ment. See § 29-2221(1). We note that pursuant to § 29-2221,
each of these sentences has a mandatory minimum of 10
years’ imprisonment.
Regarding Prior’s misdemeanor convictions, the court sen-
tenced Prior to 1 year’s imprisonment for his conviction of first
degree trespass, which is within the statutory sentencing range
for Class I misdemeanors that are punishable by a minimum
of no imprisonment to a maximum of 1 year’s imprisonment,
a $1,000 fine, or both. See Neb. Rev. Stat. § 28-106 (Reissue
2016); Neb. Rev. Stat. § 28-520 (Reissue 2016) (first degree
trespass). The court sentenced Prior to 6 months’ imprison-
ment for his conviction of theft by unlawful taking ($500 or
less), which is within the statutory sentencing range for Class
II misdemeanors of a minimum of no imprisonment and a
maximum of 6 months’ imprisonment, a $1,000 fine, or both.
See, § 28-106; Neb. Rev. Stat. § 28-511 (Reissue 2016) (theft
by unlawful taking or disposition); Neb. Rev. Stat. § 28-518(4)
(Reissue 2016) (grading of theft offenses).
[27,28] Because the sentences imposed were within statu-
tory limits, we review the sentences imposed for an abuse of
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Cite as 30 Neb. App. 821discretion. See State v. Russell, 292 Neb. 501, 874 N.W.2d 8(2016). When imposing a sentence, a sentencing judge should
customarily consider the defendant’s (1) age, (2) mentality, (3)
education 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. State v. Mora, 298 Neb. 185, 903 N.W.2d
244 (2017). However, the sentencing court is not limited to any
mathematically applied set of factors. 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.Here, the district court considered the serious nature and
circumstances of the offenses; Prior’s history, character, and
condition; the information contained in the presentence inves-
tigation report; and statements received by the court, including
the victim impact statement. The court noted that Prior was 56
years old, was “separated,” had obtained a diploma through
the GED program, and was unemployed due to his incar-
ceration. Prior’s criminal history includes convictions of three
counts of burglary, two counts of robbery, and one count of
second degree forgery. The court did not have any “LS/CMI”
scorings because Prior failed to complete his paperwork for
the presentence investigation. The district court determined
that a term of imprisonment was necessary for the protection
of the public. An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of dis-
cretion by the trial court. State v. Garcia, 302 Neb. 406, 923
N.W.2d 725 (2019).
In sum, we determine the district court did not abuse its dis-
cretion in imposing the sentences. This determination is based
upon the following factors: the district court’s imposition of
sentences that were within the appropriate statutory sentenc-
ing ranges as enhanced under the habitual criminal statute;
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Cite as 30 Neb. App. 821the district court’s consideration of appropriate factors; Prior’s
criminal history; Prior’s failure to take responsibility for the
offenses; the seriousness of the offenses; and the physical,
mental, and emotional injuries sustained by the victim.
(b) Imposition of Consecutive Sentences
Prior also contends that the district court erred in impos-
ing consecutive, rather than concurrent, sentences and that by
doing so, the district court was “overly punitive” in ordering
all the sentences to be served consecutively. Brief for appellant
at 41. Prior claims that his convictions, although each having
“their own unique requirements . . . are all part of the overall
crime. At some point, the [district court] is just piling on time
when it runs [the sentences] all consecutively.” Id. at 40.
Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either con-
currently or consecutively. State v. Brown, 302 Neb. 53, 921
N.W.2d 804 (2019). As Prior acknowledges in his brief, each
of the offenses for which he stands convicted have “their own
unique requirements,” or stated another way, Prior’s convic-
tions involve separate elements even though they were part
of the same series of events. The district court therefore had
the discretion to impose consecutive sentences, and it did not
abuse its discretion in doing so. Prior’s claim that his sentences
were excessive fails.
VI. CONCLUSION
For the reasons stated above, we affirm Prior’s convictions
and sentences.
Affirmed.