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State v. Elseman

Supreme Court of Nebraska

January 3, 2014

State of Nebraska, appellee,
v.
Ryan M. Elseman, appellant.

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[Copyrighted Material Omitted]

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Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Affirmed.

Donald L. Schense, of Law Office of Donald L. Schense, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. Trial: Evidence: Appeal and Error. Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated. An appellate

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court reviews a trial court's ruling on authentication for abuse of discretion.

2. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law, and a verdict may not be directed.

3. Criminal Law: Convictions: Evidence: Appeal and Error. 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.

[287 Neb. 135] 4. Rules of Evidence: Proof.Neb. Evid. R. 901, Neb.Rev.Stat. ยง 27-901(1) (Reissue 2008), does not impose a high hurdle for authentication or identification. A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. If the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of rule 901(1).

Miller-Lerman, J.

NATURE OF CASE

Ryan M. Elseman appeals his convictions in the district court for Douglas County of first degree murder and use of a deadly weapon to commit a felony. Elseman claims that the court erroneously admitted evidence regarding the content of certain text messages. He also claims that the court committed plain error when it overruled his motions for a directed verdict and that there was not sufficient evidence to support his convictions. We affirm Elseman's convictions and sentences.

STATEMENT OF FACTS

The charges against Elseman arose from an incident in which he shot and killed Kristopher Winters. The State alleged that Elseman shot Winters during an attempted robbery.

Elseman was among a group of people who were at the home of Nicholas Ely on July 6, 2011. Elseman's girlfriend's sister, Emily G., was also part of the group. Elseman left the house with Emily, Ely, and Marqus Patton with a plan to go swimming at Patton's apartment complex. The four were picked up by Drake Northrop. Emily had previously bought marijuana from Winters, and she suggested that the group go [287 Neb. 136] to Winters' house to get some marijuana. At some point, it was decided that the group would rob Winters.

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Emily directed Northrop to Winters' house, and they arrived there around noon. There was no response when Emily knocked on Winters' door, but a friend of Winters arrived at the door. Emily went into the house with the friend after she told him she was there to buy marijuana. Once inside, Emily sent Elseman a text message saying, " I'm in." She sent another message saying that Winters had a friend with him and that the doors were open.

Northrop, Elseman, Ely, and Patton entered the house through an open door. Elseman and Patton had guns. The men walked into a room occupied by Winters and his friend. Elseman pointed his gun and said, " ‘ You know what it is.’ " When Winters charged Elseman, Patton used his gun to hit Winters in the head. Winters stumbled but then pushed Patton up against a wall. Patton told Elseman to shoot Winters, and Elseman did. After the shots were fired, Northrop, Elseman, Ely, and Patton ran out of the house and drove away, leaving Emily behind. Northrop dropped the other three off at Patton's apartment.

Winters died as a result of the gunshot wounds, and Elseman was charged with first degree murder and use of a deadly weapon to commit a felony. The first degree murder count was charged alternatively as premeditated murder and as felony murder. The State's witnesses at Elseman's trial included Emily and Northrop. Neither Patton nor Ely testified at Elseman's trial.

Emily testified that while the group was driving to Winters' house, she was talking to her sister on a cell phone and overheard others in the car talking about a robbery. She testified that she had been told to send a text message to let Elseman know when she got into the house and to let him know whether the doors were open and how many people were in the house. Emily ...


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