Pleadings: Parties: Judgments: Appeal and
Error. A denial of a motion to sever will not be
reversed unless clear prejudice and an abuse of discretion
are shown, and an appellate court will find such an abuse
only where the denial caused the defendant substantial
prejudice amounting to a miscarriage of justice.
Rules of Evidence: Judgments: Words and Phrases:
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. 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
Juries: Discrimination: Prosecuting Attorneys: Appeal
and Error. An appellate court reviews de novo the
facial validity of an attorney's race-neutral explanation
for using a peremptory challenge as a question of law. It
reviews for clear error a trial court's factual
determination regarding whether a prosecutor's
race-neutral explanation is persuasive and whether the
prosecutor's use of a peremptory challenge was
Motions for Mistrial: Appeal and Error.
Decisions regarding motions for mistrial are directed to the
discretion of the trial court, and will be upheld in the
absence of an abuse of discretion.
: ___. The standard of review for the denial of a motion for
new trial is whether the trial court abused its discretion in
denying the motion.
Sentences: Appeal and Error. A sentence
imposed within statutory limits will not be disturbed on
appeal absent an abuse of discretion by the trial court.
Neb. 353] 7. Constitutional Law:
Trial: Joinder. A defendant has no constitutional
right to a separate trial on different charges.
Trial: Joinder: Appeal and Error. Under Neb.
Rev. Stat. § 29-2002 (Reissue 2016), the question of
whether offenses are properly joined involves a two-stage
analysis. First, a court must determine whether the offenses
were sufficiently related to be joinable, and then it must
determine whether an otherwise proper joinder was prejudicial
to the defendant.
: ___: ___. There is no error under Neb. Rev. Stat. §
29-2002 (Reissue 2016) if joinder was not prejudicial.
: ___: ___. A denial of a motion to sever will be reversed
only if clear prejudice and an abuse of discretion are shown.
An appellate court will find such an abuse only where the
denial caused the defendant substantial prejudice
amounting to a miscarriage of justice.
Trial: Joinder: Proof. A defendant opposing
joinder of charges has the burden of proving prejudice.
: ___: ___. To prove prejudice in opposing joinder, a
defendant must show compelling, specific, and actual
prejudice from the court's refusal to grant the motion to
Trial: Joinder. Severe prejudice occurs when
a defendant is deprived of an appreciable chance for an
acquittal, a chance that the defendant would have had in a
Trial: Joinder: Juries: Evidence. Joined
charges do not usually result in prejudice if the evidence is
sufficiently simple and distinct for the jury to easily
separate evidence of the charges during deliberations.
Rules of Evidence: Other Acts. Evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he or she acted
in conformity therewith.
: ___. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2016), does not apply to evidence of a
defendant's other crimes or bad acts if the evidence is
inextricably intertwined with the charged crime.
: ___. Inextricably intertwined evidence includes evidence
that forms part of the factual setting of the crime and
evidence that is so blended or connected to the charged crime
that proof of the charged crime will necessarily require
proof of the other crimes or bad acts. Evidence of other
crimes or bad acts is also inextricably intertwined with the
charged crime if the other crimes or bad acts are necessary
for the prosecution to present a coherent picture of the
Constitutional Law: Juries: Discrimination:
Proof. In order to establish a prima facie
violation of the fair-cross-section requirement under the
Sixth Amendment, a defendant must show (1) that the group
alleged to be excluded is a distinctive group in the
community, (2) that the [303 Neb. 354] representation of the
group in venires from which the juries are selected is not
fair and reasonable in relation to the number of such persons
in the community, and (3) that this underrepresentation is
due to systematic exclusion of the group in the jury
Juries: Discrimination: Prosecuting Attorneys:
Proof. Determining whether a prosecutor
impermissibly struck a prospective juror based on race is a
three-step process. In this three-step process, the ultimate
burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike.
Juries: Discrimination: Prosecuting Attorneys: Appeal
and Error. Once the trial court has decided the
ultimate question of intentional discrimination in a
prosecutor's strike of a prospective juror, the
questions on appeal are only whether the
prosecutor's reasons were facially race neutral and
whether the trial court's final determination regarding
purposeful discrimination was clearly erroneous.
Juries: Discrimination: Prosecuting
Attorneys. Whether a prosecutor's reasons
for using peremptory challenges are race neutral is a
question of law. A trial court's determination that
the prosecutor's race-neutral explanation should be
believed, on the other hand, frequently involves evaluation
of a prosecutor's credibility, which requires
deference to the court's findings absent exceptional
: ___: ___. In determining whether a prosecutor's
explanation for using a peremptory challenge is race neutral,
a court is not required to reject an explanation because it
is not persuasive, or even plausible; it is sufficient if the
reason is not inherently discriminatory.
___: ___ : ___. A prosecutor's intuitive assumptions,
inarticulable factors, or even hunches can be proper bases
for rejecting a potential juror, so long as the reasons
are not based on impermissible group bias.
Motions to Dismiss: Directed Verdict: Waiver: Appeal
and Error. A defendant who moves for dismissal or a
directed verdict at the close of the evidence in the
State's case in chief in a criminal prosecution and who,
when the court overrules the dismissal or directed verdict
motion, proceeds with trial and introduces evidence, waives
the appellate right to challenge correctness in the trial
court's overruling the motion for dismissal or a directed
verdict but may still challenge the sufficiency of the
Criminal Law: Motions for Mistrial: Proof: Appeal and
Error. A mistrial is properly granted in a criminal
case where an event occurs during the course of a trial that
is of such a nature that its damaging effect cannot be
removed by proper admonition or instruction to the jury and
thus prevents a fair trial. The defendant must prove that the
alleged [303 Neb. 355] error actually prejudiced him or her,
rather than creating only the possibility of prejudice.
Motions for Mistrial: Motions to Strike: Appeal and
Error. Error cannot ordinarily be predicated on the
failure to grant a mistrial if an objection or motion to
strike the improper material is sustained and the jury is
admonished to disregard such material.
Assault: Weapons. First degree assault can
serve as the predicate offense of use of a deadly weapon to
commit a felony.
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
Appeal and Error. Plain error may be found
on appeal when an error unasserted or uncomplained of at
trial is plainly evident from the record, affects a
litigant's substantial right, and, if uncorrected, would
result in damage to the integrity, reputation, and fairness
of the judicial process.
Sentences: Appeal and Error. The failure to
impose an indeterminate sentence when required by statute
constitutes plain error.
Sentences: Pretrial Procedure. A defendant
is not entitled to credit for time served when he or she is
awaiting trial and sentencing on charges, but is also serving
Habitual Criminals: Sentences. The habitual
criminal statute does not enhance the penalty for prior
convictions, but is applied to the penalty for the triggering
offense, and thus, the fact that the penalty for a prior
conviction was itself enhanced does not result in a double
penalty enhancement of the triggering offense. Instead, even
convictions that are enhanced under a specific subsequent
offense statute can be used as prior convictions so long as
they meet the statutory requirement that such convictions
resulted in terms of imprisonment of not less than 1 year.
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.
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, [303
Neb. 356] 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
Appeals from the District Court for Douglas County: W. Mark
H. Addison, Jr., and A. Michael Bianchi for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
found Reginald B. Briggs guilty of manslaughter, use of a
deadly weapon to commit a felony, possession of a deadly
weapon by a prohibited person, and pandering. Briggs later
pleaded guilty to another charge of pandering, which had been
severed from the other charges prior to trial. Briggs now
appeals a number of issues pertaining to his convictions and
sentences. We find no merit to his various assignments of
error. We do find plain error in his sentencing and thus
vacate his sentences in part and remand the matter for