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State v. Jenkins

Supreme Court of Nebraska

August 19, 2016

State of Nebraska, appellee,
v.
Erica A. Jenkins, appellant.

         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 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.

         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, [294 Neb. 476] 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 confrontation is to secure the opportunity for cross-examination.

         13. Evidence: Appeal and Error. 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 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 evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition.

         Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge.

          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 Kelch, JJ.

         [294 Neb. 477] 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 insufficient evidence to support her convictions. We affirm.

         II. BACKGROUND

         1. Crime Scene

         On the morning of August 19, 2013, a body, later identified 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 approximately 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 residue. 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 bullet 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' [294 Neb. 478] 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 witnesses 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 [294 Neb. 479] 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 carrying 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 siblings. 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 watching 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 [294 Neb. 480] 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 ...


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