Trial: Juries: Evidence. The trial judge has
discretion to allow the jury to reexamine evidence during
__:__:__. Trial courts have broad discretion in allowing the
jury to have unlimited access to properly received exhibits
that constitute substantive evidence of the defendant's
Trial: Juries: Evidence: Appeal and Error. A
trial court's decision to allow a jury during
deliberations to rehear or review evidence, whether such
evidence is testimonial or nontestimonial, is reviewed by an
appellate court for an abuse of discretion.
Trial: Evidence. Testimonial evidence refers
to trial evidence, including live oral examinations,
affidavits and depositions in lieu of live testimony, and
tapes of examinations conducted prior to the time of trial
for use at trial in accordance with procedures provided by
__:__. Heightened standards which require the trial court to
weigh the probative value of the testimony against the danger
of undue emphasis and allow the court to strictly control the
procedures for reviewing tape-recorded evidence apply only to
Pretrial Procedure: Trial: Evidence: Appeal and
Error. Where there has been a pretrial ruling
regarding the admissibility of evidence, a party must make a
timely and specific objection to the evidence when it is
offered at trial in order to preserve any error for appellate
Trial: Evidence: Motions to Suppress: Waiver: Appeal
and Error. The failure to object to evidence at
trial, even though the evidence was the subject of a previous
motion to suppress, waives the objection, and a party will
not be heard to complain of the alleged error on appeal.
Appeal and Error. An objection, based on a
specific ground and properly overruled, does not preserve a
question for appellate review on some other ground not
specified at trial.
Neb.App. 404] 9. Rules of Evidence: Hearsay: Appeal
and Error. Apart from rulings under the residual
hearsay exception, an appellate court will review for clear
error the factual findings underpinning a trial court's
hearsay ruling and review de novo the court's ultimate
determination whether the court admitted evidence over a
hearsay objection or excluded evidence on hearsay grounds.
Rules of Evidence: Hearsay. Whether a
statement was both taken and given in contemplation of
medical diagnosis or treatment is a factual finding made by
the trial court in determining the admissibility of the
evidence under Neb. Evid. R. 803(3), Neb. Rev. Stat. §
27-803(3) (Reissue 2016).
__:__. Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
to prove the truth of the matter asserted.
__:__.A declarant's out-of-court statement offered for
the truth of the matter asserted is inadmissible unless it
falls within a definitional exclusion or statutory exception.
__ . The hearsay rule does not exclude statements made for
purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.
__:__. The hearsay exception for statements made for the
purpose of medical diagnosis or treatment is based on the
notion that a person seeking medical attention will give a
truthful account of the history and current status of his or
her condition in order to ensure proper treatment.
Rules of Evidence: Hearsay: Police Officers and
Sheriffs. A statement is generally considered
admissible under the medical purpose hearsay exception if
gathered for dual medical and investigatory purposes, and
even the declarant's knowledge that law enforcement is
observing or listening to the statements does not necessarily
preclude admissibility of a statement as being for a medical
Rules of Evidence: Hearsay. In applying the
hearsay exception for statements made for the purpose of
diagnosis or treatment, the fundamental inquiry to determine
whether the statement, despite its dual purpose, was made in
legitimate and reasonable contemplation of medical diagnosis
or treatment, because if the challenged statement has some
value in diagnosis or treatment, the patient would still have
the requisite motive for providing the type of sincere and
reliable information that is important to that diagnosis and
__ . Statements having a dual medical and investigatory
purpose are admissible under the hearsay exception for
statements made for the purpose of medical diagnosis or
treatment only if the proponent [25 Neb.App. 405] of the
statements demonstrates that (1) the declarant's purpose
in making the statements was to assist in the provision of
medical diagnosis or treatment and (2) the statements were of
a nature reasonably pertinent to medical diagnosis or
treatment by a medical professional.
__ . Under the hearsay exception for statements made for the
purpose of medical diagnosis or treatment, the appropriate
state of mind of the declarant may be reasonably inferred
from the circumstances.
Criminal Law: Intent: Intoxication.
Voluntary intoxication is not a defense to any criminal
offense and shall not be taken into consideration in
determining the existence of a mental state that is an
element of the criminal offense.
Jury Instructions. Whether jury instructions
given by a trial court are correct is a question of law.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court resolves the questions
independently of the conclusion reached by the lower court.
Jury Instructions: Proof: Appeal and Error.
In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
Sexual Assault: Words and Phrases. A person
commits third degree sexual assault of a child if he or she
subjects another person 14 years of age or younger to sexual
contact and the actor is at least 19 years of age or older
and does not cause serious personal injury to the victim.
__. Sexual contact means the intentional touching of the
victim's sexual or intimate parts or the intentional
touching of the victim's clothing covering the immediate
area of the victim's sexual or intimate parts and
includes only such conduct which can be reasonably construed
as being for the purpose of sexual arousal or gratification
of either party.
Sexual Assault: Proof. Whether there is
sufficient evidence to prove sexual arousal or gratification
(which, by necessity, must generally be inferred from the
surrounding circumstances), is extraordinarily fact driven.
__:__. The relevant question in determining whether there is
sufficient evidence to prove sexual arousal or gratification
for purposes of third degree sexual assault 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.
Motions for Mistrial: Appeal and Error.
Whether to grant a mistrial is within the trial court's
discretion, and an appellate court will not disturb its
ruling unless the court abused its discretion.
Neb.App. 406] 28. Trial: Prosecuting
Attorneys. A prosecutor should not express his or
her personal belief or opinion as to the truth or falsity of
any testimony or evidence or the guilt of the defendant, and
a lawyer shall not, in trial, state a personal opinion as to
the credibility of a witness or the guilt or innocence of an
__:__. When a prosecutor's comments rest on reasonably
drawn inferences from the evidence, the prosecutor is
permitted to present a spirited summation that a defense
theory is illogical or unsupported by the evidence and to
highlight the relative believability of witnesses for the
State and the defense.
__:__. In cases where the prosecutor comments on the theory
of defense, the defendant's veracity, or the
defendant's guilt, the prosecutor crosses the line into
misconduct only if the prosecutor's comments are
expressions of the ...