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.
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.
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.
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
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.
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).
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.
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.
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.
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
___: ___. 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.
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.
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
___: ___ . 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.
from the District Court for Douglas County: Peter C.
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
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and Kelch, JJ.
Neb. 477] Heavican, C.J.
NATURE OF CASE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...