Rules of Evidence: Appeal and Error. An
appellate court reviews for abuse of discretion a trial
court's evidentiary rulings on relevance, whether the
probative value of evidence is substantially outweighed by
the danger of unfair prejudice, and the sufficiency of a
party's foundation for admitting evidence.
Expert Witnesses: Appeal and Error. The
standard for reviewing the admissibility of expert testimony
is abuse of discretion.
Convictions: Evidence: Appeal and Error. In
reviewing a criminal conviction for 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.
Sentences: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
Evidence: Words and Phrases. Evidence is
relevant if it tends in any degree to alter the probability
of a material fact.
Rules of Evidence. Under Neb. Evid. R. 403,
Neb. Rev. Stat. § 27-403 (Reissue 2016), relevant
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
Evidence. Most, if not all, evidence offered
by a party is calculated to be prejudicial to the opposing
Evidence: Words and Phrases. Unfair
prejudice means an undue tendency to suggest a decision based
on an improper basis.
Neb. 857] 9. ___: ___. Unfair prejudice speaks to the
capacity of some concededly relevant evidence to lure the
fact finder into declaring guilt on a ground different from
proof specific to the offense charged, commonly on an
Witnesses: Juries: Appeal and Error. The
credibility and weight of witness testimony are for the jury
to determine, and witness credibility is not to be reassessed
on appellate review.
Sentences: Appeal and Error. Where a
sentence imposed within the statutory limits is alleged on
appeal to be excessive, the appellate court must determine
whether a sentencing court abused its discretion in
considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
Sentences. In determining a sentence to be
imposed, relevant factors customarily considered and applied
are the defendant's (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the
commission of the crime.
___. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge's
observation of the defendant's demeanor and attitude and
all the facts and circumstances surrounding the
___. Generally, it is within a trial court's discretion
to direct that sentences imposed for separate crimes be
served either concurrently or consecutively.
from the District Court for Lancaster County: Darla S. Ideus,
D. Nigro, Lancaster County Public Defender, and John C.
Jorgensen for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman, and,
on brief, Sarah E. Marfisi for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg,
A. Tucker appeals his convictions and sentences for one count
of first degree sexual assault of a child and two [301 Neb.
858] counts of incest, related to an incident with his
girlfriend's children. Evidence at trial showed that
Tucker engaged in sex acts with M.T., age 11, and that M.T.
and her two brothers, E.T., age 12, and R.T., age 10, engaged
in sex acts upon Tucker's instructions. The main issue
presented by this appeal is whether the district court abused
its discretion in admitting "Y-STR" DNA evidence
over Tucker's objections. We conclude that it did not. We
further reject Tucker's contentions that the evidence was
insufficient to support his convictions and that the district
court imposed excessive sentences. Finding no error, we
State charged Tucker with one count of first degree sexual
assault of a child in violation of Neb. Rev. Stat. §
28-319.01(2) (Reissue 2016) and two counts of incest with a
person under 18 years of age in violation of Neb. Rev. Stat.
§ 28-703 (Reissue 2008). The charges arose out of
allegations by M.T, E.T., and R.T. that Tucker, their
mother's live-in boyfriend, had engaged in sex acts with
M.T. and that M.T. had engaged in sex acts with E.T and R.T.
after being instructed to do so by Tucker.
to trial, Tucker filed a motion in limine seeking to exclude
all evidence of Y-STR DNA testing pursuant to Daubert v.
Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579. 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v.
Agland Coop,262 Neb. 215, 631 N.W.2d 862 (2001)
(Daubert/ Schafersman). He also alleged that such