State v. Schreiner

state of neBRasKa , aPPellee , v .
P aul f. schReineR, aPPellant .
754 N.W.2d 742
Filed August 15, 2008. 	Nos. S-07-828, S-07-829.
1. Probation and Parole. The revocation of probation is a matter entrusted to the
discretion of the trial court.
2. Trial. The general conduct of the trial rests within the discretion of the
trial court.
3. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
4. Criminal Law: Probation and Parole. A motion to revoke probation is not a
criminal proceeding.
5. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibil-
ity of expert testimony is abuse of discretion.
6. Trial: Expert Witnesses. Under the Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), jurisprudence, the trial
court acts as a gatekeeper to ensure the evidentiary relevance and reliability
of an expert’s opinion. This gatekeeping function entails a preliminary assess-
ment whether the reasoning or methodology underlying the testimony is valid
and whether that reasoning or methodology properly can be applied to the facts
in issue.
7. ____: ____. If a witness is not offering opinion testimony, that witness’ testimony
is not subject to inquiry pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. ed. 2d 469 (1993).
8. Trial: Witnesses: Testimony: Appeal and Error. When the object of cross-
examination is to collaterally ascertain the accuracy or credibility of the witness,
some latitude should be permitted, and the scope of such latitude is ordinarily
subject to the discretion of the trial judge, and, unless abused, its exercise is not
reversible error.
9. Rules of Evidence: Witnesses. Determinations regarding cross-examination of a
witness on specific instances of conduct, pursuant to Neb. evid. R. 608(2), Neb.
Rev. Stat. § 27-608(2) (Reissue 1995), are specifically entrusted to the discretion
of the trial court.
10. Trial: Witnesses: Proof. In order to predicate error upon a ruling of the court
refusing to permit a witness to testify, or to answer a specific question, the record
must show an offer to prove the facts sought to be elicited.
11. Trial: Evidence: Juries. A motion in limine is only a procedural step to prevent
prejudicial evidence from reaching the jury. It is not the office of such motion to
obtain a final ruling upon the ultimate admissibility of the evidence.
12. Trial: Evidence: Proof: Appeal and Error. because overruling a motion in
limine is not a final ruling on the admissibility of evidence and does not present a
question for appellate review, a question concerning the admissibility of evidence
STATe v. SCHReINeR 	393
Cite as 276 Neb. 393
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

which is the subject of a motion in limine is raised and preserved for appellate
review by an appropriate objection or offer of proof during trial.
13. Constitutional Law: Criminal Law: Trial: Witnesses. The Sixth Amendment to
the U.S. Constitution guarantees the right of an accused in a criminal prosecution
to be confronted with the witnesses against him or her, and the main and essential
purpose of confrontation is to secure the opportunity of cross-examination.
14. Trial: Testimony: Intent. The exposure of a witness’ motivation in testifying is a
proper and important function of the right of cross-examination.
15. Constitutional Law: Trial: Witnesses. The Confrontation Clause does not prevent
a trial judge from imposing any limits on defense counsel’s inquiry into the poten-
tial bias of a prosecution witness.
16. ____: ____: ____. Trial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on the cross-examination of a
prosecution witness for potential bias based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.
17. ____: ____: ____. The Confrontation Clause guarantees an opportunity for effec-
tive cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.
18. Constitutional Law: Impeachment: Evidence. The Confrontation Clause does
not require that courts permit the use of juvenile adjudications for general impeach-
ment of credibility.
19. Constitutional Law: Criminal Law: Witnesses: Juries. A criminal defendant
states a violation of the Confrontation Clause by showing that he or she was
prohibited from engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, thereby exposing to the
jury the facts from which jurors could appropriately draw inferences relating to the
reliability of the witness.
20. Judges: Appeal and Error. The exercise of judicial discretion is implicit in deter-
minations of relevancy, and a trial court’s decision regarding it will not be reversed
absent an abuse of discretion.
21. Evidence: Words and Phrases. evidence is relevant if it tends in any degree to
alter the probability of a material fact.
22. Motions for New Trial: Appeal and Error. A trial court’s order denying a motion
for new trial is reviewed for an abuse of discretion.
23. Trial: Judges: Appeal and Error. One cannot know of purportedly improper judi-
cial conduct, gamble on a favorable result as to that conduct, and then complain
that he or she guessed wrong and does not like the outcome.
24. Courts: Pretrial Procedure: Time. Trial courts have wide discretion to ensure that
the goal of timely disposition of cases is reached.
25. Courts: Pretrial Procedure: Time: Due Process. Trial courts must have a great
deal of latitude in striking the balance between the court’s calendar and a party’s
right to a fair chance to be heard.
26. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
394 	276 NebRASkA RepORTS

27. Criminal Law: Convictions: Evidence: Appeal and Error. 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
properly admitted evidence, viewed and construed most favorably to the State, is
sufficient to support the conviction.
28. Witnesses: Appeal and Error. Witness credibility is not to be reassessed on appel-
late review.
29. Trial: Witnesses. A witness’ credibility and weight to be given to testimony are
matters for determination and evaluation by a fact finder.
Appeals from the District Court for Lancaster County: steven
d. B uRns, Judge. Affirmed.
bernard J. glaser, Jr., for appellant.
Jon bruning, Attorney general, and kimberly A. klein for
appellee.
wRight , connolly , geRRaRd , stePhan , and milleR-leRman ,
JJ., and sieveRs , Judge.
geRRaRd , J.
I. NATURe OF CASe
paul F. Schreiner was convicted of first degree sexual assault
on a child, based on a sexual encounter that had occurred with
k.g., a 14-year-old girl, after he gave her a ride home from the
Nebraska State Fair.1 Schreiner was also found to have violated
an order of probation imposed for two previous convictions
of sexual assault of a child.2 In case No. S-07-828, Schreiner
appeals from his conviction and sentence for first degree sexual
assault. In case No. S-07-829, Schreiner appeals from the revo-
cation of his probation.
II. bACkgROUND
Schreiner was 22 years old at the time of the alleged assault,
and k.g. was 14 years old. k.g. testified that she and her twin
sister, D.g., met Schreiner at a gas station in August 2005,
while the girls were walking home from a shopping mall. D.g.
1 See Neb. Rev. Stat. § 28-319 (Reissue 1995).
2 See Neb. Rev. Stat. § 28-320.01 (Cum. Supp. 2000).
STATe v. SCHReINeR 	395
Cite as 276 Neb. 393

said that they were walking up to the gas station and “said hi
to him and started talking to him” and that k.g. had initiated
the conversation. Schreiner offered them a ride home, and they
accepted. According to Schreiner, k.g. asked for his telephone
number when he dropped the girls off at home. A few hours
later, he got a call from one of the girls, who identified herself as
k.g. She asked for a ride back to the mall, which he provided.
Schreiner said that both girls called him several times in the
following days. Schreiner testified that he decided “they wanted
somebody to talk to that they felt comfortable with. And I felt
that maybe I should be friends with them just because of the
situation that they said that they were in.”
On Monday, September 5, 2005, k.g. went to the state fair
and ended up meeting Schreiner there. Although the various wit-
nesses’ accounts differ in the details, it is not disputed that k.g.
left the fair with Schreiner. And when k.g. called home later,
she became aware that the police had been told that she was
missing. She was upset about that and did not want to go home,
so she went to Schreiner’s residence instead.
k.g. said that when they got there, she went downstairs
while he got them some sodas. k.g. testified that she went to
the bathroom and that when she came out, a hide-a-bed had
been pulled out of the couch. k.g. said there were sheets and
a blanket on the bed. Schreiner, on the other hand, said that
there was no bedding on the hide-a-bed, just a sleeping bag.
He said the bed was already pulled out when they returned to
the residence.
k.g. testified that after she came out of the bathroom,
Schreiner was by the bed, and she and Schreiner started kissing.
They got on the bed, and k.g. undressed. Schreiner undressed
as well, and they had sexual intercourse on the bed. k.g.
described the sex as “normal” vaginal intercourse. k.g. said she
did not see Schreiner wearing a condom and did not know if he
ejaculated. Then, Schreiner told k.g. he was going to bed, and
he went to sleep.
Schreiner, on the other hand, testified that when k.g. went
to the bathroom, he set his alarm, turned off the lights, and
played some music. k.g. came out of the bathroom and went to
the hide-a-bed, while he went to sleep on the couch. Schreiner
396 	276 NebRASkA RepORTS

specifically denied kissing k.g. or having sex with her. Schreiner
testified that when the alarm went off in the morning, he saw
that k.g. was not wearing her jeans. She got dressed, and he
took her directly home.
Schreiner said that he had previously had sex with someone
else on the sleeping bag that he said was on the hide-a-bed, and
had recently masturbated while on the sleeping bag. Schreiner
testified that he ejaculated on top of his sleeping bag without
cleaning it up.
k.g. said that after she was dropped off at home, she went
into the house and changed her underwear and pants. She put
the clothes she took off in the laundry and washed them. Then
she went to her sister’s room to go to sleep. k.g. testified that
the next thing she remembered after going to sleep was that her
mother came to get her, because a police officer was there to
see her. k.g. told the officer what had happened between her
and Schreiner. The officer testified that k.g. was reluctant to
talk to him, but that based on what he was told, he and k.g.’s
mother searched the residence for some articles of k.g.’s cloth-
ing. k.g.’s mother testified that she helped the officer make sure
that k.g. did not change clothes, although she could not say that
k.g. had not changed clothes already. She also looked for cloth-
ing in the washing machine, but it was empty.
k.g. testified that she did not want to tell police about what
happened with Schreiner, because she knew it would get him in
trouble and she did not want that. The police officer told k.g.
that k.g. was going to the Child Advocacy Center, which she
did, with her family, later that morning. k.g. was interviewed
at the Child Advocacy Center and then taken to the hospital.
k.g. testified that before she went to the hospital, she had not
had an opportunity to shower or bathe. k.g. was examined at
the hospital, and the nurse took all her clothing. k.g. testified
that because she had changed clothes, the jeans and under-
wear that were taken from her and tested were not the jeans
and underwear she had been wearing at the state fair and at
Schreiner’s residence. k.g. admitted lying to her father and to
the police about changing clothes, because she did not want to
get Schreiner in trouble and did not want to give up the clothes
that she had been wearing.
STATe v. SCHReINeR 	397
Cite as 276 Neb. 393

Diana Severson-Tomek, a sexual assault nurse examiner
(SANe) at bryanLgH Medical Center, performed the exam-
ination 	of 	k.g. 	Severson-Tomek 	testified 	that 	during 	the
examination, k.g. said she had not showered, bathed, or
douched before the examination. k.g. also told Severson-
Tomek that she had not had anything to drink and that she
had not changed clothes. Severson-Tomek gathered physical
evidence from k.g.: most pertinently, vaginal and rectal swabs.
The procedure used for Severson-Tomek’s examination will
be explained in more detail below. Those samples, along with
reference samples taken from Schreiner, were delivered to the
University of Nebraska Medical Center’s human DNA identifi-
cation laboratory for testing.
A DNA analyst testified regarding the testing. The analyst
tested four items: the vaginal and rectal swabs from k.g., k.g.’s
underwear, and the reference sample from Schreiner. The analyst
performed two different tests for semen on the swabs and under-
wear. On each swab, one test returned positive results, while the
other returned negative results. but the underwear tested positive
for semen in both tests. The only DNA profile obtained from the
vaginal swab was from a single female contributor, presumably
k.g. but the rectal swab and underwear yielded a mixture of
DNA from two contributors.
When the mixtures were compared to reference samples, the
contributors were determined to be k.g. and Schreiner. Schreiner
was the major contributor to the sample from the underwear, and
the testing indicated “primarily sperm cells contributing to that
DNA fraction.”
Schreiner was charged by information with first degree sexual
assault. The State also moved to revoke Schreiner’s probation
for some previous convictions. The jury found Schreiner guilty
of first degree sexual assault. At a later hearing, the court found
that Schreiner had violated his order of probation.
On the sexual assault conviction, Schreiner was sentenced to
a period of 6 to 9 years’ imprisonment. For the probation vio-
lations, Schreiner was sentenced to two terms of 2 to 3 years’
imprisonment, to be served consecutively to one another and to
the sentence from the sexual assault proceeding. Schreiner was
also given a “Notice of Lifetime parole Supervision,” informing
398 	276 NebRASkA RepORTS

him that he was subject to lifetime community supervision by
the Office of parole Administration.
Other details regarding the proceedings will be set forth
below, with respect to Schreiner’s specific assignments of error.
Although Schreiner has appealed separately from his conviction
for first degree sexual assault and the revocation of his proba-
tion, we have consolidated his appeals for disposition.
III. ANALySIS
1. consolidated tRial on PRoBation violation
(a) Assignment of error
In case No. S-07-828, and as his sole assignment of error
in case No. S-07-829, Schreiner assigns that the court erred in
trying the sexual assault charge at the same time as the proba-
tion violation charge, in violation of Neb. Rev. Stat. § 29-2002
(Reissue 1995) and the due process and assistance of counsel
clauses of the state and federal Constitutions.
(b) Standard of Review
[1-3] The revocation of probation is a matter entrusted to the
discretion of the trial court.3 And the general conduct of the trial
rests within the discretion of the trial court.4 A judicial abuse
of discretion exists only when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying a just result in matters submitted
for disposition.5
(c) background
Schreiner had been convicted in 2004 of two counts of sexual
assault of a child, based on allegations of two separate instances
of sexual intercourse with, respectively, a 13-year-old and 14-
year-old girl. Schreiner had been sentenced to a 3-year term of
probation pursuant to a plea agreement. After the incident with
k.g., the State filed a motion to revoke Schreiner’s probation.
3 State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).
4 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
5 State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008).
STATe v. SCHReINeR 	399
Cite as 276 Neb. 393

The motion alleged that Schreiner had violated the conditions
of his probation by failing to (1) refrain from unlawful or disor-
derly conduct or acts injurious to others and (2) meet with his
probation officer.
before trial, at a hearing scheduled on the alleged probation
violation, Schreiner’s counsel informed the court that there
was no reason to go forward on the probation violation until
the trial on the sexual assault was finished. Counsel noted that
the allegations in the sexual assault case were “at least half
of the allegation for the revocation.” Counsel informed the
court that if Schreiner was found guilty in the sexual assault
case, there would be no reason to contest the probation viola-
tion, and counsel “just thought it would be [a] more efficient
use of the Court’s time not to have the two trials over the
same evidence.”
but when the State suggested that the court use the testimony
at the sexual assault trial to determine the factual basis for the
probation revocation hearing, Schreiner objected, arguing that
he would be put in the position of “trying to persuade two dif-
ferent fact finders here” and that it might affect his examination
of witnesses. The court agreed that there could be facts relevant
to the probation proceeding that were not relevant to the sexual
assault and that it did not “want those brought up during this
trial before this jury.”
but the court was concerned that the trial could be lengthy,
and the court did not want to go through a second trial hear-
ing the same evidence. The court suggested that differences in
the proceedings could be addressed with a further evidentiary
hearing on the motion for revocation of probation, at which the
record of the trial in the sexual assault case could be offered.
After Schreiner was convicted in the sexual assault proceed-
ing, a separate hearing was had on the probation violation.
Schreiner admitted he had not met with his probation officer
as directed. based on that and “on the evidence that [the court]
heard in the trial in this matter that was tried” in the sexual
assault proceeding, the court found that Schreiner had violated
his order of probation. The court took judicial notice of the trial
record from the sexual assault proceeding. Schreiner preserved
his objection to the conjoined trial.
400 	276 NebRASkA RepORTS

(d) Analysis
[4] In support of his argument that the court erred in try-
ing the probation violation at the same time as the first degree
sexual assault charge, Schreiner cites § 29-2002, which explains
when “two or more indictments, informations, or complaints”
may be tried together. but we are not dealing here with a joinder
of two separate criminal charges. Instead, we have one informa-
tion, containing one criminal charge, and a separate motion to
revoke probation, which is not a criminal proceeding.6 Section
29-2002 is not applicable here.
More pertinent is the Nebraska probation Administration
Act,7 which provides:
Whenever a motion or information to revoke proba-
tion is filed, the probationer shall be entitled to a prompt
consideration of such charge by the sentencing court. The
court shall not revoke probation or increase the require-
ments imposed thereby on the probationer, except after a
hearing upon proper notice where the violation of probation
is established by clear and convincing evidence. The pro-
bationer shall have the right to receive, prior to the hearing,
a copy of the information or written notice of the grounds
on which the information is based. The probationer shall
have the right to hear and controvert the evidence against
him, to offer evidence in his defense and to be represented
by counsel.8
Those requirements were met in this case. On our review of
the record, it is not clear how Schreiner was prejudiced by the
court’s consolidation of the hearing on his probation violation
with the trial on his sexual assault charge. If anything, the con-
solidation of those matters benefited Schreiner, by providing
him the “prompt consideration” of the charge to which he was
entitled by law.9
6 See State v. Burow, 223 Neb. 867, 394 N.W.2d 665 (1986).
7 Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 1995 & Supp. 2005).
8 § 29-2267.
9 See id.
STATe v. SCHReINeR 	401
Cite as 276 Neb. 393

Schreiner argues that he was denied “a focused competent
defense strategy on either the criminal trial or the revocation of
probation matter.”10 It is difficult to see how. Schreiner argues
that trying to address different issues, and different burdens of
proof, hampered his adduction of evidence. but he does not
provide any example of when that occurred. At trial, he did
not make any offer of proof with respect to evidence he would
have adduced had the hearing not been consolidated. Nor did
he object, at trial, to any instance in which he was supposedly
compelled to adduce evidence that he otherwise would not
have adduced.
And at the subsequent hearing dedicated solely to the pro-
bation violation, Schreiner admitted failing to meet with his
probation officer. He did not present any of the evidence, call
any of the witnesses, or ask any of the questions that had pur-
portedly been denied him at the sexual assault trial.
Simply put, we can find nothing in this record to suggest that
Schreiner was prejudiced by the consolidation of these proceed-
ings. Consolidation facilitated the prompt consideration of the
probation revocation charge. And it is obvious that avoiding the
need for another week-long trial made far more efficient use of
the court’s and State’s resources. Absent evidence of prejudice
to Schreiner, and given the evident advantages of consolidation,
we find no abuse of discretion.
2. D aubert/S chaferSman oBJection to
seveRson -tomeK testimony
(a) Assignment of error
Schreiner assigns that the court erred in admitting the testi-
mony of Severson-Tomek, as her testimony lacked foundation
under Daubert/Schafersman11 standards.
10 brief for appellant in case No. S-07-828 at 22.
11 See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. ed. 2d 469 (1993); Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001).
402 	276 NebRASkA RepORTS

(b) Standard of Review
[5] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.12
(c) background
(i) Motion in Limine
Schreiner filed a motion in limine raising, among other
things, a Daubert/Schafersman objection to Severson-Tomek’s
testimony. Specifically, Schreiner moved that Severson-Tomek
not be permitted to testify “concerning any opinion that the
substance obtained in such witness’s SANe examination of
[k.g.] was consistent with sperm and that her examination of
[k.g.] showed evidence consistent with ‘rough sex’, words to
that effect, or any other opinion concerning her examination
of [k.g.]”
At the hearing on the motion, Schreiner objected to any tes-
timony about Severson-Tomek’s discovery of a stain consistent
with sperm, or about “rough sex.” but the court determined that
the substance of the motion went to foundation, not a Daubert/
Schafersman issue. The court specifically determined that the
physical observations that Severson-Tomek made in the course
of the examination were relevant and admissible, assuming
proper foundation. The motion was sustained as to any comment
regarding “rough sex,” but otherwise overruled.
(ii) Severson-Tomek’s Testimony
When she testified, Severson-Tomek explained the training
and education necessary to become a certified SANe, and her
qualifications and experience are not disputed. She had been
performing examinations as a SANe for about 21⁄2 years and
had performed approximately 83 such examinations. For each
examination of a suspected sexual assault victim, Severson-
Tomek employed the same methods and procedures, and she
specifically testified that the methods and procedures that she
used were generally accepted.
Severson-Tomek also explained those procedures in more
detail. A sexual assault kit is used to specifically assist in the
12 State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
STATe v. SCHReINeR 	403
Cite as 276 Neb. 393

collection of physical evidence. There are 14 steps in the use
of a sexual assault kit: consent and collection of patient history,
collection of underwear, collection of debris from clothing, fin-
gernail scrapings, three collections of hair samples, a saliva sam-
ple, an oral swab, a vaginal swab and smear, a rectal swab, and a
blood sample. All of the steps are performed, unless the patient
refuses. A colposcope is used to conduct a detailed examination
of the patient’s genitalia. The colposcope provides magnification
and illumination and takes photographs. Ultraviolet light is used
to look for additional evidence. Laboratory tests are performed
on bodily fluid samples, and the patient’s clothing is collected.
The SANe’s findings are reviewed by the emergency room doc-
tor, and another SANe reviews the photographs and makes her
own observations.
According to Severson-Tomek, k.g. was cooperative and did
not refuse any part of the procedure. Severson-Tomek testified,
over objection, to several abnormal abrasions that she observed
during her examination of k.g. Severson-Tomek specifically
testified that she did not have an opinion as to the cause of an
abrasion she observed on k.g.’s cervical os, or opening, and she
did not offer any other opinion as to what could have caused the
other abnormalities she observed.
(d) Analysis
[6] Under our Daubert/Schafersman13 jurisprudence, the trial
court acts as a gatekeeper to ensure the evidentiary relevance
and reliability of an expert’s opinion. This gatekeeping func-
tion entails a preliminary assessment whether the reasoning or
methodology underlying the testimony is valid and whether that
reasoning or methodology properly can be applied to the facts in
issue.14 Schreiner argues that given its gatekeeping responsibil-
ity, the district court abused its discretion in admitting Severson-
Tomek’s testimony.
13 Daubert, supra note 11; Schafersman, supra note 11.
14 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), cert. denied sub
nom. Sommer v. Nebraska, 552 U.S. 876, 128 S. Ct. 186, 169 L. ed. 2d
126.
404 	276 NebRASkA RepORTS

[7] but Daubert does not create a special analysis for answer-
ing questions about the admissibility of all expert testimony. Not
every attack on expert testimony amounts to a Daubert claim. If
a witness is not offering opinion testimony, that witness’ testi-
mony is not subject to inquiry pursuant to Daubert.15 And here,
Severson-Tomek’s testimony at trial was not opinion testimony.
Severson-Tomek made observations of k.g.’s physical condition
and testified about her observations. Although Severson-Tomek
was qualified to offer expert testimony, she was testifying to
matters within her personal knowledge.16 As the district court
correctly determined, this is simply not the sort of expert testi-
mony that demands a Daubert inquiry.
If Severson-Tomek offered any opinions, they were implicit in
her testimony that her examination of k.g. revealed abnormali-
ties. To the extent that this involved a scientific methodology,
it was simply empirical: Severson-Tomek examined k.g. and
described her observations. It is hard to imagine any method of
scientific inquiry that is more well established. Severson-Tomek
was well qualified to testify that the abrasions revealed in her
examination of k.g. were not normal, and Severson-Tomek
testified at length about the procedures she used to make her
observations. And she specifically testified that her method of
examination was generally accepted.
The district court did not abuse its discretion in concluding
that the foundation offered for Severson-Tomek’s testimony was
sufficient. Therefore, Schreiner’s assignment of error is with-
out merit.
3. cRoss -examination of K.g. on contacts with
P olice and J uvenile system
(a) Assignment of error
Schreiner assigns that the court erred in refusing to permit
cross-examination of k.g. with respect to (1) prior contacts
with the juvenile court system and (2) whether she had lied to
a police officer.
15 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
16 Compare, Robinson, supra note 15; Sedlak Aerial Spray v. Miller, 251 Neb.
45, 555 N.W.2d 32 (1996).
STATe v. SCHReINeR 	405
Cite as 276 Neb. 393

(b) Standard of Review
[8,9] When the object of cross-examination is to collaterally
ascertain the accuracy or credibility of the witness, some latitude
should be permitted, and the scope of such latitude is ordinarily
subject to the discretion of the trial judge, and, unless abused, its
exercise is not reversible error.17 And determinations regarding
cross-examination of a witness on specific instances of conduct,
pursuant to Neb. evid. R. 608(2),18 are specifically entrusted to
the discretion of the trial court.19
(c) background
The State filed a motion in limine to preclude any evidence
that k.g. or D.g. had contact with law enforcement except as
related to this case, any violations of law, or any cases pend-
ing in juvenile court. At the hearing, Schreiner contended that
k.g. had stayed at Schreiner’s house because she was afraid to
go home, since she would get in trouble for having run away.
Schreiner argued that k.g.’s prior contact with law enforce-
ment showed she had been in trouble for running away before,
supporting Schreiner’s contention that k.g. was staying with
Schreiner voluntarily. The State replied that it was uncontested
that k.g. had stayed at Schreiner’s, because she was a runaway
and afraid to go home, and that k.g. was at Schreiner’s volun-
tarily. The court sustained the State’s motion.
Schreiner further argued that k.g. had been adjudicated for
lying to a police officer and that he should be allowed to ques-
tion her about that because it was a crime of dishonesty. The
State replied that juvenile adjudications are not admissible for
such purposes,20 and the court sustained the State’s motion in
that respect as well.
17 Kuehn, supra note 12; State v. Privat, 251 Neb. 233, 556 N.W.2d 29
(1996).
18 See Neb. Rev. Stat. § 27-608(2) (Reissue 1995).
19 See, id.; State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991); State
v. King, 197 Neb. 729, 250 N.W.2d 655 (1977).
20 See Neb. evid. R. 609(1)(b), Neb. Rev. Stat. § 27-609(1)(b) (Reissue
1995).
406 	276 NebRASkA RepORTS

At trial, Schreiner made an offer of proof, claiming that if
asked, k.g. would admit to lying to a police officer. Schreiner
offered that testimony “under rule 27-608 instead of 27-609.”21
but Schreiner also asserted that k.g. had been “adjudicated as
such in Juvenile Court of Lancaster County and it’s been within
the last year.” The offer of proof was overruled.
(d) Analysis
[10] We begin by determining which of the issues discussed
in the trial court have been presented to this court for review.
pursuant to Neb. evid. R. 103(1)(b),22 error may not be predi-
cated upon a ruling which excludes evidence unless a substantial
right of the party is affected, and the substance of the evidence
was made known to the judge by offer or was apparent from
the context within which questions were asked. So, in order to
predicate error upon a ruling of the court refusing to permit a
witness to testify, or to answer a specific question, the record
must show an offer to prove the facts sought to be elicited.23
[11,12] And that offer of proof must be made at trial. A
motion in limine is only a procedural step to prevent prejudi-
cial evidence from reaching the jury. It is not the office of such
motion to obtain a final ruling upon the ultimate admissibility
of the evidence.24 because overruling a motion in limine is not a
final ruling on the admissibility of evidence and does not present
a question for appellate review, a question concerning the admis-
sibility of evidence which is the subject of a motion in limine
is raised and preserved for appellate review by an appropriate
objection or offer of proof during trial.25
Therefore, although many issues were discussed in con-
junction with the State’s motions in limine, we consider only
21 See, id.; rule 608, § 27-608.
22 See Neb. Rev. Stat. § 27-103(1)(b) (Reissue 1995).
23 Talle v. Nebraska Dept. of Soc. Servs., 253 Neb. 823, 572 N.W.2d 790
(1998).
24 See State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002).
25 See id.
STATe v. SCHReINeR 	407
Cite as 276 Neb. 393

the issues preserved by Schreiner’s offer of proof.26 At trial,
Schreiner offered to prove two facts: that k.g. had given false
information to a police officer and that k.g. had been adju-
dicated for doing so in juvenile court. Our appellate review is
limited to whether Schreiner should have been permitted to
cross-examine k.g. about either of those facts.
(i) Juvenile Adjudication
Schreiner first argues that he should have been allowed to
cross-examine k.g. about her adjudication in juvenile court.
Specific instances of the conduct of a witness, for the purpose
of attacking or supporting her credibility, other than conviction
of crime as provided in rule 609, may not be proved by extrin-
sic evidence.27 Rule 609(1)(b) provides that for the purpose of
attacking the credibility of a witness, evidence that she has been
convicted of a crime shall be admitted if elicited from her or
established by public record during cross-examination, if the
crime involved dishonesty or false statement. but rule 609(4)
expressly provides that “[e]vidence of juvenile adjudications is
not admissible under this rule.”
Schreiner argues that the evidence should have been admitted
anyway, relying on Davis v. Alaska,28 in which the U.S. Supreme
Court held that the trial court’s refusal to allow the defendant to
cross-examine a key prosecution witness to show his probation
status following an adjudication of juvenile delinquency denied
the defendant his constitutional right to confront witnesses, not-
withstanding a state policy protecting the anonymity of juvenile
offenders. but Davis is distinguishable, and Schreiner’s argu-
ment is unpersuasive.
[13-17] The Sixth Amendment to the U.S. Constitution guar-
antees the right of an accused in a criminal prosecution “to be
confronted with the witnesses against him,”29 and the main and
essential purpose of confrontation is to secure the opportunity
26 See, § 27-103(1)(b); State v. Navrkal, 242 Neb. 861, 496 N.W.2d 532
(1993).
27 See § 27-608(2).
28 Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. ed. 2d 347 (1974).
29 U.S. Const. amend. vI.
408 	276 NebRASkA RepORTS

of cross-examination.30 The exposure of a witness’ motiva-
tion in testifying is a proper and important function of the
right of cross-examination.31 but it does not follow that the
Confrontation Clause prevents a trial judge from imposing any
limits on defense counsel’s inquiry into the potential bias of a
prosecution witness.32
On the contrary, trial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose rea-
sonable limits on such cross-examination based on con-
cerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interroga-
tion that is repetitive or only marginally relevant. . . .
“[T]he Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the
defense might wish.”33
In Davis, a key prosecution witness was on probation, hav-
ing been adjudicated for burglary. The defendant argued that
although juvenile records were confidential, he should have
been allowed to cross-examine the witness about his proba-
tion, because the witness might have been subjected to undue
pressure from police, fearing possible probation revocation.
The Court carefully distinguished between the “introduction of
evidence of a prior crime [as] a general attack on the credibility
of the witness” and “[a] more particular attack on the witness’
credibility . . . by means of cross-examination directed toward
revealing possible biases, prejudices, or ulterior motives of the
witness as they may relate directly to issues or personalities in
the case at hand.”34 The Court found the circumstances in Davis
to be an example of the latter and reasoned that the state’s policy
interest in protecting the confidentiality of a juvenile offender’s
30 See Davis, supra note 28.
31 See id.
32 Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. ed. 2d 674
(1986).
33 Id., 475 U.S. at 679, quoting Delaware v. Fensterer, 474 U.S. 15, 106 S. Ct.
292, 88 L. ed. 2d 15 (1985) (emphasis in original).
34 See Davis, supra note 28, 415 U.S. at 316.
STATe v. SCHReINeR 	409
Cite as 276 Neb. 393

record could not require the defendant to yield his right to cross-
examine a witness for a particular bias.35
[18] based on the distinction between general credibility and
specific bias, courts to have addressed the issue
“have been reluctant to extend [Davis] to justify admitting
juvenile adjudications offered to impeach under Rule 609.
It makes some sense to draw such a distinction between
juvenile-adjudication evidence offered to impeach for bias
and such evidence offered to impeach under Rule 609.
evidence offered under Rule 609 undermines credibility
only indirectly by showing a criminal character and, thus,
a propensity which is only generally linked to truthfulness.
On the other hand, bias evidence shows the witness has a
motive to lie in the specific case.”36
In other words, the Confrontation Clause does not require that
courts permit the use of juvenile adjudications for general
impeachment of credibility.37 Davis neither “holds nor suggests
that the Constitution confers a right in every case to impeach
the general credibility of a witness through cross-examination
about his [or her] past delinquency adjudications or crimi-
nal convictions.”38
Schreiner’s offer of proof in this case did not establish a basis
for cross-examination equivalent to the bias suggested in Davis.
The evidence Schreiner offered to prove was directed at k.g.’s
credibility, but did not provide a basis to establish a particular
bias. Although k.g.’s deposition indicated, at the hearing on the
motions in limine, that k.g. was on probation at the time of her
deposition, there was no offer at trial to prove that she was on
35 See id.
36 Reid v. State, No. 247,2005, 2005 WL 3272134 at *4 (Del. Nov. 30, 2005)
(unpublished disposition listed in table of “Decisions Without published
Opinions” at 888 A.2d 232 (Del. 2005)). Accord 28 Charles Alan Wright &
victor James gold, Federal practice & procedure § 6138 (2001).
37 See, e.g., State v. Spann, 574 N.W.2d 47 (Minn. 1998); State v. Pirman,
94 Ohio App. 3d 203, 640 N.e.2d 575 (1994). Compare, e.g., State v.
Balisbisana, 83 Haw. 109, 924 p.2d 1215 (1996).
38 Davis, supra note 28, 415 U.S. at 321 (Stewart, J., concurring).
410 	276 NebRASkA RepORTS

probation when she testified.39 And there was no offer to prove,
nor evidence in the record to suggest, that k.g.’s adjudication
provided a specific motive to testify untruthfully.40
Schreiner argues in his brief that k.g. lied to her mother and
to the police about the alleged sexual encounter with Schreiner
because she was afraid of getting in trouble for having been
gone all night. Schreiner suggests that k.g. then reasserted her
lie at trial, because she was afraid of prosecution if she con-
tradicted her earlier statement to the police. but Schreiner was
able to effectively cross-examine k.g. and present that theory
at trial. The fact of a prior adjudication would not substantially
change k.g.’s alleged motive to conform her trial testimony
to her earlier statements. The limitation of Schreiner’s cross-
examination did not “prohibit[] all inquiry into the possibility
that [the witness] would be biased”41 by fear of contradicting
her earlier statements. In other words, Schreiner’s theory about
k.g.’s specific motive to lie did not rest upon, and was not
particularly supported by, the fact of her adjudication. And to
say that k.g.’s credibility was still vigorously challenged on
cross-examination is, given our review of the record, something
of an understatement.
even if k.g.’s deposition testimony had been referenced as
the basis for Schreiner’s offer of proof at trial, k.g.’s deposition
is far from clear about the basis for her probation. It was appar-
ent that after the alleged incident with Schreiner, but before k.g.
was deposed, she had been placed on probation and in a group
home by the juvenile court. However, the decision to put k.g.
on probation appears to have been primarily based on drug use,
truancy, and running away from home-not giving false informa-
tion to an officer. In other words, Schreiner’s offer at trial to
prove that k.g. had been adjudicated for lying to an officer did
39 Compare, e.g., U.S. v. Williams, 963 F.2d 1337 (10th Cir. 1992); United
States v. Ciro, 753 F.2d 248 (2d Cir. 1985); United States v. Decker, 543
F.2d 1102 (5th Cir. 1976).
40 See, e.g., Mills v. Estelle, 552 F.2d 119 (5th Cir. 1977); State v. Butler, 626
S.W.2d 6 (Tenn. 1981); Smith v. United States, 392 A.2d 990 (D.C. 1978);
Smith v. State, 795 So. 2d 788 (Ala. Crim. App. 2000).
41 Van Arsdall, supra note 32, 475 U.S. at 679.
STATe v. SCHReINeR 	411
Cite as 276 Neb. 393

not offer to prove, or even clearly implicate, k.g.’s status as
a probationer.
And asking k.g. why she was on probation would have
implicated a number of related subjects, such as truancy and
drug use, that would have been irrelevant and unfairly preju-
dicial. That also distinguishes this case from Davis, because
“[t]he competing policy at stake here is markedly different
from that which the Davis Court found subordinate to the right
of cross-examination.”42
In Davis, “the trial court had limited cross-examination of
the government witness in order to protect him from the embar-
rassment of having his prior juvenile record exposed. The sole
interest served by that ruling was that of the witness.”43 On the
other hand, such things as “[h]earsay, evidence of bad character
or propensity to commit crimes, and evidence that may unduly
prejudice the jury are generally excluded because of their adverse
effect on the reliability of the fact-finding process.”44
The Court’s decision in Davis rested on the balance between
the defendant’s right to cross-examine a witness about a motive
to lie in the specific case and the government’s generalized
interest in protecting the confidentiality of a juvenile record.
In this case, Schreiner’s offer of proof was directed only at
general impeachment of a witness’ credibility, but implicated
the government’s interest in the fairness and reliability of the
trial process.45
[19] A criminal defendant states a violation of the Confrontation
Clause by showing that he or she was prohibited from engaging
in otherwise appropriate cross-examination designed to show
a prototypical form of bias on the part of the witness, thereby
exposing to the jury the facts from which jurors could appropri-
ately draw inferences relating to the reliability of the witness.46
but the only fact Schreiner offered to prove here was that k.g.
42 Cheek v. Bates, 615 F.2d 559, 563 (1st Cir. 1980).
43 Id.
44 Id.
45 See id.
46 Van Arsdall, supra note 32.
412 	276 NebRASkA RepORTS

had been adjudicated for lying to a police officer. This offer
of proof did not suggest a motive for bias comparable to that
in Davis,47 and it implicated other subjects that were clearly
inadmissible. On balance, we cannot say that the district court
abused its discretion in overruling Schreiner’s narrow offer of
proof with respect to k.g.’s juvenile adjudication.
(ii) False Statement to Officer
Schreiner also argues that he should have been allowed to
ask k.g. about the underlying conduct of lying to a police
officer. While specific instances of the conduct of a witness,
for the purpose of attacking or supporting her credibility, may
generally not be proved by extrinsic evidence, rule 608(2) pro-
vides that specific instances of the conduct of a witness “may,
however, in the discretion of the court, if probative of truthful-
ness or untruthfulness be inquired into on cross-examination of
the witness . . . (b) concerning [her] character for truthfulness
or untruthfulness.”48
We are not persuaded that the court abused its discretion by
overruling Schreiner’s offer of proof here. The offer of proof was
simply that k.g. would, if asked, testify that she had given false
information to a police officer. This was, evidently, a reference
to an incident referred to in k.g.’s deposition, in which k.g.
had run away from home for “about a week,” and then appar-
ently told the police that she had been with her sister. Schreiner
contends that this testimony “would have shown that [k.g.] had
no compunction about lying to those in authority.”49
but the district court had already sustained the State’s motion
to preclude any evidence about k.g.’s having run away from
home and other kinds of misconduct. Other than the issue under
discussion, Schreiner does not challenge that ruling on appeal.
And without reference to the incident Schreiner offered to prove,
k.g. still admitted on cross-examination that she had lied to her
parents, the police, and even at her deposition, about the cloth-
ing she had been wearing on the night of the alleged sexual
47 Davis, supra note 28.
48 § 27-608(2).
49 brief for appellant in case No. S-07-828 at 27.
STATe v. SCHReINeR 	413
Cite as 276 Neb. 393

encounter. It is difficult to see what additional value Schreiner
could have obtained from the incident he offered to prove, unless
he was able to inquire about the specific circumstances of the
falsehood. And that would have been beyond the scope of the
inquiry permitted by rule 608(2)(b).
In short, the incident Schreiner offered to prove was inex-
tricably linked to other, inadmissible evidence, and Schreiner
was able to make the same point through other questions. We
do not find an abuse of the district court’s discretion in its over-
ruling of Schreiner’s offer of proof. And even had the evidence
been improperly excluded, the evidence was cumulative and
there was other competent evidence to support the conviction,
so the improper exclusion was harmless beyond a reason-
able doubt.50
In summary, we find no abuse of discretion, or prejudicial
error, in the district court’s overruling of Schreiner’s offer of
proof regarding k.g.’s adjudication. Schreiner’s assignment of
error is without merit.
4. dna evidence
(a) Assignment of error
Schreiner assigns that the court erred in admitting k.g.’s under-
wear into evidence and in allowing testimony regarding DNA
testing of k.g.’s underwear, because it was not relevant.
(b) Standard of Review
[20] The exercise of judicial discretion is implicit in determi-
nations of relevancy, and a trial court’s decision regarding it will
not be reversed absent an abuse of discretion.51
(c) background
As described above, DNA testing found Schreiner’s sperm on
k.g.’s underwear. Schreiner objected to the test results relating
to the underwear, because k.g. testified that she had changed
clothes after the alleged assault, and Schreiner “object[ed] to
50 See State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006), cert. denied
549 U.S. 1283, 127 S. Ct. 1815, 167 L. ed. 2d 326 (2007).
51 State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
414 	276 NebRASkA RepORTS

any further testimony until the State . . . proves that those were
actually the underpants that she was wearing at the time that this
allegation occurred.”
but the DNA analyst testified that semen can leak from the
vagina on to underwear after the underwear has been put back
on. The district court overruled Schreiner’s objection, so the
underwear was admitted into evidence and testimony regard-
ing DNA testing of the underwear was allowed. On cross-
examination, the analyst admitted that it was possible for DNA
to be transferred to clothing and then transferred again to a
third person.
(d) Analysis
Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.52 evidence which is
not relevant is not admissible.53 Schreiner argues that the DNA
evidence discussed above was not relevant. His argument, essen-
tially, is that the evidence was irrelevant because k.g. testified
at trial that she changed clothes when she got home, so the DNA
samples were taken from underwear that k.g. testified she put
on the day after the alleged sexual encounter.
[21] The court did not abuse its discretion in admitting the
DNA testing of k.g.’s underwear. k.g.’s trial testimony that
she changed clothes simply does not make the DNA evidence
irrelevant. The jury could have concluded, from the evidence,
that k.g. had not actually changed clothes. And the DNA
analyst’s testimony would support the conclusion that even had
k.g. changed clothes, residual semen from a sexual encounter
could have leaked on to her clean underwear. In any event,
evidence is relevant if it tends in any degree to alter the prob-
ability of a material fact.54 The presence of Schreiner’s sperm on
k.g.’s underwear made it more likely that k.g. and Schreiner
had a sexual encounter. Therefore, the court did not abuse its
52 Neb. evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 1995).
53 Neb. evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 1995).
54 State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
STATe v. SCHReINeR 	415
Cite as 276 Neb. 393

discretion in admitting the evidence, and Schreiner’s assignment
of error is without merit.
5. length of tRial days
(a) Assignment of error
Schreiner assigns that the court erred in “permitting the trial
to continue until after 8:00 p.m. on at least two days.”
(b) Standard of Review
[22] The general conduct of the trial rests within the discretion
of the trial court.55 And a trial court’s order denying a motion for
new trial is reviewed for an abuse of discretion.56
(c) background
The court held a housekeeping hearing after voir dire was
completed on Thursday, April 19, 2007. In the course of dis-
cussing the length of opening statements, the court informed
counsel that “we’re going to have to start telling the jury we’re
going until 6:00 o’clock.” The court explained that the case had
to be completed by Wednesday of the following week, because
the following Thursday was “completely booked up” and Friday
was a court holiday. So, the court stated that “whatever the case,
if it takes working on Saturday,” it was necessary to have the
case submitted to the jury by the end of the day on the following
Wednesday. Schreiner’s counsel replied that he had “no problem
with going to 6:00 o’clock.”
During the morning recess the next day, the court again met
with counsel regarding scheduling. based on the representations
of counsel regarding the length of their respective cases, the court
informed them that it planned to “go until 5:00 today. And next
week what we’re going to do is, we’ll start at 8:30 each day and
we’ll start at 1:30 each day. And we’ll plan on - plan on going
until at least 5:00.” The court acknowledged that it “sounds like
we’re going to be pushing” to get the case submitted to the jury
by the end of the day on the following Wednesday. The court
55 Gales, supra note 4.
56 State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
416 	276 NebRASkA RepORTS

informed the jury of the proposed schedule after the recess. At
no point did Schreiner object.
The State was still presenting its case in chief on Monday
afternoon, and the court asked the State about the schedule
during the afternoon recess. The State said it was behind. The
court concluded that it would “tell the jury that we’ll go until
6:00 o’clock tomorrow evening and probably go until 6:00
o’clock on Wednesday.” The court added, “Wednesday we’ll
just go until we’re finished. That’s what I’m going to tell the
jury, they should just be prepared to go until we finish. because
we do need to have it finished by Wednesday.” Schreiner did
not object. At about 5 p.m., the court informed the jury that it
had been
informed by the attorneys that we are considerably behind
from where we expected to be at this point in time in the
trial and it is necessary for us to . . . extend the time that
you’re going to be required to be here in order to get this
trial completed. So I’m going to . . . change our schedule
a bit.
We are going to start at 8:00 o’clock tomorrow morn-
ing. We’re going to go until noon. And then we’re going
to resume at 1:00 o’clock. And tomorrow we’re going to
go until 7:00. Now, we will take a half hour break between
4:30 and 5:00 so you can get some meals and that sort
of thing.
And I’ll try to give you plenty of breaks so that you
don’t get too overly tired. I know it’s going to be a grueling
day tomorrow. On Wednesday I’m anticipating that we will
go until we are finished. Now that may be even longer than
we’re going tomorrow. And if it looks like it’s going to take
considerably longer than that, we’ll probably take an hour
break in the evening so that you do have a bit more of an
extended break here.
I apologize for this. We try not to let this happen. but
it’s going to be necessary in this case so that we can get
it completed.
The jury was excused, and a conference was had on several
matters, at the conclusion of which the court informed counsel
that “the way we’re going right now, I’m going to anticipate
STATe v. SCHReINeR 	417
Cite as 276 Neb. 393

that we’re just going to go straight through. So we’ll instruct the
jury whenever we’re ready, and we’ll do closing arguments just
whenever the evidence is completed.” Schreiner did not object
at any point.
The jury was provided with a dinner break on Tuesday, from
4:35 to 5:10 p.m. Another recess was taken from 6:06 to 6:21
p.m., and the jury was released on Tuesday at 6:59 p.m. On
Wednesday, after the defense rested, the jury was released from
3:09 to 5:06 p.m., while the court held the jury instruction con-
ference. Closing arguments were made, the jury was instructed,
and the case was submitted to the jury at 6:24 p.m.
The record does not reflect how late the jury deliberated that
evening. but the jurors were told that they did not have to delib-
erate that evening; that if they did deliberate, they could stop
for the evening at any time they chose; and that in any event,
they should not deliberate later than 8:30 p.m. Schreiner did not
object at any point. At 9:52 a.m. the next day, a teleconference
was held with respect to a question from the jury. A followup
question was discussed in a teleconference at 10:29 a.m. The
jury returned its verdict at 10:44 a.m. on the following day,
Friday, April 27, 2007.
Schreiner based his motion for new trial, in part, on the
complaint that the trial days had been too long. Schreiner’s
counsel admitted he did not object, but said he “did not realize
the impact of the procedure we followed here until the jury had
already begun its deliberations.” The motion was overruled.
(d) Analysis
[23] Schreiner argues that the court should have sustained his
motion for new trial, based on the length of the trial days. but
despite several obvious opportunities, Schreiner never objected
to the court’s stated intent to work late in order to complete
the trial during the available time. The failure to make a timely
objection waives the right to assert prejudicial error on appeal.57
One cannot know of purportedly improper judicial conduct,
gamble on a favorable result as to that conduct, and then
complain that he or she guessed wrong and does not like the
57 Gutierrez, supra note 14.
418 	276 NebRASkA RepORTS

outcome.58 The court certainly did not abuse its discretion in
overruling a motion for new trial that was predicated on grounds
that had been waived during the trial.
[24,25] Nor does any plain error appear on the record.
The record, as summarized above, simply does not support
Schreiner’s assertion that the court “permit[ed] the trial to
extend to well after 8:00 p.m.”59 on Tuesday and Wednesday.
And generally, trial courts have wide discretion to ensure that
the goal of timely disposition of cases is reached.60 Trial courts
must have a great deal of latitude in striking the balance between
the court’s calendar and a party’s right to a fair chance to be
heard.61 Of course, this discretion is not unbounded. Attorneys,
witnesses, and jurors should not be asked, absent extremely
unusual circumstances, to perform their important duties while
battling mental and physical exhaustion.62 but that did not hap-
pen here. Instead, the record demonstrates that the court kept the
jury informed, took appropriate breaks, and in general, carefully
exercised its discretion to complete the trial in this case during
the time available.
In short, Schreiner did not object to the length of the trial
days until after he was convicted, and the record does not sup-
port his argument in any event. We find no merit to his assign-
ment of error.
6. inquiRy into K.g.’ s mental health and medication
(a) Assignment of error
Schreiner assigns that the court erred in not permitting him to
inquire into k.g.’s mental health status and her use of psycho-
tropic drugs and their adverse effect on her memory.
58 See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
59 brief for appellant in case No. S-07-828 at 29.
60 See Talkington v. Womens Servs, 256 Neb. 2, 588 N.W.2d 790 (1999).
61 See, Loinaz v. EG & G, Inc., 910 F.2d 1 (1st Cir. 1990); Beary v. City of
Rye, 601 F.2d 62 (2d Cir. 1979).
62 See Parker v. State, 454 So. 2d 910 (Miss. 1984).
STATe v. SCHReINeR 	419
Cite as 276 Neb. 393

(b) Standard of Review
The scope of cross-examination of a witness rests largely in
the discretion of the trial court, and its ruling will be upheld on
appeal unless there is an abuse of discretion.63
(c) background
The State filed a motion in limine asking, among other
things, for an order precluding any evidence of mental health
issues of k.g. or D.g. At the hearing on the State’s motion,
Schreiner asserted that during her deposition, k.g. had said
that she was being treated for a mental illness and that her
medication affected her memory. The State disagreed with that
interpretation of k.g.’s deposition testimony. k.g.’s deposi-
tion was received as evidence at the hearing. In her deposition,
k.g. explained that she had been diagnosed with a mental ill-
ness and had been prescribed medication to treat it. but k.g.
did not mention any effect of the medication, or her condition,
on her memory. And no offer of proof to that effect was made
at trial.
After Schreiner was convicted, at the hearing on his motion
for new trial, Schreiner’s counsel represented to the court that
he had recently “received information that [k.g.] suffers from
a mental impairment that causes memory loss and was taking
medications to treat that impairment.” but he represented that
he was not basing his motion for new trial on that information,
did not have the information from a firsthand source, and just
intended “to make a record at this point that I have looked into
that” and would file another motion if he ever found evidence to
substantiate the information he had been given.
(d) Analysis
Schreiner argues that his Confrontation Clause rights were
violated 	because 	he 	“was 	precluded 	from 	cross-examining
[k.g.] on the question of her mental health.”64 There is nothing
in the record to support this claim. As previously noted, in order
to predicate error upon a ruling of the court’s refusing to permit
63 Kuehn, supra note 12.
64 brief for appellant in case No. S-07-828 at 29.
420 	276 NebRASkA RepORTS

a witness to testify, or to answer a specific question, the record
must show an offer to prove the facts sought to be elicited.65
No offer of proof was made in this case. The closest Schreiner
came was in support of his motion for new trial, and even then,
Schreiner’s counsel admitted that there was no firsthand basis to
believe that k.g.’s memory was impaired.
On appeal, Schreiner relies on State v. Trammel,66 in which
this court discussed the Confrontation Clause as it related to a
witness’ mental condition. but the issue in Trammel was dis-
covery, not cross-examination. In Trammel, on the facts of the
case, this court concluded that the Confrontation Clause required
that the defendant be allowed to discover information about a
witness’ current mental health treatment, despite the physician-
patient privilege.
There is nothing in the record to suggest that Schreiner sought
such discovery here, nor does Trammel authorize a “fishing
expedition” on cross-examination of a witness. And, as already
noted, there was no offer to prove facts relating to k.g.’s mental
condition, on cross-examination or otherwise, that were relevant
or admissible. Absent such an offer of proof, we find no merit
to Schreiner’s assignment of error.
7. lifetime community suPeRvision
(a) Assignment of error
Schreiner assigns that the court erred in finding he was sub-
ject to lifetime community supervision under Neb. Rev. Stat.
§§ 29-4005 and 83-174.03 (Cum. Supp. 2006), as those statutes
(1) constitute an ex post facto law, (2) violate his right to be free
from cruel and unusual punishment, and (3) violate his right to
due process of law.
(b) Standard of Review
[26] This issue presents a question of law, on which an appel-
late court is obligated to reach a conclusion independent of the
determination reached by the court below.67
65 Talle, supra note 23.
66 State v. Trammel, 231 Neb. 137, 435 N.W.2d 197 (1989).
67 See State v. Jackson, 274 Neb. 724, 742 N.W.2d 751 (2007).
STATe v. SCHReINeR 	421
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(c) Analysis
Section 83-174.03(1) provides that
[a]ny individual who, on or after July 14, 2006, (a) is
convicted of or completes a term of incarceration for
an offense requiring registration under section 29-4003
and has a previous conviction for a registerable offense,
(b) is convicted of sexual assault of a child in the first
degree pursuant to section 28-319.01, or (c) is convicted
of or completes a term of incarceration for an aggravated
offense as defined in section 29-4005, shall, upon comple-
tion of his or her term of incarceration or release from
civil commitment, be supervised in the community by the
Office of parole Administration for the remainder of his
or her life.
Schreiner was notified at sentencing that because he had previ-
ously been convicted of a registrable offense, he is subject to
lifetime community supervision.68 He argues, on several bases,
that the application of this statute to him is unconstitutional.
but the initial question is whether these issues are properly
before us in this appeal. The State argues that the provisions
of § 83-174.03 are not part of the sentence and, therefore, not
ripe for adjudication. In the alternative, the State argues that
Schreiner waived his constitutional challenge by not raising it
in the trial court.
We addressed a similar issue in State v. Torres.69 In Torres,
the defendant challenged the registration requirements of the
Sex Offender Registration Act (SORA)70 in a direct appeal from
his conviction and sentence. but we explained that SORA’s
registration requirements were separate and collateral to any
sexual offense which the act affects, because “SORA’s registra-
tion requirements arose solely and independently by the terms
of the act itself only after [the defendant’s] conviction.”71 Thus,
68 See Neb. Rev. Stat. § 29-4019 (Cum. Supp. 2006).
69 State v. Torres, 254 Neb. 91, 574 N.W.2d 153 (1998).
70 Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Cum. Supp. 2006).
71 Torres, supra note 69, 254 Neb. at 95, 574 N.W.2d at 155.
422 	276 NebRASkA RepORTS

we refused to consider the defendant’s challenge to his 10-year
registration requirement.
but we distinguished Torres in State v. Worm.72 In Worm, the
defendant was subjected, not to a 10-year registration require-
ment, but to the lifetime registration requirement associated with
an aggravated offense.73 Therefore, his lifetime SORA registra-
tion requirement had not arisen solely and independently from
the defendant’s conviction. Instead, the court had been required,
as part of the sentence, to determine whether the offense was
aggravated and “make that fact part of the sentencing order.”74
As such, the court’s finding that the defendant committed an
aggravated offense was part of the court’s judgment.75 So, we
determined that the registration requirement for an offender
convicted of an aggravated offense was part of the judgment for
purposes of filing an appeal and rejected his constitutional chal-
lenge to SORA on the merits.76
The lifetime community supervision provisions of § 83-174.03
incorporate and mirror the lifetime registration provisions of
SORA. but like the defendant in Torres, and unlike the defend-
ant in Worm, Schreiner was not found to have committed an
aggravated offense. Instead, because he had previously been
convicted of an offense requiring registration under § 29-4003,77
he was subject to § 83-174.03 automatically, by virtue of his
conviction.78 The operation of § 83-174.03 is entirely indepen-
dent from the sentence imposed upon Schreiner for first degree
sexual assault. As such, any claim Schreiner may have con-
cerning the constitutional implications of § 83-174.03 should
be raised if and when he becomes subject to its provisions,
but not on a direct appeal from his underlying sexual assault
72 State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
73 See § 29-4005(2).
74 See id.
75 Worm, supra note 72.
76 See id. See, also, State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002).
77 See § 29-4003(1)(a).
78 See Neb. Rev. Stat. § 83-174.02(1) (Cum. Supp. 2006).
STATe v. SCHReINeR 	423
Cite as 276 Neb. 393

conviction.79 Any individual who is subject to lifetime commu-
nity supervision may, whenever a determination or revision of
the conditions of community supervision is made, appeal to the
district court.80
There 	are 	also 	prudential 	reasons 	for 	concluding 	that
Schreiner’s challenge is unripe. Unlike SORA, the provisions
of which are mandatory, the effects of the lifetime commu-
nity supervision provision are uncertain until the defendant is
released from incarceration. The statute provides that “[n]otice
shall be provided to the Office of parole Administration by an
agency or political subdivision which has custody of an indi-
vidual required to be supervised in the community . . . at least
sixty days prior to the release of such individual from custody.”81
Then, “[i]ndividuals required to be supervised in the community
. . . shall undergo a risk assessment and evaluation by the Office
of parole Administration to determine the conditions of commu-
nity supervision to be imposed to best protect the public from
the risk that the individual will reoffend.”82 Those conditions
can, based on the risk assessment, be rather onerous, up to and
including electronic monitoring.83 but there is no requirement
that the Office of parole Supervision monitor the defendant
at all. And that uncertainty, of whether the defendant will be
affected at all by these provisions, counsels against weighing
their constitutionality before their effects are known.
For those reasons, we agree with the State that Schreiner’s
constitutional challenges to § 83-174.03 are not ripe for consid-
eration in this appeal. We note that because the issues are unripe,
Schreiner was under no obligation to object on that basis in the
district court, and has not waived his constitutional claims if and
when they become ripe. but in this appeal, they are not before
us, and we do not consider them.
79 See Torres, supra note 69 (Connolly, J., concurring; gerrard and Stephan,
JJ., join).
80 See Neb. Rev. Stat. § 83-1,103.04 (Cum. Supp. 2006).
81 See § 83-174.03(2).
82 See § 83-174.03(3).
83 See § 83-174.03(4).
424 	276 NebRASkA RepORTS

8. sufficiency of evidence
(a) Assignment of error
Finally, Schreiner assigns that the district court erred in
finding the evidence sufficient to sustain his conviction for sex-
ual assault.
(b) Standard of Review
[27] 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 properly admitted evidence, viewed
and construed most favorably to the State, is sufficient to support
the conviction.84
(c) Analysis
Schreiner’s argument, simply stated, is that k.g.’s testimony
was unreliable and unsupported by the physical evidence. He
points to inconsistencies between k.g.’s testimony and testi-
mony from the other witnesses. He contends that the physical
evidence did not support his conviction, because his DNA was
not found on all of the swabs taken from k.g., and he claims the
evidence did not clearly establish that his sperm was on k.g.’s
underwear because of sexual contact.
[28,29] but witness credibility is not to be reassessed on
appellate review.85 Instead, a witness’ credibility and weight to
be given to testimony are matters for determination and evalua-
tion by a fact finder.86 The jury in this case was made aware of
inconsistencies in the evidence, and it resolved those inconsis-
tencies in favor of the State. The evidence is sufficient to support
that conclusion.
Nor are we persuaded by Schreiner’s questions about the
physical evidence. It is fair to say that the defendant’s sperm,
found in the victim’s underwear, is persuasive circumstantial
84 Archie, supra note 51.
85 Robinson, supra note 50.
86 State v. Salamon, 241 Neb. 878, 491 N.W.2d 690 (1992); State v. Sanders,
15 Neb. App. 554, 733 N.W.2d 197 (2007).
STATe v. SCHReINeR 	425
Cite as 276 Neb. 393

evidence of sexual contact. While Schreiner raised questions
about the DNA evidence, there is sufficient evidence to support
the jury’s apparent conclusion that Schreiner’s explanation for
how his sperm got on k.g.’s underwear was less convincing
than the State’s.
In short, the evidence is more than sufficient to support
Schreiner’s sexual assault conviction. We find no merit to
Schreiner’s final assignment of error.
Iv. CONCLUSION
We find no merit to Schreiner’s evidentiary arguments and no
abuse of discretion in the court’s conduct of the trial proceed-
ings. The evidence is certainly sufficient to support Schreiner’s
sexual assault conviction and the revocation of his probation.
And finally, we do not address Schreiner’s challenges to lifetime
community supervision, because they are not ripe for adjudica-
tion. The judgments of the district court are affirmed.
affiRmed .
mccoRmacK, J., participating on briefs.
heavican, C.J., not participating.
miKe B oRRenPohl , doing Business as B oRRenPohl excavating ,
aPPellant , and steve B aRtels , doing Business as steve
B aRtels constRuction , aPPellee and cRoss - aPPellant ,
v . da B eeRs PRoPeRties , l.l.c., a limited liaBility
comPany , and the caRson national B anK of
auBuRn , aPPellees , and B anK of B ennington ,
aPPellee and cRoss - aPPellee .
755 N.W.2d 39
Filed August 15, 2008. 	No. S-07-980.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
426 	276 NebRASkA RepORTS