State v. Veatch

report is not received within ten days, the revocation shall
not take effect.
The last sentence of § 60-498.01(5)(a) clearly modifies only
the preceding sentence and does not apply to the other subsec-
tions. DMV argues, and we agree, that under § 60-498.01(5)(a),
motorists do not receive notice at the time of arrest of the inten-
tion to confiscate and revoke, in contrast to the notice provided
to motorists in situations controlled by § 60-498.01(3). DMV
concedes that sound policy reasons exist for requiring the
time provision of § 60-498.01(5)(a) to be mandatory. Thomsen
provides no such reasons to support his argument regarding
§ 60-498.01(3).
CONCLUSION
[6] 	We 	hold 	that 	the 	10-day 	time 	limit 	set 	forth 	in
§ 60-498.01(3) is directory rather than mandatory. The district
court erred in determining that the violation of the time limit
invalidated Thomsen’s ALR proceedings. We reverse the judg-
ment of the district court and remand the cause to that court
with directions to reinstate the administrative revocation of
Thomsen’s operator’s license.
reverSed and reManded with directionS.
S tate of nebraSKa , appellee , v .
M ichael g. veatch , appellant .
740 N.W.2d 817
Filed October 23, 2007. 	No. A-06-738.
1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the power and duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether the issue is raised by
the parties.
2. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final judgment or final order entered by
the tribunal from which the appeal is taken.
3. Constitutional Law: Statutes: Jurisdiction: Time: Appeal and Error. The
appellate jurisdiction of a court is contingent upon timely compliance with con-
stitutional or statutory methods of appeal.
50 	16 NeBRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

4. Judgments: Time: Appeal and Error. Neb. Rev. Stat. § 25-1912(1) (Cum. Supp.
2006) specifies that proceedings to obtain appellate review require the filing of a
notice of appeal within 30 days after the entry of judgment.
5. Criminal Law: Judgments: Appeal and Error. For purposes of appeal in a
criminal case, the judgment occurs when the verdict and sentence are rendered by
the court.
6. Motions for New Trial: Time. A motion for new trial does not toll the running
of the 30-day jurisdictional requirement of Neb. Rev. Stat. § 25-1912 (Cum.
Supp. 2006).
7. Criminal Law: Motions for New Trial: Time: Appeal and Error. The filing
of a motion for new trial has no effect on the jurisdictional requirement that in a
criminal action, an appealing party must file a notice of appeal within 30 days after
the date of judgment.
8. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case,
errors assigned by a defendant based on the overruling of a timely filed motion
for new trial may be assigned as error in a properly perfected direct appeal from
the judgment.
9. Rules of Evidence: Other Acts. Neb. evid. R. 404(2) is an inclusionary rule
permitting the use of relevant, specific acts for all purposes except to prove charac-
ter of a person in order to show that such person acted in conformity with character.
Thus, rule 404(2) permits evidence of other acts if such acts are relevant for any
purpose other than to show a defendant’s propensity or disposition to commit the
crime charged.
10. ____: ____. Proof of other acts admissible under Neb. evid. R. 404(2) is not
restricted to those acts occurring before the event for which a defendant is pros-
ecuted; proof of other acts is admissible even if such acts occurred after the offense
charged against the defendant.
11. ____: ____. The admissibility of evidence under Neb. evid. R. 404(2) must
be determined upon the facts of each case and is within the discretion of the
trial court.
12. Trial: Evidence. Where objects pass through several hands before being pro-
duced in court, it is necessary to establish a complete chain of evidence, tracing
the possession of the object or article to the final custodian; and if one link in the
chain is missing, the object may not be introduced in evidence.
13. ____: ____. Objects which relate to or explain the issues or form a part of a trans-
action are admissible in evidence only when duly identified and shown to be in
substantially the same condition as at the time in issue.
14. Trial: Evidence: Appeal and Error. An appellate court’s review concerning the
admissibility of evidence comprising objects which relate to or explain the issues
or form a part of a transaction is for an abuse of discretion.
15. Trial: Evidence. An exhibit is admissible, so far as identity is concerned, when it
has been identified as being the same object about which the testimony was given.
It must also be shown to the satisfaction of the trial court that no substantial change
has taken place in the exhibit so as to render it misleading. As long as the article
can be identified, it is immaterial in how many or in whose hands it has been.
STATe v. VeATCH 	51
Cite as 16 Neb. App. 50

16. ____: ____. Important in determining the chain of custody are the nature of the
evidence, the circumstances surrounding its preservation and custody, and the
likelihood of intermeddlers’ tampering with the object.
17. Trial: Evidence: Proof. Proof that an exhibit remained in the custody of law
enforcement officials is sufficient to prove a chain of possession and is sufficient
foundation to permit its introduction into evidence.
18. Trial: Evidence. A defendant’s challenge to the chain of custody goes to the
weight to be given to the evidence presented rather than to the admissibility of
that evidence.
19. Criminal Law: Trial: Evidence: Notice: Time. A defendant is precluded from
offering evidence for the purpose of establishing an alibi to an offense unless
notice of intention to rely upon an alibi is given to the county attorney and filed
with the court at least 30 days before trial.
20. Criminal Law: Evidence: Proof. To establish an alibi defense, a defendant must
show (1) he was at a place other than where the crime was committed, and (2) he
was at such other place such a length of time that it was impossible for him to
have been at the place where and when the crime was committed.
21. 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 crimi-
nal 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.
22. Criminal Law: Words and Phrases. A person commits terroristic threats if he or
she threatens to commit any crime of violence with the intent to terrorize another
or in reckless disregard of the risk of causing such terror.
23. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion
for mistrial is within the discretion of the trial court and will not be disturbed on
appeal in the absence of an abuse of discretion.
24. Trial: Juries. A jury may be discharged by the court on account of the sickness of
a juror, or other accident or calamity requiring its discharge, or by consent of both
parties, or after it has been kept together until it satisfactorily appears that there is
no probability of its reaching an agreement.
Appeal from the District Court for Jefferson County: paul w.
K orSlund, Judge. Affirmed.
Lyle Joseph koenig, of koenig Law Firm, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
irwin , S ieverS, and caSSel, Judges.
52 	16 NeBRASkA APPeLLATe RePORTS

irwin, Judge.
I. INTRODUCTION
Michael G. Veatch appeals his conviction and the sentence
imposed by the district court for Douglas County on a charge of
terroristic threats and the district court’s overruling of Veatch’s
motion for new trial. Veatch challenges a number of the court’s
evidentiary rulings, the sufficiency of the evidence to support
the conviction, and the court’s denial of a motion for mistrial.
We find that only the issues raised in Veatch’s motion for new
trial have been timely appealed, and we find no merit to Veatch’s
assignments of error. We affirm.
II. BACkGROUND
On March 23, 2005, the State filed an information charg-
ing Veatch with conspiracy to commit first degree murder. On
November 17, the State filed a second amended information
charging Veatch instead with terroristic threats. The charge
was based on an allegation that Veatch, in October 2003, hired
another man, Cameron Warner, to copy or rewrite and deliver a
letter that Veatch and his father authored threatening Veatch’s
wife, who had recently moved out of the marital home and filed
for divorce.
On December 8, 2005, the State filed a motion requesting
a hearing pursuant to Neb. evid. R. 404 and a ruling on “the
admissibility of evidence concerning other crimes, wrongs or
acts committed by [Veatch].” See rule 404(3). On January 5,
2006, the court conducted a hearing on the State’s motion.
Relevant to this appeal, the State presented evidence concern-
ing statements made by Veatch to Warner in February 2005 that
Veatch wanted Warner “to shave her [head] and . . . mess her
face up so no one else would want her.” On February 8, 2006,
the court ruled that the testimony concerning Veatch’s state-
ments to Warner was admissible to demonstrate intent, “as well
as to counter any argument advanced by [Veatch] that th[e] note
was a joke or part of some sort of misunderstanding.”
On March 16, 2006, the jury returned a verdict of guilty on
the charge of terroristic threats. On March 17, Veatch filed a
motion for new trial. On May 18, the court sentenced Veatch.
STATe v. VeATCH 	53
Cite as 16 Neb. App. 50

On June 14, the court overruled Veatch’s motion for new trial.
This appeal followed.
III. ASSIGNMeNTS OF eRROR
Veatch has assigned seven errors on appeal, which we consol-
idate for discussion to five. First, Veatch asserts that the district
court erred in allowing the State to present rule 404 evidence.
Second, Veatch asserts that the district court erred in admitting
the letter delivered to his wife over Veatch’s chain of custody
objection. Third, Veatch asserts that the district court erred in
excluding certain testimony as alibi evidence. Fourth, Veatch
asserts that there was insufficient evidence to support a convic-
tion. Fifth, Veatch asserts that the district court erred in denying
Veatch’s motion for mistrial during jury deliberations.
IV. ANALYSIS
1. J uriSdictional iSSue
Before addressing Veatch’s assignments of error, we are com-
pelled to resolve a jurisdictional matter that is raised by Veatch’s
appeal. As noted above, Veatch did not file a timely appeal from
the entry of judgment, but, rather, waited to appeal until after the
district court ruled on his motion for new trial. As such, we must
initially determine what issues have been properly preserved for
appellate review.
[1,2] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties. Chase 3000,
Inc. v. Nebraska Pub. Serv. Comm., 273 Neb. 133, 728 N.W.2d
560 (2007). See State v. Hudson, 273 Neb. 42, 727 N.W.2d
219 (2007). For an appellate court to acquire jurisdiction
of an appeal, there must be a final judgment or final order
entered by the tribunal from which the appeal is taken. State v.
Hudson, supra.
[3-5] The appellate jurisdiction of a court is contingent upon
timely compliance with constitutional or statutory methods of
appeal. State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).
Neb. Rev. Stat. § 25-1912(1) (Cum. Supp. 2006) specifies that
proceedings to obtain appellate review require the filing of a
54 	16 NeBRASkA APPeLLATe RePORTS

notice of appeal “within thirty days after the entry of . . . judg-
ment.” For purposes of appeal in a criminal case, the judgment
occurs when the verdict and sentence are rendered by the court.
State v. Hess, supra.
[6,7] A motion for new trial does not toll the running of
the 30-day jurisdictional requirement of § 25-1912. State v.
Nash, 246 Neb. 1030, 524 N.W.2d 351 (1994), abrogated on
other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632
(2002). The filing of a motion for new trial has no effect on the
jurisdictional requirement that in a criminal action, an appeal-
ing party must file a notice of appeal within 30 days after the
date of judgment. See State v. Flying Hawk, 227 Neb. 878, 420
N.W.2d 323 (1988).
[8] In a criminal case, errors assigned by the defendant based
on the overruling of a timely filed motion for new trial may
be assigned as error in a properly perfected direct appeal from
the judgment. State v. Thomas, supra. In State v. Thomas, the
Nebraska Supreme Court expressly disavowed any interpretation
of prior cases that suggested that errors based on the overruling
of a motion for new trial could not be included in a properly
perfected direct appeal. The Supreme Court did not, however,
overrule the proposition that a motion for new trial does not
toll the time to perfect a direct appeal from the judgment or
the proposition that when a defendant appeals only from the
overruling of a motion for new trial, the issues on appeal are
limited to those properly presented in the motion for new trial.
See State v. McCormick and Hall, 246 Neb. 271, 518 N.W.2d
133 (1994), abrogated in part, State v. Thomas, supra.
In the present case, Veatch failed to properly perfect a direct
appeal from the judgment. Veatch filed no notice of appeal
from the judgment and only appealed from the overruling of his
motion for new trial. In such a situation, the issues on appeal are
limited to those properly presented in the motion for new trial.
See State v. McCormick and Hall, supra. In State v. Thomas,
supra, the defendant was granted a new direct appeal in a post-
conviction proceeding and the Nebraska Supreme Court consid-
ered both issues related to the judgment and issues related to the
overruling of the defendant’s motion for new trial. In the present
case, Veatch only appealed from the overruling of his motion for
STATe v. VeATCH 	55
Cite as 16 Neb. App. 50

new trial and did not properly perfect a direct appeal. As such,
only the issues properly preserved in Veatch’s motion for new
trial are properly before us on appeal.
2. rule 404 evidence
The first issue raised by Veatch is whether the district court
erred in finding that the State’s proffered evidence concerning
Veatch and Warner’s contact in February 2005, more than 15
months after the alleged terroristic threat, was admissible under
rule 404. We find no abuse of discretion by the court in receiv-
ing this testimony.
[9-11] Rule 404(2) is an inclusionary rule permitting the
use of relevant, specific acts for all purposes except to prove
character of a person in order to show that such person acted in
conformity with character. State v. Stewart, 219 Neb. 347, 363
N.W.2d 368 (1985). Thus, rule 404(2) permits evidence of other
acts if such acts are relevant for any purpose other than to show
a defendant’s propensity or disposition to commit the crime
charged. Id. Proof of other acts admissible under rule 404(2)
is not restricted to those acts occurring before the event for
which a defendant is prosecuted; proof of other acts is admis-
sible even if such acts occurred after the offense charged against
the defendant. See id. The admissibility of evidence under rule
404(2) must be determined upon the facts of each case and is
within the discretion of the trial court. State v. Wisinski, 268
Neb. 778, 688 N.W.2d 586 (2004).
In the present case, the testimony that Veatch and Warner met
and that during that meeting, Veatch told Warner that Veatch
wanted his wife’s head shaven and her face “messed up,” was
presented not to show that it was in Veatch’s character to ter-
roristically threaten, but to show that he intended to terrorize
Veatch’s wife and that the previous incident—the charged inci-
dent—was not a mistake or joke. We find no abuse of discretion
by the district court in allowing this testimony.
Additionally, the district court specifically instructed the jury,
prior to the testimony’s being received, that the testimony was
being received for a limited purpose. The receipt of this evi-
dence did not suggest a decision on an improper basis, and its
receipt did not violate Neb. evid. R. 403. See State v. Myers,
56 	16 NeBRASkA APPeLLATe RePORTS

15 Neb. App. 308, 726 N.W.2d 198 (2006). As such, we find no
merit to this assignment of error.
3. chain of cuStody
The next issue raised by Veatch is whether the district court
erred in overruling Veatch’s chain of custody objection to the
State’s proffer of the letter that constituted the terroristic threat.
We find that the State adduced evidence that the letter was
the same letter allegedly delivered by Warner to Veatch’s wife
and that the letter was in the custody of law enforcement. Any
remaining issues concerning the chain of custody go to the
weight of the evidence, not its admissibility.
[12-14] Where objects pass through several hands before
being produced in court, it is necessary to establish a complete
chain of evidence, tracing the possession of the object or article
to the final custodian; and if one link in the chain is missing, the
object may not be introduced in evidence. State v. Tolliver, 268
Neb. 920, 689 N.W.2d 567 (2004). It is elementary that objects
which relate to or explain the issues or form a part of a transac-
tion are admissible in evidence only when duly identified and
shown to be in substantially the same condition as at the time
in issue. Id. Our review concerning the admissibility of this evi-
dence is for an abuse of discretion. See id.
[15,16] An exhibit is admissible, so far as identity is con-
cerned, when it has been identified as being the same object
about which the testimony was given. State v. Sexton, 240 Neb.
466, 482 N.W.2d 567 (1992). It must also be shown to the sat-
isfaction of the trial court that no substantial change has taken
place in the exhibit so as to render it misleading. Id. As long
as the article can be identified, it is immaterial in how many
or in whose hands it has been. Id. Important in determining
the chain of custody are the nature of the evidence, the cir-
cumstances surrounding its preservation and custody, and the
likelihood of intermeddlers’ tampering with the object. State v.
Tolliver, supra.
[17,18] Proof that an exhibit remained in the custody of law
enforcement officials is sufficient to prove a chain of possession
and is sufficient foundation to permit its introduction into evi-
dence. State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002).
STATe v. VeATCH 	57
Cite as 16 Neb. App. 50

Further, the Nebraska Supreme Court has held that a defendant’s
challenge to the chain of custody goes to the weight to be given
to the evidence presented rather than to the admissibility of
that evidence. See State v. Bradley, 236 Neb. 371, 461 N.W.2d
524 (1990).
In this case, Warner identified the letter as the letter he had
written at the direction of Veatch. The victim, Veatch’s wife,
identified the letter as the letter containing a threat that she
received. A police officer identified the letter as the letter he
received from Veatch’s wife when she brought the letter to law
enforcement’s attention and testified that he had “tagged” it into
evidence. There is nothing in the record to indicate that the let-
ter had been tampered with, beyond being tested for fingerprints
and for handwriting analysis. We find no abuse of discretion
by the district court in receiving the letter into evidence over
Veatch’s chain of custody objection. This assignment of error is
without merit.
4. alibi evidence
The next issue raised by Veatch on appeal is whether the
district court erred in excluding certain testimony at trial as
alibi evidence proffered without Veatch’s having given the State
adequate notice of his intent to present alibi evidence. Because
we find that the proffered evidence was alibi evidence, we find
no merit to Veatch’s assertion of error.
[19,20] Pursuant to Neb. Rev. Stat. § 29-1927 (Reissue 1995),
a defendant is precluded from offering evidence for the purpose
of establishing an alibi to an offense unless notice of intention
to rely upon an alibi is given to the county attorney and filed
with the court at least 30 days before trial. To establish an alibi
defense, a defendant must show (1) he was at a place other than
where the crime was committed, and (2) he was at such other
place such a length of time that it was impossible for him to
have been at the place where and when the crime was com-
mitted. State v. Moreno, 228 Neb. 210, 422 N.W.2d 56 (1988);
State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987).
In the present case, Veatch attempted to adduce evidence that
he was present at his father’s home at the time Warner claims
Veatch and his father hired him to copy the threatening letter
58 	16 NeBRASkA APPeLLATe RePORTS

to Veatch’s wife, but that he was there only briefly and that he
left immediately upon seeing Warner. The State objected to this
proffered evidence as being alibi evidence for which Veatch
had not provided the statutorily required notice, and the court
sustained the objection.
On appeal, Veatch argues that the proffered evidence was not
alibi evidence. We disagree. Veatch was attempting to present
evidence that he left the scene and was, accordingly, at some
place other than where the crime was committed and that he was
not present for a sufficient time to have committed the crime.
Although perhaps untypical, this evidence was alibi evidence,
and the trial court committed no error in sustaining the State’s
objections. This assignment of error is without merit.
5. S ufficiency of evidence
The next issue raised by Veatch is whether there was sufficient
evidence to sustain a conviction for terroristic threats. Veatch has
raised this issue by challenging the district court’s denial of
Veatch’s motions to dismiss and by specifically challenging the
sufficiency of the evidence to sustain the conviction. We find
that the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
[21] Regardless of whether the evidence is direct, circum-
stantial, 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. State v. White, 272 Neb. 421, 722
N.W.2d 343 (2006).
[22] Neb. Rev. Stat. § 28-311.01 (Reissue 1995) provides, in
relevant part, that a person commits terroristic threats if he or
she threatens to commit any crime of violence with the intent to
terrorize another or in reckless disregard of the risk of causing
such terror. Section 28-311.01 requires neither an actual intent
STATe v. VeATCH 	59
Cite as 16 Neb. App. 50

to execute the threats made nor that the recipient of the threats
actually be terrorized. See State v. Saltzman, 235 Neb. 964, 458
N.W.2d 239 (1990).
In this case, the State adduced evidence establishing the
following: Veatch’s wife left the marital home in June 2003
and filed for divorce in July 2003. Veatch was angry about the
divorce and wanted custody of his and his wife’s two children.
On October 26, 2003, Warner went to Veatch’s father’s house
and had a conversation with Veatch and Veatch’s father. Veatch
“was complaining about his wife at that time, how she kept
sleeping around on him and she wasn’t no good.” Veatch “said
he wished he knew of a way to get rid of her, because she was
a problem to him.” Veatch dictated as his father wrote a letter
to Veatch’s wife. Veatch told his father to include information
in the letter about “where [Veatch’s wife] was from and that
she had written off some dope dealers in another state or some-
thing, and that they had followed her down here, and that they
were going to kill her if she didn’t make things right back there
where she was from.” Veatch asked Warner to rewrite the letter
in Warner’s handwriting, which Warner did. Warner “was told
to put [the letter] inside [Veatch’s wife’s car], put it under the
windshield wiper, put it under the gas tank or put it in her mail
box.” Warner placed the letter inside Veatch’s wife’s gas tank
compartment. Veatch’s wife found the letter when getting gas,
read the letter, “was pretty scared” that “somebody was going to
hurt [her],” and delivered the letter to law enforcement.
The letter was received at trial. The letter is as follows:
Its been a few years and at last weve found you, I dont
fuckin appreciate having to travel al this way to not find
you at your address on C street you still have an obligation
to us. Im giving you one chance to make this right you left
from Renton in a hurry
Ive been hired to just fuck you off but after my trip to
Rapid City I found out you now have children usually in
a situation like this I wouldnt give a fuck I was ordered to
stay in your area until your obligation has been meant.
I will see you soon. You can run again and this time I
will be forced to either burry your ass or bring you back to
washington its your Desicion is yours.
60 	16 NeBRASkA APPeLLATe RePORTS

The above evidence, viewed in a light most favorable to the
State, establishes that Veatch threatened to commit a crime of
violence with the intent to terrorize his wife or in reckless dis-
regard of the risk of causing such terror. See § 28-311.01. There
is no merit to Veatch’s assertions to the contrary.
6. M otion for M iStrial
The final issue raised by Veatch is whether the district court
erred in overruling Veatch’s motion for mistrial “and permitting
the jury to be separate and apart for a period of six days.” Brief
for appellant at 3. This issue concerns the fact that one of the
jurors became ill and was hospitalized briefly during the jury’s
deliberations, causing the jury to be adjourned for several days
before reconvening and reaching a guilty verdict. Veatch moved
for a mistrial at the beginning of the delay and did not renew
the motion at any time during the delay. We do not find that
the district court abused its discretion in denying the motion for
mistrial at the time it was made.
[23,24] The decision whether to grant a motion for mistrial is
within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion. State v.
Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007); State v. Floyd,
272 Neb. 898, 725 N.W.2d 817 (2007). Pursuant to Neb. Rev.
Stat. § 25-1117 (Reissue 1995), a jury may be discharged by the
court on account of the sickness of a juror, or other accident or
calamity requiring its discharge, or by consent of both parties, or
after it has been kept together until it satisfactorily appears that
there is no probability of its reaching an agreement.
In the present case, trial concluded on Friday, March 10,
2006, and the court specifically asked the parties if there was
any objection to the jury’s being instructed that if it had not
reached a verdict by 6 p.m., it would adjourn for the weekend
and return to finish deliberations on the following Monday
morning. There was no objection. The case was submitted to
the jury for deliberation at 12:05 p.m., the jury did not reach a
verdict, and the jury was adjourned for the weekend.
On the following Monday morning, the court was informed
that one of the jurors had been hospitalized. The State repre-
sented to the court that it had been informed the juror would not
STATe v. VeATCH 	61
Cite as 16 Neb. App. 50

be available for deliberations on that Monday and that it was
awaiting further news concerning whether the juror would be
able to return for deliberations the next day. Veatch then moved
for a mistrial or for discharge of the jury pursuant to § 25-1117.
The court ruled that it was “premature to conclude that the delay
in deliberations, because of the illness of the juror, [was] a suf-
ficient problem to warrant a mistrial” at that point in time. The
court stated, “At this point, we just don’t know if the jury can
resume deliberations tomorrow or not.” The court then ordered
the jury to reconvene the next day.
The next day, Tuesday, the court was informed that the hospi-
talized juror would not be available that day or Wednesday, but
would possibly be available to resume deliberations on Thursday.
Veatch’s counsel indicated to the court that he had reduced his
motion for mistrial to writing and submitted a brief in support
of the motion. The court addressed the available members of the
jury and inquired whether the passage of time was presenting “a
problem in terms of memory” for any of the jury members, and
the court noted that “nobody has indicated there’s a problem.”
The court further inquired whether the jury members could “look
at the evidence, consider the evidence, the judge’s instructions[,]
and exchange information and continue with deliberations.” The
record does not reflect any specific additional ruling on Veatch’s
motion for mistrial on Tuesday.
The record reflects that the jury reconvened on Thursday and
reached a verdict. There was no additional motion for mistrial
made by Veatch.
On the record presented, we do not find an abuse of discre-
tion by the district court in denying Veatch’s motion for mistrial.
On the Monday on which the motion was first made, the court
specifically ruled that it was premature to conclude that the
delay in resuming deliberations would warrant a mistrial. We
do not find an abuse of discretion in that conclusion. At that
point in time, there was no determination about how long the
delay in resuming deliberations would be and there was nothing
to indicate that the delay in resuming deliberations would have
a damaging effect such that it would prevent a fair trial. See
State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006) (mistrial
is properly granted in criminal case where event occurs during
62 	16 NeBRASkA APPeLLATe RePORTS

course of trial which is of such nature that its damaging effect
cannot be removed by proper admonition or instruction to jury
and thus prevents fair trial).
Assuming that Veatch’s submission of the motion in writing
and submission of a brief in support of the motion on Tuesday
could be construed as a renewal of the motion, we also do not
find an abuse of discretion in the court’s implied overruling of
the motion again on that day. The court specifically inquired,
on the record, whether the delay was having a negative effect
on the jurors’ memory and whether the jurors could still con-
sider the evidence and instructions and continue deliberations.
We cannot find an abuse of discretion in the court’s implied
conclusion that a mistrial was not warranted at that time, and
Veatch did not renew the motion at any later time when the jury
did reconvene and reach a verdict. This assignment of error is
without merit.
7. other arguMentS
Any other arguments raised by Veatch in his brief either were
not properly both assigned as error and argued in the brief or
were not preserved for appellate review by Veatch’s motion for
new trial. As such, any other arguments raised by Veatch in his
brief not specifically addressed in this opinion are not properly
before us for resolution, and we will not further discuss them.
V. CONCLUSION
We find that only the issues properly preserved for appellate
review in Veatch’s motion for new trial are before us for resolu-
tion because Veatch did not file a timely direct appeal from the
judgment. The issues that are properly before us are without
merit. The court did not abuse its discretion in receiving the
State’s rule 404(2) evidence, in overruling Veatch’s chain of
custody objection to the letter containing the charged terroristic
threat, in sustaining the State’s objection to proffered alibi evi-
dence, or in denying Veatch’s motion for mistrial. Additionally,
the evidence presented was sufficient to support the conviction.
We affirm.
affirMed .
STATe v. VeATCH 	63
Cite as 16 Neb. App. 50