State v. Epp

State of NebraSka , appellee , v.
William a. epp, appellaNt.
773 N.W.2d 356
Filed October 16, 2009. 	No. S-08-331.
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. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
4. ____: ____: ____. Because of the factors a trial court must weigh in deciding
whether to admit evidence under the residual hearsay exception, an appellate
court applies an abuse of discretion standard to review hearsay rulings under
this exception.
5. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
6. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
7. Convictions: Evidence: Appeal and Error. When reviewing a criminal convic-
tion for sufficiency of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
8. ____: ____: ____. 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. Those matters are for the finder of fact.
9. Trial: Evidence. A court must determine whether there is sufficient foundation
evidence for the admission of physical evidence on a case-by-case basis.
10. ____: ____. Because authentication rulings are necessarily fact specific, a
trial court has discretion to determine whether evidence has been properly
authenticated.
11. Trial: Evidence: Appeal and Error. An appellate court reviews a trial court’s
ruling on authentication for abuse of discretion.
12. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
STATE v. Epp 	683
Cite as 278 Neb. 683
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13. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
14. Rules of Evidence: Hearsay. In determining whether a statement is admissible
under the residual exception to the hearsay rule, a court considers five factors: a
statement’s trustworthiness, the materiality of the statement, the probative impor-
tance of the statement, the interests of justice, and whether notice was given to
an opponent.
15. ____: ____. In determining admissibility under the residual hearsay exception,
a court must examine the circumstances surrounding the declaration in issue
and may consider a variety of factors affecting trustworthiness of a statement.
A court may compare the declaration to the closest hearsay exception as well
as consider a variety of other factors affecting trustworthiness, such as the
nature of a statement, that is, whether the statement is oral or written; whether
a declarant had a motive to speak truthfully or untruthfully, which may involve
an examination of the declarant’s partiality and the relationship between the
declarant and the witness; whether the statement was made under oath; whether
the statement was spontaneous or in response to a leading question or ques-
tions; whether a declarant was subject to cross-examination when the statement
was made; and whether a declarant has subsequently reaffirmed or recanted
the statement.
16. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of a
criminal case, an erroneous evidentiary ruling results in prejudice to a defendant
unless the State demonstrates that the error was harmless beyond a reason-
able doubt.
17. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal
case, harmless error exists when there is some incorrect conduct by the trial court
which, on review of the entire record, did not materially influence the jury in
reaching a verdict adverse to a substantial right of the defendant.
18. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis
on which the jury actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
19. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analy-
sis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008),
considers (1) whether the evidence was relevant for some purpose other than to
prove the character of a person to show that he or she acted in conformity there-
with; (2) whether the probative value of the evidence is substantially outweighed
by its potential for unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited purpose for which
it was admitted.
20. Evidence: Other Acts. Other acts evidence may have probative value as to
identity where there are overwhelming similarities between the other crime and
the charged offense or offenses, such that the crimes are so similar, unusual,
and distinctive that the trial judge could reasonably find that they bear the
same signature.
684 	278 NEBRASkA REpORTS

21. ____: ____. In evaluating other acts evidence in criminal prosecutions, the other
act must be so related in time, place, and circumstances to the offense or offenses
charged so as to have substantial probative value in determining the guilt of
the accused.
22. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecu-
torial misconduct in closing arguments, a court first determines whether the
prosecutor’s remarks were improper; it is then necessary to determine the extent
to which the improper remarks had a prejudicial effect on the defendant’s right to
a fair trial.
23. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred.
24. Convictions: Evidence: Appeal and Error. 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. Any
conflicts in the evidence or questions concerning the credibility of witnesses are
for the finder of fact to resolve.
25. Criminal Law: Verdicts: Evidence: Appeal and Error. On a claim of insuf-
ficiency of the evidence, an appellate court will not set aside a guilty verdict in a
criminal case where such verdict is supported by relevant evidence. Only where
evidence lacks sufficient probative force as a matter of law may an appellate court
set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
26. Sentences: Prior Convictions: Habitual Criminals: Proof. In a habitual crimi-
nal proceeding, the State’s evidence must establish with requisite trustworthiness,
based upon a preponderance of the evidence, that (1) the defendant has been
twice convicted of a crime, for which he or she was sentenced and committed to
prison for not less than 1 year; (2) the trial court rendered a judgment of convic-
tion for each crime; and (3) at the time of the prior conviction and sentencing, the
defendant was represented by counsel or had knowingly and voluntarily waived
representation for those proceedings.
27. Prior Convictions: Records: Proof. The existence of a prior conviction and the
identity of the accused as the person convicted may be shown by any competent
evidence, including the oral testimony of the accused and duly authenticated
records maintained by the courts or penal and custodial authorities.
28. ____: ____: ____. In reviewing criminal enhancement proceedings, a judicial
record of this state, or of any federal court of the United States, may be proved
by the production of the original, or by a copy thereof, certified by the clerk or
the person having the legal custody thereof, and authenticated by his or her seal
of office, if he or she has one.
29. Sentences. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
30. ____. When imposing a sentence, a sentencing judge should consider the defend-
ant’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. Epp 	685
Cite as 278 Neb. 683

Appeal from the District Court for Gage County: paul W.
korSluNd, Judge. Affirmed.
James R. Mowbray and Todd W. Lancaster, of Nebraska
Commission on public Advocacy, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
H eavicaN, 	c.J., 	WrigHt, 	coNNolly, 	gerrard, 	StepHaN,
mccormack, and miller-lermaN, JJ.
miller-lermaN, J.
NATURE OF CASE
William A. Epp appeals his convictions and sentences for
robbery and possession of a deadly weapon by a felon. Epp
was found to be a habitual criminal and was sentenced to
imprisonment for 60 to 60 years on each of the two convic-
tions, with the sentences ordered to be served consecutively.
We affirm Epp’s convictions and sentences.
STATEMENT OF FACTS
On April 24, 2007, a person wearing a ski mask robbed a
Casey’s General Store (Casey’s) in Wymore, Nebraska. A video
recording from the store’s security cameras showed that the
robber wore a dark ski mask, a green jacket, dark pants, dark
gloves, and white shoes with dark stripes. The video recording
also showed that the robber pulled from his jacket an object
that looked like a handgun. There were three witnesses in the
store at the time of the robbery. Their testimonies regarding
the robber’s clothing were consistent with what was shown
in the video recording. At trial, each of the witnesses testified
that the robber had a handgun. However, one of the witnesses
also stated that at the time of the robbery, she thought that the
handgun was not real.
Epp became a suspect in both the Wymore Casey’s robbery,
which is the subject of this case, and a series of burglaries of
a grocery store in plymouth, Nebraska, that occurred April
6 and 30 and May 21, 2007. A video recording of the May
21 burglary of the plymouth store showed that the burglar
686 	278 NEBRASkA REpORTS

was wearing clothing similar to that worn by the robber of
the Wymore Casey’s. Based on information from confiden-
tial informants tying Epp to the plymouth burglaries, police
obtained a warrant to search Epp’s apartment in Beatrice,
Nebraska. In that search, police found various items that were
stolen in the plymouth burglaries and clothing which matched
descriptions of clothing worn by the plymouth burglar and the
Wymore Casey’s robber.
On September 4, 2007, the State filed an information in
the district court for Gage County charging Epp with robbery
of the Wymore Casey’s, use of a deadly weapon to commit
a felony, and possession of a deadly weapon by a felon. The
State also alleged that Epp was a habitual criminal. Separate
charges were filed in the district court for Jefferson County in
connection with the plymouth burglaries. This appeal is from
the Gage County case involving the Wymore Casey’s robbery.
On August 26, 2008, in case No. A-08-322, the Nebraska Court
of Appeals affirmed Epp’s conviction and sentence for the May
21 plymouth burglary (hereinafter the plymouth burglary).
prior to trial, the State filed a motion and notice of intent to
present evidence pursuant to Neb. Evid. R. 404, Neb. Rev. Stat.
§ 27-404 (Reissue 2008), which relates generally to the admis-
sion of evidence of other crimes, wrongs, or acts. The State
noted its intent to present evidence regarding the plymouth
burglary, including a video recording of the plymouth burglary,
items taken from the plymouth store that were found in Epp’s
apartment, and testimony establishing that Epp committed the
plymouth burglary. At a hearing on the motion, the State
argued that it would offer evidence of the plymouth burglary in
the present case for the purpose of proving identity by show-
ing that Epp was the person who committed both the plymouth
burglary and the Wymore Casey’s robbery.
The district court granted the State’s motion to present
evidence of the plymouth burglary for the purpose of proving
identity. The court noted that the person in both the plymouth
burglary and the Wymore Casey’s robbery wore a dark ski
mask, dark pants, a dark windbreaker jacket, and, most nota-
bly, shoes with a diamond-shaped pattern on the soles of the
heels. The court also found testimony identifying Epp as the
STATE v. Epp 	687
Cite as 278 Neb. 683

plymouth burglar to be credible. The court concluded that there
was “a distinct pattern and procedure relating to the identity of
the intruder in both the plymouth grocery store burglaries and
the Casey’s . . . robbery which goes significantly beyond the
common thread of the intruder wearing dark clothing in both
instances.” At trial, the court gave a limiting instruction prior to
admitting evidence regarding the plymouth burglary. The court
instructed that the evidence was being received for the limited
purpose of proving identity. The court overruled Epp’s objec-
tions to admission of the evidence.
prior to trial, Epp subpoenaed three witnesses who were
imprisoned in Lancaster County—paul Mick, who was impris-
oned at the Nebraska State penitentiary, and Wes Blessing and
Bryon Forney, who were both imprisoned at the Diagnostic
and Evaluation Center. Epp’s trial was to take place in Gage
County. Epp moved the district court to order the Nebraska
Department of Correctional Services to transport each witness
to appear at trial. Epp asserted that Blessing and Forney would
both testify that while they and Mick were incarcerated at the
Gage County jail, Mick confessed to them that he had com-
mitted an armed robbery of a Casey’s. The State objected to
Epp’s motions.
The court denied the motions to transport the witnesses,
because the trial was to take place in Gage County and the
witnesses were imprisoned in Lancaster County. The court
relied on Neb. Rev. Stat. § 25-1233(1) (Reissue 2008), which
provides: “A person confined in any prison in this state shall,
by order of any court of record, be produced for oral examina-
tion in the county where he or she is imprisoned. In all other
cases his or her examination must be by deposition.” The
court noted that § 25-1233 had been held to apply in criminal
proceedings. The court also cited State v. Stott, 243 Neb. 967,
503 N.W.2d 822 (1993), disapproved on other grounds, State
v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). In Stott,
this court rejected a challenge to § 25-1233 based on the com-
pulsory process clauses of the Sixth Amendment to the U.S.
Constitution and article I, § 11, of the Nebraska Constitution
and held that “a criminal defendant does not possess an abso-
lute constitutional right to demand the personal attendance of
688 	278 NEBRASkA REpORTS

a prisoner witness incarcerated outside the county of the venue
of trial,” 243 Neb. at 982, 503 N.W.2d at 833, and that testi-
mony by deposition was constitutionally sufficient.
The district court in the present case granted Epp leave
to obtain the testimonies of Mick, Blessing, and Forney by
deposition. After the depositions were taken, the State filed a
motion in limine prohibiting admission of evidence regarding
Mick’s purported statements to Blessing and Forney. After
a hearing, the court determined that the evidence was not
relevant and not trustworthy. The court determined that the
statements were inadmissible hearsay and that exceptions to
the hearsay rule did not apply. The court sustained the State’s
motion in limine and ordered that Epp was barred “from
mentioning, eliciting, offering and/or adducing any evidence,
statement or argument concerning any purported verbal state-
ment or statements made by . . . Mick to . . . Blessing and/
or . . . Forney.”
At trial, a witness who was working in the Wymore Casey’s
at the time of the robbery testified that on April 25, 2007, the
day after the robbery, she saw Mick in the Casey’s acting “nerv-
ous and standoffish.” She testified that Mick was of a similar
height and build to the person who robbed the store and that
he had a scratch or mark near his eye that was similar to a
mark she noticed through the eyehole of the ski mask worn
by the robber. Epp presented testimony of the Wymore police
chief, who testified that Mick was involved in a disturbance
in Wymore prior to the day the Casey’s was robbed. Without
objection by the State, the court allowed Epp’s counsel to
read into evidence a portion of Mick’s deposition in which he
stated that he was in Wymore on April 25 but that he was in
Fairbury, Nebraska, on April 24, the day the Wymore Casey’s
was robbed. However, the court sustained the State’s objections
to the remainder of Mick’s deposition and to the depositions of
Blessing and Forney.
During closing arguments, the prosecution referred to testi-
mony by Epp’s landlord regarding statements made by Epp in
a conversation with the landlord regarding the reason Epp was
in jail after his arrest in this case. Epp objected to this portion
of the State’s closing argument and argued that it implied Epp
STATE v. Epp 	689
Cite as 278 Neb. 683

needed to present a defense to explain why he was in jail and
that it caused the jury to question why Epp did not testify in
his defense. Epp moved for a mistrial based on the prosecutor’s
statements. The court overruled the motion and did not give a
limiting instruction but required the prosecutor to clarify that
the jury was to consider Epp’s response in the context of his
landlord’s question.
The jury found Epp guilty of robbery and possession of a
deadly weapon by a felon. However, the jury found Epp not
guilty of use of a deadly weapon to commit a felony.
The court conducted a habitual criminal enhancement pro-
ceeding on March 10, 2008. The State had filed a notice of
intention to offer evidence of public official or agency records
pursuant to Neb. Evid. R. 803(7), Neb. Rev. Stat. § 27-803(7)
(Reissue 2008). Such evidence included certified copies of
court records regarding Epp’s prior convictions and a “pen
packet” certified by the Nebraska Department of Correctional
Services with information regarding Epp’s commitment and
discharge for various offenses. The court received the evidence
at the enhancement hearing over Epp’s objections based on
hearsay, relevance, and foundation. The court deemed Epp to
be a habitual criminal based on evidence that established that
Epp had two prior felony convictions and was represented by
counsel in those proceedings.
The court sentenced Epp to imprisonment for 60 to 60 years
on both his conviction for robbery and his conviction for pos-
session of a deadly weapon by a felon. The court ordered the
sentences to be served consecutively.
Epp appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Epp asserts that the district court abused its discretion and
violated his constitutional rights to due process and a fair trial
when it refused to admit the testimonies of Mick, Blessing,
and Forney and denied his requests to transport them to tes-
tify at trial. He argues that § 25-1233 violates a defendant’s
right to equal protection because it distinguishes between
defendants based on whether their trials are held in counties
where prisons are located. Epp further asserts that the court
690 	278 NEBRASkA REpORTS

erred when it (1) admitted evidence regarding the plymouth
burglary, (2) overruled his motion for a mistrial based on
the prosecutor’s statement regarding the landlord in closing
arguments, (3) admitted the certified court records and “pen
packet” at the enhancement proceeding and found him to be
a habitual criminal based on such evidence, and (4) imposed
excessive sentences. Epp also asserts that there was not suf-
ficient evidence to support his conviction for possession of a
deadly weapon by a felon.
STANDARDS OF REVIEW
[1,2] 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 admis-
sibility. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57
(2008). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
we review the admissibility of evidence for an abuse of discre-
tion. Id.
[3,4] Apart from rulings under the residual hearsay excep-
tion, we review for clear error the factual findings under-
pinning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination to admit evidence over a hearsay
objection. Id. Because of the factors a trial court must weigh in
deciding whether to admit evidence under the residual hearsay
exception, we have applied an abuse of discretion standard
to review hearsay rulings under the residual hearsay excep-
tion. Id.
[5] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or
acts under rule 404(2) and Neb. Evid. R. 403, Neb. Rev. Stat.
§§ 27-403 (Reissue 2008), and the trial court’s decision will
not be reversed absent an abuse of discretion. State v. Floyd,
277 Neb. 502, 763 N.W.2d 91 (2009).
[6] The decision whether to grant a motion for mistrial is
within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion. State v.
Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).
STATE v. Epp 	691
Cite as 278 Neb. 683

[7,8] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Davis, 277 Neb. 161, 762
N.W.2d 287 (2009). And in our review, we do not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Those matters are for the finder of
fact. Id.
[9-11] A court must determine whether there is sufficient
foundation evidence for the admission of physical evidence
on a case-by-case basis. State v. Draganescu, supra. Because
authentication rulings are necessarily fact specific, a trial court
has discretion to determine whether evidence has been properly
authenticated. Id. We review a trial court’s ruling on authenti-
cation for abuse of discretion. Id.
[12,13] A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the trial
court. State v. Moore, 277 Neb. 111, 759 N.W.2d 698 (2009).
An abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
ANALYSIS
The Testimonies of Blessing and Forney Were Inadmissible
Hearsay and Properly Excluded, and Any Error in
Excluding Mick’s Testimony Was Harmless.
Epp first asserts that the court erred when it did not allow
him to present the testimonies of Mick, Blessing, and Forney.
Epp makes various arguments with respect to such testimonies.
He argues that the court erred in denying his request to trans-
port the witnesses to testify at trial, in requiring him to conduct
depositions of the witnesses prior to trial, and in not allowing
such depositions to be admitted at trial. He also argues that
§ 25-1233 is unconstitutional because it denies equal protec-
tion based on whether a defendant’s trial is held in the county
in which witnesses are imprisoned.
692 	278 NEBRASkA REpORTS

We conclude that the court did not err in sustaining the
State’s motion in limine and denying admission of the hear-
say testimonies of Blessing and Forney and that any error in
excluding Mick’s testimony was harmless. We therefore need
not consider Epp’s arguments regarding transportation of wit-
nesses and the constitutionality of § 25-1233.
prior to trial, the State filed a motion in limine seeking an
order barring “any evidence, statement, or argument concern-
ing any purported verbal statement or statements made by
. . . Mick to . . . Blessing and/or . . . Forney.” After review-
ing transcripts of Mick’s, Blessing’s, and Forney’s videotaped
depositions, the court sustained the motion in limine. The
court determined that the evidence was not relevant and not
trustworthy and that any probative value was substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury. The court further determined
that the statements were inadmissible hearsay and that the
exceptions argued by Epp did not apply in this case. The court
sustained the State’s objections when Epp offered the deposi-
tions as evidence at trial.
With regard to the testimonies of Blessing and Forney, we
conclude that the court did not abuse its discretion in determin-
ing that the evidence was inadmissible hearsay. Forney testified
in his deposition that Blessing told Forney in Mick’s presence
that Blessing was in jail because he had robbed a Casey’s in
Beatrice. Forney testified that Mick responded to Blessing’s
statement by stating that Mick had “robbed the Casey’s too.”
Forney testified that Mick did not specify the location of the
Casey’s that he robbed and did not say anything more about
the matter. Blessing testified in his deposition that he, Mick,
and Forney were talking and Mick told them “about an armed
robbery that he committed.” Blessing testified that he “cut
[Mick] off at that point” and “let him know that [Blessing] did
an armed robbery in Beatrice.” Blessing testified that Mick did
not give further details about the armed robbery but that Mick
“specifically said that he did an armed robbery. And I guess
that would probably be about it.”
Such testimonies of Blessing and Forney constitute hear-
say. Under Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3)
STATE v. Epp 	693
Cite as 278 Neb. 683

(Reissue 2008), hearsay is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. Epp sought to
use Blessing’s and Forney’s testimonies regarding Mick’s state-
ments to them as proof that Mick committed an armed robbery
and that he robbed a Casey’s. Epp offered the testimonies of
Blessing and Forney to support a defense that Mick rather than
Epp robbed the Wymore Casey’s. The jury could infer that the
robbery that Mick admitted to committing was the robbery of
the Wymore Casey’s on April 24, 2007.
[14] Hearsay is not admissible except as provided by the
rules of evidence. See Neb. Evid. R. 802, Neb. Rev. Stat.
§ 27-802 (Reissue 2008). Epp asserts that the testimonies of
Blessing and Forney are admissible under the residual hearsay
exception. This exception is set forth in rule 803(23) (whether
or not the declarant is available as a witness) and Neb. Evid.
R. 804(2)(e), Neb. Rev. Stat. § 27-804(2)(e) (Reissue 2008)
(where the declarant is unavailable). Because there is no indi-
cation that Mick was unavailable as defined in rule 804, the
applicable residual hearsay exception is that in rule 803(23),
which provides in part:
A statement not specifically covered by any of the fore-
going exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines
that (a) the statement is offered as evidence of a mate-
rial fact, (b) the statement is more probative on the point
for which it is offered than any other evidence which the
proponent can procure through reasonable efforts, and (c)
the general purposes of these rules and the interests of
justice will best be served by admission of the statement
into evidence.
We have stated that in determining whether a statement is
admissible under the residual exception to the hearsay rule, a
court considers five factors: a statement’s trustworthiness, the
materiality of the statement, the probative importance of the
statement, the interests of justice, and whether notice was given
to an opponent. State v. Castor, 262 Neb. 423, 632 N.W.2d 298
(2001) (applying rule 803(23)). See State v. Robinson, 271 Neb.
698, 715 N.W.2d 531 (2006) (applying rule 804(2)(e)).
694 	278 NEBRASkA REpORTS

[15] In determining admissibility under the residual hearsay
exception, a court must examine the circumstances surrounding
the declaration in issue and may consider a variety of factors
affecting trustworthiness of a statement. See Robinson, supra.
A court may compare the declaration to the closest hearsay
exception as well as consider a variety of other factors affect-
ing trustworthiness, such as the nature of a statement, that is,
whether the statement is oral or written; whether a declarant
had a motive to speak truthfully or untruthfully, which may
involve an examination of the declarant’s partiality and the
relationship between the declarant and the witness; whether
the statement was made under oath; whether the statement
was spontaneous or in response to a leading question or ques-
tions; whether a declarant was subject to cross-examination
when the statement was made; and whether a declarant has
subsequently reaffirmed or recanted the statement. See State
v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996) (apply-
ing rule 804(2)(e)) (citing State v. Toney, 243 Neb. 237, 498
N.W.2d 554 (1993)). The court in this case specifically found
that the statements to which Blessing and Forney testified
were not trustworthy.
Epp argues that Mick’s statements to Blessing and Forney
were trustworthy because they were similar to statements
against penal interest, which are hearsay exceptions pursuant
to rule 804(2)(c) when the declarant is unavailable as a witness.
We note that rule 804(2)(c) provides in part that “[a] statement
tending to expose the declarant to criminal liability and offered
to exculpate the accused is not admissible unless corroborat-
ing circumstances clearly indicate the trustworthiness of the
statement.” Thus, under both the penal interest exception and
the residual hearsay exception, Epp needed to show that the
circumstances of Mick’s statements to Blessing and Forney
indicated that such statements were trustworthy.
Using the factors affecting trustworthiness set forth above,
we note that Mick’s alleged statements were oral; that the
circumstances of Mick’s having a casual conversation with
fellow inmates does not clearly indicate a particular motive
to speak either truthfully or untruthfully; that Mick’s state-
ments were not made under oath; that the statements were
STATE v. Epp 	695
Cite as 278 Neb. 683

somewhat spontaneous and, though not in response to leading
questions, were in response to a fellow inmate’s stating that he
had committed a robbery; that Mick was not subject to cross-
examination when the statement was made; and that Mick sub-
sequently recanted the statements by denying that he had made
the statements and denying that he committed the robbery at
issue. We note that the logic of the penal interest exception
appears to be that under normal circumstances, one would not
make a false statement against one’s penal interests; in other
words, one would not normally admit to committing a crime
he or she had not actually committed. However, when speaking
to fellow inmates who themselves have admitted to committing
similar crimes, there is likely less stigma to such an admis-
sion, whether true or false, and therefore less reason that such
an admission was inherently trustworthy. The trial court could
properly determine that the trustworthiness of these alleged
statements was lacking.
We further note that the probative value of the alleged state-
ments is a factor in addition to trustworthiness to be consid-
ered under the residual hearsay exception. The probative value
of Mick’s alleged statements is lessened in this case by the fact
that neither Blessing nor Forney testified that Mick admitted
to robbing the Wymore Casey’s on April 24, 2007. Blessing
testified only that Mick stated that he had committed an armed
robbery without giving further details, and Forney testified
only that Mick stated that he had “robbed the Casey’s,” with-
out specifying the location of the Casey’s or the date of the
robbery. We noted that in Forney’s testimony, Mick’s statement
that he had “robbed the Casey’s” was prompted by Blessing’s
testimony that he had robbed a Casey’s in Beatrice. Mick’s
alleged statements to Blessing and Forney had less probative
value than they would have if he had said he committed the
specific robbery at issue in this case. The diminished proba-
tive value of the statements is a factor in addition to trust-
worthiness that supports our determination that the court did
not abuse its discretion in determining that Blessing’s and
Forney’s testimonies were not admissible under the residual
hearsay exception.
696 	278 NEBRASkA REpORTS

We therefore conclude that the district court did not abuse
its discretion in determining that Blessing’s and Forney’s testi-
monies were not admissible under the residual hearsay excep-
tion and that the court did not err in excluding such testimony
as inadmissible hearsay.
With regard to Mick’s testimony, the court excluded Mick’s
testimony denying that he told Blessing and Forney that he had
committed an armed robbery and his testimony specifically
denying that he robbed the Wymore Casey’s. Without deter-
mining whether the district court erred in excluding such testi-
mony, we determine that because the testimony was not helpful
to Epp, any error in the court’s refusal to admit the evidence
was harmless error.
[16-18] In a jury trial of a criminal case, an erroneous
evidentiary ruling results in prejudice to a defendant unless
the State demonstrates that the error was harmless beyond
a reasonable doubt. State v. Iromuanya, 272 Neb. 178, 719
N.W.2d 263 (2006). Harmless error exists when there is some
incorrect conduct by the trial court which, on review of the
entire record, did not materially influence the jury in reach-
ing a verdict adverse to a substantial right of the defendant.
Id. Harmless error review looks to the basis on which the jury
actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely
have been rendered, but, rather, whether the actual guilty ver-
dict rendered in the questioned trial was surely unattributable
to the error. Id.
Whether or not the district court erred in refusing to admit
the portions of Mick’s testimony at issue, the guilty verdict
rendered against Epp was surely unattributable to such error.
The court refused portions of Mick’s testimony in which he
denied that he committed the Wymore Casey’s robbery and
denied that he told Blessing and Forney that he committed a
robbery. Such testimony did not support, and instead refuted,
Epp’s defense that it was Mick and not Epp who committed
the robbery. Epp presented other evidence raising the possi-
bility that Mick rather than Epp robbed the Wymore Casey’s.
The jury apparently rejected such evidence when it found Epp
STATE v. Epp 	697
Cite as 278 Neb. 683

guilty, and Mick’s testimony denying that he committed the
robbery and denying that he told Blessing and Forney he com-
mitted a robbery would not have made the jury more likely to
believe that Mick had committed the robbery at issue in this
case. We therefore conclude that if the court erred when it
refused Mick’s testimony, the error was harmless.
Because we conclude that the court did not err when it
excluded the testimonies of Mick, Blessing, and Forney, we
need not determine whether the court erred by denying Epp’s
request to transport such witnesses for trial, and we further
need not determine whether § 25-1233 is unconstitutional. We
reject Epp’s first assignment of error.
Evidence Regarding the Plymouth Burglary Was
Admissible for the Purpose of Proving the
Identity of the Wymore Casey’s Robber.
Epp next asserts that the district court erred by admitting
evidence regarding the plymouth burglary. He argues that such
evidence was inadmissible as evidence of other crimes used
to show propensity. We conclude that the court did not err in
determining that the evidence was admissible for the purpose
of proving identity.
prior to trial, the court sustained the State’s motion pursu-
ant to rule 404 to present evidence regarding the plymouth
burglary. Such evidence included a video recording of the
plymouth burglary, items stolen from the plymouth store
that were found in Epp’s apartment, and testimony establish-
ing that Epp committed the plymouth burglary. The court
determined that the evidence was admissible for the purpose
of proving the identity of the person who committed the
Wymore Casey’s robbery at issue in this case. prior to admit-
ting evidence regarding the plymouth burglary over Epp’s
objection at trial, the court gave a limiting instruction stat-
ing that the evidence was received for the limited purpose of
proving identity.
The admissibility of the plymouth burglary evidence is
controlled by rule 404. Rule 404(1) generally provides that
“[e]vidence of a person’s character or a trait of his or her char-
acter is not admissible for the purpose of proving that he or
698 	278 NEBRASkA REpORTS

she acted in conformity therewith . . . .” However, rule 404(2)
further provides that
[e]vidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
[19] An appellate court’s analysis under rule 404(2) con-
siders (1) whether the evidence was relevant for some purpose
other than to prove the character of a person to show that he
or she acted in conformity therewith; (2) whether the proba-
tive value of the evidence is substantially outweighed by its
potential for unfair prejudice; and (3) whether the trial court, if
requested, instructed the jury to consider the evidence only for
the limited purpose for which it was admitted. State v. Floyd,
277 Neb. 502, 763 N.W.2d 91 (2009). In the present case, the
court instructed the jury that evidence of the plymouth bur-
glary was admitted for the limited purpose of proving identity.
We therefore need to determine whether the evidence was
relevant for that purpose and whether the probative value of
the evidence was substantially outweighed by its potential for
unfair prejudice.
We first consider whether evidence of the plymouth burglary
was relevant for some purpose other than to show Epp’s pro-
pensity to commit the robbery charged in this case. The State
urged, and the court agreed, that the evidence was admissible
to prove the identity of the person who committed the Wymore
Casey’s robbery. The State sought to prove Epp was the person
who robbed the Wymore Casey’s by presenting evidence that
the same person who committed the Wymore Casey’s robbery
also committed the plymouth burglary and that Epp committed
the plymouth burglary. The jury could then logically infer that
Epp committed the Wymore Casey’s robbery.
Identity was at issue in this case, because although witnesses
testified regarding the Wymore Casey’s robbery, none of the
witnesses were able to identify the person who committed the
robbery. Therefore, other acts evidence potentially had proba-
tive value on the issue of identity. See State v. Burdette, 259
STATE v. Epp 	699
Cite as 278 Neb. 683

Neb. 679, 611 N.W.2d 615 (2000). Compare State v. Sanchez,
257 Neb. 291, 597 N.W.2d 361 (1999) (finding that other acts
evidence could have no probative value on issue of identity
because witness unequivocally identified defendant as assailant
in sexual assault case).
[20,21] We have stated that other acts evidence may have
probative value as to identity where there are overwhelming
similarities between the other crime and the charged offense
or offenses, such that the crimes are so similar, unusual, and
distinctive that the trial judge could reasonably find that they
bear the same signature. State v. Trotter, 262 Neb. 443, 632
N.W.2d 325 (2001); State v. Burdette, supra. In evaluating
other acts evidence in criminal prosecutions, the other act must
be so related in time, place, and circumstances to the offense
or offenses charged so as to have substantial probative value in
determining the guilt of the accused. Trotter, supra.
Evidence of the plymouth burglary is probative with respect
to the identity of the Wymore Casey’s robber. As the district
court noted, the video recordings and other evidence indicate
that in each incident, the person who committed the plymouth
burglary or the Wymore Casey’s robbery wore a dark ski
mask, dark pants, a dark windbreaker jacket, and white ten-
nis shoes with dark stripes. The court further found that there
was “a distinct pattern and procedure relating to the identity
of the intruder in both the plymouth grocery store burglaries
and the Casey’s . . . robbery which goes significantly beyond
the common thread of the intruder wearing dark clothing in
both instances.”
As a general matter, the way that the perpetrator was dressed
in both the plymouth burglary and the Wymore Casey’s rob-
bery does not necessarily establish a “signature”—the gen-
eral description of the clothing appears to be common attire
for one committing a robbery or burglary. Evidence such as
testimony of witnesses regarding what a person was wearing
might not in itself be enough to establish a distinctive identity.
However, in the present case, the evidence regarding the two
crimes included video recordings which gave the jury much
more information regarding the perpetrator of each crime than
would witness testimony regarding the perpetrator’s clothing.
700 	278 NEBRASkA REpORTS

The jury was able to see exactly what the perpetrator was
wearing and was not limited to generic descriptions such as
“dark clothes” or “dark ski mask” which could describe any
variety of clothing and would not necessarily constitute a sig-
nature. But with the video recordings of the two crimes, the
jury was able to see exactly what type of clothing the perpetra-
tor was wearing and come to its own conclusions whether the
perpetrator in each case was wearing the same clothing and,
in this case, whether such clothing was the same clothing that
was found in Epp’s apartment. In addition to seeing the exact
clothing worn in each incident, the jury was able to view and
make its own determination regarding similarities in the size
and build of the perpetrator in each incident, as well as subtle
factors such as the gait and manner in which the perpetra-
tor moved.
The video recording evidence in this case provided signifi-
cant information regarding the perpetrator of each crime which
went beyond general descriptions of the clothing worn by the
perpetrator of each crime. Such visual evidence was sufficient
to allow the jury to make an informed determination of whether
the same person committed both crimes. We therefore conclude
that evidence of the plymouth burglary was relevant for the
purpose of proving the identity of the person who committed
the robbery charged in this case.
Having concluded that the evidence of the plymouth bur-
glary was relevant for a proper purpose under rule 404(2), we
next consider whether the probative value of such evidence is
outweighed by its potential for unfair prejudice. An analysis
under rule 403 requires a court to weigh the probative value
of particular evidence against the danger of unfair prejudice.
As we concluded above, the evidence of the plymouth bur-
glary is probative as to the identity of the Wymore Casey’s
robber. The evidence also indicated that the plymouth bur-
glary was “so related in time, place, and circumstances” to
the Wymore Casey’s robbery “so as to have substantial proba-
tive value in determining the guilt of the accused.” See State
v. Trotter, 262 Neb. 443, 459, 632 N.W.2d 325, 339 (2001).
The two crimes occurred within 1 month of one another, and
the targets of the crimes were small stores in small towns in
STATE v. Epp 	701
Cite as 278 Neb. 683

adjoining counties. Therefore, the probative value of the evi-
dence is substantial.
The potential for unfair prejudice with respect to rule 404
is that the evidence could be used to show that because Epp
committed the plymouth burglary, he had a propensity to com-
mit the robbery charged in this case. However, because the
evidence has substantial probative value with respect to the
proper purpose of identity and because the court gave a limit-
ing instruction to the jury that it should consider the evidence
only for the purpose of identity, we conclude that the probative
value of the evidence was not substantially outweighed by the
potential for unfair prejudice.
We conclude that the district court did not abuse its discre-
tion by admitting evidence of the plymouth burglary. Epp’s
assignment of error is without merit.
The District Court Did Not Abuse Its Discretion
by Overruling Epp’s Motion for a Mistrial
Based on the Prosecutor’s Statements
in Closing Arguments.
Epp next asserts that the district court erred by overruling
his motion for a mistrial based on the prosecutor’s statements
in closing arguments regarding the testimony of Epp’s landlord.
We conclude that the court did not abuse its discretion by over-
ruling the motion for a mistrial.
Epp moved for a mistrial based on the following statements
made by the prosecutor during closing arguments:
Another thing . . . Epp had said, he talk [sic] to his land-
lord while in jail. The landlord is there to find out what
should be done with the stuff left behind in his apart-
ment. A conversation is, what happened, why are you
here? And what is his response? Times were tough, out
of work, short on money. So that’s a reason. It wasn’t, I
got framed; I’m here because I didn’t do anything; I don’t
know why I’m here.
Epp argues that by making these comments, the prosecutor
implied Epp should have testified at trial, and that the com-
ments caused the jury to question why Epp did not testify. He
702 	278 NEBRASkA REpORTS

notes that this court has stated that prosecutor’s comments in
closing arguments regarding a criminal defendant’s invocation
of the right to remain silent are improper. See State v. Lopez,
274 Neb. 756, 743 N.W.2d 351 (2008). We understand Epp’s
arguments to be a discussion of a defendant’s right not to tes-
tify. We have observed that commenting on a criminal defend-
ant’s decision not to testify is improper. See State v. Pierce,
231 Neb. 966, 439 N.W.2d 435 (1989).
[22,23] Generally, in assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines
whether the prosecutor’s remarks were improper; it is then nec-
essary to determine the extent to which the improper remarks
had a prejudicial effect on the defendant’s right to a fair trial.
State v. Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).
Before it is necessary to grant a mistrial for prosecutorial
misconduct, the defendant must show that a substantial mis-
carriage of justice has actually occurred. State v. Gutierrez, 272
Neb. 995, 726 N.W.2d 542 (2007).
The prosecutor’s statements in this case were not an improper
reference to the invocation of the right not to testify. The
prosecutor made no reference to Epp’s asserting such right.
Instead, the prosecutor referred to a statement Epp made in a
conversation with his landlord and contrasted such statement
to statements he might have made if he had not committed
the crime for which he had been arrested. Epp’s argument
that the prosecution improperly remarked on Epp’s invocation
of his right not to testify is not a fair reading of the prosecu-
tor’s comment.
We further note that when the court overruled Epp’s motion
for a mistrial, it required the prosecutor to clarify that the jury
was to consider Epp’s response in the context of his landlord’s
question. The clarification required by the court mitigated the
risk that the jury would consider the statement as a comment
on Epp’s failure to testify at trial.
We conclude that the district court did not abuse its discre-
tion when it overruled Epp’s motion for a mistrial based on the
prosecutor’s statements in closing arguments. Epp’s assignment
of error is without merit.
STATE v. Epp 	703
Cite as 278 Neb. 683

The Evidence Was Sufficient to Support
Epp’s Conviction for Possession of a
Deadly Weapon by a Felon.
Epp next asserts that there was not sufficient evidence to
support his conviction for being a felon in possession of a
deadly weapon. He argues that because the jury acquitted
him of use of a deadly weapon to commit a felony, the jury
obviously found the State failed to prove beyond a reasonable
doubt he used a deadly weapon in the robbery, and that there-
fore, there was not sufficient evidence to support the charge
that he was a felon in possession of a deadly weapon at the
time of the robbery. We conclude that there was evidence that
Epp was in possession of a deadly weapon during the rob-
bery and at other times and that therefore, there was sufficient
evidence to convict him of being a felon in possession of a
deadly weapon.
Epp stipulated to the fact that he had a prior felony convic-
tion, and therefore the only question is whether there was suf-
ficient evidence that he was in possession of a deadly weapon.
We note that three witnesses to the robbery testified at trial.
One witness testified that the robber had a handgun and that
it “looked like a real gun.” The second witness testified that
the robber had a gun. However, on cross-examination, she
conceded that at the time of the robbery, she “didn’t think it
was real” and referred to both her written report to police and
an earlier deposition wherein she had said that the gun looked
fake. The third witness testified at trial that the robber had a
handgun and that she had thought it was real. She denied that
she had told a police officer investigating the robbery that she
thought it was a toy gun. The police officer testified at trial
that both the second and the third witnesses told him that they
thought the gun was a toy gun.
Epp argues that the jury’s verdict of not guilty on the charge
of use of a deadly weapon to commit a felony indicates the
jury had a reasonable doubt whether he used a real gun to
commit the robbery and that such doubt was likely raised by
evidence that two of the three witnesses thought the gun was
a toy gun. Epp argues that because the jury had a reason-
able doubt whether he used a deadly weapon to commit the
704 	278 NEBRASkA REpORTS

robbery, there was not sufficient evidence for the jury to find
that he was in possession of a deadly weapon at the time of
the robbery.
The State asserts that Epp’s argument focusing on the tes-
timonies of the three witnesses to the robbery ignores other
evidence in the case that Epp was in possession of a handgun
at other times. The State notes that the information charged
that Epp had a firearm in his possession “on or about April 24,
2007.” The State argues that whether or not there was sufficient
evidence that Epp possessed a deadly weapon during the rob-
bery on April 24, 2007, sufficient evidence was presented to
the jury that he possessed a handgun “on or about” that date.
In this regard, the State notes the testimony of two witnesses
who were not witnesses to the robbery. One of the witnesses
testified that he had seen Epp with a handgun on an unspecified
date prior to April 30. The other witness testified that she saw
Epp with a handgun on an unspecified date prior to May 31.
Epp argues in reply that such testimony was too vague regard-
ing the date he was seen with a handgun and therefore could
not support a conviction for being in possession of a deadly
weapon on April 24.
[24,25] 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. State v. Branch, 277 Neb. 738, 764 N.W.2d. 867
(2009). Any conflicts in the evidence or questions concerning
the credibility of witnesses are for the finder of fact to resolve.
Id. On a claim of insufficiency of the evidence, an appellate
court will not set aside a guilty verdict in a criminal case where
such verdict is supported by relevant evidence. Only where evi-
dence lacks sufficient probative force as a matter of law may
an appellate court set aside a guilty verdict as unsupported by
evidence beyond a reasonable doubt. Id.
The jury’s guilty verdict on the charge of possession of a
deadly weapon by a felon in this case was supported by suf-
ficient evidence. The three witnesses to the robbery testified
at trial that the robber had a handgun, although one of three
conceded at trial that at the time of the robbery, she thought
the handgun was not real. Two other witnesses also testified
STATE v. Epp 	705
Cite as 278 Neb. 683

that Epp possessed a handgun, and although neither witness
was precise about the date, the jury could properly infer from
the dates indicated in the witnesses’ testimony that the posses-
sion occurred around the date of the robbery on April 24, 2007.
Such evidence, when viewed and construed most favorably to
the State, supported Epp’s conviction for being a felon in pos-
session of a handgun on or about April 24.
We recognize that there was evidence indicating that the
handgun used by the robber was a toy gun rather than a real
gun. To the extent such testimony conflicts with evidence that
Epp possessed a handgun during the period alleged, such con-
flict in the evidence was for the jury to resolve, and it is appar-
ent that with regard to the possession charge, the jury resolved
such conflicting evidence in favor of the State. Epp asks us to
speculate as to the reason the jury acquitted him of use of a
deadly weapon to commit a robbery and how such reasoning
would, nevertheless, result in a conviction for possession by a
felon. However, we cannot speculate as to the reason for the
jury’s verdict with respect to the use charge, and such specula-
tion cannot override the fact that there was sufficient evidence
from which the jury could have found Epp guilty with respect
to the possession charge.
We conclude that there was sufficient evidence to support
Epp’s conviction for possession of a deadly weapon by a felon.
We reject Epp’s assignment of error.
The District Court Did Not Err in Admitting Evidence
of Epp’s Prior Convictions and Finding Him to Be
a Habitual Criminal Based on Such Evidence.
Epp next asserts that the court erred in admitting the certi-
fied court records and “pen packet” at the enhancement pro-
ceeding and in finding him to be a habitual criminal based on
such evidence. We conclude that such evidence was admissible
and was sufficient to support the court’s finding that Epp was
a habitual criminal.
At the habitual criminal enhancement proceeding, the court
received into evidence, over Epp’s objections, certified copies
of court records regarding Epp’s prior convictions and a “pen
packet” certified by the Nebraska Department of Correctional
706 	278 NEBRASkA REpORTS

Services with information regarding Epp’s commitment and
discharge. Epp objected on the bases of hearsay, relevance,
and foundation.
Upon review of the evidence, the court found that the evi-
dence established that Epp had two prior felony convictions
and was represented by counsel in those proceedings. The court
therefore deemed Epp to be a habitual criminal as to each of
his convictions in the present case.
Neb. Rev. Stat. § 29-2221(1) (Reissue 2008) provides, in
relevant part, that
[w]hoever has been twice convicted of a crime, sentenced,
and committed to prison, in this or any other state or by
the United States or once in this state and once at least
in any other state or by the United States, for terms of
not less than one year each shall, upon conviction of a
felony committed in this state, be deemed to be a habitual
criminal and shall be punished by imprisonment in a
Department of Correctional Services adult correctional
facility for a mandatory minimum term of ten years and a
maximum term of not more than sixty years . . . .
[26] In a habitual criminal proceeding, the State’s evidence
must establish with requisite trustworthiness, based upon a
preponderance of the evidence, that (1) the defendant has been
twice convicted of a crime, for which he or she was sentenced
and committed to prison for not less than 1 year; (2) the trial
court rendered a judgment of conviction for each crime; and
(3) at the time of the prior conviction and sentencing, the
defendant was represented by counsel or had knowingly and
voluntarily waived representation for those proceedings. State
v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
[27,28] The existence of a prior conviction and the identity
of the accused as the person convicted may be shown by any
competent evidence, including the oral testimony of the accused
and duly authenticated records maintained by the courts or
penal and custodial authorities. State v. Thomas, 268 Neb. 570,
685 N.W.2d 69 (2004). In reviewing criminal enhancement
proceedings, a judicial record of this state, or of any federal
court of the United States, may be proved by the production of
the original, or by a copy thereof, certified by the clerk or the
STATE v. Epp 	707
Cite as 278 Neb. 683

person having the legal custody thereof, and authenticated by
his or her seal of office, if he or she has one. Id.
In the present case, the State presented evidence that Epp
had two previous convictions—a conviction in 1978 for sec-
ond degree murder, a felony for which he was sentenced to 50
years in prison, and a 1983 conviction for escape, a felony for
which he was sentenced to imprisonment for 18 months to 3
years. Evidence of the prior convictions included exhibits 196
through 199. Exhibit 196 consists of court records regarding
the 1978 conviction for second degree murder. Epp makes no
complaint on appeal regarding exhibit 196. Exhibit 197 con-
sists of court records regarding the 1983 conviction for escape.
Exhibit 198 consists of records of the plea and sentencing
proceedings regarding the 1983 conviction for escape. Exhibit
199 consists of a “pen packet” provided by the Nebraska
Department of Correctional Services containing information
regarding Epp’s history of incarceration for offenses includ-
ing the 1978 second degree murder and the 1983 escape. Epp
argues on appeal that the court erred in admitting exhibits 197,
198, and 199.
The exhibits were admitted over hearsay objections pursuant
to rule 803(7), which allows for admission of
records, reports, statements, or data compilations made by
a public official or agency of facts required to be observed
and recorded pursuant to a duty imposed by law, unless
the sources of information or the method or circumstances
of the investigation are shown by the opposing party to
indicate a lack of trustworthiness.
With regard to exhibit 197, Epp argues that the exhibit lacks
trustworthiness as required by rule 803(7), because the exhibit
does not meet the requirements for self-authentication under
Neb. Evid. R. 901 and 902, Neb. Rev. Stat. §§ 27-901 and
27-902 (Reissue 2008). He notes that only the last page of the
exhibit bears the certification of the deputy clerk of the district
court for Lancaster County. He contrasts this to exhibit 196,
wherein each page of the exhibit contains a certification. Epp
also notes that exhibit 197 does not contain a judgment of con-
viction signed by the district court judge and that the order of
commitment is signed by the deputy clerk of the district court
708 	278 NEBRASkA REpORTS

but does not contain the seal of the court or the signature of the
sentencing judge.
Authentication and identification of documentary evidence
is governed by rules 901 and 902. Rule 901 provides, gen-
erally, that the requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evi-
dence sufficient to support a finding that the matter in question
is what the proponent claims. State v. King, 272 Neb. 638,
724 N.W.2d 80 (2006). Rule 902 further provides that certain
documents are self-authenticating; that is, no extrinsic evidence
of authenticity as a condition precedent to admissibility is
required. King, supra.
We determine that the certification of the clerk of the dis-
trict court contained at the end of the exhibit was adequate
to authenticate the entirety of exhibit 197 and that it was not
necessary to have a certification on each page. We further note
that at the time of the 1983 conviction for escape, the signa-
ture of the district court judge was not required for rendition
of judgment, as it is now under Neb. Rev. Stat. § 25-1301(2)
(Reissue 2008). See State v. Thomas, 268 Neb. 570, 685
N.W.2d 69 (2004).
Epp next argues that exhibit 198, the transcription of the
plea and sentencing proceedings regarding the 1983 convic-
tion for escape, is inadmissible because it contains the court
reporter’s signature but not a seal. In State v. Benzel, 220 Neb.
466, 370 N.W.2d 501 (1985), overruled on other grounds, State
v. Kuehn, 258 Neb. 558, 604 N.W.2d 420 (2000), and in King,
supra, we held that a transcription of proceedings bearing the
certification of a court reporter in compliance with court rules
pertaining to the preparation of bills of exceptions was self-
authenticating pursuant to rule 902(4). Although the certificate
in this case contained no seal, the certificate was signed by the
court reporter and complied with Neb. Ct. R. App. p. § 2-105,
which requires a certificate by the court reporter but does not
specify that a seal is required. The court did not err in admit-
ting exhibit 198.
With regard to exhibit 199, the “pen packet” from the
Department of Correctional Services, Epp argues that the
exhibit was not admissible because it was not sufficiently
STATE v. Epp 	709
Cite as 278 Neb. 683

trustworthy. In part, he argues that the pen packet is not trust-
worthy, because it contains the same order of commitment con-
tained in exhibit 197 that was not signed by the district court
judge. We rejected Epp’s argument regarding the order of com-
mitment in connection with our analysis regarding exhibit 197,
and we reject the argument here for the same reasons. With
regard to the remainder of the pen packet, we note that the pen
packet contains the certification of the records custodian for
the Department of Correctional Services. In State v. Muse, 15
Neb. App. 13, 27, 721 N.W.2d 661, 673 (2006), the Nebraska
Court of Appeals found a pen packet to be sufficiently authen-
ticated to be admissible where the packet contained a certifica-
tion from the records custodian which certified that “‘the (1)
photograph(s), (2) fingerprint card(s), (3) commitment, and
(4) discharge order attached hereto are copies of the original
records of’” the defendant. The pen packet in this case con-
tained the same certification, and we find exhibit 199 to be
sufficiently authenticated.
Epp finally argues that the district court erred in finding
him to be a habitual criminal based on the evidence admitted
at the enhancement hearing. Epp’s argument that the evidence
was not sufficient depends on the success of his previous
argument that exhibits 197, 198, and 199 were not admis-
sible; Epp argues that if such exhibits were excluded, there
would not be sufficient evidence to establish he had two prior
felony convictions. However, we determined above that the
court did not err in admitting the exhibits, and the exhibits
provided sufficient evidence to support the court’s finding
that Epp was a habitual criminal. We reject this assignment
of error.
The District Court Did Not Impose
Excessive Sentences.
Finally, Epp asserts that the district court imposed excessive
sentences. We conclude that the court did not abuse its discre-
tion in sentencing Epp.
Epp was convicted of robbery, a Class II felony under Neb.
Rev. Stat. § 28-324 (Reissue 2008), and possession of a deadly
weapon by a felon, a Class III felony under Neb. Rev. Stat.
710 	278 NEBRASkA REpORTS

§ 28-1206 (Reissue 2008) when the weapon is a firearm. Epp
was found to be a habitual criminal under § 29-2221, which
provides that a person found to be a habitual criminal shall
upon conviction of a felony be punished by imprisonment for
a mandatory minimum term of 10 years with a maximum term
of 60 years. The court sentenced Epp to imprisonment for 60
to 60 years on each of the two convictions and ordered the sen-
tences to be served consecutively.
Epp argues that the court based its sentences on improper
considerations. He notes that at sentencing, the court referred
to the robbery and stated that in addition to the monetary loss,
the “victims were placed in fear, and there was certainly a
potential of physical harm. . . . [A] gun was stuck in the face
of the people there.” Epp argues that the court’s statement was
contrary to the jury’s verdict that Epp was not guilty of using
a deadly weapon to commit a felony. We note, however, that
the court acknowledged that “there was an issue as to whether
it was a real gun or a toy gun” but stated that “certainly, these
people were put in great fear. That was obvious from their
testimony.” We do not read the court’s statements as contradict-
ing the jury’s verdict but instead as indicating that whether or
not the object was a real gun, the victims of the robbery were
placed in great fear.
Epp also argues that the court improperly based the sen-
tences on his past crimes rather than the crimes for which
he was convicted. He observes the court noted that he had
a “very serious history of dangerous criminal activity” and
specifically mentioned his 1978 conviction for second degree
murder, stating that the victim in that case “got no sec-
ond chance.”
[29,30] The appropriateness of a sentence is necessarily
a subjective judgment and includes the sentencing judge’s
observation of the defendant’s demeanor and attitude and all
the facts and circumstances surrounding the defendant’s life.
State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009). When
imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal
STATE v. Epp 	711
Cite as 278 Neb. 683

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. Id.
Both the nature of the offense for which a defendant is
being sentenced and the defendant’s past criminal record are
appropriate considerations in sentencing. The court in this
case made mention of the victim in the 1978 murder, but
such mention was in the context of the court’s consideration
of Epp’s criminal history, which is a proper consideration in
sentencing.
Epp argues that imposing the maximum sentence of 60 years’
imprisonment for each of the offenses was excessive, consider-
ing that the crime at issue was “essentially a convenience store
robbery with a ‘toy gun’, in which no one was injured.” Brief
for appellant at 42.
The court in this case noted various reasons for the sen-
tences it imposed, including (1) the nature of the robbery, in
that it caused serious monetary harm, placed the victims in
fear, and created a potential for physical harm; (2) the lack
of excuse or justification for the crimes; (3) the innocence of
the victims; (4) Epp’s “serious history of dangerous criminal
activity,” including consideration of the fact that the present
crimes occurred “relatively shortly” after Epp was released
from prison after serving sentences for second degree murder
and escape; (5) Epp’s character and attitude, which indicated to
the court that Epp would likely commit more crimes and place
other victims in danger; (6) Epp’s demonstrated use of his
intelligence and abilities for negative purposes, including con-
vincing others to join him in criminal conduct; and (7) Epp’s
demonstrated inability to rehabilitate himself, which the court
determined to be predictive of his future behavior. The court
concluded that the evidence before it indicated that Epp was “a
habitual criminal in every sense of that term” and that “impris-
onment is absolutely necessary for a long period of time for the
protection of the public.”
The factors noted by the court were proper considerations
in sentencing, and in light of such considerations, we conclude
that the sentences imposed by the court were not an abuse
712 	278 NEBRASkA REpORTS

of the court’s discretion. We reject Epp’s final assignment
of error.
CONCLUSION
Having rejected each of Epp’s assignments of error, we
affirm Epp’s convictions and sentences for robbery and posses-
sion of a deadly weapon by a felon.
affirmed.
fraNk koricic , aS truStee for tHe HeirS aNd
Next of kiN of maNda baker , appellaNt, v.
beverly eNterpriSeS - NebraSka , iNc.,
formerly doiNg buSiNeSS aS beverly
H allmark , et al ., appelleeS.
773 N.W.2d 145
Filed October 16, 2009. 	No. S-08-1167.
1. Principal and Agent. Generally, whether an agency relationship exists presents a
factual question.
2. ____. The scope of an agent’s authority is a question of fact.
3. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
4. Principal and Agent: Words and Phrases. An “agent” is a person authorized by
the principal to act on the principal’s behalf and under the principal’s control.
5. Agency. For an agency relationship to arise, the principal manifests assent to the
agent that the agent will act on the principal’s behalf and subject to the principal’s
control and the agent manifests assent or otherwise consents so to act.
6. Agency: Intent. An agency relationship may be implied from the words and
conduct of the parties and the circumstances of the case evidencing an intention
to create the relationship irrespective of the words or terminology used by the
parties to characterize or describe their relationship.
7. Principal and Agent. Actual authority is authority that the principal expressly
grants to the agent or authority to which the principal consents.
8. ____. A subcategory of actual authority is implied authority, which courts typi-
cally use to denote actual authority either to (1) do what is necessary to accom-
plish the agent’s express responsibilities or (2) act in a manner that the agent rea-
sonably believes the principal wishes the agent to act, in light of the principal’s
objectives and manifestations.
9. ____. When a principal delegates authority to an agent to accomplish a task
without specific directions, the grant of authority includes the agent’s ability to
kORICIC v. BEVERLY ENTERS. - NEB. 	713
Cite as 278 Neb. 713