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State v. Stubbendieck

Supreme Court of Nebraska

March 29, 2019


         1. 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.

         2. 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.

         3. 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 discretion.

         4. 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.

         5. 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 evidence.

         [302 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.

         7. ___ . The "relevancy-versus-unfairly-prejudicial-effect-balancing" test seeks to weigh the probative value of the proffered evidence against the nonprobative factors listed in Neb. Rev. Stat. § 27-403 (Reissue 2016).

         8. 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.

         9. 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.

         10. 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.

         11. Criminal Law: Evidence. A defendant cannot negate an exhibit's probative value through a tactical decision to stipulate.

         12. 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.

         13. ___: ___ . 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.

         14. Criminal Law. The corpus delicti may be proved by circumstantial evidence.

         15. 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.

         16. 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.

          Appeal from the District Court for Cass County: Michael A. Smith, Judge. Affirmed.

         [302 Neb. 704] Julie E. Bear, Deputy Cass County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Heavican, C.J.


         Matthew J. Stubbendieck was convicted of the crime of assisting suicide, [1] 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.


         On 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.

         Upon 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 rock quarry.

         Upon 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.

         During 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.

         Investigators 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.

         Text 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.

         Stubbendieck 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."

         Sullivan 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.

         Stubbendieck 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.

         After 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 suicide.

         At 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 trial.

         [302 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."

         Specifically, 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 excluded."

         Following a jury trial, Stubbendieck was found guilty of assisting suicide and subsequently sentenced to a term ...

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