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State v. Tucker

Supreme Court of Nebraska

December 14, 2018

State of Nebraska, appellee,
v.
Carlos A. Tucker, appellant.

         1. 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.

         2. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

         3. 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.

         4. 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 court.

         5. Evidence: Words and Phrases. Evidence is relevant if it tends in any degree to alter the probability of a material fact.

         6. 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.

         7. Evidence. Most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party.

         8. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

         [301 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 emotional basis.

         10. 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.

         11. 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 imposed.

         12. 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.

         13. ___. 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 defendant's life.

         14. ___. Generally, it is within a trial court's discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively.

          Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge.

          Joseph 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, JJ.

          PAPIK, J.

         Carlos 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 affirm.

         BACKGROUND

         Charges Against Tucker.

         The 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.

         Pretrial Proceedings.

         Prior 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 ...


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