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State v. Pangborn

Supreme Court of Nebraska

July 26, 2013

State of Nebraska, appellee,
Matthew L. Pangborn, appellant.

1. Trial: Evidence: Appeal and Error. The admission of demonstrative evidence is within the discretion of the trial court, and a judgment will not be reversed on account of the admission or rejection of such evidence unless there has been a clear abuse of discretion.

2. Trial: Juries: Evidence. Demonstrative exhibits are defined by the purpose for which they are offered at trial—to aid or assist the jury in understanding the evidence or issues in a case.

3. Trial: Evidence. Exhibits admitted only for demonstrative purposes do not constitute substantive evidence.

4. Rules of Evidence. Where a Nebraska Evidence Rule is substantially similar to a corresponding federal rule of evidence, Nebraska courts will look to federal [286 Neb. 364] decisions interpreting the corresponding federal rule for guidance in construing the Nebraska rule.

5. Trial: Judges. In Nebraska, a trial judge has broad discretion over the conduct of a trial.

6. Rules of Evidence: Appeal and Error. When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.

7. Trial: Judges: Juries: Evidence. A trial judge may exercise his or her broad judicial discretion to allow or disallow the use of demonstrative exhibits during jury deliberations.

8. ___: ___: ___: ___. It is an abuse of discretion for a trial judge to send a demonstrative exhibit to the jury for use in deliberations without first weighing the potential prejudice in allowing such use against the usefulness of the exhibit and employing adequate safeguards to prevent prejudice.

9. Criminal Law: Appeal and Error. Errors, other than structural errors, which occur within the trial and sentencing process, are subject to harmless error review.

10. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant.

11. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

12. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually 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, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

13. Constitutional Law: Criminal Law: Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clauses of the federal and state Constitutions do not forbid a retrial after an appellate determination of prejudicial error in a criminal trial so long as the sum of all the evidence admitted by the trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

14. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

15. ___. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings.

Appeal from the District Court for Gage County: Paul W. Korslund, Judge.

Brett McArthur for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

[286 Neb. 365] Heavican, C.J., Wright, Stephan, McCormack, and Cassel, JJ.



Matthew L. Pangborn appeals from his convictions and sentences on nine counts involving actual or attempted violence or physical abuse upon "persons with intellectual disabilities who require[d] residential care."[1] The main question presented is whether the district court abused its discretion in allowing the jury to use in its deliberations the State's "road map"—a chart admitted for demonstrative purposes only. Because the district court allowed the use of this demonstrative exhibit in jury deliberations without providing adequate limiting instructions or employing any other safeguards against prejudice, we find that the court abused its discretion. We reverse, and remand for a new trial.


In October 2011, a complaint was filed in county court charging Pangborn with six counts of abuse of a vulnerable adult and five counts of strangulation. All counts arose from Pangborn's employment at the Beatrice State Developmental Center (BSDC) in Beatrice, Nebraska, and involved three adult residents at that facility. The parties stipulated that all three alleged victims were vulnerable adults as defined by statute. After a hearing in county court, Pangborn was bound over to the district court for arraignment. He entered pleas of "not guilty" to all 11 counts. One count of strangulation was later dismissed with prejudice at the State's request.

A jury trial on the remaining 10 counts was held over several days in July 2012. During the trial, eight witnesses testified and numerous exhibits were admitted into evidence. In particular, exhibit 36 was central to presentation of the State's case. Having prepared the exhibit as a "road map" of its case, the State repeatedly relied upon exhibit 36 when delivering opening and closing statements and when examining [286 Neb. 366] and cross-examining witnesses. Exhibit 36 was admitted for demonstrative purposes only, but later was submitted to the jury for use during deliberations, over Pangborn's objection. Two other exhibits are relevant for purposes of appeal. Exhibits 37 and 38 consisted of timesheets from BSDC and were admitted under the business records exception to the hearsay rule, which admission Pangborn assigns as error.

Before we more thoroughly describe the circumstances surrounding the use of exhibit 36—circumstances which are critical to our analysis—we provide a detailed description of the exhibit. Exhibit 36 was a one-page chart that the State described as providing a "road map" that it would use "during the course of the trial for clarification purposes only." It consisted of five columns labeled "COUNT, " "VICTIM, " "WITNESS, " "LOCATION, " and "INJURY." Each of the 11 original charges was listed in the column labeled "COUNT." For each count, the remaining columns identified the BSDC resident who was the alleged victim, the individual who supposedly witnessed Pangborn's abuse upon the victim (all of whom testified at trial to what they saw), the exact location where the alleged abuse was witnessed, and the precise nature of the violence allegedly inflicted upon the victim by Pangborn. These injuries were identified in the fifth column of the chart as "[s]truck on top of head, " "[s]truck on ear, " "[e]lbowed in chest, " "[c]hoked unconscious, " or "[c]hoked." Essentially, the exhibit was a concise summary of the evidence the State planned to present against Pangborn on each count-hence, a "road map."

The morning of trial, the parties discussed the proposed exhibit 36 with the district court in the absence of the jury. Pangborn had no objection to the use of exhibit 36 for demonstrative purposes, but moved that the jury not be allowed to use the exhibit during deliberations. At that time, the court received exhibit 36 for demonstrative purposes, but held that the exhibit could not be used during deliberations. The court did not communicate this ruling to the jury in any way but merely asked the State to "offer" exhibit 36 before publishing it to the jury at trial and noted that the court might revisit the issue of use during deliberations at a later time.

[286 Neb. 367] Throughout the trial that followed, the State relied heavily upon its "road map" in presenting its case against Pangborn. Despite this extensive usage of the exhibit, the district court did not explain to the jury the limited purpose of the exhibit, distinguish it from other ...

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