State v. Wilson

CONCLUSION
For the foregoing reasons we affirm in part and reverse in
part the judgment of the district court, and we remand the cause
with directions.
A ffirmed in pArt , And in pArt reversed
And remAnded with directions .
stAte of nebrAskA, Appellee . v .
A llen J. wilson , Also known As
A lfred J. williAms , AppellAnt .
754 N.W.2d 780
Filed August 5, 2008. 	No. A-07-626.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Witnesses: Hearsay. A witness’ pretrial statement identifying a defendant as the
perpetrator of a crime is hearsay and, therefore, is inadmissible.
3. Witnesses: Prior Statements: Evidence. Prior inconsistent statements are admit-
ted solely for the purpose of discrediting the reliability of a witness; they are not
admissible as substantive evidence of the facts stated.
4. Testimony: Impeachment: Appeal and Error. In determining whether subsequent
evidence or testimony constitutes impeachment, a trial judge has the discretion to
determine whether the testimony is inconsistent, and, absent an abuse of that dis-
cretion, the ruling will be upheld on appeal.
5. Judgments: Speedy Trial: Appeal and Error. Ordinarily, a trial court’s deter-
mination as to whether charges should be dismissed on speedy trial grounds is a
factual question which will be affirmed on appeal unless clearly erroneous.
6. Constitutional Law: Speedy Trial. Determining whether a defendant’s constitu-
tional right to a speedy trial has been violated requires a balancing test in which the
court must approach each case on an ad hoc basis and balance the following four
factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s
assertion of the right, and (4) prejudice to the defendant.
7. Speedy Trial. There is some responsibility upon a defendant to assert his right to
a speedy trial, but this is not to say that a defendant has a duty to bring himself to
trial or to demand a trial.
8. ____. Prejudice should be looked at with particularity and should be assessed in the
light of the three interests of defendants which the speedy trial right was designed
to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety
878 	16 NEbRASkA APPELLATE REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

and concern of the accused, and (3) to limit the possibility that the defense will
be impaired.
9. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
10. Appeal and Error. An appellate court always reserves the right to note plain error
which was not complained of at trial or on appeal.
11. Sentences: Weapons. Although it is generally within the trial court’s discretion
to direct that sentences imposed for separate crimes be served concurrently or
consecutively, Neb. Rev. Stat. § 28-1205(3) (Reissue 1995) does not permit such
discretion in sentencing, because it mandates that a sentence for the use of a deadly
weapon in the commission of a felony be served consecutively to any other sen-
tence imposed.
12. Sentences: Appeal and Error. An appellate court has the power on direct appeal
to remand a cause for the imposition of a lawful sentence where an erroneous one
has been pronounced.
Appeal from the District Court for Douglas County: sAndrA
l. dougherty, Judge. Affirmed in part, and in part vacated and
remanded with directions for resentencing.
Michael J. Decker, of Decker Law Offices, for appellant.
Jon bruning, Attorney General, Erin E. Leuenberger, and
James D. Smith for appellee.
inbody, Chief Judge, and irwin and cArlson, Judges.
irwin, Judge.
I. INTRODUCTION
Allen J. Wilson, also known as Alfred J. Williams, appeals
his six felony convictions and sentences. Wilson challenges,
among other things, the trial court’s denying the admissibility of
evidence regarding two eyewitness’ prior out-of-court identifica-
tions of a person other than Wilson as the perpetrator.
The evidence at issue consists of out-of-court statements
made by the victims and the lead detective on the case, Det.
Terry Iselin. The statements of these three witnesses would have
addressed the question of whether the victims had previously
identified someone other than Wilson during a photographic
lineup conducted by Iselin. Wilson argues that testimony regard-
ing the prior out-of-court identifications constituted evidence
of prior inconsistent statements and that, as such, the testimony
STATE v. WILSON 	879
Cite as 16 Neb. App. 878

should have been admissible for impeachment purposes. We find
that the statements were hearsay and that the foundation laid
or omitted during trial did not qualify such statements as prior
inconsistent statements; therefore, the statements could not be
used for impeachment purposes.
II. bACkGROUND
Wilson’s convictions and sentences stem from a “home inva-
sion” robbery which occurred on February 3, 1998. On that day,
two armed men forced their way into Thomas Johnson’s resi-
dence. At the time, he resided with his girlfriend, Tanyel Smith,
and their two young daughters. The two men bound Johnson and
Smith with duct tape in the living room of the residence. While
Johnson and Smith were bound, the men poured lighter fluid on
them and threatened to put them in the bathtub and light them
on fire if the couple did not tell the men where “the money” was
or if anyone called the police.
While Johnson and Smith were bound in the living room,
the couple’s two daughters were in a nearby bedroom. One
of the perpetrators pointed his gun at the young girls and told
them not to leave the room or try to call for help. The perpetra-
tors ultimately left the residence after taking $5,000 cash and
Smith’s car.
After the perpetrators left, Smith called the police. When the
police arrived, Smith informed them that she had recognized one
of the men to be James Williams. The police later arrested James
Williams and interviewed him on February 3, 1999. During
the interview, he identified his accomplice as his uncle whom
he knew as “Alfred Williams.” He then gave police a physical
description of his uncle.
Police subsequently contacted the Department of Correctional
Services and located a photograph of a person who matched
the 	description 	of 	“Alfred 	Williams.” 	The 	Department 	of
Correctional Services identified the person in the photograph
as “Allen J. Wilson.” Police showed the photograph of Wilson
to James Williams. James Williams stated that the photograph
depicted his uncle, “Alfred Williams,” who had assisted him in
the 1998 robbery.
880 	16 NEbRASkA APPELLATE REPORTS

based on the above information, the county court issued a
warrant for Wilson’s arrest, and the State filed four one-count
complaints based on the above-described acts. The complaints,
dated February 12, 1999, charged Wilson with two counts of
robbery and two counts of use of a deadly weapon to commit
a felony.
On June 9, 2005, Wilson made his first appearance in county
court on the charges. On July 15, the county court held a pre-
liminary hearing, and the matter was bound over to the district
court. On July 19, the State filed an information charging Wilson
with two counts of robbery and two counts of use of a deadly
weapon to commit a felony, all counts arising out of acts com-
mitted on February 3, 1998. Pursuant to amendments to the
information, filed on August 3 and December 30, 2005, two
counts of false imprisonment in the first degree were added to
Wilson’s charges. In addition, the State alleged that Wilson was
a habitual criminal.
On January 20, 2006, Wilson filed a motion for discharge.
The motion alleged that the failure to prosecute the matter
within 6 months of filing the original action in the county court
and within 6 months of the filing of the information denied
him his statutory right to a speedy trial and that the failure to
prosecute the matter for 7 years denied him his federal and state
constitutional rights to a speedy trial.
During the hearing on Wilson’s motion for discharge, his
counsel conceded that the statutory speedy trial time had not
run based on the time the information was filed in district court.
With respect to the constitutional speedy trial right, Wilson’s
counsel argued that Wilson’s defense would suffer prejudice by
the delay, because “if and when alibi witnesses are called, we
believe the State is going to attack the witnesses’s credibility
based on the length of time it’s been since the incident occurred
and remembering back as far as when [Wilson] was in California,
et cetera.” The State asserted that law enforcement officers per-
formed a diligent search for Wilson, that the warrant for his
arrest remained active until Wilson was arrested in the Douglas
County area, and that the time for a speedy trial did not begin to
run until the information was filed on July 19, 2005.
STATE v. WILSON 	881
Cite as 16 Neb. App. 878

In an order filed January 25, 2006, the court overruled
Wilson’s motion for discharge. The court ruled that the statutory
speedy trial right had not been violated and that Wilson had not
been prejudiced by the delay.
On January 30, 2006, trial commenced on the matter. At trial,
the key issue in contention was whether or not Wilson was,
in fact, the second perpetrator of the home invasion. Wilson
defended the charges by asserting that he had been in California
on February 3, 1998, when the robbery was committed.
The only evidence the State presented regarding whether or
not Wilson was the second perpetrator of the robbery was the
testimony of the two adult victims, Johnson and Smith. both
Johnson and Smith testified that during the robbery, they had
the opportunity to look at the second perpetrator. Smith testified
that she looked at the man “long enough to make him mad.” She
testified that the man told her to get down and stop looking at
him. During their trial testimony, both Johnson and Smith iden-
tified Wilson as the second perpetrator and both testified that
there was no doubt in their minds that Wilson was the person
who robbed them.
After Johnson and Smith identified Wilson as the perpetra-
tor, Wilson’s counsel attempted to elicit testimony from each of
them about whether or not they had ever identified someone else
as the second perpetrator. The State objected to this line of ques-
tioning, and the trial court ruled that evidence of Johnson’s and
Smith’s prior out-of-court identifications was inadmissible. The
specific circumstances and facts surrounding the trial court’s rul-
ings will be discussed in detail below.
At the conclusion of the evidence, the jury found Wilson guilty
of two counts of robbery, two counts of use of a deadly weapon
to commit a felony, and two counts of false imprisonment in the
first degree. After the verdicts were rendered, the trial court held
a hearing and determined that Wilson was a habitual criminal.
The court then sentenced Wilson to a term of imprisonment of
10 to 20 years for each count of robbery and each count of use
of a deadly weapon to commit a felony and a term of imprison-
ment of 10 to 10 years for each count of false imprisonment.
Wilson appeals his convictions and sentences here.
882 	16 NEbRASkA APPELLATE REPORTS

III. ASSIGNMENTS OF ERROR
On appeal, Wilson assigns and argues four errors. First,
Wilson asserts that the trial court erred in rulings regarding
the admissibility of evidence of Johnson’s and Smith’s prior
out-of-court identifications of a different person as the perpe-
trator. Second, Wilson asserts that the trial court erred in not
permitting extrinsic evidence of a prior inconsistent statement
of Smith from a previous hearing. Third, Wilson asserts that
the trial court erred in denying his motion to discharge and in
finding that his constitutional right to a speedy trial was not
violated. Fourth, Wilson asserts that the sentences imposed by
the court were excessive.
Wilson also assigns as error the admission of hearsay testi-
mony over his objection. However, Wilson does not specifically
argue this assignment of error in his brief. To be considered by
an appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732
N.W.2d 354 (2007). We therefore will not consider this addi-
tional assignment of error.
IV. ANALYSIS
1. A dmissibility of prior identificAtion testimony
Wilson asserts that the trial court erred in finding certain evi-
dence to be inadmissible hearsay. The evidence at issue consists
of out-of-court statements made by the victims, Johnson and
Smith, and the lead detective on the case, Iselin. The inadmissi-
ble statements of these three witnesses would have addressed the
question of whether Johnson and Smith had previously identi-
fied someone other than Wilson as the second perpetrator during
a photographic lineup conducted by Iselin. In his brief, Wilson
argues that testimony regarding the prior out-of-court identifica-
tions constituted evidence of prior inconsistent statements and
that, as such, the testimony should have been admissible for
impeachment purposes. In light of the foundation laid or omitted
during trial to qualify such statements as prior inconsistent state-
ments, we find that the trial court did not abuse its discretion in
ruling that the statements were inadmissible.
STATE v. WILSON 	883
Cite as 16 Neb. App. 878

(a) Are Out-of-Court Identifications Hearsay?
[1] In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility. State
v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
While the Nebraska Evidence Rules have several counterparts
in the Federal Rules of Evidence, or are otherwise patterned on
the federal rules, the Nebraska Evidence Rules and the Federal
Rules of Evidence differ in their treatment of evidence regard-
ing an out-of-court identification. Under the federal rules, state-
ments regarding an out-of-court identification are considered
nonhearsay. Fed. R. Evid. 801(d) provides: “Statements which
are not hearsay.— A statement is not hearsay if— (1) Prior
statement by witness.— The declarant testifies at the trial or
hearing and is subject to cross-examination concerning the
statement, and the statement is . . . (C) one of identification of
a person made after perceiving the person . . . .”
[2] To the contrary, Neb. Evid. R. 801(4)(a) does not contain
such classification and provision and, in fact, makes no mention
whatsoever concerning witness identification as a nonhearsay
statement. In addition, none of the other Nebraska rules of evi-
dence or other Nebraska statutes authorize admissibility of a
witness’ pretrial identification of a defendant as a nonhearsay
statement or statement otherwise exempted or excluded from
the operation and purview of the “hearsay rule,” Neb. Evid. R.
802, prohibiting admission of hearsay. See State v. Salamon, 241
Neb. 878, 491 N.W.2d 690 (1992). Accordingly, in the absence
of admissibility authorized under the Nebraska Evidence Rules
or by other statute, a witness’ pretrial statement identifying a
defendant as the perpetrator of a crime is hearsay pursuant to
rule 801(3) and, therefore, is inadmissible as the result of rule
802. State v. Salamon, supra.
It is clear, then, that any testimony regarding Johnson’s
and Smith’s out-of-court identifications of someone other than
Wilson as the perpetrator of the robbery constituted inad-
missible hearsay. However, classifying the testimony as inad-
missible hearsay does not end our inquiry. While testimony
regarding the out-of-court identifications is not admissible
884 	16 NEbRASkA APPELLATE REPORTS

as substantive evidence, the testimony may be admissible as
impeachment evidence.
(b) Use of Hearsay Statement as
Prior Inconsistent Statement
[3] One way to impeach a witness’ credibility is to show
that the witness previously made a statement contradictory to
what he or she testified to at trial. Prior inconsistent statements
of a witness are admissible as impeachment evidence. State v.
Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). However,
such prior inconsistent statements are admitted solely for the
purpose of discrediting the reliability of the witness. They are
not admissible as substantive evidence of the facts stated. See
State v. Isley, 195 Neb. 539, 239 N.W.2d 262 (1976).
At trial, Wilson’s counsel argued that the testimony regard-
ing Johnson’s and Smith’s out-of-court identifications was
admissible as a prior inconsistent statement because both par-
ties had identified Wilson in court as the perpetrator of the
robbery. We now analyze whether testimony about Johnson’s
and Smith’s out-of-court identifications amounted to evidence
of prior inconsistent statements which would be admissible as
impeachment evidence. In conducting our analysis of this ques-
tion, we first summarize the foundation offered to demonstrate
that Johnson’s and Smith’s out-of-court identifications were
inconsistent with their in-court identifications of Wilson as
the perpetrator.
(i) Foundational Questioning About Johnson’s
Out-of-Court Identification
During his cross-examination of Johnson, Wilson’s counsel
asked Johnson about the photographic lineup conducted by
police after the robbery. Wilson’s counsel asked: “And when you
looked at those photos, you identified someone as being the per-
son that robbed you; is that correct?”; “Sir, were you asked by
the detective whether or not the — anyone in the photo array in
this photo spread resembled the person that robbed you; is that
correct?”; and “Did you identify someone in the photo array?”
before Johnson could respond to any of the above questions,
the State objected on hearsay grounds and the court sustained
the objection.
STATE v. WILSON 	885
Cite as 16 Neb. App. 878

(ii) Foundational Questioning About Smith’s
Out-of-Court Identification
When cross-examining Smith, Wilson’s counsel asked Smith
whether the police had shown her a photographic lineup relating
to the second perpetrator of the robbery. Smith testified that she
did not remember being shown such a lineup. Wilson’s counsel
did not pursue the line of questioning any further with her.
(iii) Foundational Questioning About Iselin’s
Out-of-Court Statement
During his case in chief, Wilson called Iselin to testify. Iselin
was the lead detective for the investigation of the robbery and,
as a part of his investigation, had shown Johnson and Smith a
photographic lineup to help them identify the second perpetrator
of the robbery. Defense counsel questioned Iselin as follows:
Q. And in this second photo array, was the photo of Mr.
Williams present in that photo array?
A. No.
Q. Okay. All the individuals in that photo array were
someone other than Mr. Williams — or Mr. Alfred Williams,
correct, the one you put together?
A. Yes.
Q. And Mr. James Williams was not — his photograph
was not in that photo array, correct?
A. Correct.
After 	questioning 	Iselin 	regarding 	whether 	“Williams”
appeared in the photographic array, Wilson’s counsel attempted
to question him regarding Johnson’s and Smith’s prior out-of-
court identifications of someone other than Wilson as the second
perpetrator of the robbery. The State objected to the questions
regarding the prior identification on hearsay grounds, and the
court sustained the objections.
(c) Analysis of Counsel’s Questions of Johnson to Determine
Admissibility as Prior Inconsistent Statement
We now turn to our analysis of whether counsel’s founda-
tional questions regarding Johnson’s prior out-of-court identi-
fication established inconsistency between Johnson’s out-of-
court identification statements and in-court identification of
886 	16 NEbRASkA APPELLATE REPORTS

Wilson as the second perpetrator. During his cross-examination
of Johnson, Wilson’s counsel first asked Johnson: “And when
you looked at those photos, you identified someone as being the
person that robbed you; is that correct?” based on our discussion
above, the response to this question would clearly be hearsay
because it would be a witness’ out-of-court statement identify-
ing a person as the perpetrator of a crime. However, Wilson does
not contest the trial court’s determination that the answer to this
question would be inadmissible hearsay. Rather, he asserts that
the answer to the question would be admissible as a prior incon-
sistent statement of Johnson’s in-court identification of Wilson
as the perpetrator.
[4] We do not find that the answer to counsel’s ques-
tion would necessarily be inconsistent with Johnson’s in-court
identification of Wilson. In determining whether subsequent
evidence or testimony constitutes impeachment, a trial judge
has the discretion to determine whether the testimony is incon-
sistent, and, absent an abuse of that discretion, the ruling will
be upheld on appeal. First Nat. Bank in Mitchell v. Kurtz, 232
Neb. 254, 440 N.W.2d 432 (1989). See, also, State v. Marco,
220 Neb. 96, 368 N.W.2d 470 (1985). Upon our review of the
record, we cannot say that the court abused its discretion in pro-
hibiting Johnson from responding to counsel’s question about
whether he identified “someone” in the lineup. We do not find
sufficient evidence regarding who appeared in the lineup, the
physical features of those individuals appearing in the lineup,
or the circumstances surrounding the lineup to demonstrate
that Johnson’s response to such a question would be inherently
inconsistent with his prior testimony identifying Wilson as the
second perpetrator.
First, we note that while there is some evidence that Wilson
did not appear in the photographic lineup, this evidence is
unclear. Counsel asked Iselin about the persons depicted in
the photographic array. Counsel first asked, “And in this sec-
ond photo array, was the photo of Mr. Williams present in that
photo array?” Iselin testified that “Williams” did not appear in
the lineup. It is not clear from this question whether counsel
is referring to James Williams, Wilson’s nephew and alleged
accomplice, or to Alfred Williams, which is an alias of Wilson’s.
STATE v. WILSON 	887
Cite as 16 Neb. App. 878

Accordingly, this question does not sufficiently demonstrate that
Wilson did not appear in the lineup and that, consequently, if
Johnson identified “someone,” the identification would have to
have been of someone other than Wilson.
Counsel next asked Iselin, “Okay. All the individuals in that
photo array were someone other than Mr. Williams — or Mr.
Alfred Williams, correct, the one you put together?” Iselin
responded, “Yes.” While counsel appears to be attempting to ask
Iselin whether Alfred Williams appeared in the lineup, the ques-
tion is confusing. Within the question, counsel first asks if all of
the individuals in the photographs were people other than “Mr.
Williams.” Again, we do not know whether counsel is referring
to James Williams or Alfred Williams. Counsel then changes
the question to refer to “Mr. Alfred Williams.” While the name
Alfred Williams refers to the defendant, it is unclear whether the
jury would have understood this reference. Wilson was intro-
duced to the jury as both Allen Wilson and Alfred Williams; he
was referred to by both names during the trial. The jury also
received information about James Williams, Wilson’s nephew.
Given this confusion regarding Wilson’s name and regarding
the differentiation between Wilson and James Williams, we do
not find that counsel’s questions to Iselin clearly and unequivo-
cally established that Wilson was not present in the photo-
graphic lineup.
Furthermore, we note that there is no evidence regarding the
physical features of persons appearing in the lineup or regarding
Wilson’s physical features. Without such evidence, it is difficult
to make an assessment about the actual inconsistency between
Johnson’s out-of-court identification of “someone” and his in-
court identification of Wilson.
Finally, there is evidence that Iselin struggled to remember
specific details about the circumstances surrounding the lineup.
In fact, the record indicates that he could testify only to the
information included in his police report regarding the rob-
bery. From the record, it appears that he had little independent
recollection of the photographic lineup, itself, or of Johnson’s
identification. This would be consistent with the fact that the
events he was testifying about occurred approximately 8 years
prior to trial.
888 	16 NEbRASkA APPELLATE REPORTS

because there is insufficient evidence to establish who was
pictured in the lineup, the physical features of the persons in the
lineup, and the precise circumstances surrounding the lineup, we
cannot say that the trial court abused its discretion in determin-
ing that Johnson’s answer to this question would not necessarily
provide any information inconsistent with his previous testi-
mony that Wilson was the second perpetrator. Accordingly, we
find that the court did not err in sustaining the State’s objection
to this question.
Counsel next asked Johnson: “Sir, were you asked by the
detective whether or not the — anyone in the photo array in
this photo spread resembled the person that robbed you; is that
correct?” Again, the response to this question would be hearsay.
In order to answer the question, Johnson would have to provide
testimony of an out-of-court statement made by the detective.
Moreover, the answer to this question would not be inconsistent
with any of Johnson’s previous testimony, because the question
only asks if Johnson was asked whether or not a person in the
photographic spread resembled the person that robbed him. The
question would not elicit any testimony which would suggest
that Johnson previously identified someone other than Wilson as
the perpetrator. Accordingly, we find that the court did not err in
sustaining the State’s objection to this question.
Finally, counsel asked Johnson: “Did you identify someone in
the photo array?” This question is very similar to the first ques-
tion asked of Johnson on this topic. The response to the question
would elicit hearsay testimony and would not necessarily pro-
vide any inconsistencies with Johnson’s prior testimony. As we
discussed more thoroughly above, because there is insufficient
evidence regarding the individuals pictured in the lineup and
regarding the circumstances surrounding Johnson’s viewing of
the lineup, whether Johnson identified “someone” in the lineup
does not directly contradict his prior in-court identification of
Wilson as the second perpetrator. If counsel had asked Johnson
whether he had identified someone other than Wilson in the
photographic lineup or whether he had ever identified someone
other than Wilson as the second perpetrator, then Johnson’s
answers would be admissible as prior inconsistent statements.
Such types of questions were not asked.
STATE v. WILSON 	889
Cite as 16 Neb. App. 878

based on our review of counsel’s questioning of Johnson
regarding the prior out-of-court identification, we find that the
court did not err in sustaining the State’s objections to this line
of questioning or in prohibiting Johnson from answering the
questions. Counsel’s questions would have elicited inadmis-
sible hearsay testimony and would not necessarily have elic-
ited any inconsistency between Johnson’s in-court testimony
and any out-of-court identification. As such, the court did not
abuse its discretion in determining that the responses to the
questions were not admissible as evidence of a prior inconsist-
ent statement.
After the court sustained the State’s objections to this line of
questioning, Wilson’s counsel made an offer of proof regarding
Johnson’s prior out-of-court identification as follows:
Q. Sir, you were shown a photo spread by Detective
Iselin; is that correct?
A. Yes.
Q. And you — after reviewing that photo spread, you
identified a party in a certain position; is that correct?
A. No, I didn’t.
Q. You did not?
A. No.
Q. Did you say that that’s him?
A. No, I didn’t.
Q. Okay. And so if Detective Iselin’s report indicated
otherwise, that would be incorrect?
A. Yes.
We first note that counsel asked different questions of
Johnson during the offer of proof than he did during his cross-
examination of Johnson. We also note that the first question
in the offer of proof would have been admissible if offered at
the trial because it did not elicit any hearsay testimony. The
other testimony in the offer of proof demonstrates only that,
while Johnson remembers viewing a photographic lineup, he
does not believe that he identified any particular person in the
photographs as being the perpetrator of the robbery. The offer
of proof contains no information inconsistent with the testimony
that Johnson gave in court. In fact, the questions that Wilson’s
890 	16 NEbRASkA APPELLATE REPORTS

counsel asked during the offer of proof could not have elic-
ited inconsistency with Johnson’s prior testimony. As discussed
above, whether or not Johnson identified “a party” from a photo-
graphic lineup is not inherently inconsistent with his trial testi-
mony that Wilson was the perpetrator of the robbery. because
there was no inconsistency between Johnson’s trial testimony
and his testimony presented in the offer of proof, the trial court
did not err in excluding from evidence Johnson’s testimony
about the photographic lineup.
(d) Analysis of Counsel’s Questions of Smith to Determine
Admissibility as Prior Inconsistent Statement
We next analyze whether counsel’s foundational questions
regarding Smith’s out-of-court identification statements estab-
lished any inconsistency between the out-of-court identification
and the in-court identification of Wilson as the second perpetra-
tor of the robbery. As we discussed above, counsel asked Smith
only whether the police had shown her a photographic lineup
relating to the second perpetrator of the robbery. Smith testified
that she did not remember being shown such a lineup, and coun-
sel did not question her any further about this issue.
because counsel did not ask Smith any further questions
about the lineup after she stated that she did not remember being
shown such a lineup, he did not elicit any information which
would be inconsistent with Smith’s previous testimony identi-
fying Wilson as the second perpetrator. Additionally, we note
that in his brief, Wilson generally asserts that the district court
erred in finding evidence of Johnson’s and Smith’s out-of-court
identification statements to be inadmissible; however, his brief
focuses primarily on Johnson’s out-of-court statements. As such,
we find that Wilson’s assertions regarding evidence of Smith’s
out-of-court identification have no merit.
(e) Analysis of Counsel’s Questions of Iselin to Determine
Admissibility as Prior Inconsistent Statement
Wilson also argues that Iselin’s testimony about Johnson’s
and Smith’s out-of-court identifications of someone other than
Wilson as the perpetrator should have been admitted as impeach-
ment evidence. We disagree.
STATE v. WILSON 	891
Cite as 16 Neb. App. 878

(i) Iselin’s Testimony About Johnson’s
Out-of-Court Identifications
Wilson’s counsel presented an offer of proof regarding
Iselin’s testimony about Johnson’s out-of-court identification.
The offer of proof reveals that Iselin would have testified that,
when shown a photographic lineup, Johnson identified some-
one named “Daniel Mitchell” as the second perpetrator of
the robbery.
In his brief, Wilson is unclear about why Iselin’s testimony
should be considered a prior inconsistent statement. However,
we consider two arguments which Wilson appears to argue in
his brief. First, we examine whether Iselin’s testimony about
Johnson’s out-of-court statements would be evidence of a prior
inconsistent statement when viewed in light of Johnson’s offer
of proof testimony. We next examine whether Iselin’s testi-
mony would be evidence of a prior inconsistent statement when
viewed in light of Johnson’s in-court identification of Wilson as
a perpetrator of the robbery.
a. Possible Inconsistency With Johnson’s
Offer of Proof Testimony
To the extent that Wilson asserts that Iselin’s testimony is
a prior inconsistent statement offered to impeach Johnson’s
offer of proof testimony, his contention is without merit. While
Iselin’s statements that Johnson did, in fact, identify some-
one from the photographic lineup are directly contradictory
to Johnson’s statements that he did not identify any particular
person from the lineup as the perpetrator, Johnson’s statements
were correctly ruled inadmissible and were not put in evidence
for the jury to consider.
As we discussed more fully above, Johnson’s answers to the
questions in the offer of proof did not produce any inconsist-
ency with his prior trial testimony identifying Wilson as the
perpetrator of the robbery. Accordingly, the testimony in the
offer of proof was not admissible as evidence of a prior inconsist-
ent statement. because the offer of proof testimony was not
admissible, Iselin’s testimony cannot be admissible as evidence
of an inconsistency between the offer of proof testimony and
Johnson’s prior out-of-court identification statements.
892 	16 NEbRASkA APPELLATE REPORTS

b. Possible Inconsistency With Johnson’s
In-Court Identification of Wilson
To the extent Wilson asserts that Iselin’s testimony is a prior
inconsistent statement offered to impeach Johnson’s in-court iden-
tification of Wilson, his contention is, again, without merit.
As we discussed above, counsel’s questioning of Johnson
regarding the prior out-of-court identification was problematic.
Counsel did not sufficiently develop Johnson’s testimony regard-
ing whether or not he had ever previously identified anyone other
than Wilson as the second perpetrator of the robbery. As a result,
counsel was not able to elicit any testimony regarding the cir-
cumstances or particulars of the photographic lineup in question.
We also note that there is no evidence from any source regarding
Wilson’s physical characteristics or the physical characteristics
of the individuals appearing in the photographic lineup. based
on these circumstances, we cannot say that Iselin’s testimony
that Johnson previously identified someone else as either look-
ing like or being the perpetrator of the robbery is necessarily
inconsistent with Johnson’s in-court identification of Wilson. As
such, we conclude that the trial court did not abuse its discre-
tion in ruling that Iselin’s testimony regarding the out-of-court
identification was inadmissible.
(ii) Iselin’s Testimony About Smith’s
Out-of-Court Identifications
As stated in Iselin’s offer of proof testimony, Smith also
identified a man named “Daniel Mitchell” as the second perpe-
trator of the robbery. While she was initially not positive about
this identification, after discovering that Johnson also picked
Mitchell out of the lineup, she did eventually state that she was
fairly certain that Mitchell was one of the robbers.
Again, Wilson is not clear about why Iselin’s offer of proof tes-
timony regarding Smith’s out-of-court identification of Mitchell
is admissible as a prior inconsistent statement. For the sake of our
analysis, we assume that Wilson is asserting that Iselin’s offer of
proof testimony would be evidence of an inconsistency between
Smith’s testimony at trial stating that she did not remember
participating in the lineup or her testimony identifying Wilson
as the perpetrator and her out-of-court identification.
STATE v. WILSON 	893
Cite as 16 Neb. App. 878

a. Possible Inconsistency With Smith’s
Memory of Photographic Lineup
During counsel’s cross-examination of Smith, she testified
that she did not remember participating in a lineup to identify
the second perpetrator. While Iselin testified that Smith did, in
fact, participate in a lineup to identify the second perpetrator
of the robbery, this testimony is not necessarily directly incon-
sistent with Smith’s testimony that she did not remember such
a lineup. We first note that counsel did not attempt to refresh
Smith’s memory of the lineup, nor did he question her further
on the topic of a prior out-of-court identification. In light of the
fact that the robbery occurred approximately 8 years prior to the
time of the trial, we cannot say that the court abused its discre-
tion in ruling that Iselin’s testimony that Smith did participate in
the lineup was inadmissible.
b. Possible Inconsistency With Smith’s
In-Court Identification of Wilson
To the extent Wilson asserts that Iselin’s testimony that Smith
identified Mitchell as the robber is inconsistent with her in-court
identification of Wilson, we find the assertion to be without
merit. As we discussed above in relation to Iselin’s offer of proof
testimony about Johnson’s out-of-court identification, there was
no evidence regarding the circumstances or particulars of the
photographic lineup in question. There is no evidence regarding
Wilson’s physical characteristics or the physical characteristics
of the individuals appearing in the photographic lineup. In addi-
tion, there is no clear and unequivocal evidence about whether
or not Wilson even appeared in the photographic lineup. based
on these circumstances, we cannot say that Iselin’s testimony
that Smith previously identified someone else as either looking
like or being the perpetrator of the robbery is necessarily incon-
sistent with her in-court identification of Wilson.
(f) Conclusion Regarding Admissibility of
Prior Identification Testimony
We conclude that the trial court did not abuse its discretion in
ruling that evidence of Johnson’s and Smith’s out-of-court iden-
tification statements was inadmissible. Such statements were
894 	16 NEbRASkA APPELLATE REPORTS

clearly hearsay and, based on counsel’s foundational question-
ing of Johnson, Smith, and Iselin, the statements were not
necessarily inconsistent with Johnson’s and Smith’s in-court
identifications of Wilson as one of the robbers. This assertion is
without merit.
2. A dmissibility of prior inconsistent stAtement
from preliminAry heAring
Wilson next asserts that the trial court erred in ruling that
Smith’s testimony from a preliminary hearing regarding whether
or not the second perpetrator removed his sunglasses during
the robbery was not admissible. Wilson asserts that such evi-
dence was admissible because Smith’s prior statements were
given under oath and Smith was given an opportunity to
explain the prior inconsistent statement. Upon our review of
Wilson’s proffered evidence about the inconsistent statement,
we conclude that the court did not err in ruling the evidence to
be inadmissible.
At trial, Smith testified that the second perpetrator of the rob-
bery took off his sunglasses at some point during the incident
and that she was able to get a good look at his face. On cross-
examination, Wilson’s counsel asked Smith whether she remem-
bered testifying at a preliminary hearing. Smith responded that
she did remember testifying at the hearing; however, after
Wilson’s counsel questioned her further, she stated that she did
not remember the specific questions asked of her during the
preliminary hearing, nor did she recall testifying that the robber
kept his sunglasses on the entire time she saw him.
before Wilson rested his case, his counsel attempted to
offer into evidence a portion of Smith’s testimony from a pre-
liminary hearing regarding whether or not the perpetrator had
his sunglasses on throughout the robbery. The State objected
to the admission of the evidence, and the court sustained
the objection.
We reproduce the first page of the proffered exhibit in its
entirety here:
Q- And black sun — he was wearing black sun
glasses?
A- Right.
STATE v. WILSON 	895
Cite as 16 Neb. App. 878

Q- Were they tinted at all?
A- What — just — yes. He had the dark plastic sun
glasses.
Q- You couldn’t see through them. Correct?
. . . A- No, I couldn’t see like (indiscernible).
This portion of the exhibit does not include any notation about
who is asking the questions, who is answering the questions, or
who was wearing the sunglasses. Additionally, there is no tes-
timony referencing whether or not the second perpetrator wore
the sunglasses throughout the robbery. As a result, this portion
of the proffered exhibit cannot be considered inconsistent with
Smith’s trial testimony that the perpetrator took off his sun-
glasses at some point during the robbery.
The proffered exhibit contained a second page. We reproduce
that page in its entirety here:
Officer Leland D. Cass - Direct
Q- And he didn’t take them off. Right?
A- No.
We first note that it appears that this part of the exhibit is tes-
timony by Officer Leland D. Cass, not by Smith. Furthermore,
we note that the two lines reprinted on the page are provided
without any further contextual information. We cannot discern
who is being spoken about, nor can we discern what is being
referred to in the question. As such, this portion of the proffered
exhibit also cannot be considered a statement which is inconsist-
ent with Smith’s trial testimony. The exhibit indicates that this
is not even Smith’s preliminary hearing testimony, as Wilson’s
counsel asserted to the trial court.
because the proffered exhibit does not demonstrate any
inconsistency between Smith’s trial testimony and her prelimi-
nary hearing testimony, the trial court did not err in ruling that
the exhibit was inadmissible. We affirm the decision of the
trial court.
3. constitutionAl right to speedy triAl
Wilson next argues that the district court erred in overruling
his motion to discharge and in finding that his constitutional
right to speedy trial was not violated. Specifically, Wilson
alleges that he was prejudiced by the 7-year delay between the
896 	16 NEbRASkA APPELLATE REPORTS

time the State filed the initial complaint in county court and the
time of his trial in district court. In clarifying precisely how the
delay prejudiced him, Wilson points out that the State attacked
his alibi witness’ credibility because of the length of time that
had passed between the crime and the time of trial. In addition,
Wilson argues the long delay resulted in the jurors’ speculating
that he had been a “fugitive from justice” and that his failure to
appear and respond to the charges implied a “consciousness of
guilt.” brief for appellant at 12.
Upon our review of the record, we find that there has been no
violation of Wilson’s constitutional right to a speedy trial under
the federal or state Constitution. We affirm the decision of the
district court overruling Wilson’s motion to discharge.
before we conduct an analysis of Wilson’s allegations, we
first note that Wilson appeals only from the trial court’s finding
that his constitutional right to a speedy trial was not violated.
Wilson previously conceded that his statutory right to a speedy
trial was not violated.
We also note that Wilson previously appealed to this court
the trial court’s finding regarding his constitutional right to a
speedy trial. See State v. Wilson, 15 Neb. App. 212, 724 N.W.2d
99 (2006). Wilson filed his initial appeal after his trial, but
before sentencing. We determined that we lacked jurisdiction
to consider Wilson’s appeal, because Wilson had not yet been
sentenced and, thus, there was not a final, appealable order in
the case. In concluding that we lacked jurisdiction, we noted that
unlike the statutory right to a speedy trial, “the constitutional
right to a speedy trial can be effectively vindicated in an appeal
after judgment.” Id. at 221, 724 N.W.2d at 107. Accordingly, we
now analyze Wilson’s claim that he was denied his constitutional
right to a speedy trial.
[5,6] Ordinarily, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. State v. Tucker, 259 Neb. 225, 609 N.W.2d 306
(2000). The constitutional right to a speedy trial is guaranteed
by U.S. Const. amend. IV and Neb. Const. art. I, § 11; the
constitutional right to a speedy trial and the statutory imple-
mentation of that right exist independently of each other. State
STATE v. WILSON 	897
Cite as 16 Neb. App. 878

v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004); State v.
Robinson, 12 Neb. App. 897, 687 N.W.2d 15 (2004). In deter-
mining whether a defendant’s constitutional right to a speedy
trial has been violated, the court applies a balancing test in
which it approaches each case on an ad hoc basis. See State
v. Feldhacker, supra. In Barker v. Wingo, 407 U.S. 514, 92 S.
Ct. 2182, 33 L. Ed. 2d 101 (1972), the U.S. Supreme Court
established the following four factors for a balancing test for
determination of whether the constitutional right to a speedy
trial has been violated: (1) the length of the delay, (2) the reason
for the delay, (3) the defendant’s assertion of the right, and (4)
prejudice to the defendant. None of these four factors standing
alone is a necessary or sufficient condition to the finding of a
deprivation of the right to a speedy trial; rather, the factors are
related and must be considered together with such other circum-
stances as may be relevant. Id. See, also, State v. Feldhacker,
supra. We analyze each factor as it relates to the circumstances
of this case.
(a) Length of Delay
The record in this case reveals that, although there was only
an approximately 6-month delay from the time the State filed
the information in district court on July 19, 2005, and the time
Wilson filed his motion for discharge on January 20, 2006,
there was a 7-year delay from the time the State filed its initial
complaint in county court on February 12, 1999, and the time
Wilson filed the motion to discharge. The Nebraska Supreme
Court has previously held that it would consider unreasonable
delays occurring in the prosecution of felony offenses prior to
the return of an indictment or filing of an information in deter-
mining whether the defendant was denied the constitutional right
to a speedy trial. See State v. Born, 190 Neb. 767, 212 N.W.2d
581 (1973).
When we consider the delay prior to the State’s filing of the
information in district court, we determine that the time between
the filing of the initial complaint and the time of filing the
information in district court was approximately 61⁄2 years. This
is certainly a lengthy delay. The length of the delay in this case
favors Wilson.
898 	16 NEbRASkA APPELLATE REPORTS

(b) Reason for Delay
In reviewing the record, it is clear that the delay in this
case generally stemmed from the State’s inability to locate
Wilson. The county court issued a warrant for Wilson’s arrest
on February 12, 1999, the same day that the State filed its com-
plaint. However, Wilson’s first appearance in county court on
this matter was not until June 9, 2005.
At the hearing on Wilson’s motion for discharge, the State
informed the court that law enforcement officials had completed
a “diligent search” for Wilson, but were unable to locate him.
Specifically, the State informed the court as follows:
[A]t the time the warrant was drafted, there was informa-
tion given to [officers] by the second individual in this
case that [Wilson] may have left for California. Officers
at that time did check with the jurisdiction in California
to no avail and did not locate [Wilson]. [Wilson] was
then located on June 7th of 2005, actually, in the Omaha
area, and was actually arrested on charges not related to
this matter. And at that time, officers found the warrant
from 1998 . . . .
Additionally, the State informed the court that the warrant
for Wilson’s arrest remained in effect until he was arrested in
June 2005.
Wilson did not present any evidence to establish his where-
abouts from the time the warrant for his arrest was issued in
1998 to the time he was arrested on an unrelated matter in 2005.
Wilson also did not present any evidence to rebut the State’s
statements about its diligent efforts to locate him after the war-
rant was issued. because Wilson did not rebut the State’s evi-
dence of diligent efforts, we find this factor favors the State.
(c) Assertion of Right
[7] There is some responsibility upon a defendant to assert
his right to a speedy trial, but this is not to say that a defendant
has a duty to bring himself to trial or to demand a trial. See,
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972); State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559
(2005). The only action which Wilson took that could be seen as
an assertion of his right to a speedy trial was to file his motion
STATE v. WILSON 	899
Cite as 16 Neb. App. 878

for discharge on January 20, 2006, 6 months after the State filed
the initial information in district court and only 10 days prior
to trial. See Doggett v. United States, 505 U.S. 647, 112 S. Ct.
2686, 120 L. Ed. 2d 520 (1992) (filing of motion to dismiss may
be assertion of rights). In Barker v. Wingo, the Court stated: “We
emphasize that failure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial.” 407
U.S. at 532. Therefore, we find that this factor weighs in favor
of the State.
(d) Prejudice to Defendant
[8] Prejudice should be looked at with particularity and
should be assessed in the light of the three interests of defend-
ants which the speedy trial right was designed to protect: (1) to
prevent oppressive pretrial incarceration, (2) to minimize anxiety
and concern of the accused, and (3) to limit the possibility that
the defense will be impaired. See Barker v. Wingo, supra.
There is no evidence in the record to show that Wilson was
incarcerated while awaiting trial. Even if there was evidence
regarding Wilson’s pretrial incarceration, the record indicates
that Wilson was not arrested until June 2005 and that he filed
his motion for discharge in January 2006. At most then, Wilson
spent 6 months in jail prior to filing the motion for discharge.
While we recognize both the societal and legal disadvantages of
pretrial incarceration, we note that a pretrial incarceration period
of 6 months, without further evidence of prejudice, is not inher-
ently oppressive.
There is also no evidence in the record to demonstrate
Wilson’s level of anxiety or concern during the pendency of
these proceedings. While there may be some degree of anxiety
and concern in every criminal case, anxiety or concern by itself
does not establish prejudice where the defendant neither asserts
nor shows that the delay weighed particularly heavily on him in
specific instances. State v. Schmader, supra.
There is evidence in the record which demonstrates that at
least one of Wilson’s witnesses struggled to remember specific
details as a result of the time that had passed since the day
of the robbery. Wilson called his mother to testify that he
was in California with her on the day of the robbery. While
900 	16 NEbRASkA APPELLATE REPORTS

Wilson’s mother did testify that Wilson was living with her
in February 1998 when the robbery occurred, she admitted on
cross-examination that she was only sure that Wilson lived with
her in December 1997, January 1998, and part of February
1998. She testified that she was not sure what day Wilson left
California in February 1998.
The record also reveals that many of the State’s witnesses
struggled to remember the details of the robbery and the result-
ing investigation by law enforcement officials. In Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972),
the U.S. Supreme Court noted that just as the defense’s case
may suffer from a delay in the proceedings, the State’s case is
often plagued by problems caused by a delay. The Court stated:
“As the time between the commission of the crime and trial
lengthens, witnesses may become unavailable or their memories
may fade. If the witnesses support the prosecution, its case will
be weakened, sometimes seriously so. And it is the prosecu-
tion which carries the burden of proof.” 407 U.S. at 521. While
Wilson may have been prejudiced by his own witness’ memory
loss, he also benefited from the memory loss of the State’s
witnesses. As a result, the prejudice factor does not readily
weigh in favor of the defendant or the State. However, given
that Wilson’s defense was, in fact, impaired to some degree
by the delay, we determine that the prejudice factor weighs in
his favor.
Wilson argues he was also prejudiced by the delay because
the jury could have speculated that he was a “fugitive from
justice” or that his failure to appear in court was a result of his
“consciousness of guilt.” There is no evidence in the record to
support these assertions. Without any concrete evidence of the
jurors’ speculation regarding the delay, we do not consider these
facts as a part of our balancing test.
(e) Resolution
As noted above, the factors for assessing the deprivation of
an accused’s constitutional speedy trial right must be considered
on an ad hoc basis, together with other circumstances as may
be relevant. After considering the factors in the present case,
we conclude that the district court was not clearly erroneous in
STATE v. WILSON 	901
Cite as 16 Neb. App. 878

finding that Wilson’s constitutional speedy trial right was not
violated. Although the delay was significant, the record before
us does not indicate that there was any intentional act by the
State to deprive Wilson of his right to a speedy trial. In fact, the
record shows that Wilson was brought to trial approximately 6
months after he was finally located in June 2005. In addition,
while there is evidence that Wilson’s alibi witness had some
trouble remembering the exact dates Wilson was present with
her in California, there is also evidence that the State’s witnesses
suffered from memory problems as well. As such, we conclude
that this assigned error is without merit, and the district court’s
order is affirmed.
4. excessive sentences
In his last assignment of error, Wilson asserts that the trial
court abused its discretion by imposing excessive sentences. We
disagree. We find that the sentences imposed by the district court
were not excessive. However, we find plain error in the court’s
sentences to the extent that the court ordered the sentences for
the false imprisonment convictions to run concurrently with the
sentences for the use of a deadly weapon convictions. We there-
fore vacate those sentences and remand the cause to the district
court with directions to resentence Wilson so that the sentences
for the false imprisonment convictions run consecutively to the
sentences for use of a deadly weapon.
[9] Sentences within statutory limits will be disturbed by
an appellate court only if the sentences complained of were
an abuse of judicial discretion. State v. Walker, 272 Neb. 725,
724 N.W.2d 552 (2006). 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 con-
science, reason, and evidence. Id. When imposing a sentence,
a sentencing judge should consider 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. State v. Thurman, 273 Neb. 518,
730 N.W.2d 805 (2007).
902 	16 NEbRASkA APPELLATE REPORTS

Wilson was convicted of two counts of robbery, two counts
of use of a deadly weapon to commit a felony, and two counts
of false imprisonment in the first degree. Robbery and use of
a deadly weapon to commit a felony are both Class II felonies
punishable by a term of imprisonment of 1 to 50 years. False
imprisonment in the first degree is a Class IIIA felony punish-
able by a term of imprisonment of up to 5 years.
After Wilson’s trial, the district court determined that Wilson
was a habitual criminal within the meaning of Neb. Rev. Stat.
§ 29-2221 (Cum. Supp. 2006). because the court determined
Wilson to be a habitual criminal, he was subject to a term of
imprisonment of 10 to 60 years for each count of robbery, use
of a deadly weapon to commit a felony, and false imprisonment
in the first degree.
The district court sentenced Wilson to a term of imprisonment
of 10 to 20 years for each count of robbery, 10 to 20 years for
each count of use of a deadly weapon to commit a felony, and
10 to 10 years for each count of false imprisonment in the first
degree. The court ordered the sentences for the robbery and
use of a deadly weapon to commit a felony convictions to run
consecutively to each other and ordered the sentences for false
imprisonment to run concurrently with each other and with the
other sentences.
Each of Wilson’s sentences is clearly within the statutory
limits. We have reviewed the record in its entirety. When we
consider Wilson’s criminal history and the violent nature of the
crimes in this case, we cannot say that Wilson’s sentences were
an abuse of discretion.
[10] We do, however, find plain error in that part of the
court’s sentencing order which provides that Wilson’s sentences
for the false imprisonment convictions are to be served con-
currently with the sentences for the robbery and the use of a
deadly weapon convictions. An appellate court always reserves
the right to note plain error which was not complained of at
trial or on appeal. State v. Robinson, 271 Neb. 698, 715 N.W.2d
531 (2006).
[11] Although it is generally within the trial court’s discretion
to direct that sentences imposed for separate crimes be served
concurrently or consecutively, Neb. Rev. Stat. § 28-1205(3)
STATE v. WILSON 	903
Cite as 16 Neb. App. 878

(Reissue 1995) does not permit such discretion in sentencing,
because it mandates that a sentence for the use of a deadly
weapon in the commission of a felony be served consecutively
to any other sentence imposed. See, State v. Thomas, 268 Neb.
570, 685 N.W.2d 69 (2004); State v. Sorenson, 247 Neb. 567,
529 N.W.2d 42 (1995). because the statute mandates that the
sentences imposed for the use of a weapon be consecutive to any
other sentence, the district court did not have authority to order
that the sentences on the two counts of false imprisonment run
concurrently with the sentences on the two counts of use of a
deadly weapon.
[12] An appellate court has the power on direct appeal to
remand a cause for the imposition of a lawful sentence where
an erroneous one has been pronounced. See State v. Robinson,
supra. We, therefore, vacate the sentences imposed for the false
imprisonment convictions and remand the cause with directions
that the district court resentence Wilson such that the sentences
for the false imprisonment convictions run consecutively to the
sentences on the use of a deadly weapon convictions.
V. CONCLUSION
We find no merit to Wilson’s assertions on appeal. The trial
court did not err in its rulings regarding the admissibility of
evidence of witnesses’ prior identifications or prior inconsistent
statements. Wilson was not denied his constitutional right to a
speedy trial, and the court did not err in overruling his motion
to discharge. Additionally, the court did not err by imposing
excessive sentences.
However, upon our review of the record, we find plain error in
the trial court’s sentences to the extent that the court ordered the
sentences for the false imprisonment convictions to run concur-
rently with the sentences for the use of a deadly weapon convic-
tions. We therefore vacate those sentences and remand the cause
to the court with directions to resentence Wilson so that the sen-
tences for the false imprisonment convictions run consecutively
to the sentences for use of a deadly weapon.
A ffirmed in pArt , And in pArt vAcAted And remAnded
with directions for resentencing .
904 	16 NEbRASkA APPELLATE REPORTS