State v. Jenkins , 294 Neb. 475 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/19/2016 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. JENKINS
Cite as 294 Neb. 475
State of Nebraska, appellee, v.
Erica A. Jenkins, appellant.
___ N.W.2d ___
Filed August 19, 2016. No. S-15-169.
1. Rules of Evidence: Other Acts: Appeal and Error. It is within the
discretion of the trial court to determine relevancy and admissibility of
evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2014), and the trial court’s decision will
not be reversed absent an abuse of discretion.
2. Trial: Photographs: Appeal and Error. An appellate court reviews
a trial court’s admission of photographs of a victim’s body for abuse
of discretion.
3. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact.
4. Rules of Evidence: Other Acts. The purpose of Neb. Evid. R. 404(2),
Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2014), is that evidence of other
acts, despite its relevance, creates the risk of a decision by the trier of
fact on an improper basis.
5. Rules of Evidence: Other Acts: Proof. Under Neb. Evid. R. 404(3),
Neb. Rev. Stat. § 27-404(3) (Cum. Supp. 2014), before a court can admit
evidence of an extrinsic act in a criminal case, the State must prove by
clear and convincing evidence, outside the presence of the jury, that the
defendant committed the extrinsic act.
6. Rules of Evidence: Other Acts. Direct evidence of a charged crime
is not an extrinsic act that is subject to exclusion under Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2014).
7. Verdicts: Juries: Appeal and Error. In a harmless error review, an
appellate court looks at the evidence upon which the jury rested its
verdict; the inquiry is not whether in a trial that occurred without the
error a guilty verdict would surely have been rendered, but, rather,
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whether the guilty verdict rendered in the trial was surely unattributable
to the error.
8. Trial: Evidence: Appeal and Error. Generally, erroneous admission of
evidence is harmless error and does not require reversal if the evidence
is cumulative and other relevant evidence, properly admitted, supports
the finding by the trier of fact.
9. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2008), relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.
10. Homicide: Photographs. If a photograph illustrates or makes clear
some controverted issue in a homicide case, a proper foundation having
been laid, it may be received, even if gruesome.
11. ____: ____. In a homicide prosecution, a court may receive photographs
of a victim into evidence for the purpose of identification, to show the
condition of the body or the nature and extent of wounds and injuries to
it, and to establish malice or intent.
12. Constitutional Law: Witnesses. The Sixth Amendment guarantees the
right of an accused in a criminal prosecution to be confronted with the
witnesses against him or her. The main and essential purpose of confron-
tation is to secure the opportunity for cross-examination.
13. Evidence: Appeal and Error. The relevant question when an appel-
late court reviews a sufficiency of the evidence claim 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.
14. ____: ____. An appellate court does not resolve conflicts in the evi-
dence, pass on the credibility of witnesses, evaluate explanations, or
reweigh the evidence presented, which are within a fact finder’s prov-
ince for disposition.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Beau G. Finley, of Finley & Kahler Law Firm, P.C., L.L.O.,
and Sean M. Conway, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
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STATE v. JENKINS
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Heavican, C.J.
I. NATURE OF CASE
Erica A. Jenkins directly appeals from her convictions for
murder in the first degree, use of a deadly weapon to commit
a felony, and possession of a deadly weapon by a prohibited
person. A jury found that Jenkins killed Curtis Bradford on or
about August 19, 2013. Jenkins challenges several evidentiary
rulings by the district court and also asserts there was insuffi-
cient evidence to support her convictions. We affirm.
II. BACKGROUND
1. Crime Scene
On the morning of August 19, 2013, a body, later identi-
fied as Bradford, was discovered outdoors near a garage in
the vicinity of 18th and Clark Streets in Omaha, Nebraska.
Although no one called emergency services until approxi-
mately 7 a.m. on August 19, residents later reported hearing
gunshots the night of August 18. Some of these residents
reported they heard the gunshots as early as 10:30 p.m., some
as late as midnight.
At the scene on August 19, 2013, investigators observed
Bradford’s body slumped over, face down. Bradford was
wearing sneakers, black pants, a pair of gloves, and a black
hoodie with the hood over his head. There were holes in the
back of Bradford’s hood, surrounded by apparent gunshot resi-
due. Investigators turned over Bradford’s body and observed
massive head trauma. A shotgun slug was found in an area of
loose ground a couple inches from where Bradford’s head had
been. An autopsy later revealed a second, smaller caliber bul-
let in Bradford’s brain.
2. Events Leading up to and Including
August 18 and 19
At trial, Bradford’s mother testified that Bradford either
had friends in or had been personally affiliated with a gang
known as Camden Block. Several witnesses connected Jenkins’
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brother, Nikko Jenkins, with the same gang. In addition, a
person known as P-Dough was a member of the gang. Two
witnesses—Melonie Jenkins and Lori “Lolo” Sayles (Lolo),
sisters of Jenkins and Nikko—identified Bradford as a “duck”
or puppet of P-Dough’s, meaning that Bradford would do what
P-Dough told him to do. Lolo and Melonie each testified to
conversations with Jenkins in which Jenkins told them she
believed P-Dough was responsible for a shooting at Jenkins’
home in February 2013. The State’s theory of motive at trial
was that Jenkins sought retaliation for that shooting by killing
P-Dough’s puppet—Bradford.
Lolo testified at trial that on the evening of August 18,
2013, she and Jenkins were at a house belonging to their
mother, Lori Jenkins. At some point, Nikko came to the house
with Bradford, whom Lolo had not previously met. Nikko and
Bradford were wearing black clothes. After Lolo let Nikko
and Bradford into the house, she saw them in the kitchen
looking at an assault rifle. Shortly thereafter, Lori came
home. To hide the rifle from Lori, Bradford wrapped it in a
jacket and placed it behind the couch. According to Melonie’s
testimony at trial, Jenkins later told her that while at Lori’s
house, Jenkins had a conversation with Nikko about planning
to kill Bradford.
Lolo testified at trial that soon after Lori came home, around
11:30 p.m. to midnight, Lolo, Nikko, and Bradford left the
house and Jenkins chased after them. Bradford was carrying
the rifle, still wrapped in the jacket, when they left. At trial,
Lolo said she was not sure where they were going at the time.
They got into a car belonging to Nikko’s girlfriend. Nikko
drove, with Bradford in the front passenger seat and Lolo and
Jenkins in the back seat.
Nikko drove the car toward an area referred to as “16th
Street” or “the bottoms,” which was known to several wit-
nesses at trial as a rival gang neighborhood. According to
Lolo’s testimony at trial, Nikko told them all to turn off
their cell phones as they approached the bottoms. During the
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drive, Nikko and Bradford allegedly discussed performing
a robbery.
Nikko backed the car into a driveway area on the north side
of Clark Street, between Florence Boulevard and 18th Street,
near a group of townhome-style residences. Jenkins, Nikko,
and Bradford then exited the car, and Nikko told Lolo to get
into the driver’s seat. Nikko was carrying a sawed-off shotgun,
and Bradford was carrying the rifle. Lolo testified that she did
not see Jenkins with a gun that night.
Lolo testified that about 30 to 45 seconds after the others
left the car, she heard a gunshot. About 15 seconds after the
first, she heard a second, louder, “boom” and saw a flash in the
car’s rearview mirror.
Lolo got out of the car and then saw Jenkins and Nikko
come running back. Nikko was carrying the shotgun. In an
interview with police, Lolo initially stated that Nikko was also
carrying the rifle at this time. But when pressed further during
that interview, and then again at trial, Lolo admitted that she
was trying to protect Jenkins and that Jenkins was actually car-
rying the rifle.
Lolo testified that Nikko told her to drive the car but that
she refused, so Nikko drove the car. They drove to a house
belonging to Brian Easterling, a cousin of Jenkins and her sib-
lings. Nikko had been staying at Easterling’s house after being
released from incarceration in late July 2013. Lolo testified at
trial that Nikko went downstairs, where Easterling was watch-
ing a movie with a friend.
During his testimony at trial, Easterling corroborated the
fact that at approximately 1 a.m. on August 19, 2013, Jenkins
and Nikko both came into his home. Easterling testified that
he never saw Lolo that night, but that she could have been
upstairs. He further testified that while Jenkins and Nikko
were downstairs, they washed blood and brain matter off
of an assault rifle. He identified the rifle as the same one
Lolo identified as the weapon Bradford carried that night.
Easterling also testified that Jenkins removed a revolver from
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her purse. Easterling said that Nikko and Jenkins seemed
excited and that Jenkins was upset with Nikko. Jenkins
expressed disappointment because she had shot Bradford first
and then Nikko shot Bradford. At trial, Melonie testified to a
similar exchange.
According to Melonie’s testimony at trial, Jenkins later
gave Melonie an account of the events of August 18 and 19,
2013, very similar to the facts above. According to Melonie,
Jenkins said that when she, Nikko, and Bradford got out of the
car that night, they were walking along the garage single file.
Jenkins then shot Bradford in the back of the head with her
revolver, and after Bradford fell, Nikko shot Bradford in the
head with the shotgun.
3. Evidence Concerning Jenkins’ R evolver
and A rgument With Lori
At trial, the State also introduced evidence of other incidents
in which Jenkins allegedly wielded a revolver. First, Lolo testi-
fied that in February 2013, she had seen Jenkins with a revolver.
Second, Melonie testified that sometime after Bradford’s death,
she had gone over to Lori’s house and Jenkins opened the door
with a black revolver in her hand. Third, Melonie said she had
also seen Jenkins with the same gun in June 2013.
Fourth, both Lolo and Melonie testified at trial that some-
time after Bradford’s death, Jenkins was at Lori’s home with
a number of other family members present when she got into
a heated argument with Lori. According to Lolo, Jenkins and
Lori fought about a niece of Jenkins’ ripping the leaf off a
plant. As the argument escalated, Nikko took Jenkins into
another room and Lolo heard Jenkins yelling, “I’ll pop that
bitch like I popped that nigga.” According to witnesses at trial,
to “pop” somebody means to shoot them. Nikko then exited the
room, carrying the revolver. Lolo testified that Jenkins did not
say whom she had shot or when.
Melonie, on the other hand, testified that Jenkins and Lori
fought specifically about a murder. According to Melonie, Lori
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was telling Jenkins that she had been stupid to “d[o] it to an
innocent person” and that Jenkins “shoulda went [sic] after . . .
the very people that shot in [her] house.” Melonie said that
Jenkins yelled, “[T]hat’s why he’s dead and that’s why I killed
that . . . .” Melonie also testified that during this argument,
Nikko took away Jenkins’ revolver, which was black with a
wooden handle.
Finally, Easterling also testified at trial that he had seen
Jenkins on two or three occasions with a revolver that was
black with a wooden handle. He stated that the revolver
“looked like a .357.”
4. Physical Evidence
The slug found in the ground near Bradford was a Brenneke
brand bullet. Brenneke is an uncommon brand in the Omaha
metropolitan area. The lead detective investigating Bradford’s
death was able to find only one store selling the model of
Brenneke shotgun shell found at the scene. Police released an
image from that store’s surveillance video showing the most
recent purchaser of the shotgun shells; the purchaser was later
identified as Lori.
This information eventually led to Nikko’s arrest on or about
August 29, 2013. Jenkins, Melonie, and Lori were also arrested
around that time period.
When police searched Nikko’s apartment on Birch Street
in Omaha on August 29, 2013, they discovered a shotgun
with a shortened barrel and an assault rifle in a gym bag par-
tially under the bed. These weapons were identified by Lolo
at trial as the guns Nikko and Bradford had on the evening
of August 18. There was no evidence connecting Jenkins to
the apartment.
There was no ballistic evidence at the crime scene near Clark
Street, aside from the shotgun slug; the smaller bullet was
recovered from Bradford’s brain during the autopsy. A firearms
and toolmark examiner at the Omaha Police Department crime
laboratory testified that the smaller bullet was consistent with
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a 9 mm, a .38-, or a .357-caliber bullet. A search of an FBI
database containing about 14,000 weapons returned 26 differ-
ent possible guns that could have fired the bullet. Of those 26,
19 were revolvers and 7 were handguns; 18 were .38’s, and 4
were .357’s.
DNA analysis matched Bradford as the major contributor
among at least three contributors of DNA on the grip and trig-
ger areas of the assault rifle. Bradford also matched the single
source of DNA found on the front rail and on the front and
rear bolt hole on the right side of the rifle. In addition, Jenkins,
Lori, Nikko, Lolo, and Melonie could not be excluded as
minor contributors of DNA found on the grip and trigger areas
of the assault rifle.
The chances of a person unrelated to Jenkins being a minor
contributor of DNA to the grip and trigger areas of the rifle
were 1 in 4 for Caucasians, 1 in 5 for African-Americans, and
1 in 5 for American Hispanics. DNA testing on the shotgun
could not exclude Nikko as a partial contributor, but tests
attempting to match Jenkins, Lori, Melonie, Bradford, and
Lolo were inconclusive. According to the forensic DNA ana-
lyst’s testimony at trial, these statistics are so insignificant that
prior to a change in policy in 2010, the laboratory at which
she works might not have considered the results informative
enough to use in a criminal case.
Swabs from the front rail and from the front and rear bolt
hole on the right side of the assault rifle matched Bradford. At
trial, Ashley Paggen, a Douglas County Sheriff’s Department
crime scene investigator who had searched Nikko’s girlfriend’s
car, testified about blood evidence she found. Blood on the
front passenger-side floormat also matched Bradford. The
DNA expert at trial testified that the chances of a person
unrelated to Bradford being the source of these samples was
1 in 11.4 quintillion for Caucasians, 1 in 12.6 quintillion for
African-Americans, and 1 in 5.35 quintillion for American
Hispanics.
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5. Excluded Cross-Examination
of Paggen
During cross-examination, Jenkins attempted to ques-
tion Paggen about Omaha Police Department and Douglas
County Sheriff’s Department crime laboratory personnel. At
an evidentiary hearing outside the presence of the jury, Jenkins
attempted to elicit information about former laboratory direc-
tor David Kofoed, laboratory director Tracey Ray, and the
alleged mishandling of fingerprint evidence by an employee
of the Omaha Police Department crime laboratory. The district
court excluded the evidence.
III. ASSIGNMENTS OF ERROR
Jenkins assigns, renumbered and restated, that the district
court erred by (1) admitting evidence that Jenkins made a
threat to Lori after August 2013, (2) admitting evidence that
Jenkins possessed a firearm before and after August 2013, (3)
admitting several allegedly gruesome and cumulative photo-
graphs of the victim, and (4) excluding testimony by Paggen
concerning alleged misconduct by crime laboratory personnel.
Jenkins also alleges (5) there was insufficient evidence to sup-
port her conviction because of a lack of physical evidence and
the credibility of the witnesses.
IV. STANDARD OF REVIEW
[1] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or
acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Cum. Supp. 2014) (Rule 404), and the trial court’s decision
will not be reversed absent an abuse of discretion.1
[2,3] An appellate court reviews a trial court’s admission
of photographs of a victim’s body for abuse of discretion.2
In reviewing a sufficiency of the evidence claim, whether the
1
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
2
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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evidence is direct, circumstantial, or a combination thereof,
the standard is the same: An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence; such matters are for the finder
of fact.3
V. ANALYSIS
1. A lleged Improper Character
Evidence
Jenkins’ first two assignments of error concern the admissi-
bility of testimony under Rule 404. Specifically, Jenkins chal-
lenges the district court’s admission of testimony that on occa-
sions other than August 18 and 19, 2013, Jenkins possessed a
revolver and that during an argument she threatened to “pop”
Lori while in possession of a revolver.
[4] Rule 404(2) states:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
The purpose of Rule 404(2) is that evidence of other acts,
despite its relevance, creates the risk of a decision by the trier
of fact on an improper basis.4
[5] Under Rule 404(3), before a court can admit evidence
of an extrinsic act in a criminal case, the State must prove
by clear and convincing evidence, outside the presence of
the jury, that the defendant committed the extrinsic act.5 The
proponent of evidence offered pursuant to Rule 404(2) is,
upon objection to its admissibility, required to state on the
3
State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).
4
State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
5
State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).
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record the specific purpose or purposes for which the evidence
is being offered, and the trial court is required to state on
the record the purpose or purposes for which such evidence
is received.6
(a) Jenkins’ Threats Toward Lori
In Jenkins’ first assignment of error, she argues that the dis-
trict court improperly admitted evidence—without a hearing—
that Jenkins threatened Lori. We do not agree that Rule 404(2)
applies in this instance.
Lolo and Melonie both testified about an argument dur-
ing which Jenkins yelled about shooting or killing some-
body. Lolo testified at trial that Jenkins said she would “pop
that bitch like I [Jenkins] popped that nigga.” The district
court overruled Jenkins’ continuing relevance and Rule 404
objections to both Melonie’s and Lolo’s testimonies about
the incident.
Here, the State offered Jenkins’ statement to prove that
Jenkins had killed Bradford. The testimony was evidence of
the very crime with which Jenkins was charged. Jenkins made
reference to a person she had “popped” or shot. Given the con-
text provided by witnesses, a rational trier of fact could have
easily interpreted the statement as an admission by Jenkins
that she shot Bradford.
[6] Direct evidence of a charged crime is not an extrinsic
act that is subject to exclusion under Rule 404(2).7 For exam-
ple, courts treat a jailhouse confession as direct evidence of
guilt, not an extrinsic bad act.8 Similarly, in State v. Canbaz,9
the defendant told his neighbors and coworkers before he
6
Glazebrook, supra note 4.
7
See, e.g., U.S. v. Adkins, 743 F.3d 176 (7th Cir. 2014); U.S. v. Hsu, 669
F.3d 112 (2d Cir. 2012); U.S. v. Washington, 12 F.3d 1128 (D.C. Cir.
1994).
8
See, e.g., U.S. v. Williams, 612 F.3d 417 (6th Cir. 2010).
9
State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).
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killed the victim that he wanted to kill the victim and her fam-
ily members and that he intended to do so. But at trial, his
defense was that he did not premeditate the murder. We held
that the evidence was relevant to prove the intent and premed-
itation elements of first degree murder and not an extrinsic
bad act. In other words, his statements were direct evidence of
these two elements of the charged crime.
Jenkins made this statement while she was in possession of
a handgun, and her possession of the gun was itself a crime.
But the prosecutor could not extricate her admission to shoot-
ing Bradford from the facts explaining why she would have
made the statement. Jenkin’s admission was highly probative
of her identity as the perpetrator of this crime, and the proof
did not depend on showing that she acted in conformity with
a character trait.
On these facts, there is no risk that the jury rested its deter-
mination on an improper basis; instead, the jury was merely
presented with evidence that Jenkins committed the crime
charged. We decline to exclude such a probative admission
by the accused merely because the admission was clothed in
threatening language.
(b) Jenkins’ Alleged Possession
of Revolver
In Jenkins’ second assignment of error, she claims the
court should have excluded certain testimony that she had
possessed a revolver before and after Bradford’s death. In
the second assignment of error, we also consider evidence
that Jenkins possessed a revolver during the argument with
Lori discussed above. Jenkins alleges that as with her first
assignment of error, this testimony was inadmissible prior
acts evidence. Even if this evidence might arguably be offered
to prove propensity, we find that any error in its admission
was harmless.
[7,8] In a harmless error review, an appellate court looks
at the evidence upon which the jury rested its verdict; the
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inquiry is not whether in a trial that occurred without the error
a guilty verdict would surely have been rendered, but, rather,
whether the guilty verdict rendered in the trial was surely
unattributable to the error.10 Generally, erroneous admission of
evidence is harmless error and does not require reversal if the
evidence is cumulative and other relevant evidence, properly
admitted, supports the finding by the trier of fact.11
At trial, Jenkins objected to testimony by Lolo and Melonie
concerning Jenkins’ possession of a revolver during an argu-
ment with Lori. In addition, Jenkins objected when Melonie
testified about two other occasions on which she saw Jenkins
with a revolver. However, Easterling testified at trial that he
had seen Jenkins with a revolver on two or three occasions.
Jenkins did not object to Easterling’s testimony.
Assuming without deciding that it was error for the dis-
trict court to overrule Jenkins’ objections to the testimony by
Lolo and Melonie, the error was harmless. Had Lolo’s and
Melonie’s allegations been excluded, the jury still would have
heard Easterling’s testimony about Jenkins’ possession of the
revolver. Therefore, we conclude that the jury’s findings can-
not be attributed to the admission of Lolo’s and Melonie’s
testimonies about the revolver.
Jenkins’ second assignment of error lacks merit.
2. Crime Scene and Autopsy
Photographs
In Jenkins’ third assignment of error, she challenges the
admission of seven photographic exhibits of Bradford’s body.
At trial, Jenkins objected to exhibit 8 as prejudicial under Neb.
Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008) (Rule
403), and to exhibits 26, 31, 32, 95, 96, and 97 as both preju-
dicial and cumulative under Rule 403.
10
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
11
State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
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[9-11] Under Rule 403, relevant evidence may be excluded
if its probative value is substantially outweighed by the danger
of unfair prejudice.12 In addition, a trial court may exclude
evidence if it is needlessly cumulative. The admission of pho-
tographs of a gruesome nature rests largely with the discretion
of the trial court, which must determine their relevancy and
weigh their probative value against their prejudicial effect.13
If a photograph illustrates or makes clear some controverted
issue in a homicide case, a proper foundation having been laid,
it may be received, even if gruesome.14 In a homicide prosecu-
tion, a court may receive photographs of a victim into evidence
for the purpose of identification, to show the condition of the
body or the nature and extent of wounds and injuries to it, and
to establish malice or intent.15
Exhibits 8, 26, 31, and 32 depict, from different angles,
Bradford’s wounds at the crime scene. Exhibits 95, 96, and
97 are photographs from Bradford’s autopsy. Jenkins claims
that the photographs are extremely gruesome and therefore
prejudiced her with the jury. In addition, she asserts that
exhibits 26, 31, 32, 95, 96, and 97 are cumulative because the
jury could have guessed what Bradford’s injuries were based
upon testimony and other exhibits that depicted the position
of Bradford’s body, blood spatter, and ballistic evidence at the
crime scene. Finally, Jenkins argues that these exhibits were
not probative, because Jenkins did not challenge cause of death
at trial.
The contested exhibits were highly probative and prop-
erly admitted, despite their gruesome nature. We acknowledge
that the injuries Bradford suffered, particularly the hollow,
gaping exit wound in his forehead, are difficult to view.
12
State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
13
State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).
14
State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
15
Bauldwin, supra note 12.
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However, gruesome crimes produce gruesome photographs.16
The fact that a defendant stands accused of a gruesome crime
should not limit the State’s ability to prove the nature of the
crime committed.
Further, each photograph presented at trial served to assist
witnesses in their testimony, and also tended to prove cause of
death, Bradford’s identity, and Jenkins’ intent. No two photo-
graphs were the same. Other exhibits depicting the crime scene
do not show Bradford’s wounds—leaving essential informa-
tion to the imagination of the jury. Thus, the exhibits were
not cumulative.
Nor are we persuaded by Jenkins’ argument that the district
court should have excluded these exhibits because Jenkins did
not contest the cause of Bradford’s death. There was no stipu-
lation in the record to this fact, and, as such, the State was
required to prove, beyond a reasonable doubt, that Bradford
was murdered and, for purposes of the weapons charges
against Jenkins, that Bradford was killed with firearms. The
State chose to admit these noncumulative photographs to meet
that burden. For these reasons, Jenkins’ third assignment of
error is without merit.
3. Evidence A llegedly Discrediting
Crime Laboratory
In Jenkins’ fourth assignment of error, she argues that the
district court erred by prohibiting Jenkins from pursuing a par-
ticular line of questioning during cross-examination of Paggen.
Jenkins claims that this line of questioning was impeachment
and that by excluding the evidence, the district court infringed
upon her constitutional right to cross-examine witnesses under
the Sixth Amendment to the U.S. Constitution.
[12] The Sixth Amendment guarantees the right of an
accused in a criminal prosecution to be confronted with
the witnesses against him or her. The main and essential
16
Dubray, supra note 2.
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purpose of confrontation is to secure the opportunity for cross-­
examination.17 An accused’s constitutional right of confronta-
tion is violated when either (1) he or she is absolutely prohib-
ited from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of the
witness or (2) a reasonable jury would have received a sig-
nificantly different impression of the witness’ credibility had
counsel been permitted to pursue his or her proposed line of
cross-examination.18
In the case at bar, Jenkins attempted to question Paggen about
the credibility of the Douglas County Sheriff’s Department’s
investigation. Specifically, in an offer of proof outside the pres-
ence of the jury, Paggen testified that she had read an article
about an Omaha Police Department employee—not affiliated
with the Douglas County Sheriff’s Department—misidentify-
ing a fingerprint. Additionally, Paggen stated that she heard
a rumor that her former supervisor at the Douglas County
Sheriff’s Department crime laboratory was on investigatory
leave for an unknown reason. Finally, Paggen had learned that
a former employee of the Douglas County sheriff’s office,
who did not work there at the same time as Paggen, had been
convicted of a crime relating to the collection of blood evi-
dence from a vehicle.
But we find that the jury would not have received a
significantly different impression of Paggen’s credibility if
Jenkins were permitted to present this evidence. Jenkins’ line
of cross-examination questioning was not a proper impeach-
ment, because it had nothing to do with Paggen’s credibility
or that of another witness. Instead, Jenkins sought to discredit
Paggen by weak associations to people with whom she was
either barely familiar or did not know at all. All of Jenkins’
questions called for Paggen to testify about events beyond
her personal knowledge. This testimony was speculative and
17
State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).
18
State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008).
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irrelevant to Paggen’s credibility. Therefore, we cannot say
that the district court abused its discretion by excluding this
immaterial line of questioning.
For these reasons, Jenkins’ fourth assignment of error is
without merit.
4. Sufficiency of Evidence
Finally, in Jenkins’ fifth assignment of error, she claims the
evidence at trial was insufficient to support her convictions.
Jenkins’ argument, in essence, is that none of the witnesses
against her were credible because the witnesses had criminal
histories. Further, Jenkins claims that the relatively inconclu-
sive DNA evidence in this case should have precluded convic-
tion. We disagree.
[13,14] The relevant question when an appellate court
reviews a sufficiency of the evidence claim is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.19 An appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, evaluate explanations, or reweigh
the evidence presented, which are within a fact finder’s prov-
ince for disposition.20
Viewed in the light most favorable to the State, without
evaluating witness credibility, we hold that there was sufficient
evidence to support Jenkins’ convictions. Testimony at Jenkins’
trial could have led a rational juror to find, beyond a reason-
able doubt, every element of the crimes for which Jenkins
was convicted. Therefore, Jenkins’ final assignment of error is
without merit.
VI. CONCLUSION
The judgment of the district court is affirmed.
A ffirmed.
19
Hale, supra note 3.
20
State v. Lee, 290 Neb. 601, 861 N.W.2d 393 (2015).