Convictions: Evidence: Appeal and Error.
Regardless of whether the evidence is direct, circumstantial,
or a combination thereof, and regardless of whether the issue
is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, 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, and a
conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to
support the conviction.
Criminal Law: Convictions: Evidence: Appeal and
Error. When reviewing a criminal conviction for
sufficiency of the evidence to sustain the conviction, 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.
Rules of Evidence: Appeal and Error. Where
the Nebraska Evidence Rules commit the evidentiary question
at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse of
Trial: Rules of Evidence. A trial court
exercises its discretion in determining whether evidence is
relevant and whether its prejudicial effect substantially
outweighs its probative value.
Judgments: Words and Phrases. An abuse of
discretion occurs when a trial court's decision is based
upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and
Neb. 703] 6. Rules of
Evidence. An analysis under Neb. Rev. Stat. §
27-403 (Reissue 2016) consists of a balancing test, which is
in large part left to the sound discretion of the trial
court, absent an abuse of discretion.
test seeks to weigh the probative value of the proffered
evidence against the nonprobative factors listed in Neb. Rev.
Stat. § 27-403 (Reissue 2016).
Evidence: Words and Phrases. Probative value
is a relative concept involving a measurement of the degree
to which the evidence persuades the trier of fact that the
particular fact exists and the distance of the particular
fact from the ultimate issue of the case.
Rules of Evidence: Appeal and Error. Most,
if not all, items which one party to an action offers in
evidence are calculated to be prejudicial to the opposing
party; therefore, it is only unfair prejudice with which an
appellate court is concerned.
Rules of Evidence: Words and Phrases.
"Unfair prejudice," in the context of Neb. Rev.
Stat. § 27-403 (Reissue 2016), means a tendency to
suggest a decision on an improper basis.
Criminal Law: Evidence. A defendant cannot
negate an exhibit's probative value through a tactical
decision to stipulate.
Aiding and Abetting: Proof. Aiding and
abetting requires some participation in a criminal act which
must be evidenced by word, act, or deed, and mere
encouragement or assistance is sufficient to make one an
aider or abettor. No particular acts are necessary, however,
nor is it necessary that the defendant take physical part in
the commission of the crime or that there was an express
agreement to commit the crime.
___: ___ . Evidence of mere presence, acquiescence, or
silence is not enough to sustain the State's burden of
proving guilt under an aiding and abetting theory.
Criminal Law. The corpus delicti may be
proved by circumstantial evidence.
Circumstantial Evidence: Words and Phrases.
Circumstantial evidence is evidence which, without going
directly to prove the existence of a fact, gives rise to a
logical inference that such fact exists.
Criminal Law: Evidence: Confessions: Proof.
An extrajudicial admission or a voluntary confession is,
standing alone, insufficient to prove that a crime has been
committed, but either or both are competent evidence of the
fact and may, with corroborative evidence of facts and
circumstances, establish the corpus delicti and guilty
participation of the defendant.
from the District Court for Cass County: Michael A. Smith,
Neb. 704] Julie E. Bear, Deputy Cass County Public Defender,
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
J. Stubbendieck was convicted of the crime of assisting
suicide,  a Class IV felony, in regard to the death
of Alicia Wilemon-Sullivan (Sullivan). Stubbendieck was
sentenced to a term of probation. He appeals his conviction
on various evidentiary grounds. We affirm.
August 5, 2017, deputies from the Cass County Sheriff's
Department were dispatched to an address in Weeping Water,
Cass County, Nebraska, in response to a report of a suicide.
arrival, deputies spoke to Stubbendieck, who reported that
his girlfriend, Sullivan, had killed herself days prior.
After being interviewed for more than an hour, Stubbendieck
led deputies to Sullivan's body. The body was located in
a densely wooded area of private land that once operated as a
examination, it was determined that Sullivan's body was
in the early stages of decomposition. Despite the stage of
decomposition to the body, deputies noted injuries to both of
Sullivan's wrists and further observed a knife located
under Sullivan's left hand. In the immediate area
surrounding Sullivan's body, deputies located two water
bottles (one containing an unknown dark liquid), a potato
chip can, a purse, a [302 Neb. 705] pair of sandals, and
boxer briefs. The boxer briefs were later identified as
belonging to Stubbendieck.
the course of the investigation, Stubbendieck told
investigators that he believed Sullivan was suffering from
"Stage IV cancer." Stubbendieck indicated that
Sullivan "hated" hospitals, but had been convinced
by friends to undergo radiation treatments in Jacksonville,
Florida. According to Stubbendieck, Sullivan terminated
radiation therapy after only 5 weeks because her condition
had not improved.
employed "Cellebrite," a technology used to conduct
cell phone information extraction, and recovered from
Stubbendieck's cell phone numerous text messages between
Sullivan and Stubbendieck in the weeks leading up to
Sullivan's death. In those text messages, Sullivan
represents herself as being hospitalized, in pain, dying, and
not able to live any longer.
messages from Sullivan's cell phone show a persistent
state of suicidal ideation, evidenced by Sullivan's
repeated threats of self-harm. Throughout the course of the
lengthy text message transcript, it is clear that
Stubbendieck and Sullivan developed a plan in which Sullivan
would travel by plane from Florida to Nebraska in order to
marry Stubbendieck, and then "go out in
[Stubbendieck's] arms as [his] wife," a reference to
a prearranged plan in which Sullivan would end her life.
subsequently enlisted the assistance of his mother to
purchase a one-way airline ticket to bring Sullivan to
Nebraska. Prior to Sullivan's arrival, Stubbendieck set
out in search of narcotics in order to assist Sullivan in
committing suicide. According to Christine Timbs, a romantic
acquaintance of Stubbendieck's, Stubbendieck asked Timbs
if she could acquire heroin or morphine in order to make
Sullivan more comfortable. A coworker of Stubbendieck
testified that Stubbendieck had indicated that he had four
doses of liquid morphine for Sullivan to take. Yet another
coworker testified that Stubbendieck had told him that he
planned to [302 Neb. 706] "[s]hoot her [Sullivan] up
with morphine" in order to "put her to sleep."
arrived in Nebraska on July 31, 2017. The day following
Sullivan's arrival, Sullivan was reportedly observed
taking an unknown quantity and type of pill two to three
times throughout the morning. Stubbendieck indicated that he
took Sullivan to a remote area of Weeping Water, locally
referred to as "Acapulco Lake." According to
Stubbendieck, once at the lake, the two went swimming and had
intercourse before Sullivan retrieved a knife and began
cutting her wrists.
indicated that the two remained in the remote area for
approximately 8 hours. Stubbendieck admitted that during that
time, on two occasions, he attempted to assist Sullivan by
covering her nose and mouth in order to suffocate her.
Stubbendieck told investigators that Sullivan was alive and
conversing with him when he left her llA
hours after arriving at the location.
Stubbendieck led deputies to Sullivan's body, an
investigation ensued that included the recovery of text
messages, interviews with witnesses to whom Stubbendieck had
confided, and an autopsy of Sullivan. Stubbendieck was
arrested by Cass County Sheriff's Department
investigators and subsequently charged with assisting
trial, the State presented evidence in the form of text
messages between Sullivan and Stubbendieck, which indicated
Sullivan's desire to end her life and the ensuing plan to
arrange for Sullivan's travel to Nebraska. In addition to
text message conversations between Sullivan and Stubbendieck,
the State offered, over a motion in limine and a continuing
objection of defense counsel at trial, text conversations
between Stubbendieck and Timbs. These text messages were
offered in order to show both Stubbendieck's motive and
plan. The State further provided testimony from Dr. Michelle
Elieff, a forensic pathologist who performed Sullivan's
autopsy. That testimony was also contested by way of a motion
in limine and a continuing objection of defense counsel at
Neb. 707] Elieff testified that Sullivan's body was in a
state of moderate decomposition, but that other than the cuts
to Sullivan's wrists, the examination did not reveal any
signs of traumatic injury, natural disease, or illness.
Elieff, however, testified that the toxicology report
indicated Sullivan had morphine in her liver measuring 876
nanograms per gram of tissue, an amount that Elieff testified
was within the range of some fatal cases. Elieff indicated
further testing revealed that Sullivan also had Tylenol,
Benadryl, and alcohol in her system. Elieff testified that
the cause of death was "undetermined." She stated
that based on the circumstances surrounding Sullivan's
death, the investigative information, and the condition of
the body, "there were certain things that could not be
excluded as causing or contributing factors."
Elieff's official report, accepted in evidence, indicated
that "[b]ased on the autopsy findings and ancillary
tests, contributing factors such as asphyxia (smothering),
drugs, and the environment (hypothermia) cannot be entirely
a jury trial, Stubbendieck was found guilty of assisting
suicide and subsequently sentenced to a term ...