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Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Affirmed as modified.
Mary C. Gryva, of Frank & Gryva, P.C., L.L.O., and Alan G. Stoler, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and George R. Love, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
1. 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.
2. Rules of Evidence. 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. Evidence. Determining the relevancy of evidence is a matter entrusted to the discretion of the trial court.
4. 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. 403 and 404(2), Neb.Rev.Stat. §§ 27-403 (Reissue 2008) and 27-404(2) (Cum.Supp.2012), and the trial court's decision will not be reversed on appeal absent an abuse of discretion.
5. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.
6. Judgments: Appeal and Error. 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.
7. Homicide: Intent: Presumptions. The critical difference between felony murder and premeditated first degree murder is that the underlying felony takes the place of the intent to kill, or premeditated malice, and the purpose to kill is conclusively presumed from the criminal intent required for the underlying felony.
8. Homicide: Intent. A specific intent to kill is not required to constitute felony murder, only the intent to do the act which constitutes the felony in question.
9. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.
10. Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
11. Homicide: Sentences. When a defendant is sentenced to life imprisonment for first degree murder, the defendant is not entitled to credit for time served in custodial detention pending trial and sentence; however, when the defendant receives a sentence consecutive to the life sentence that has maximum and [287 Neb. 148] minimum terms, the defendant is entitled to receive credit for time served against the consecutive sentence.
12. Sentences. A sentencing judge must separately determine, state, and grant the amount of credit on the defendant's sentence to which the defendant is entitled.
Nicholas J. Ely was convicted by a jury of first degree murder and use of a deadly weapon to commit a felony. He was sentenced to life in prison on the murder conviction and to a consecutive prison term of 5 to 5 years on the weapon conviction. This is his direct appeal, which we hear pursuant to ...