State of Nebraska v. Adrian Lester

On April 14, 2014, 15-year-old Allee H. sent a text message

to her high school classmate Justice Terpstra (Terpstra), asking

if he would sell her marijuana. Terpstra refused, after which

the text messages between Allee and Terpstra became contentious,

culminating in an agreement to meet at a park in Omaha,

Nebraska, to fight. Both Allee and Terpstra recruited others to

accompany them.

Allee’s group was the first to arrive at the park.

Accompanying Allee were Marcus Cooper, Joshua Schmitt,

Lucio Martinez, and Tielor Williams. Everyone in Allee’s

group, except Martinez, smoked marijuana before going to the

park to fight. Allee’s group drove to the park in two vehicles.

Schmitt drove one of the vehicles, in which Allee and Williams

rode as passengers. Martinez drove the other vehicle with

Cooper as a passenger.

When Terpstra arrived at the park, he was accompanied

by his sister, Freedom Terpstra; his cousin, Victoria Terpstra;

and his friends Dennis Brewer, Lester, and two other males.

As soon as Terpstra’s group arrived at the park, they got out

of their vehicles and approached Schmitt’s vehicle. Freedom

was the first to reach Schmitt’s vehicle, and she began hitting

the car and screaming for Allee to get out. Allee stayed inside

Schmitt’s vehicle, as did Schmitt and Williams. At about the

same time, a person from Allee’s group, Cooper, walked over

and stood near the passenger door of Schmitt’s vehicle.

A male from Terpstra’s group then approached the passenger

side of Schmitt’s vehicle, pointed a gun at Cooper, and

told Cooper to empty his pockets. Cooper handed the male

a gold Zippo lighter and saw the male put the lighter into

his pocket. Cooper testified the male who robbed him never

fired his gun. Terpstra identified the male who robbed Cooper

as Brewer.

Several witnesses testified they saw Lester approach the

passenger side of Schmitt’s vehicle and order the front seat

passenger, Williams, to empty his pockets. Williams refused.

Gunshots erupted, and Williams was shot four to five times in

the face and neck. Schmitt was shot in the hand.

After the shooting, everyone in Terpstra’s group ran to

their vehicles and left. Some members of the group returned

to Terpstra’s house. Freedom testified that while they were

gathered there, Lester said, “That motherfucker shouldn’t have

told me no” and then made a shooting sign with his hand.

Victoria testified that when Lester was asked what happened,

he responded, “I didn’t like his tone so I shot him.”

Before Lester left Terpstra’s house, Lester asked Brewer to

trade shirts with him. Brewer agreed, and took the orange shirt

Lester had been wearing. Later that evening, when Freedom

and Brewer were alone, Brewer gave Freedom a gold lighter.

Both the orange shirt and gold lighter were later recovered

by the police at Terpstra’s house. On April 15, 2014, Terpstra

and Freedom went to a motel to “hide from everybody” who

knew about the shooting. They were later apprehended by

U.S. marshals.

After the shooting, Allee’s group drove to the hospital to seek

medical attention for Williams and Schmitt. Schmitt’s injuries

required surgery but were not life threatening. Williams was

pronounced dead. The cause of death was a gunshot wound to

the head. Autopsy reports revealed Williams had been shot at

very close range four times.

On the night of the shooting and into the next day, Omaha

police detectives interviewed a number of people, including

Cooper, Martinez, and Allee. Victoria later provided a written

statement about what happened, and the primary suspects

became Brewer and Lester. On May 8, 2014, Lester was

arrested and eventually charged with first degree murder, first

degree assault, robbery, attempted robbery, and four counts of

use of a deadly weapon to commit a felony.

Terpstra, Freedom, Victoria, Cooper, Schmitt, and Martinez

all testified at trial. The witnesses provided conflicting accounts

of who fired the shots that killed Williams and what the shooter

was wearing.

Terpstra, Freedom, and Victoria each identified Lester as

the person who shot Williams. Schmitt testified he was not

able to see the shooter, because the shots were fired from outside

the passenger side of his vehicle and Schmitt was in the

driver’s seat. Schmitt admitted that 3 days after the shooting,

he was shown a photographic lineup and identified someone

other than Lester as the shooter, but at trial he “back[ed] off”

that identification and testified he never saw the shooter.

Martinez testified that it was a man in a black hoodie pointing

a gun at Cooper who shot Williams. Cooper testified that

a man in a black hoodie was pointing a gun at him when

shots were fired, but Cooper testified the man pointing the

gun at him did not shoot. Cooper testified he did not see

the shooter.

On multiple occasions while testifying, the witnesses contradicted

prior statements they had made to the police or statements

they had made in depositions. Lester’s counsel argued

that because of these contradictions, the witnesses were not

credible. Defense counsel also questioned the thoroughness of

the police investigation, noting that several pieces of evidence,

including the orange shirt and gold lighter, were not tested

for DNA.

The jury returned a verdict of guilty on all eight counts.

After his motion for new trial was denied, Lester was sentenced

to life imprisonment on the murder conviction, imprisonment

of 15 to 15 years for two convictions involving use

of a deadly weapon, and imprisonment of 20 to 20 years for

assault in the first degree. The sentences were ordered to

be served consecutively. No sentences were imposed on the

remaining convictions pursuant to State v. McHenry,1 a case

in which we held the underlying felony offense merges into a

felony murder conviction and cannot be punished separately,

barring a clear indication by the Legislature that independent

punishments were intended.

Lester timely filed this direct appeal.

II. ASSIGNMENTS OF ERROR

Lester assigns, restated and renumbered, that the district

court erred by (1) overruling his Batson challenge to the

State’s peremptory strike of a prospective juror, (2) excluding

testimony that was offered to impeach a witness, and (3)

denying his motion for new trial. In addition, Lester asserts

(4) the evidence presented at trial was insufficient to support

his convictions.

III. STANDARD OF REVIEW

[1] An appellate court reviews de novo the facial validity of

an attorney’s race-neutral explanation for using a peremptory

challenge as a question of law. It reviews for clear error a trial

court’s factual determination regarding whether a prosecutor’s

race-neutral explanation is persuasive and whether the

prosecutor’s use of a peremptory challenge was purposefully

discriminatory.2

[2] 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.3

[3] Where the Nebraska Evidence Rules commit the evidentiary

question at issue to the discretion of the trial court,

1 State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996).

2 State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).

3 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

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an appellate court reviews the admissibility of evidence for an

abuse of discretion.4

[4] The standard of review for the denial of a motion for

new trial is whether the trial court abused its discretion in

denying the motion.5

[5] In reviewing a sufficiency of the evidence claim,

whether the evidence is direct, circumstantial, or a combination

thereof, the standard is the same: An appellate court does

not resolve conflicts in the evidence, pass on the credibility of

witnesses, or reweigh the evidence; such matters are for the

finder of fact. The relevant question for an appellate court is

whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.6

IV. ANALYSIS

1. Batson Challenge

After the jurors were seated but before they had been sworn,

Lester’s counsel stated:

At this time I would raise a Batson challenge based upon

the fact that none of the primary jurors in this matter

are African-American or black. There were two on the

panel; they were both stricken by the State. I do recognize

there is an alternate juror that is black but, for

the reasons stated, I would raise a Batson challenge at

this time.

Lester directed his challenge under Batson v. Kentucky7 to

prospective jurors S.M. and P.S., both of whom had been

removed by the State using peremptory strikes. The court

denied the challenge as to both. Lester does not assign error to

4 Id.

5 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

6 State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015).

7 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

the court’s ruling with respect to S.M., and we therefore focus

our analysis on P.S.

[6,7] In Batson, the U.S. Supreme Court held that a prosecutor’s

privilege to strike individual jurors through peremptory

challenges is subject to the commands of the Equal Protection

Clause.8 Ordinarily, a prosecutor is entitled to exercise permitted

peremptory challenges for any reason related to the prosecutor’s

view concerning the outcome of the case.9 But the

Equal Protection Clause forbids the use of peremptory challenges

on potential jurors solely because of their race.10 When

a timely objection under Batson is made, a trial court must

inquire into the reasons behind the peremptory strike.11

[8,9] Evaluating whether a prosecutor impermissibly struck

a prospective juror based on race is a three-step process.12

First, the defendant must make a prima facie showing that the

prosecutor exercised a peremptory challenge because of race.13

A defendant satisfies the requirements of the first step by producing

evidence sufficient to permit the trial judge to draw an

inference that discrimination has occurred.14

[10,11] Second, if the requisite showing has been made,

the burden shifts to the prosecutor to present a race-neutral

explanation for striking the juror in question.15 In determining

whether the proffered explanation is race neutral, the court

does not consider whether the prosecutor’s reasons are persuasive,

or even plausible.16 It is sufficient if the stated reasons,

8 See State v. Oliveira-Coutinho, supra note 2.

9 See, id.; State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).

10 See id.

11 State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002).

12 See State v. Oliveira-Coutinho, supra note 2.

13 See id.

14 See State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved on

other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727.

15 See State v. Oliveira-Coutinho, supra note 2.

16 State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

on their face, are not inherently discriminatory.17 The question

of whether the prosecutor’s reasons are race neutral is a question

of law that we review de novo.18

[12,13] The third step of the Batson inquiry requires the

court to determine, “‘in light of the parties’ submissions,’”19

whether the defendant has met the burden of proving purposeful

discrimination.20 This step involves evaluating the persuasiveness

of the justification proffered by the prosecutor, but

the ultimate burden of persuasion regarding racial motivation

rests with, and never shifts from, the opponent of the strike.21

A trial court’s ultimate determination of whether purposeful

discrimination has been shown frequently involves its evaluation

of the prosecutor’s credibility and its observations of

the juror’s demeanor, and because determinations of credibility

and demeanor lie “‘“peculiarly within a trial judge’s

province,”’”22 we afford deference to these findings absent

exceptional circumstances.23

Here, the State asserted prospective juror P.S. “had some

difficulty with speech and understanding” but suggested the

“bigger concern” was his employment working with “computer

software passcodes,” which the State thought demonstrated “a

heightened mindset that is looking very technically at this type

of case.” The State also noted that during voir dire, P.S. was

the only prospective juror who mentioned that a witness’ memory

could be affected by drugs and alcohol. This concerned the

17 Id.; State v. Nave, supra note 9.

18 See State v. Nave, supra note 9.

19 Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 170 L. Ed. 175

(2008).

20 See State v. Johnson, supra note 16.

21 See State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).

22 Snyder v. Louisiana, supra note 19, 552 U.S. at 477.

23 State v. Johnson, supra note 16.

State because several of its eyewitnesses had used marijuana

immediately before the shooting.

After the State articulated its rationale for striking P.S.,

the court asked Lester’s counsel, “Anything else?” Counsel

answered, “No, Your Honor.” The court then found that “the

Batson challenges have been overcome by virtue of the statements

of the prosecutor. There [are] race-neutral reasons for

[the State’s] decisions.” The jury was sworn, and the trial

commenced.

Lester argues the district court erred by accepting the

State’s race-neutral reason for exercising a peremptory strike

to remove prospective juror P.S. After careful consideration of

the principles announced in Batson, including the recent decision

of the U.S. Supreme Court in Foster v. Chatman,24 we

find no clear error in the district court’s ruling.

Here, Lester timely objected to the State’s use of a peremptory

strike to remove P.S., one of only two black prospective

primary jurors. The district court implicitly concluded

Lester had made a prima facie showing under Batson sufficient

to permit the inference that discrimination had occurred,

because it proceeded directly to the second step of the

analysis and asked the State to explain its reasons for striking

P.S.

As noted, the State gave three reasons for striking P.S. Upon

our de novo review of the State’s proffered explanations,25 we

conclude the reasons were not, on their face, inherently discriminatory.

We thus proceed to the third step in the Batson

analysis.

The district court made a factual finding that the Batson

challenge had “been overcome by virtue of the statements of

the prosecutor” and that there were “race-neutral reasons” for

24 Foster v. Chatman, ___ U.S. ___, 136 S. Ct. 1737, 195 L. Ed. 2d 1

(2016).

25 See State v. Oliveira-Coutinho, supra note 2.

the State’s decisions. We review the court’s factual finding in

this regard for clear error.26

(a) Difficulty With Speech

and Understanding

Lester asserts there is nothing in the record to support

the State’s contention that prospective juror P.S. had difficulty

with speech and understanding. The record does indicate

that during voir dire, both the court and the State asked

P.S. to repeat himself, but also shows that other prospective

jurors, including some who served, were also asked to repeat

responses or speak louder. Whether P.S. exhibited difficulty

with speech or understanding during voir dire is difficult to

discern from the written record, but our deferential standard

of review recognizes that the district court had the benefit of

observing the exchanges involving P.S. and was in the best

position to judge whether the prosecutor’s assessment of P.S.’

speech and understanding was credible. And at the time the

State offered this as an explanation for its strike of P.S., Lester

did not challenge the accuracy of the State’s characterization.

Lester, as the appellant, has the responsibility to present a

record that permits appellate review of the issue assigned as

error27 and bears the ultimate burden under Batson to show a

discriminatory purpose.28 On this record, we find no clear error

in the district court’s decision to accept the State’s first reason

for striking P.S.

(b) Heightened Technical Mindset

P.S. worked as a software security coordinator for the

University of Nebraska Medical Center. The State perceived this

work as highly technical and was concerned that a heightened

26 See id.

27 See State v. Lewis, 240 Neb. 642, 483 N.W.2d 742 (1993) (Grant, J.,

concurring; Boslaugh, J., joins).

28 See State v. Thorpe, supra note 21.

technical mindset would not be ideal for its case, particularly

as the police had ordered fingerprint, DNA, and ballistic testing

on some items of evidence, but not others.

On appeal, Lester argues the State’s “‘heightened mindset’”

rationale was pretextual.29 He argues that other, nonblack,

jurors who were permitted to serve on the jury also had technical

jobs. The U.S. Supreme Court explained recently in Foster

v. Chatman that “‘[i]f a prosecutor’s proffered reason for striking

a black panelist applies just as well to an otherwise-similar

non-black [panelist] who is permitted to serve, that is evidence

tending to prove purposeful discrimination.’”30

[14,15] We note that Lester’s argument about the occupations

of other jurors was never articulated to the district court

for its consideration and evaluation. Absent plain error, when

an issue is raised for the first time in an appellate court, it

will be disregarded inasmuch as the trial court cannot commit

error regarding an issue never presented and submitted to it

for disposition.31 Plain error is plainly evident from the record

and of such a nature that to leave it uncorrected would result

in damage to the integrity, reputation, or fairness of the judicial

process.32 Assisted by the postargument supplemental briefing

of the parties, we have carefully reviewed the record for plain

error on this issue and find none.

Among the 12 jurors and two alternates were a camera

company employee, a director of international service and new

product development, a dog walker, a natural habitat manager,

a credit union employee, a furniture rental employee, a retired

postal worker, a family physician, an operation and communications

coordinator for a natural gas company, an employee

at a dance studio, a nursing student, and a physical therapist.

Several impaneled jurors were unemployed. While each impaneled

juror had some form of expertise and several had occupations

which required advanced degrees and attention to detail,

none had employment similar to P.S. On this record, we find no

plain error in the district court’s acceptance of this rationale as

credible and race neutral.

(c) Witness’ Memory Affected

by Drugs and Alcohol

During voir dire, P.S. was asked, “How do you judge the

credibility of a witness [who is] on the stand?” P.S. replied,

“I’m going to look at . . . listen to what they have to say, but

at the same time memory could be affected by a lot of other

things.” When counsel asked, “Like what?” P.S. answered,

“Alcohol, could be drugs, also could be vision. Those things

have an impact on it.”

P.S. was the only prospective juror to specify that when

judging witness credibility, he would look at alcohol and drug

use. The State argues it found this troubling, because several

eyewitnesses had smoked marijuana just before the shooting

and the credibility of those witnesses was a significant component

of the State’s case.

[16] On appeal, Lester points to nothing in the record suggesting

the State’s third rationale for striking P.S. was pretextual.

Instead, he argues that a witness’ alcohol and drug

use is an entirely appropriate consideration when judging

credibility. This argument, while correct, misses the point.

While alcohol and drug use are indeed appropriate considerations

when weighing witness credibility, prosecutors are free

to exercise peremptory strikes for any reason related to their

views concerning the outcome of the case,33 including the

possibility that a particular juror may be likely to weigh credibility

in a way the prosecutor deems unfavorable, so long as

the peremptory strike is not used to remove a juror based on

race.34 While the Constitution forbids striking even a single

prospective juror for a discriminatory purpose,35 the inquiry

under the third step of Batson does not require considering

the wisdom or efficacy of a peremptory strike, but instead

requires the court to determine, in light of the parties’ submissions,

whether the defendant has carried the burden of proving

the strike was the result of purposeful discrimination.36

On this record, we find no clear error in the district court’s

acceptance of the State’s race-neutral reasons for striking P.S.

We reject Lester’s first assignment of error.

2. Impeachment Evidenc e

Lester assigns that the district court erred in sustaining the

State’s objection to evidence he wanted to offer to impeach

one of the State’s witnesses. Some additional factual background

is necessary to understand this assignment.

Terpstra was one of the witnesses who identified Lester

as the shooter. During Terpstra’s testimony, he acknowledged

that shortly before the fight at the park, he sent Jasyln C. a

Facebook message that said, “I wouldn’t fight a bitch but I’d

shoot a bitch.” Terpstra admitted this message was a reference

to Allee, and he admitted deleting this message after the

shooting of Williams. Terpstra testified he sent this message to

portray himself as a “bad-ass,” but he denied having a gun with

him the night of the fight. He further testified that he had never

possessed a gun before the date of the shooting.

Lester called Jaslyn as a witness. Jaslyn testified she was

not present during the fight at the park, but she had communicated

with Terpstra via Facebook messenger both before and

after the fight. She testified she was worried, based on those

messages, that Terpstra would bring a gun to the park. She

tried to convince Terpstra not to do so, asking him several

times “not to bring a gun up to [the] [p]ark” on the day of

the shooting.

In addition to this testimony, Lester wanted to elicit testimony

from Jaslyn that while at school 2 months before the

shooting, she overheard Terpstra telling a classmate that he

“had a gun.” Lester claimed he wanted to offer this evidence

both to impeach Terpstra’s testimony that he had never possessed

a gun and to give weight to Lester’s theory that someone

else fired the shots that killed Williams. The State objected

to this testimony. The district court sustained the objection,

ruling that Jaslyn’s testimony was (1) hearsay, (2) improper

impeachment, and (3) related to an event too remote in time

to be admissible, as the alleged statement occurred 2 months

before the shooting.

On appeal, Lester argues that Jaslyn’s testimony was not

hearsay and was admissible as a specific instance of prior

conduct under Neb. Rev. Stat. § 27-608(2) (Reissue 2016)

for the purpose of attacking Lester’s credibility. The State

argues that § 27-608 is the wrong framework and suggests

that because Jaslyn’s testimony refers to Terpstra’s prior statement

rather than his prior conduct, its admissibility is governed

by Neb. Rev. Stat. § 27-613(2) (Reissue 2016), which

excludes extrinsic evidence of prior inconsistent statements

unless the witness is given an opportunity to “explain or

deny” the statement.

[17-19] It is unnecessary to analyze the parties’ evidentiary

arguments, because the exclusion of Jaslyn’s testimony, even

if found to be erroneous, was undoubtedly harmless. An error

in admitting or excluding evidence in a criminal trial, whether

of constitutional magnitude or otherwise, is prejudicial unless

the error was harmless beyond a reasonable doubt.37 Harmless

error review looks to the basis on which the jury actually

rested its verdict; the inquiry is not whether in a trial that

37 State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).

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occurred without the error, a guilty verdict would surely have

been rendered, but whether the actual guilty verdict rendered

was surely unattributable to the error.38 Where the evidence is

cumulative and there is other competent evidence to support

the conviction, the improper admission or exclusion of evidence

is harmless beyond a reasonable doubt.39

The record shows that Terpstra’s testimony denying he

possessed a gun was impeached by other evidence, such that

Jaslyn’s testimony about overhearing Terpstra claim to have

a gun 2 months before the shooting would have been merely

cumulative. Terpstra admitted that Jaslyn asked him not to

bring a gun to the fight at the park and admitted that he sent

Jaslyn a Facebook message stating, “I wouldn’t fight a bitch

but I’d shoot a bitch.” He admitted this message referred

to Allee, and he admitted to deleting this message after the

shooting of Williams. Jaslyn testified she was worried Terpstra

would bring a gun to the fight at the park, and she tried to

convince him not to. She also testified that before the fight,

she told Allee of her concern that Terpstra would bring a gun

to the fight. All of this evidence was heard by the jury and

tended to undermine the credibility of Terpstra’s testimony

that he did not possess a gun before the fight. We conclude

that Jaslyn’s omitted testimony—that she overheard Terpstra

say he had a gun 2 months before the shooting—was merely

cumulative of this other evidence. As such, the exclusion of

that testimony, if error at all, was harmless. We reject Lester’s

second assignment of error.

3. Motion for New Trial

[20] After the jury returned its verdict, Lester filed a motion

for new trial, which the district court denied. Lester now

contends the motion should have been granted based on two

38 Id.

39 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v.

Kinser, 259 Neb. 251, 609 N.W.2d 322 (2000).

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grounds: prosecutorial misconduct and newly discovered evidence.

In addressing his argument, we are mindful that a trial

judge is accorded significant discretion in granting or denying

a motion for new trial, because the trial judge sees the witnesses,

hears the testimony, and has a special perspective on

the relationship between the evidence and the verdict.40

(a) Prosecutorial Misconduct and

Improper Burden Shifting

During cross-examination, Lester asked a detective whether

DNA was collected on certain items of evidence acquired during

the investigation and the detective admitted it was not. The

questions generally attempted to discredit the police investigation.

On redirect examination, the State asked the detective to

explain who decides to test certain items for DNA and why

some items are not tested. In this context, the State asked the

detective whether “[d]efense attorneys have the right to make

the request to have [an item of evidence] tested?” The detective

answered that defense attorneys can request testing, and

the redirect proceeded without objection.

During closing arguments, the State discussed how challenging

it can be to get usable fingerprints from various items

of evidence. The prosecutor referenced the testimony of the

detective, stating:

And why didn’t we do DNA [analysis on certain items of

evidence]? Why didn’t we do fingerprints? . . .

. . . It isn’t the police that has the DNA lab. It’s a separate

entity at the University of Nebraska Medical Center.

[The defense] ha[s] just as much right to get that property

and have it tested as everybody else in this case.

Lester did not object when this statement was made. But at

the conclusion of the State’s closing argument, Lester moved

for a mistrial. He argued this statement was prosecutorial

misconduct, because it implied Lester had a duty to order

40 State v. Oldson, supra note 5.

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testing and thus improperly shifted the burden of proof to the

defense. The trial court denied the motion, noting Lester failed

to object during the detective’s testimony at trial and finding

the statement did not suggest Lester had the burden of proof to

elicit exculpatory evidence.

[21,22] Even if the prosecutor’s statement during closing

constituted prosecutorial misconduct, an issue we need not

decide, we conclude the trial court did not err in refusing

to grant a mistrial. Whether to grant a motion for mistrial

is within the trial court’s discretion, and this court will not

disturb its ruling unless the court abused its discretion.41 A

mistrial is properly granted in a criminal case where an event

occurs during the course of trial which is of such a nature that

its damaging effect cannot be removed by proper admonition

or instruction to the jury and thus prevents a fair trial.42

[23,24] Under the Due Process Clause of the 14th

Amendment to the U.S. Constitution and under the Nebraska

Constitution, in a criminal prosecution, the State must prove

every element of an offense beyond a reasonable doubt and

may not shift the burden of proof to the defendant by presuming

that element upon proof of the other elements of

the offense.43 Because the burden of proof always remains

with the State, it cannot comment on a defendant’s failure to

produce evidence to refute an element of the crime, because

doing so could erroneously lead the jury to believe that the

defendant carried the burden of introducing evidence.44 The

exception to this rule is when the defendant voluntarily

assumes some burden of proof by asserting the defenses of

alibi, of self-defense, and of others, relying on facts that could

41 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).

42 Id.

43 Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281

(1977); State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016).

44 See State v. Rocha, ante p. 716, ___ N.W.2d ___ (2017).

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be elicited only from a witness who is not equally available

to the State.45

We recently decided State v. Rocha,46 a case in which the

State sought to elicit testimony that the defendant had not

requested DNA testing on certain evidence. Rocha was arrested

during a police stop after the police found a marijuana-

like

residue in his pocket and a methamphetamine-like substance

and drug paraphernalia in his vehicle. At trial, the arresting

police officer conceded he did not request any fingerprint or

DNA testing of the items found in the vehicle. During redirect,

the State noted the defendant had not independently tested the

evidence to show his fingerprints and DNA were not present.

The defendant immediately objected that the State was

improperly shifting the burden of proof to him and moved for

a mistrial. The motion for mistrial was denied, but the court

included the following jury instruction with regard to the burden

of proof:

“There was testimony at trial that [the defendant] never

requested any scientific testing of evidence. You must disregard

that testimony in its entirety. [The defendant] has

pleaded not guilty and is presumed to be innocent. The

State’s burden to prove each element of a crime charged

never shifts to a defendant.”47

[25] On appeal, we rejected the State’s argument that the

defendant “opened the door” to its questions about Rocha’s

failure to conduct his own DNA and fingerprint testing. We

explained that while a defendant may invite the State to

explain why it chose not to submit certain items for testing, a

defendant

in a criminal case can never “open the door” to shift

the burden of proof.48 In other words, a defendant is entitled

to inquire about weaknesses in the State’s case, but this does

45 Id.

46 Id.

47 Id. at 727, ___ N.W.2d at ___.

48 State v. Rocha, supra note 44.

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not open the door for the State to point out that the defendant

has not proved his or her innocence.49

[26] We held in Rocha that the district court did not abuse

its discretion in denying the motion for mistrial. We reasoned

the court instructed the jury to disregard the testimony in its

entirety and made clear to the jury that the defendant “‘has

pleaded not guilty and is presumed to be innocent’” and that

“‘[t]he State’s burden to prove each element of a crime charged

never shifts to a defendant.’”50 Absent evidence to the contrary,

it is presumed that a jury followed the instructions given in

arriving at its verdict.51 Thus, under our abuse of discretion

standard of review, we concluded that the questioning and

testimony, in light of the jury instructions, did not deprive the

defendant of a fair trial.52

There are factual and procedural differences between the

present case and Rocha. In this case, Lester did not object to

the detective’s testimony during trial nor did he object during

the State’s closing argument when reference was made to

Lester’s ability to independently test the evidence. Instead, as

we discuss later, Lester’s counsel addressed the State’s remarks

in his own closing argument, then moved for a mistrial after

closing arguments were concluded. Lester did not request a

curative instruction, and the court did not give one.

However, here, as in Rocha, the jury was properly instructed:

“The burden of proof is always on the State to prove beyond

a reasonable doubt all of the material elements of the crime

charged and this burden never shifts.” The jury was also

instructed: “Statements, arguments, and questions of the lawyers

for the State and [Lester]” are not evidence. The jury

was repeatedly reminded of these standards during trial by the

49 Id.

50 Id. at 758-59, ___ N.W.2d at ___.

51 State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).

52 State v. Rocha, supra note 44.

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State, the defense, and the court. Furthermore, during his closing

argument, Lester’s counsel stated:

It is not [Lester’s] job to test evidence that is booked into

state property or to do something with a piece of evidence

that’s regularly being used by law enforcement and sent

over to a DNA laboratory. . . . Do not think that in any

way it is our burden to do that. It is the State’s.

In this case, the jury was instructed multiple times by the

court, and reminded by counsel, that the State had the burden

to prove every element of the crime charged. Absent evidence

to the contrary, it is presumed that a jury followed the instructions

given in arriving at its verdict.53 Under our abuse of

discretion standard of review, we conclude on this record that

the State’s brief comment during closing argument did not

deprive Lester of a fair trial.

(b) Newly Discovered Evidence

Lester claims that 2 days after the jury returned its verdict

in this case, Brewer posted a comment on Facebook. The

post, without edits, reads as follows: “If they identified me

as the shooter then why tf ain’t ma brother sittin here next to

me? The system corrupt, send ma fucn brother home man . . .

#ReadyDaTruth.”

Lester contends that in this posting, “Brewer is acknowledging

his potential involvement as the shooter . . . and exculpating

[Lester].” Lester characterizes the Facebook post as newly

discovered evidence.

The district court found Brewer’s Facebook post was

“ambiguous at best” and did not constitute newly discovered

evidence for purposes of a new trial. We agree.

[27,28] Newly discovered evidence must actually be newly

discovered, and it may not be evidence which could have been

discovered and produced at trial with reasonable diligence.54

53 State v. McSwine, supra note 51.

54 State v. Atwater, 245 Neb. 746, 515 N.W.2d 431 (1994), disapproved on

other grounds, State v. Lykens, 271 Neb. 240, 710 N.W.2d 844 (2006).

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A criminal defendant who seeks a new trial on the basis of

newly discovered evidence must show that if the evidence

had been admitted at the former trial, it would probably have

produced a substantially different result.55

The Facebook post was not newly discovered evidence for

at least two reasons. First, it was not evidence that could not

have been discovered and produced at trial. Rather, it was

a public comment made in response to the jury’s verdict.

Brewer’s post merely expresses a belief that at some point

during the investigation, somebody identified Brewer as the

shooter. Second, the comment is ambiguous at best as to

Lester’s guilt or innocence and does not amount to exculpatory

evidence. The post does not contain any admission or suggestion

of Brewer’s guilt, but merely expresses dissatisfaction

with the jury’s verdict of guilt.

We find no abuse of discretion in denying the motion for

new trial. Lester’s third assignment of error lacks merit.

4. Sufficienc y of Evidenc e

Finally, Lester claims the evidence at trial was insufficient

to support his convictions. Lester does not point to a specific

element of an offense that was lacking in evidentiary support;

rather, he argues there was insufficient evidence to convict

him, because the State’s witnesses contradicted one another

and were biased. Further, Lester claims the State’s investigation

was inadequate. Lester made these same arguments to

the jury.

In reviewing a sufficiency of the evidence claim, whether

the evidence is direct, circumstantial, or a combination

thereof, the standard is the same: An appellate court does not

resolve conflicts in the evidence, pass on the credibility of

witnesses, or reweigh the evidence; such matters are for the

finder of fact.56 The relevant question for an appellate court

55 State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).

56 State v. Newman, supra note 6; State v. Hale, 290 Neb. 70, 858 N.W.2d

543 (2015).

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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.57

After carefully reviewing the record, we find there was sufficient

evidence to support Lester’s convictions. We acknowledge

that there were some inconsistencies in witness testimony;

however, an appellate court does not resolve conflicts in

the evidence or pass on the credibility of witnesses. Viewed in

the light most favorable to the State, the record contains sufficient

evidence, if believed, to support every element of the

crimes charged. Lester’s fourth assignment is meritless.