State v. Schramm ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/13/2019 12:05 AM CDT
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    STATE v. SCHRAMM
    Cite as 
    27 Neb. Ct. App. 450
    State of Nebraska, appellee, v.
    Michael T. Schramm, appellant.
    ___ N.W.2d ___
    Filed July 30, 2019.     No. A-18-738.
    1. Criminal Law: Motions for Continuance: Appeal and Error. A deci-
    sion whether to grant a continuance in a criminal case is within the
    discretion of the trial court and will not be disturbed on appeal absent
    an abuse of discretion.
    2. Judges: Words and Phrases. A judicial abuse of discretion exists
    only when the reasons or rulings of a trial judge are clearly untenable,
    unfairly depriving a litigant of a substantial right and denying a just
    result in matters submitted for disposition.
    3. Motions for Continuance: Appeal and Error. The failure to comply
    with the provisions of Neb. Rev. Stat. § 25-1148 (Reissue 2016) is but
    a factor to be considered in determining whether a trial court abused its
    discretion in denying a continuance.
    4. Motions for Continuance. A continuance must be granted to allow
    defense counsel adequate time to prepare a defense.
    5. Constitutional Law: Criminal Law: Pretrial Procedure: Evidence.
    A criminal defendant has constitutional and statutory rights which man-
    date the timely disclosure of the State’s evidence in a criminal case.
    6. Pretrial Procedure: Evidence. Neb. Rev. Stat. § 29-1912(2) (Reissue
    2016) requires the State, upon request, to disclose evidence that is mate-
    rial to the preparation of a defense.
    7. Motions for Continuance: Appeal and Error. There is no abuse of
    discretion by a court in denying a continuance unless it clearly appears
    that the defendant suffered prejudice as a result thereof.
    8. Double Jeopardy: Evidence: New Trial: Appeal and Error. The
    Double Jeopardy Clause does not forbid a retrial so long as the sum of
    all the evidence admitted by a trial court, whether erroneously or not,
    would have been sufficient to sustain a guilty verdict.
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    STATE v. SCHRAMM
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    9. Expert Witnesses: Appeal and Error. The standard for reviewing the
    admissibility of expert testimony is abuse of discretion.
    10. Trial: Expert Witnesses. Under the principles set forth in Daubert v.
    Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
    (1993), and Schafersman v. Agland Coop, 
    262 Neb. 215
    ,
    
    631 N.W.2d 862
    (2001), the trial court acts as a gatekeeper to ensure the
    evidentiary relevance and reliability of an expert’s opinion.
    11. Pretrial Procedure: Expert Witnesses. A challenge to the admissibility
    of evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
    (1993), and Schafersman
    v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
    (2001), should take
    the form of a concise pretrial motion. It should identify, in terms of
    the Daubert/Schafersman factors, what is believed to be lacking with
    respect to the validity and reliability of the evidence and any challenge
    to the relevance of the evidence to the issues of the case.
    12. Jury Instructions: Judgments: Appeal and Error. Whether jury
    instructions given by a trial court are correct is a question of law. When
    dispositive issues on appeal present questions of law, an appellate court
    has an obligation to reach an independent conclusion irrespective of the
    decision of the court below.
    13. Jury Instructions: Appeal and Error. In an appeal based on a claim
    of an erroneous jury instruction, the appellant has the burden to show
    that the questioned instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant.
    14. ____: ____. All the jury instructions must be read together, and if,
    taken as a whole, they correctly state the law, are not misleading, and
    adequately cover the issues supported by the pleadings and the evidence,
    there is no prejudicial error necessitating reversal.
    15. Jury Instructions: Proof: Appeal and Error. To establish reversible
    error from a court’s refusal to give a requested instruction, an appel-
    lant has the burden to show that (1) the tendered instruction is a correct
    statement of the law, (2) the tendered instruction is warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s refusal to
    give the tendered instruction.
    16. Jury Instructions. Whenever an applicable instruction may be taken
    from the Nebraska Jury Instructions, that instruction is the one which
    should usually be given to the jury in a criminal case.
    Appeal from the District Court for Lancaster County: Darla
    S. Ideus, Judge. Reversed and remanded for a new trial.
    Matthew K. Kosmicki for appellant.
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    STATE v. SCHRAMM
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    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    R iedmann, A rterburn, and Welch, Judges.
    A rterburn, Judge.
    I. INTRODUCTION
    Pursuant to a jury verdict, Michael T. Schramm was con-
    victed in the district court for Lancaster County of strangula-
    tion and sentenced to 2 years’ imprisonment followed by 12
    months’ postrelease supervision. Schramm appeals from his
    conviction and sentence. On appeal, he alleges that the dis-
    trict court erred in denying his motion to continue the trial so
    that he could obtain his own expert witness, in permitting the
    State’s expert witness to testify over his objections, in instruct-
    ing the jury, and in imposing an excessive sentence. For the
    reasons set forth herein, we find that the district court abused
    its discretion in denying Schramm’s motion to continue the
    trial. Schramm should have been provided with additional time
    to attempt to find his own expert witness. As a result of our
    finding, we must reverse Schramm’s conviction and remand
    the cause for a new trial.
    II. BACKGROUND
    On November 1, 2017, the State filed an information charg-
    ing Schramm with strangulation, in violation of Neb. Rev. Stat.
    § 28-310.01 (Reissue 2016), a Class IIIA felony. The charge
    against Schramm stemmed from an incident between Schramm
    and his then girlfriend, J.K., which occurred in the early morn-
    ing hours of August 28, 2017.
    J.K. is a citizen of the Czech Republic. Beginning in 2014,
    she began spending time in Lincoln, Nebraska, after obtain-
    ing a student visa. She completed a semester of classes at the
    University of Nebraska-Lincoln and had an internship. When
    her student visa expired, she went home to the Czech Republic,
    but later obtained a tourist visa and returned to Lincoln. While
    J.K. was in Lincoln, she met Schramm through mutual friends.
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    The two began a romantic relationship in February or March
    2016. Schramm testified that “immediately we fell in love
    and she moved in with me.” During their relationship, J.K.
    went back and forth between Lincoln and the Czech Republic.
    When she was in the Czech Republic, Schramm would come
    to visit her there.
    By August 2017, J.K. was back in Lincoln and was liv-
    ing with Schramm at his home. J.K. was not employed, but
    Schramm had his own business buying and selling video games
    online. On the afternoon of August 27, 2018, Schramm sur-
    prised J.K. by taking her on a day trip to Omaha, Nebraska, to
    visit a zoo. On their way to Omaha, they stopped at a shopping
    center where Schramm bought J.K. a new purse. They then
    traveled the rest of the way to the zoo where they stayed until
    it closed. After leaving the zoo, J.K. and Schramm went to a
    bar in Omaha where they each had at least one alcoholic bever-
    age. J.K. then drove them back to Lincoln. Schramm testified
    that on the drive back to Lincoln, they were “[m]adly in love.”
    They arrived home around 10 or 11 p.m., consumed more alco-
    hol, and then decided to go to a local bar. At the bar, both J.K.
    and Schramm continued to drink alcohol. They left the bar at
    2 a.m. and returned to Schramm’s house.
    When they returned to Schramm’s house, J.K. and Schramm
    engaged in a verbal argument regarding Schramm’s business
    and his ability to earn an income. J.K. testified at trial that
    during the verbal argument, Schramm indicated that he wanted
    to buy a new house and that he believed he could quickly
    obtain enough money to do so by selling all of his video
    game inventory. She indicated that he also began to insult and
    disparage her regarding her financial situation, including mak-
    ing comments that she did not have a job and that she still
    received financial support from her parents. Schramm then
    went upstairs to play video games. J.K. explained that she
    was upset with Schramm and did not like his exaggerations
    about the success of his business. So, out of anger, she yelled
    up the stairs to Schramm, telling him that he did not earn
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    enough money to be able to buy a new house and that she did
    not believe what he had said about his ability to earn so much
    money so quickly. J.K. admitted that she knew these comments
    would make Schramm mad.
    J.K. indicated that Schramm, in fact, became very upset by
    her comments. She heard him yell that “this is enough, I am
    going to kill you.” She then heard him start to run toward the
    stairs, so she started to run downstairs to the basement to hide
    from him. When she got to the landing of the basement steps,
    she became worried that Schramm would laugh at her for
    being scared, so she pretended to get food for their dogs on a
    shelf above the landing. While her back was turned, J.K. heard
    Schramm open the basement door. She felt him push her in the
    back, and she fell the rest of the way down the basement stairs,
    landing against a mattress that was propped up against the wall
    of the basement. She started to cry and attempted to stand up.
    Schramm ran down the stairs after her, grabbed her neck with
    his left hand, pulled her to a standing position, and pushed her
    head against the wall. Schramm told her, “this is enough” and
    “I am going to kill you this time.” J.K. described Schramm as
    looking her straight in the face, with eyes that “were violent,”
    while “[g]rinding” his teeth.
    J.K. testified that while Schramm had his hand around her
    neck, she felt pressure. She tried to tell Schramm that he was
    hurting her, but she was unable to talk and unable to breathe.
    J.K. described that as the pressure around her neck continued,
    she started to panic and realized she needed to fight back. She
    testified that she was very scared and knew that she might die.
    She pulled Schramm’s hair so that his head was very close to
    her face and bit his ear as hard as she could. J.K. was then
    able to get free from Schramm’s grasp. She ran up the stairs
    and out the main door of the house, without stopping to grab
    her purse or her cellular telephone. She ran to a neighbor’s
    house and banged on the door until someone answered. The
    neighbor called police. J.K. testified that she chose this neigh-
    bor to run to, even though she knew he had “issues” with
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    police, because her other neighbor was friends with Schramm
    and she believed he might not help her.
    When police arrived, they spoke with J.K. about what had
    occurred. One of the first officers on the scene, Officer Jesse
    Orsi, contacted J.K. first. He described J.K. as crying and
    being unable to speak. She had her hands up by her neck,
    “doing a gesture as if she was choking herself,” and was also
    pointing at Schramm’s house. Eventually, J.K. spoke in a voice
    that Orsi described as not being “normal” and sounding “soft
    [and] broken.” All she was able to say was, “my boyfriend.”
    Orsi understood J.K. to be trying to explain that “her boyfriend
    choked her.”
    Officer Robert Hallowell spoke with J.K. next. He indi-
    cated that upon his arrival, J.K. was “frantic” and was cry-
    ing. She had leaves in her hair and was speaking very fast.
    J.K. told Hallowell that she had been pushed down the stairs
    and strangled during a fight with her boyfriend. J.K. also
    told him that the fight was her fault, because she had made
    comments which she knew would upset Schramm. Hallowell
    observed various injuries on J.K., including “extremely blood-
    shot eyes,” which, in his opinion, were caused by more than
    just her consumption of alcohol; some redness to both sides of
    her neck around the area of her clavicle bones; a small bump
    on the back of her head; and abrasions on her elbow and on
    her knee. His photographs of these injuries were offered into
    evidence by the State. J.K. declined any medical treatment for
    her injuries.
    Hallowell also photographed the area in the basement where
    J.K. described the assault as occurring. These photographs
    depict a “steep” staircase with a mattress propped up at the
    bottom of the staircase. Close up pictures of the wall of the
    basement near the staircase appear to show long blond hairs to
    be stuck “within [the] rough texture on the [basement] wall.”
    According to Hallowell, these hairs “were consistent with com-
    ing from [J.K.’s] head.” The photographs also depict leaves
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    on the basement floor which appear to be consistent with the
    leaves seen in J.K.’s hair.
    At trial, Schramm testified in his own defense and described
    a much different series of events after he and J.K. returned
    from the bar in the early morning hours of August 28, 2017.
    Schramm testified that he and J.K. actually began arguing in
    the car on the way home from the bar. He explained that he
    was upset with J.K. because she had been talking to “an old
    interest” while they were at the bar. He told her that he was
    not happy with her and was jealous because of her behav-
    ior. When they got home, Schramm explained that J.K. “got
    aggressive.” He went on to testify, “She was bored with the
    house and she did not like or think my job was a real thing.
    And she brings it up. So she brought it up about that I need
    to stop doing something besides sitting in the house and sell-
    ing video games all day.” Schramm indicated that he did not
    engage in the argument with J.K. Instead, he asked her why
    she “always [was] so mean” to him. She responded by telling
    him, “[Y]ou have no idea how many times I have cheated on
    you.” She then ran down the basement stairs, stopping on the
    second to the last step.
    Schramm followed J.K. down the basement stairs, ask-
    ing her to repeat what she had just told him. When she
    turned around to address him, she lost her footing and leaned
    back into the mattress at the bottom of the staircase. As he
    approached her, she hit him three times on the head with a
    closed fist, without saying anything to him. She then pulled
    his hair and pressed her fingers into his face. He pushed her
    away from him, placing his hands at her clavicle bones. As she
    moved away from him, she continued to hold on to his hair,
    and she pulled some hair out of his head. Schramm testified
    that he never squeezed J.K.’s throat and that J.K. did not bite
    his ear. She did run upstairs and outside, however. Schramm
    explained that he did not immediately follow her, because he
    was trying to give her some “space” so that she could calm
    down. Schramm watched as J.K. ran to a neighbor’s house.
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    He testified they did not get along with that neighbor and
    were “terrified” of him.
    Schramm offered into evidence a picture of himself, which
    he explained was taken close in time to J.K.’s assault of him.
    The pictures do not depict any obvious injury to his ear.
    After Schramm was arrested and transported to jail, he called
    J.K.’s cellular telephone. A recording of this call was offered
    into evidence. During the conversation, Schramm told J.K.
    that he could call only one telephone number and that because
    he called her, he could not call anyone else. He repeatedly
    begged her to call his father and instructed her to write down
    his father’s telephone number. J.K. refused. She told Schramm
    that he “almost killed [her].” Schramm did not deny this, but
    said that he is “going to be in jail for a very long time.” He
    also told J.K. that “all [she] ha[d] to do [was] show up at court
    at 12:00.” He instructed her to “say that I didn’t,” but then his
    voice trailed off.
    During Schramm’s trial testimony, he admitted that con-
    trary to his statements to J.K. during the telephone call, he
    made calls to people other than J.K., including his mother,
    while he was in jail. In addition, Hallowell testified that in the
    “book-in area” at the jail, there are two telephones available
    for the prisoners’ use. Prisoners are permitted to make as many
    telephone calls as they want to as many telephone numbers as
    they want, all free of charge. Schramm further explained that
    he called J.K. because he loved her and that he asked her to
    call his father because he could not remember his father’s tele-
    phone number. Schramm was unable to explain how he could
    provide J.K. with his father’s telephone number if he did not
    remember it.
    During the trial, the State offered the testimony of Susan
    Michalski as an expert witness on domestic violence and
    strangulation. Schramm objected to Michalski’s testimony on
    various grounds, which we will address more thoroughly in
    our analysis below, but the district court overruled all of
    Schramm’s objections and permitted Michalski to testify.
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    At trial, Michalski testified regarding her extensive expe-
    rience with domestic violence. Michalski is a licensed reg-
    istered nurse who is self-employed in “training, education,
    nursing activities and consulting in criminal justice cases,”
    including cases involving domestic assault, strangulation, cus-
    tody, and sexual assault. For the 12 years prior to her starting
    her own business, Michalski served as the training and edu-
    cation director for a domestic violence coordinating council
    in Omaha. She has received specialized training related to
    conflict management, strangulation, and domestic violence.
    As an educator, Michalski has given training sessions and
    symposiums regarding domestic violence, and specifically
    strangulation. Michalski also testified that she provides train-
    ing for law enforcement, members of the criminal justice
    system, medical students, hospital personnel, and members of
    the community in the Omaha and surrounding areas. Through
    her work, Michalski has had articles published twice and has
    come into contact with several thousand victims of domes-
    tic violence.
    Michalski explained that domestic violence involves the
    power and control that one partner exerts over another in an
    intimate relationship. It can include “a variety of different
    tactics of abuse [that] can range from emotional, psycho-
    logical to physical and sexual kinds of abuse and violence.”
    Additionally, domestic violence can involve one partner isolat-
    ing the other partner.
    Michalski further explained that there were particular char-
    acteristics that define victims of domestic violence, includ-
    ing minimization of the abuse, denial of being in such a
    relationship, and feelings of isolation. Victims often blame
    themselves for the abuse, believing that if they had handled
    a situation differently, the partner would not have gotten so
    upset. And while victims often want the abuse to end, they
    may not want the relationship to end. As such, they are will-
    ing to forgive and do not want their partner to go to jail or get
    into trouble.
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    There are often characteristics of offenders, as well, such
    as getting involved romantically and seriously very early on
    in the relationship, exhibiting controlling behaviors which are
    initially masked as a sense of concern, and minimizing and
    denying accountability for behaviors. Offenders often blame
    the victims, making them feel bad or guilty about what has
    happened. In fact, Michalski explained that if an offender is
    arrested and taken to jail, they will often call their victim, ask-
    ing the victim to accept responsibility for the situation and to
    “fix” the problem. Michalski also testified that offenders often
    act differently in public than they do in private so that it is very
    hard to identify them as someone who is abusive or violent in
    their relationships.
    Michalski further testified about strangulation and how the
    act of strangulation is generally carried out. She explained
    how little pressure is necessary to start affecting the blood
    and oxygen flow to and from the brain. Michalski testified
    that the medical signs and symptoms of strangulation can
    vary; however, most of the time there are few, if any, obvi-
    ous bodily injuries. There can be bruising, scratches, or red-
    ness on the neck, coughing or wheezing, confusion, pain in
    the neck area, difficulty swallowing, or the occurrence of
    urination. Other possible signs of strangulation are “pete-
    chial hemorrhage” and “linear vascular congestion.” Michalski
    defined the term “petechial hemorrhage” as “small flat red
    areas or dots that are caused from pressure when the neck is
    squeezed.” She indicated that, often, “the best place to see
    petechiae . . . is in the whites of the eyes or anywhere above
    the level of where the compression has occurred.” She defined
    the term “linear vascular congestion” as the breaking of blood
    vessels due to pressure being exerted on the neck, which
    would be most noticeable in the eyes. Michalski emphasized
    that strangulation is potentially lethal. Despite the serious-
    ness of strangulation, many victims will not report having
    been strangled because they feel better very quickly after the
    pressure is released from their neck and because, due to the
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    lack of oxygen, victims can sometimes suffer from a loss
    of memory.
    Michalski testified that she had neither met with nor
    interviewed J.K. or Schramm. She had also not read any
    police reports about the August 28, 2017, incident. However,
    Michalski had viewed four photographs taken of J.K.’s eyes
    shortly after the incident, although Michalski testified that
    she did not know that the photographs were of J.K.’s eyes.
    Michalski explained that in the photographs, she observed
    linear vascular congestion, which can be consistent with stran-
    gulation. However, Michalski explained that things other than
    strangulation can cause linear vascular congestion, including
    sneezing, coughing very hard, or “anything that creates a pres-
    sure.” In order to determine with precision the exact cause of
    linear vascular congestion, a medical professional would have
    to know a person’s medical history and have an understanding
    of a person’s current circumstances. During cross-examination,
    Michalski admitted that an exact cause of linear vascular con-
    gestion could not be determined by merely looking at a few
    photographs. In addition, she explained that she is not quali-
    fied to determine an exact cause of linear vascular congestion
    because she is not a diagnosing physician.
    After hearing all of the evidence, the jury found Schramm
    guilty of strangulation. The district court ordered a presentence
    report to be completed and subsequently sentenced Schramm
    to 2 years’ imprisonment followed by 12 months’ postrelease
    supervision.
    Schramm appeals his conviction and sentence here.
    III. ASSIGNMENTS OF ERROR
    On appeal, Schramm assigns four errors. He alleges that the
    district court erred in denying his motion to continue the trial
    so that he could obtain his own expert witness, in permitting
    Michalski to testify as an expert on domestic violence and
    strangulation over his objections, in instructing the jury, and in
    imposing an excessive sentence.
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    IV. ANALYSIS
    1. Schramm’s Motion to Continue Trial
    (a) Additional Background
    On March 19, 2018, approximately 3 weeks before trial was
    to begin, the State filed a motion to endorse Michalski as an
    additional witness. At a hearing on the State’s motion, which
    was held approximately 10 days after the motion was filed, the
    State indicated that it had given Schramm’s counsel notice that
    “[it] was thinking about calling [Michalski] as a witness on
    March 1st and then . . . maybe a few days later or a week later
    . . . did inform [counsel] that [it] was in fact intending on call-
    ing her as a witness.” Schramm’s counsel did not dispute the
    State’s explanation of the timeline; however, counsel did argue
    that initially, the State had indicated that Michalski was not
    going to offer any opinions specific to this case. However, the
    day before the hearing, which was less than 2 weeks prior to
    the scheduled trial, the State informed counsel that Michalski
    had looked at photographs of J.K.’s eyes and was going to
    opine that redness in the eyes could be consistent with strangu-
    lation. Counsel stated:
    [T]his is kind of the eleventh hour before trial. We are
    getting - first she wasn’t going to offer any opinions and
    wasn’t going to look at any reports. Now, I find out as of
    yesterday morning that she has looked at reports and now
    offer a medical opinion.
    So, that is kind of the eleventh hour for me to find out
    about that. Now I got to find - if you are going to allow
    her to testify, I have got to scramble to find someone to
    look at these reports and I got phone calls into doctors
    trying to find - in case you allow her to testify.
    Ultimately, the district court sustained the State’s motion to
    endorse Michalski as a witness.
    At a separate hearing held on April 5, 2018, which was 4
    days before the trial was to begin, Schramm’s counsel made
    an oral motion to continue the trial. Counsel indicated that
    he was “running into problems finding expert witnesses” who
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    could dispute the opinion provided by Michalski regarding the
    condition of J.K.’s eyes. Specifically, counsel explained:
    I tried to find somebody locally. I went to [one forensic
    institute located in Nebraska]. I took reports and the same
    thing . . . Michalski looked at, the videos. [The forensic
    expert] contacted me yesterday. He has an opinion but he
    cannot help me. It’s a scheduling thing. I don’t know. He
    just can’t come and he is sorry.
    So now, I have Thursday and Friday and the trial on
    Monday to find someone else and doctors are busy. It is
    hard to find experts.
    ....
    I did make a call today. I would ask to continue this
    so I can locate a witness and I did make a call today to
    another witness in Kansas City and got her voicemail. I
    don’t know if I got a call when I get back, don’t know
    her availability, I don’t know anything. But I am pretty
    sure this short amount of notice, this doctor is not going
    to be available.
    The State opposed Schramm’s motion to continue the trial.
    The State indicated that it had informed defense counsel about
    Michalski “about a month ago”; however, the State did not dis-
    pute that it had not informed counsel about Michalski’s testify-
    ing as to her medical opinion regarding the condition of J.K.’s
    eyes until about March 27, 2018. The State asserted that it had
    spent a significant amount of money in arranging for J.K. to
    fly from the Czech Republic, where she was then living, to
    Lincoln so that she could testify. The State asserted that J.K.
    was already on the plane and en route to Nebraska in anticipa-
    tion of the trial which was to begin in 4 days.
    The court denied Schramm’s motion to continue the trial.
    The court stated, “We will proceed with trial[;] you still have
    four or five days to locate an expert if that is what you choose
    to do.”
    Prior to Michalski’s testimony at trial, Schramm again
    brought up his motion to continue the trial. Defense counsel
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    indicated that he had not had an acceptable amount of time to
    secure his own expert witness, even though he had “diligently
    tried to find people.” The district court overruled Schramm’s
    objections to Michalski’s testifying.
    On appeal, Schramm argues that the district court abused
    its discretion in denying his motion to continue the trial so
    that he could obtain his own expert medical witness to refute
    Michalski’s testimony about the condition of J.K.’s eyes. Upon
    our review, we conclude that Schramm’s assertion has merit.
    (b) Standard of Review
    [1,2] A decision whether to grant a continuance in a crimi-
    nal case is within the discretion of the trial court and will not
    be disturbed on appeal absent an abuse of discretion. State v.
    Ash, 
    286 Neb. 681
    , 
    838 N.W.2d 273
    (2013). A judicial abuse
    of discretion exists only when the reasons or rulings of a trial
    judge are clearly untenable, unfairly depriving a litigant of a
    substantial right and denying a just result in matters submitted
    for disposition. 
    Id. (c) Analysis
       Although not mentioned by either party, it must be noted
    that Neb. Rev. Stat. § 25-1148 (Reissue 2016) provides, in
    pertinent part:
    Whenever application for continuance or adjournment
    is made by a party or parties to any cause or proceeding
    pending in the district court of any county, such applica-
    tion shall be by written motion entitled in the cause or
    proceeding and setting forth the grounds upon which the
    application is made, which motion shall be supported by
    the affidavit or affidavits of person or persons competent
    to testify as witnesses under the laws of this state, in
    proof of and setting forth the facts upon which such con-
    tinuance or adjournment is asked.
    Not only was the application for continuance in this case made
    by oral motion, the motion was not supported by affidavits.
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    [3] However, the failure to comply with the provisions
    of § 25-1148 is but a factor to be considered in determin-
    ing whether a trial court abused its discretion in denying a
    continuance. State v. Santos, 
    238 Neb. 25
    , 
    468 N.W.2d 613
    (1991). Here, the motion for continuance was made at a hear-
    ing held approximately 1 week after the district court had
    granted the State’s motion to endorse Michalski as a witness.
    According to both defense counsel and the State, the motion
    to continue was made only 1 week after defense counsel had
    learned that Michalski would be providing a medical opinion
    regarding the condition of J.K.’s eyes based upon photographs
    taken on August 28, 2017. As such, the motion was made at
    a time when, after 1 week of searching, Schramm had been
    unable to secure his own expert witness to testify. Given that
    Schramm made the oral motion to continue at his next appear-
    ance before the district court and given the close proximity
    in time to the start of the trial, we cannot say that the oral
    nature of the motion is, in and of itself, a sufficient basis upon
    which to declare that the district court did not abuse its discre-
    tion in denying the continuance. Moreover, while supporting
    affidavits may have been useful to confirm Schramm’s efforts
    at finding an expert witness, we recognize that Schramm was
    under strict time constraints and, as such, do not find that the
    failure to include the affidavits is, under these circumstances,
    fatal to his motion.
    [4] We thus move on to a consideration of the merits of
    the continuance request. The general rule, which has been
    articulated by the Nebraska Supreme Court, is that a continu-
    ance must be granted to allow defense counsel adequate time
    to prepare a defense. See Dolen v. State, 
    148 Neb. 317
    , 
    27 N.W.2d 264
    (1947). See, also, State v. 
    Santos, supra
    . Our
    analysis of whether the district court abused its discretion
    in denying Schramm’s motion to continue the trial centers
    on whether he was provided with sufficient notice regarding
    Michalski’s testimony such that he had adequate time to pre-
    pare his defense. Ultimately, we conclude that Schramm did
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    not receive sufficient notice of Michalski’s testimony and that
    he should have been granted a continuance of trial in order to
    prepare his defense.
    [5,6] A criminal defendant has constitutional and statu-
    tory rights which mandate the timely disclosure of the State’s
    evidence in a criminal case. State v. Ash, 
    286 Neb. 681
    , 
    838 N.W.2d 273
    (2013). In fact, Neb. Rev. Stat. § 29-1912(2)
    (Reissue 2016) requires the State, upon request, to disclose evi-
    dence that is material to the preparation of a defense. See State
    v. 
    Ash, supra
    . In State v. Kula, 
    252 Neb. 471
    , 486, 
    562 N.W.2d 717
    , 727 (1997), the Nebraska Supreme Court held:
    [W]hether a prosecutor’s failure to disclose evidence
    results in prejudice depends on whether the information
    sought is material to the preparation of the defense, mean-
    ing that there is a strong indication that such information
    will play an important role in uncovering admissible
    evidence, aiding preparation of witnesses, corroborating
    testimony, or assisting impeachment or rebuttal.
    In this case, while it is true that the State did, eventually,
    endorse Michalski as a witness and, then later, did inform
    Schramm that Michalski would be offering her expert medi-
    cal opinion regarding the condition of J.K.’s eyes after the
    August 28, 2017, incident, it is also true that the State made
    these disclosures very close in time to the scheduled trial date.
    Although the State contends that it mentioned the possibility
    of Michalski’s testifying to defense counsel on March 1, 2018,
    approximately 5 weeks prior to trial, the State did not file
    its motion to endorse Michalski as a witness until March 19,
    which was approximately 3 weeks prior to trial. Moreover, as
    Schramm asserts, and the State does not dispute, the State did
    not inform Schramm until March 27, or approximately 10 days
    prior to trial, that Michalski would be offering opinion testi-
    mony regarding the specific facts of this case. We find that
    such opinion testimony is clearly material to the preparation of
    Schramm’s defense, particularly when the bulk of the remain-
    ing evidence offered at trial amounted to only J.K’s version
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    of events and Schramm’s version of events, with Michalski’s
    testimony clearly corroborating J.K.’s version.
    Given the State’s late disclosure that Michalski would be
    testifying, and its even later disclosure about what Michalski
    would be testifying about, Schramm was left with approxi-
    mately 10 days to locate a person with expertise in the area
    of strangulation and linear vascular congestion, to provide
    that person with the materials sufficient for an opinion to
    be rendered, to determine whether that person may dispute
    Michalski’s opinion, and to secure that person’s attendance
    at trial. We do not disagree with Schramm’s contention that
    it would be very difficult, if not impossible, to secure such a
    medical opinion in such a limited timeframe.
    [7] In its brief on appeal, the State argues that Schramm
    has failed to demonstrate that he was in any way prejudiced
    by the district court’s denial of his motion to continue the
    trial. Specifically, the State asserts that Schramm has failed to
    explain “what another expert would have countered with” and
    how such testimony would have been helpful to his defense.
    Brief for appellee at 21. We recognize that the Nebraska
    Supreme Court has previously held that there is no abuse
    of discretion by a court in denying a continuance unless it
    clearly appears that the defendant suffered prejudice as a
    result thereof. See State v. Bradley, 
    236 Neb. 371
    , 
    461 N.W.2d 524
    (1990). See, also, State v. Bruna, 
    12 Neb. Ct. App. 798
    , 
    686 N.W.2d 590
    (2004). However, we must disagree with the
    State’s contention that Schramm’s argument must fail because
    he did not demonstrate any specific prejudice in his trial strat-
    egy. Under the circumstances of this case, Schramm did not
    even have enough time to determine whether an expert could
    assist in his defense because he did not have adequate time to
    find an expert, to have that expert evaluate the evidence, and
    to provide Schramm with any opinion. As such, it is impossible
    to know whether Schramm suffered any prejudice in his trial
    strategy because we do not know what a potential expert might
    have testified to. The fact that Schramm did not have enough
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    time to consult with an expert and to then move forward with
    his trial strategy caused him prejudice.
    Moreover, although Schramm was able to cross-examine
    Michalski regarding her medical opinion and was able to flesh
    out both that Michalski was not qualified to diagnose a spe-
    cific condition and that there were other possible causes of
    the linear vascular congestion present in J.K.’s eyes besides
    strangulation, Michalski was still able to testify that in her
    expert medical opinion, the appearance of J.K.’s eyes in the
    photographs was consistent with being strangled. Schramm
    should have had an opportunity not only to soften the impact
    of this testimony during cross-examination, but also to attempt
    to hire an expert of his own who could potentially either refute
    or diminish the impact of Michalski’s testimony.
    The State also argues on appeal, as it did in the district
    court, that it had expended a great deal of money in reli-
    ance on the scheduled trial date and that Schramm was
    aware of this expenditure. We recognize that the State did
    spend a not insignificant amount of money in paying for the
    travel expenses of J.K. We also recognize that by the time
    Schramm made his oral motion to continue, J.K. was, appar-
    ently, already on a plane en route to Nebraska from the Czech
    Republic. However, we do not find that the State’s monetary
    investment outweighs Schramm’s right to be able to present
    a defense to the State’s case against him. We also note that it
    was the State which added Michalski to its witness list close
    in time to the trial and which did not disclose the full extent
    of her testimony until approximately 10 days before the trial.
    The State knew of the investment it had made in securing
    J.K.’s presence presumably before it made these changes to
    its trial strategy. And, moreover, the State should have known
    that these material changes would affect the trial strategy of
    the defense.
    Upon our review of the totality of the circumstances, we
    must conclude that Schramm was not provided with adequate
    time to prepare his defense. Specifically, he was not provided
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    with adequate time to adjust his trial strategy to address
    Michalski’s expert medical testimony given the limited time
    available to him prior to the trial. We find that the district court
    abused its discretion in denying Schramm’s motion to continue
    the trial.
    [8] Having concluded that the denial of the motion to con-
    tinue was reversible error, we must determine whether the
    totality of the evidence admitted by the district court was suf-
    ficient to sustain Schramm’s conviction; if it was not, then
    double jeopardy forbids a remand for a new trial. See State v.
    Ash, 
    286 Neb. 681
    , 
    838 N.W.2d 273
    (2013). But the Double
    Jeopardy Clause does not forbid a retrial so long as the sum of
    all the evidence admitted by a trial court, whether erroneously
    or not, would have been sufficient to sustain a guilty verdict.
    State v. 
    Ash, supra
    .
    After reviewing the record, we conclude that the evidence
    presented at trial was sufficient to support the verdict against
    Schramm. As such, we conclude that double jeopardy does not
    preclude a remand for a new trial, and we therefore reverse,
    and remand for a new trial.
    2. Schramm’s Other Assigned Errors
    Our determination that the district court committed revers-
    ible error by failing to grant Schramm a continuance in order to
    attempt to secure his own expert witness resolves this appeal.
    While we are not required to consider Schramm’s additional
    assignments of error, see White v. Board of Regents, 
    260 Neb. 26
    , 
    614 N.W.2d 330
    (2000), and In re Interest of Battiato,
    
    259 Neb. 829
    , 
    613 N.W.2d 12
    (2000) (appellate court is not
    obligated to engage in analysis not needed to adjudicate case
    and controversy before it), we may, at our discretion, discuss
    issues unnecessary to the disposition of an appeal where those
    issues are likely to recur during further proceedings, see State
    v. Edwards, 
    286 Neb. 404
    , 
    837 N.W.2d 81
    (2013). We will
    therefore address Schramm’s assertions regarding the admis-
    sibility of Michalski’s testimony and whether the district court
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    correctly instructed the jury, as those issues are likely to recur
    on remand.
    3. A dmissibility of Michalski’s Testimony
    (a) Additional Background
    Once Schramm learned that the State was indeed planning
    on calling Michalski as a witness at trial, he filed a motion
    asking the court to hold a Daubert/Schafersman hearing in
    order to determine whether Michalski qualified as an expert
    witness. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
    
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
    (1993), and
    Schafersman v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
    (2001). In the motion, Schramm generally asserted that the
    “[e]xpert opinions regarding domestic violence and strangula-
    tion testimony, specifically the testimony of Susan Michalski
    RN, MS SANE/FNE, . . . does not meet the standard for
    admissibility required . . . .” Schramm also filed a motion
    which asserted that Michalski’s testimony should not be
    admitted because it was not relevant and because any pro-
    bative value was substantially outweighed by the danger of
    unfair prejudice.
    A hearing was held on Schramm’s motions prior to trial.
    At the hearing, Michalski testified to substantially the same
    information as she testified to during the trial, which we
    detailed in the background section above. She did explain
    during her testimony at the hearing that she has previously
    qualified to testify as an expert on domestic violence and/or
    strangulation on 11 previous occasions. After Michalski testi-
    fied, Schramm argued that she is not an expert on domestic
    violence or strangulation. He asserted that she is only a regis-
    tered nurse and not a diagnosing physician, that she “has not
    had enough continuing education to stay up on this topic,” and
    that she has been merely a “trainer” for the past few years.
    He also asserted that Michalski should not be permitted to
    testify that J.K. was telling the truth, which he believed was
    “all . . . Michalski is going to do.” Schramm asserted that
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    the jurors would understand what strangulation is without
    Michalski’s explaining it to them.
    After the hearing, the district court entered an order find-
    ing that “Michalski is qualified as an expert in the areas of
    domestic violence and strangulation by her knowledge, skill,
    experience, training, and education.” The court further found
    that Michalski’s “specialized knowledge in these areas . . .
    will assist a trier of fact in understanding the evidence and/or
    determining a fact in issue.” The court noted that it did “not
    believe that characteristics of a perpetrator and/or victim of
    domestic violence are common knowledge. Nor does the court
    expect that a lay person knows the physical effects of stran-
    gulation and/or the signs and symptoms typically associated
    with strangulation.”
    Prior to Michalski’s testimony at trial, Schramm renewed
    his objection to her testimony. The district court overruled his
    objection and permitted Michalski to testify as an expert. On
    appeal, Schramm challenges the district court’s finding that
    Michalski was qualified to testify as an expert.
    (b) Standard of Review
    [9] 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.
    State v. Herrera, 
    289 Neb. 575
    , 
    856 N.W.2d 310
    (2014). The
    standard for reviewing the admissibility of expert testimony
    is abuse of discretion. 
    Id. We review
    the record de novo to
    determine whether a trial court has abdicated its gatekeeping
    function when admitting expert testimony. 
    Id. (c) Analysis
       In his brief on appeal, Schramm asserts that the district court
    erred in permitting Michalski to testify as an expert witness.
    Specifically, Schramm argues that Michalski’s “testimony was
    not scientific, technical or specialized in that it would have
    assisted the trier of fact to understand the evidence. Neither
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    did she have the knowledge, skill, experience, training or
    education required to qualify her as an expert witness on the
    evidence that was . . . admitted in this trial.” Brief for appel-
    lant at 13. Upon our review, we find that the district court did
    not err in permitting Michalski to testify as an expert on the
    subject of strangulation.
    The Nebraska Evidence Rules provide: “If scientific, tech-
    nical, or other specialized knowledge will assist the trier of
    fact to understand the evidence or to determine a fact in issue,
    a witness qualified as an expert by knowledge, skill, experi-
    ence, training, or education, may testify thereto in the form of
    an opinion or otherwise.” Neb. Evid. R. 702, Neb. Rev. Stat.
    § 27-702 (Reissue 2016). In Schafersman v. Agland Coop,
    
    262 Neb. 215
    , 
    631 N.W.2d 862
    (2001), the Nebraska Supreme
    Court adopted the standards which the U.S. Supreme Court
    set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
    
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
    (1993),
    to determine whether expert testimony is admissible under
    § 27-702.
    [10] Under the principles set forth in Daubert/Schafersman,
    the trial court acts as a gatekeeper to ensure the evidentiary rel-
    evance and reliability of an expert’s opinion. State v. 
    Herrera, supra
    . If the opinion involves scientific or specialized knowl-
    edge, trial courts must also determine whether the reasoning or
    methodology underlying the expert’s opinion is scientifically
    valid. State v. Casillas, 
    279 Neb. 820
    , 
    782 N.W.2d 882
    (2010).
    Several nonexclusive factors are considered in making this
    determination: (1) whether a theory or technique can be (and
    has been) tested; (2) whether it has been subjected to peer
    review and publication; (3) whether, in respect to a particular
    technique, there is a high known or potential rate of error; (4)
    whether there are standards controlling the technique’s opera-
    tion; and (5) whether the theory or technique enjoys general
    acceptance within a relevant scientific community. State v.
    
    Herrera, supra
    . In order to properly conduct appellate review,
    it is the duty of the trial court to adequately demonstrate by
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    specific findings on the record that it has performed its gate-
    keeping functions. State v. 
    Casillas, supra
    .
    [11] A challenge to the admissibility of evidence under
    Daubert/Schafersman should take the form of a concise pre-
    trial motion. State v. Herrera, 
    289 Neb. 575
    , 
    856 N.W.2d 310
    (2014). It should identify, in terms of the Daubert/Schafersman
    factors, what is believed to be lacking with respect to the
    validity and reliability of the evidence and any challenge to
    the relevance of the evidence to the issues of the case. 
    Id. In order
    to preserve judicial economy and resources, the motion
    should include or incorporate all other bases for challenging
    the admissibility, including any challenge to the qualifications
    of the expert. 
    Id. Schramm’s motion
    requesting that the district court hold
    an evidentiary hearing to determine the admissibility of
    Michalski’s testimony pursuant to the Daubert/Schafersman
    factors did not reference any specific factor which he believed
    was lacking with respect to Michalski’s testimony. Rather,
    the motion very generally asserted that Michalski’s testimony
    “does not meet the standard for admissibility.” In its order,
    the district court noted the deficiency in the motion, indicat-
    ing that Schramm had “failed to sufficiently call into question
    the reliability or validity of any aspect of . . . Michalski’s
    anticipated testimony. He has not called into question the
    factual basis, data, principles, or methods underlying . . .
    Michalski’s anticipated testimony.” Despite the shortcomings
    with Schramm’s motion, the district court went on to analyze
    whether Michalski’s testimony was admissible pursuant to the
    entire Daubert/Schafersman framework.
    On appeal, Schramm argues that Michalski’s testimony did
    not meet the requirements of § 27-702, and even if it did,
    it was inadmissible under Daubert/Schafersman. Our review
    of these arguments is complicated by the fact that Schramm
    has not identified the specific testimony that he claims was
    erroneously admitted. He refers only to testimony regard-
    ing “strangulation,” brief for appellant at 13, and complains
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    that Michalski “was allowed to testify and offer an opinion
    to issues that were central to this case,” 
    id. at 14.
    He does
    not, however, identify what that opinion was. He has also not
    identified which prong of the Daubert/Schafersman analysis
    is lacking. We recognize that Schramm was hindered in his
    presentation of evidence at the Daubert/Schafersman hearing
    due to the untimely designation of Michalski and her proposed
    testimony; however, we are limited to the record before us in
    reviewing the district court’s decision. Based upon the evi-
    dence presented at the pretrial hearing, we find no error in the
    district court’s order allowing Michalski’s testimony.
    4. Jury Instructions
    (a) Additional Background
    Schramm requested that the district court include an addi-
    tional jury instruction related to analyzing the credibility of
    expert testimony. The language of the proposed instruction
    read as follows:
    You have heard testimony from an expert witness. It
    is up to you to determine the validity and weight of the
    scientific testimony. Factors you should consider are:
    (1) Whether the theory or technique can be, and has
    been, tested;
    (2) Whether the theory or technique has been subjected
    to peer review and publication;
    (3) The known or potential rate of technique has been
    subjected to peer review and publication;
    (4) The general acceptance of the theory or technique
    in the scientific community.
    The State objected to Schramm’s proposed jury instruction. It
    argued that jury instruction No. 9, as authored by the court,
    was sufficient to instruct the jury regarding evaluating the
    credibility of an expert witness. Jury instruction No. 9 read
    as follows:
    A witness who has special knowledge, skill, experi-
    ence, training, or education in a particular area may testify
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    as an expert in that area. You determine what weight, if
    any, to give to an expert’s testimony just as you do with
    the testimony of any other witness. You should consider
    the expert’s credibility as a witness, the expert’s qualifi-
    cations as an expert, the sources of the expert’s informa-
    tion, and the reasons given for any opinions expressed by
    the expert.
    Accord NJI2d Crim. 5.4. Ultimately, the district court rejected
    Schramm’s proposed jury instruction and did not include it in
    the instructions read to the jury. Schramm appeals from the
    district court’s decision.
    (b) Standard of Review
    [12] Whether jury instructions given by a trial court are cor-
    rect is a question of law. When dispositive issues on appeal
    present questions of law, an appellate court has an obligation
    to reach an independent conclusion irrespective of the decision
    of the court below. State v. McCurry, 
    296 Neb. 40
    , 
    891 N.W.2d 663
    (2017).
    [13,14] In an appeal based on a claim of an erroneous jury
    instruction, the appellant has the burden to show that the
    questioned instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant. 
    Id. All the
    jury
    instructions must be read together, and if, taken as a whole,
    they correctly state the law, are not misleading, and adequately
    cover the issues supported by the pleadings and the evidence,
    there is no prejudicial error necessitating reversal. 
    Id. (c) Analysis
       On appeal, Schramm argues that the district court erred
    in rejecting his proposed jury instruction. He asserts that the
    proposed instruction provided the jury with a more detailed
    explanation than jury instruction No. 9 regarding how to
    evaluate expert witness testimony. He asserts that this instruc-
    tion is a correct statement of the law and would have assisted
    the jury during its deliberations. Specifically, he states, “The
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    prejudice to [Schramm] is readily apparent. The impact of the
    jury being improperly instructed with respect to the credibility
    and weight to give expert testimony is fathomless.” Brief for
    appellant at 19. Upon our review, we conclude that the district
    court’s refusal to give the proposed jury instruction did not
    constitute reversible error.
    [15] To establish reversible error from a court’s refusal to
    give a requested instruction, an appellant has the burden to
    show that (1) the tendered instruction is a correct statement
    of the law, (2) the tendered instruction is warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s
    refusal to give the tendered instruction. State v. Rothenberger,
    
    294 Neb. 810
    , 
    885 N.W.2d 23
    (2016).
    [16] Here, the district court used a pattern jury instruction
    regarding the jury’s evaluation of the credibility of an expert
    witness. See NJI2d Crim. 5.4. Whenever an applicable instruc-
    tion may be taken from the Nebraska Jury Instructions, that
    instruction is the one which should usually be given to the
    jury in a criminal case. State v. Morgan, 
    286 Neb. 556
    , 
    837 N.W.2d 543
    (2013). Schramm requested that the district court
    depart from the pattern jury instruction and provide the jury
    with a more detailed explanation of how to evaluate the cred-
    ibility of an expert witness. However, Schramm’s proposed
    jury instruction asked the jury to consider the underlying prin-
    ciples of Michalski’s testimony. In fact, Schramm’s proposed
    jury instruction asked the jury to consider the exact Daubert/
    Schafersman factors that the trial court is to use in determin-
    ing whether the reasoning or methodology underlying the
    expert’s opinion is scientifically valid and, thus, in determin-
    ing whether an expert can testify before a jury. In this case,
    as we discussed more thoroughly above, the district court had
    performed its proper gatekeeping function and had determined
    that Michalski’s testimony was admissible pursuant to the
    Daubert/Schafersman factors. It was not the province of the
    jury to review the district court’s decision. Rather, the jury
    was to evaluate the credibility of the expert witness and to
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    Nebraska Court of A ppeals A dvance Sheets
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    STATE v. SCHRAMM
    Cite as 
    27 Neb. Ct. App. 450
    determine what weight to give the expert’s testimony, just as it
    was to do with any other witness.
    The district court did not err in utilizing the pattern jury
    instruction to instruct the jury on how to evaluate the credibil-
    ity of expert testimony. Such an instruction was a correct state-
    ment of the law and did not prejudice Schramm in any way.
    V. CONCLUSION
    Because the district court failed to grant Schramm’s motion
    to continue the trial and, thus, failed to provide Schramm
    with adequate time to prepare his defense, the judgment and
    sentence of the district court are reversed and the cause is
    remanded for a new trial.
    R eversed and remanded for a new trial.