Constitutional Law: Search and Seizure: Motions to
Suppress: Appeal and Error. In reviewing a trial
court's ruling on a motion to suppress based on a claimed
violation of the Fourth Amendment, an appellate court applies
a two-part standard of review. Regarding historical facts, an
appellate court reviews the trial court's findings for
clear error. But whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial
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) (Reissue 2016), and the trial
court's decision will not be reversed absent an abuse of
Criminal Law: Convictions: Appeal and Error.
In criminal cases, the purpose of harmless error review is to
ensure convictions are not set aside for small errors or
defects that have little, if any, likelihood of having
changed the result of the trial.
Criminal Law: Appeal and Error. Harmless
error jurisprudence recognizes that not all trial errors,
even those of constitutional magnitude, entitle a criminal
defendant to the reversal of an adverse trial result.
Convictions: Appeal and Error. It is only
prejudicial error, that is, error which cannot be said to be
harmless beyond a reasonable doubt, which requires that a
conviction be set aside.
Appeal and Error. When determining whether
an alleged error is so prejudicial as to justify reversal,
courts generally consider whether the error, in light of the
totality of the record, influenced the outcome of the case.
Verdicts: Juries: Appeal and Error. Harmless
error review looks to the basis on which the jury actually
rested its verdict. The inquiry is [299 Neb. 233] not whether
in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual
guilty verdict rendered was surely unattributable to the
Trial: Evidence: Appeal and Error. In
conducting harmless error analysis an appellate court looks
to the entire record and views the erroneously admitted
evidence relative to the rest of the untainted, relevant
evidence of guilt.
Verdicts: Evidence: Appeal and Error.
Overwhelming evidence of guilt can be considered in
determining whether the verdict rendered was surely
unattributable to the error, but overwhelming evidence of
guilt is not alone sufficient to find the erroneous admission
of evidence harmless.
Evidence: Appeal and Error. When conducting
harmless error review, an appellate court may consider
whether the improperly admitted evidence was cumulative and
tended to prove the same point as other properly admitted
Appeal and Error. Plain error may be found
on appeal when an error unasserted or uncomplained of at
trial, but plainly evident from the record, prejudicially
affects a litigant's substantial right and, if
uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process.
Sentences. A sentence validly imposed takes
effect from the time it is pronounced, and any subsequent
sentence fixing a different term is a nullity.
. Any attempt to modify a sentence validly imposed is of no
effect, and the original sentence remains in force.
from the District Court for Douglas County: Kimberly Miller
Pankonin, Judge. Affirmed in part, and in part vacated and
remanded with directions.
C. Riley, Douglas County Public Defender, L. Robert Marcuzzo,
Douglas A. Johnson, and Natalie M. Andrews for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Neb. 234] Stacy, J.
J. Kidder appeals his convictions for first degree murder and
use of a deadly weapon to commit a felony. We affirm his
convictions, but find plain error in the sentence imposed on
the conviction for use of a deadly weapon to commit a felony.
We therefore vacate that sentence only and remand the cause
25, 2015, Jessica Nelson's mother received a telephone
call advising that Nelson had not shown up for work. Her
mother went to Nelson's house to check on her and
discovered Nelson's body partially submerged in the
bathtub, unclothed, with the water running. She was curled up
in a fetal position, and one hand was clutching a cell phone
charging cord. Nelson's clothes were piled in the tub
near her feet. Blood was pooled under Nelson's head, and
there was a ligature mark on her neck.
officers arrived and processed the scene as a homicide.
Investigators found no point of forced entry into the home.
They took photographs and collected Nelson's cell phone,
the charging cord, and the clothes from the bathtub. Blood
was found outside the bathroom, in the living room, and in
Nelson's bedroom. Swabs were taken of the cell phone cord
and the various biological substances found throughout the
house. Investigators noticed Nelson's right thumbnail was
bent back, so they also swabbed under her fingernails and
took fingernail clippings.
autopsy revealed bruises and abrasions on Nelson's neck,
hemorrhaging in her eyes, and a ligature mark on her neck
that was consistent with the cell phone cord. The cause of
death was strangulation. There was also evidence Nelson had
been sexually assaulted. She had a laceration and bruising in
her vaginal area, as well as contusions to her head, abdomen,
Neb. 235] Text Messages From Kidder
cell phone was analyzed, and detectives found what they
described as "eerie" text message conversations
with a telephone number later confirmed to belong to Kidder.
Nelson and Kidder had known each other since childhood.
text conversation began on February 4, 2015. The first
message arranged for Kidder to shovel snow from Nelson's
driveway. For the next several months, Kidder texted Nelson,
often suggesting they meet up. Typically, Nelson either
turned Kidder down or did not respond.
April 16, 2015, Kidder texted saying he needed someplace to
"h[a]ng out" while he waited to run an early
morning errand, and he asked if he could stop at Nelson's
house. Nelson agreed, but stated she would likely still be
asleep and would leave the door unlocked. She told Kidder he
could watch television, nap on the couch, or use the chairs
outside while he waited. Later, the following text
[Kidder:] 111 admit, a little part of me wanted to run in and
doggy pile you, but i didnt feel like being stabbed or beat
[Nelson:] Lol yeah that def would've happened. Im a
grouch when my sleep is interrupted unless you're [my
son], then I'm less grouchy lol[.]
[Kidder:] Lol. Maybe next time.
[Nelson:] If you want to die.
I do keep a good sized knife in my nightstand drawer.
[Kidder:] Challenge accepted.
We will need to lay down some ground rules though. No hair
pulling, no biting. Lol.
[Nelson:] Or you could just leave me alone when I'm
sleeping. Save us all the hassle[.]
continued to text Nelson regularly, and some of Kidder's
messages were sexual in nature. On June 19, a few [299 Neb.
236] days before the murder, Kidder sent Nelson the following
sequence of text messages:
[Kidder:] Scale of feeling playful stabby to murdered on my
Yeah. Trying to make a joke, and now shes mad at me. Lol.
I figured itd be a funny "breaking the ice" joke
since every other guy sends dick pics for their first or
all communication and im the one ...