State v. Hudson

sentencing order in which the court addressed the registra-
tion requirements related to Ways’ 1996 pandering conviction
should be vacated.
CONCLUSION
In this criminal contempt case, we conclude that the dis-
trict court was without authority to enter an order regarding
the duration of Ways’ SORA registration requirement, which
was a consequence of his conviction for pandering in a sepa-
rate criminal action. We therefore vacate that portion of the
sentencing order of December 4, 2008, which orders Ways to
register until at least April 9, 2014, and affirm the remainder of
the sentencing order.
A ffirmed in pArt, And in pArt vAcAted.
H eAvicAn, C.J., not participating.
StAte of nebrASkA, Appellee , v.
mArcuS l. HudSon, AppellAnt.
775 N.W.2d 429
Filed December 11, 2009. 	No. S-09-130.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appellate court, in review-
ing a criminal conviction, does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence.
3. Evidence: Appeal and Error. Any conflicts in the evidence or questions con-
cerning the credibility of witnesses are for the finder of fact to resolve.
4. 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.
5. 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.
6 	279 NEbRASkA REpORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

6. Conspiracy: Hearsay: Evidence. the purpose of requiring independent evidence
to establish a conspiracy is to prevent the danger of hearsay evidence being lifted
by its own bootstraps, i.e., relying on the hearsay statements to establish the con-
spiracy and then using the conspiracy to permit the introduction of what would
otherwise be hearsay testimony in evidence.
7. Verdicts: Juries: Appeal and Error. In a harmless error review, an appellate
court looks at the evidence upon which the jury 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 guilty verdict rendered in the trial
was surely unattributable to the error.
Appeal from the District Court for Douglas County: SAndrA
l. dougHerty, Judge. Affirmed.
thomas C. Riley, Douglas County public Defender, and
Scott C. Sladek for appellant.
Jon bruning, Attorney General, and George R. Love for
appellee.
WrigHt, connolly, gerrArd, StepHAn, mccormAck, and
miller-lermAn, JJ., and SieverS, Judge.
WrigHt, J.
I. NAtURE OF CASE
Marcus L. Hudson was convicted by a jury of first degree
murder, use of a firearm to commit a felony, and possession
of a firearm by a felon. Hudson appeals, claiming that the evi-
dence was insufficient and that the trial court erred in allowing
testimony as a hearsay exception pursuant to Neb. Rev. Stat.
§ 27-801(4)(b) (Reissue 2008).
II. SCOpE OF REVIEW
[1-4] 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. Branch, 277 Neb. 738,
764 N.W.2d 867 (2009). Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appel-
late court, in reviewing a criminal conviction, does not resolve
StAtE v. HUDSON 	7
Cite as 279 Neb. 6

conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Id. Any conflicts in the evidence or
questions concerning the credibility of witnesses are for the
finder of fact to resolve. Id. A conviction will be affirmed, in
the absence of prejudicial error, if the properly admitted evi-
dence, viewed and construed most favorably to the State, is
sufficient to support the conviction. Id.
[5] In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility.
State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
III. FACtS
On May 24, 2005, Verron Jones was talking to a friend in
the driveway of a house on Fontenelle boulevard in Omaha,
Nebraska. Gunshots were fired, and Jones was hit by one of the
gunshots. He died as a result.
A few days before the shooting, Will McDonald agreed to
buy 2 ounces of cocaine for Hudson. McDonald was given
$1,950 by Hudson to purchase the cocaine from McDonald’s
uncle, Anthony Nokia. McDonald added $300 of his own
money to buy another one-half ounce of cocaine, which he
planned to resell.
At Nokia’s house, McDonald laid the money on a bed. two
men unknown to McDonald came in and handed McDonald
a bag that looked like it contained “a bunch of eight balls.”
McDonald and Nokia wanted to check the quality of the
cocaine. Nokia loaded his pipe with part of the drugs, but the
pipe would not “fir[e].” As McDonald turned to inquire about
the drugs, one of the men showed a gun and told McDonald
they were taking the money. the men ran outside and left in a
Chevrolet blazer.
Nokia told McDonald one of the men was Jones. McDonald
retrieved his 9-mm handgun. He then met Hudson and told him
about the robbery. Hudson was furious. McDonald told Hudson
that Jones was one of the men. McDonald obtained Jones’ tele-
phone number and gave it to Hudson. McDonald heard Hudson
call the number and tell the person who answered to return the
8 	279 NEbRASkA REpORtS

money. McDonald also gave Hudson the telephone number of
Jones’ stepfather, Nathaniel Long.
Hudson and McDonald went to Long’s home. Long had
previously purchased crack cocaine from Hudson. Hudson told
Long that Jones had robbed him of $2,500. Hudson pulled a
gun from under his shirt and asked Long the whereabouts of
Jones. Long called Jones, and Hudson grabbed the telephone.
Hudson said, “[W]hen I see your [expletive] ass, I’m going
to kill your [expletive] ass.” Long offered to get Hudson the
money in a couple of days.
Hudson told Long he would kill Jones as soon as he saw him
rather than wait for the money. Hudson also threatened to kill
Long and everyone who lived in Long’s house. As Hudson and
McDonald started to leave, Hudson pulled out his gun and told
Long to tell Jones that Hudson had “50 shots for him.”
Hudson and McDonald spent several evenings looking for
Jones. Meanwhile, Hudson told Robert Sessions that Jones
had robbed McDonald of $2,000 of Hudson’s money. At about
1 a.m. on May 24, 2005, Hudson called Sessions and told
him that Hudson had found Jones. Hudson, McDonald, and
Sessions got into a car, with McDonald driving. All three had
guns. McDonald saw Jones and pointed him out. Jones was
talking to a woman while standing next to a car parked in a
driveway. Hudson told McDonald to stop about a half block
away. Hudson and Sessions got out and walked toward the
house. When they were about two houses away, Sessions heard
Hudson put the clip in his gun and a bullet in the chamber.
Hudson then pushed Sessions out of the way and started shoot-
ing. Hudson fired between 10 and 20 shots. Sessions ran away
and did not look back.
After Hudson and Sessions got out of the car, McDonald
drove down the street and parked in a driveway. He heard shots
fired, and when they stopped, he drove slowly back down the
street. He heard his name and saw Hudson come out of the
bushes and get in the back of the car. Hudson said he did not
know where Sessions was and told McDonald to “[g]et out of
here.” Hudson told McDonald, “I shot [Jones] out his shoes.”
Hudson and McDonald returned to the house where they had
met earlier. Sessions returned later.
StAtE v. HUDSON 	9
Cite as 279 Neb. 6

police found Jones on the ground across the street from the
driveway. the first police officer to respond reported that Jones
was nonresponsive and that his breathing was shallow. the
officer saw no visible injury, but noticed that Jones’ shoes were
missing. A shoe was found in the street about 10 to 15 feet
away. Jones died later at a hospital.
McDonald testified that on June 21, 2005, he was driving a
car with his cousin Shenika Johnson and Sessions. they were
stopped by police for having fictitious license plates. there was
a gun in the glove box, so when the officer asked for insur-
ance papers, McDonald sped off. A high-speed chase followed,
during which Sessions threw the gun out of the car. the car
crashed into a fence, and McDonald and Sessions got out and
ran away. Johnson was taken to police headquarters.
McDonald was later arrested. He agreed to testify against
Hudson in exchange for the dismissal of use of a weapon,
terroristic threats, and habitual criminal charges. He was con-
victed of being a felon in possession of a weapon. Sessions was
also eventually arrested and agreed to testify.
Over Hudson’s objections, Johnson testified to telephone
conversations she heard between Hudson and McDonald. Her
testimony is further detailed later in this opinion.
Crime scene technicians testified that they examined 12
spent casings from a 9-mm weapon. the casings were found in
the same driveway where Jones was discovered. there was also
an unfired 9-mm round on the sidewalk nearby. the coroner
testified that Jones died from a single gunshot wound to the
chest that perforated the left lung and caused bleeding into the
chest cavity.
Hudson was convicted and sentenced to life in prison for
the murder conviction, 10 to 20 years in prison for the use of a
firearm conviction, and 5 to 10 years in prison for possession
of a firearm. He was given credit for 609 days served, to be
credited against the use of a firearm conviction. All sentences
are to be served consecutively.
IV. ASSIGNMENtS OF ERROR
Hudson assigns two errors: (1) the trial court erred in allow-
ing hearsay testimony from Johnson under an exception to the
10 	279 NEbRASkA REpORtS

hearsay rule for statements made by a coconspirator pursuant
to § 27-801(4)(b), and (2) there was insufficient evidence to
support the convictions.
V. ISSUES pRESENtED
1. coconSpirAtor exception to H eArSAy
Hudson argues that the trial court committed reversible error
when it allowed the State to offer testimony by Johnson under
the coconspirator exception to the hearsay rule, § 27-801(4)(b).
“‘[b]efore the trier of facts may consider testimony under the
coconspirator exception to the hearsay rule, a prima facie case
establishing the existence of the conspiracy must be shown
by independent evidence. . . .’” State v. Gutierrez, 272 Neb.
995, 1018, 726 N.W.2d 542, 565 (2007), quoting State v.
Bobo, 198 Neb. 551, 253 N.W.2d 857 (1977). the question
is whether the State established the existence of a conspiracy
between Hudson and McDonald that would permit the admis-
sion of Johnson’s testimony regarding a conversation between
Hudson and McDonald that Johnson overheard. We examine
the evidence presented prior to the time Johnson’s statements
were admitted.
(a) Evidence presented at trial
(i) Sessions’ Testimony
Sessions, who had met Hudson and McDonald in prison,
testified prior to Johnson. Sessions testified that Hudson told
him that McDonald had set up a deal to buy drugs from Jones
using Hudson’s money. McDonald was robbed of $2,000 of
Hudson’s money. Sessions said that Jones and another per-
son robbed McDonald at gunpoint. Hudson told Sessions that
he was going to beat up Jones because Hudson wanted his
money back.
Sessions stated that on May 24, 2005, Hudson called and
said that he and McDonald had found Jones. Hudson told
Sessions to come to a house on Larimore Avenue. When
Sessions got to the house, Hudson and McDonald were sit-
ting on the front porch, drinking a bottle of gin. the three
got into a car, and McDonald drove. All three had weap-
ons: Sessions had a .22-caliber semiautomatic pistol, Hudson
StAtE v. HUDSON 	11
Cite as 279 Neb. 6

had a “tEC-9” with a 50-round clip, and McDonald had a
9-mm handgun.
Sessions testified that McDonald pointed to a man on the
street and identified him as Jones. Hudson told McDonald to
stop the car about half a block away, and McDonald pulled
into a driveway. Hudson and Sessions got out of the car and
approached the house. they had their weapons with them.
Sessions saw Jones standing next to his car with a female.
Hudson got behind Sessions and told him to keep walking.
Sessions heard Hudson put the clip in his gun and a bullet in
the chamber. When they were about one driveway from Jones,
Hudson pushed Sessions out of the way and started shooting
at Jones.
Sessions said he had his weapon in his hand, but he froze
and did not fire any shots. As soon as the first shots were fired,
Sessions saw Jones let go of the woman, spin around, and try
to run. He lost a shoe as soon as he hit the driveway. Hudson
walked up to Jones and “was shooting at him the whole time.”
Sessions believed Hudson fired between 10 and 20 shots.
Sessions ran away, and when he returned to the house on
Larimore Avenue, Hudson and McDonald were on the porch.
Sessions then got into his car and went home.
In a few days, Sessions went to the house where Hudson
was staying. Hudson, McDonald, and Sessions talked about the
shooting. Hudson had the tEC-9 handgun on a stool. He said
he had cleaned it with bleach and was going to get rid of it. He
told McDonald and Sessions that if they talked to anyone about
the shooting, he would kill them, and that if he was in jail, he
would find someone to kill them.
Sessions said Hudson continued to call him every day.
Sessions stated that within a month of the shooting, Hudson
told him that Hudson and McDonald had previously gone
to Jones’ house and threatened Jones’ stepfather with a gun.
According to Sessions, Hudson had talked to Jones on the tele-
phone and “they were threatening each other.”
Sessions was arrested for drug trafficking in Nevada in
May 2006. He first talked to Omaha police in September 2006
after the prosecutor’s office agreed that he would not face
any charges based on his statement. the prosecuting attorney
12 	279 NEbRASkA REpORtS

in Nevada was told that Sessions was cooperating. All of
Sessions’ testimony was received without objection before
Johnson testified.
(ii) Johnson’s Testimony
Johnson testified to a conversation she overheard between
Hudson and McDonald regarding a drug deal. Hudson argues it
was reversible error to allow the testimony.
Johnson stated that she was aware McDonald was involved
in buying drugs, but she claimed she did not know at the
time that McDonald had a weapon. When Johnson began to
testify about the drug deal, Hudson objected on the basis
of hearsay. the State argued that it had established a prima
facie case through Sessions that Hudson and McDonald had
purchased drugs and that Johnson’s statements would be in
furtherance of the conspiracy. the trial court sustained the
objection. Johnson then testified that she had become aware
that McDonald was looking to “‘re-up,’” which meant to buy
drugs to resell. Johnson said McDonald told her where he
obtained the money to buy the drugs and where he was going
to buy more drugs.
Johnson testified that she heard McDonald on the tele-
phone with Hudson. She was asked what she heard McDonald
say. Hudson’s hearsay objection was overruled, and he was
granted a continuing objection. Johnson testified she heard
McDonald say that he was going to get Hudson’s money and
put it with McDonald’s money to buy more drugs. Johnson
said McDonald left to get the money from Hudson and then
came back and got her. She rode with McDonald to “tony’s”
(Nokia’s) house to purchase the drugs. Johnson thought Nokia
had set up the transaction.
At Nokia’s house, Johnson stayed in the living room on the
first floor and Nokia and McDonald went upstairs. At some
point, two men arrived and went upstairs. After some time had
passed, the two men came down and left quickly. McDonald
and Nokia came down 5 or 10 minutes later. Johnson could see
that McDonald was angry. She and McDonald left. Johnson
drove while McDonald made a telephone call to Hudson.
Johnson heard McDonald tell Hudson he had been “jacked” or
StAtE v. HUDSON 	13
Cite as 279 Neb. 6

robbed of Hudson’s money. McDonald and Johnson drove back
to the house where McDonald was staying.
On the day of the shooting, Johnson went with McDonald
to a house on Larimore Avenue so McDonald could talk to
Hudson. Less than an hour after they arrived, Hudson and
McDonald left. Johnson stayed to watch television, but later
fell asleep. She woke up when Hudson “bust[ed] through the
back door,” went to the sink, and vomited. Johnson heard
Hudson say that “he got that boy. He made him run up out
his shoes.” Johnson also saw Sessions at the house that night.
Johnson did not ask McDonald any questions because she did
not want to know what had happened. She saw on the news the
next day that Jones had been murdered.
Johnson later learned that McDonald had been charged with
terroristic threats. She did not visit him in jail, but she talked
to him on the telephone. He told her to go to the police and tell
the truth.
(b) Analysis
We find no merit to Hudson’s argument that Johnson’s tes-
timony should not have been allowed as an exception to the
hearsay rule under § 27-801(4)(b)(v). the rule provides that a
statement is not hearsay if it is “‘offered against a party and
is . . . (v) a statement by a coconspirator of a party during
the course and in furtherance of the conspiracy.’” See State v.
Hansen, 252 Neb. 489, 498, 562 N.W.2d 840, 848 (1997). “to
be admissible, the statements of the coconspirator must have
been made while the conspiracy was pending and in further-
ance of its objects.” Id. “the coconspirator exception to the
hearsay rule is applicable regardless of whether a conspiracy
has been charged in the information or not.” Id.
In this case, Hudson and McDonald conspired to purchase
illegal drugs for resale. In the course of that transaction, their
money was stolen. they conspired to get their money back, and
that plan resulted in Jones’ being shot. Johnson testified to con-
versations she heard between Hudson and McDonald related to
their plan to purchase drugs. the conspiracy was pending at the
time and in furtherance of its objectives. Johnson testified that
she heard McDonald on the telephone with Hudson and that
14 	279 NEbRASkA REpORtS

McDonald said he was going to get Hudson’s money and put it
with his to buy more drugs.
Sessions’ testimony was offered at trial prior to Johnson’s
testimony. Sessions testified that McDonald had used Hudson’s
money to buy drugs and that the money had been taken by
Jones. Sessions had been told by Hudson that McDonald
arranged the drug transaction that resulted in the robbery.
Hudson stated he planned to beat up Jones to get his money
back. Sessions was with Hudson on the night of the murder
and testified to the events surrounding it. thus, Sessions’
testimony established the conspiracy to purchase drugs using
Hudson’s money and Hudson’s plans to get his money back
from Jones.
[6] the purpose of requiring independent evidence to estab-
lish a conspiracy is “‘to prevent the danger of hearsay evidence
being lifted by its own bootstraps, i.e., relying on the hearsay
statements to establish the conspiracy, and then using the con-
spiracy to permit the introduction of what would otherwise be
hearsay testimony in evidence.’” State v. Gutierrez, 272 Neb.
995, 1018, 726 N.W.2d 542, 565 (2007), quoting State v. Bobo,
198 Neb. 551, 253 N.W.2d 857 (1977). In this case, Sessions’
testimony established the conspiracy before Johnson’s hearsay
testimony was offered.
Hudson argues that Johnson’s testimony was inadmissible
because Sessions did not testify the drugs were for Hudson.
We disagree. prior to Johnson’s testimony about the conversa-
tions she heard between Hudson and McDonald, she stated
she was aware McDonald was involved in buying drugs and
that he planned to “‘re-up,’” that is, to use money to buy
more drugs and resell them. Sessions testified that McDonald
used Hudson’s money to buy the drugs and that McDonald
was robbed. It is reasonable to infer that Hudson furnished
the money to buy the drugs and that McDonald was part
of this conspiracy. At the time Johnson’s statements were
admitted, evidence had been received establishing the con-
spiracy between Hudson and McDonald to purchase drugs.
Johnson then testified about statements made by McDonald
to Hudson.
StAtE v. HUDSON 	15
Cite as 279 Neb. 6

In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility. State
v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009). Sessions’
testimony provided prima facie evidence of an agreement
between Hudson and McDonald to purchase drugs. Johnson
had personal knowledge of that agreement. the agreement led
to the botched drug deal, which in turn led to the shooting of
Jones. the statements made by McDonald that were overheard
by Johnson were admissible as those of a coconspirator, and the
trial court did not abuse its discretion in overruling Hudson’s
objection to them.
[7] If there was any error in the admission of Johnson’s testi-
mony, it was harmless. In a harmless error review, an appellate
court looks at the evidence upon which the jury rested its ver-
dict; 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 guilty verdict rendered in the trial was
surely unattributable to the error. State v. Poe, 276 Neb. 258,
754 N.W.2d 393 (2008), cert. denied 555 U.S. 1109, 129 S. Ct.
914, 173 L. Ed. 2d 127 (2009). the evidence described above
established that the verdict was surely unattributable to the
admission of Johnson’s testimony. Even if McDonald’s state-
ments had not been admitted through Johnson’s testimony, the
jury would have reached the same verdict of guilty.
2. Sufficiency of evidence
Following Johnson’s testimony, the coroner testified that
Jones died from a single gunshot wound to the chest, which
perforated his lung and caused bleeding into the chest cavity.
Other witnesses testified about cellular telephone records and
physical evidence. Jones’ stepfather testified as to the threats
made by Hudson. McDonald testified about the drug deal, the
events of the night of the murder, and the visit to Jones’ step-
father’s home. Hudson did not testify or offer any evidence.
Hudson and McDonald believed that Jones was one of
the people who took their money during a drug transaction.
Hudson threatened Jones’ stepfather and his family and stated
16 	279 NEbRASkA REpORtS

that he wanted to hurt Jones. Hudson, McDonald, and Sessions
drove around looking for Jones. When Jones was sighted out-
side a house on Fontenelle boulevard, Hudson told McDonald
to stop the car. Hudson and Sessions, who were both armed,
walked toward the driveway of the house where Jones was
standing with a woman. Sessions heard Hudson load his gun.
Hudson pushed Sessions out of the way and began shooting at
Jones. Hudson told both McDonald and Sessions that he had
shot Jones.
Hudson argues that the testimony of McDonald and Sessions
lacked credibility because they were both felons. Sessions
met Hudson while incarcerated, and McDonald met Hudson
through men he had met in prison. both made agreements
with the State that resulted in lesser charges against them. the
jury heard and observed the witnesses and returned a verdict
of guilty.
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. Branch, 277 Neb. 738,
764 N.W.2d 867 (2009). Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appel-
late court, in reviewing a criminal conviction, does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Id. Any conflicts in the evidence
or questions concerning the credibility of witnesses are for
the finder of fact to resolve. Id. the evidence, viewed and
construed most favorably to the State, is sufficient to support
the convictions.
VI. CONCLUSION
there was no error in the admission of Johnson’s testimony.
the evidence was sufficient to support the convictions. the
judgment of the district court is affirmed.
A ffirmed.
H eAvicAn, C.J., not participating.
StAtE v. HUDSON 	17
Cite as 279 Neb. 6