State v. Ford

State of NebraSka , appellee , v.
Jacob c. ford, appellaNt.
778 N.W.2d 473
Filed February 19, 2010. 	No. S-09-020.
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. Judges: Appeal and Error. The exercise of judicial discretion is implicit in
determining the relevance of evidence, and a trial court’s decision regarding rele-
vance will not be reversed absent an abuse of discretion.
3. Constitutional Law: Appeal and Error. A constitutional issue not presented to
or passed upon by the trial court is not appropriate for consideration on appeal.
4. Trial: Evidence: Witnesses. One who wishes to object to an answer given by a
witness to a question posed by opposing counsel may not object on the ground
that the answer is not responsive, but must object on the ground that the answer is
a voluntary statement or for some specific reason such as hearsay or a conclusion
of the witness. Only the party asking the question can object on the ground that
the answer is not responsive.
5. Appeal and Error. When an issue is raised for the first time in an appellate
court, it will be disregarded inasmuch as a lower court cannot commit error in
resolving an issue never presented and submitted to it for disposition.
6. Evidence: Words and Phrases. Evidence is relevant if it tends in any degree to
alter the probability of a material fact.
7. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of a crimi-
nal case, an erroneous evidentiary ruling results in prejudice to a defendant unless
the State demonstrates that the error was harmless beyond a reasonable doubt.
8. 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.
9. 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 guilty verdict rendered in the questioned trial was surely
unattributable to the error.
10. Constitutional Law: Criminal Law: Double Jeopardy: Evidence: New Trial:
Appeal and Error. The Double Jeopardy Clauses of the federal and state
Constitutions do not forbid a retrial after an appellate determination of prejudicial
error in a criminal trial so long as the sum of all the evidence admitted by the
trial court, whether erroneously or not, would have been sufficient to sustain a
guilty verdict.
Appeal from the District Court for Lancaster County: JohN
a. colborN, Judge. Reversed and remanded for a new trial.
STATE v. FORD 	453
Cite as 279 Neb. 453
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

James Martin Davis, of Davis Law Office, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heavicaN, 	c.J., 	Wright, 	coNNolly, 	gerrard, 	StephaN,
MccorMack , and M iller-lerMaN, JJ.
StephaN, J.
Jacob C. Ford was convicted by a jury of first degree sexual
assault. The primary issue at trial was whether Ford’s sexual
intercourse with the alleged victim, C.H., was consensual. After
he was sentenced to 4 to 6 years’ imprisonment, Ford filed this
timely appeal, arguing that the district court erred with respect
to several evidentiary rulings it made during the trial.
I. BACKGROUND
1. factS
On December 27, 2007, C.H. attended a party at a house in
southwest Lincoln where four male roommates resided. C.H.,
a 22-year-old college student at the time, was acquainted with
the residents of the house and had previously attended parties
there. She understood that the party was to be a celebration of
Ford’s return on leave from an overseas military deployment.
Ford had lived at the residence prior to his deployment and was
staying there at the time of the party. C.H. had previously met
Ford at a going-away party for him prior to his deployment, but
she had no contact with him while he was overseas.
C.H. arrived at the party at about 11:30 p.m. and began
consuming various alcoholic beverages. Over the course of the
next 31⁄2 hours, she consumed five beers, two half-shots of rum,
and a drink which included beer and hard liquor. There were
approximately 15 people at the party when C.H. arrived, and
everyone was drinking, including Ford, who testified that he
drank “anything and everything” until he became physically ill
and that he then drank only beer.
C.H. was acquainted with Shaun H., one of the residents of
the house, and had had a casual physical relationship with him
several months previously. During the party, C.H. and Shaun
talked and had physical contact. Sometime before 3 a.m., C.H.
454 	279 NEBRASKA REpORTS

suggested to Shaun that they go downstairs to his bedroom,
and he agreed. C.H. testified that at this point, she was intoxi-
cated, so she stopped drinking. Once in Shaun’s bedroom,
the two engaged in consensual sexual intercourse for at least
30 minutes.
C.H. testified that she was drunk and tired and that she fell
asleep after having intercourse with Shaun. She remembered
him waking her and telling her he was going upstairs. Shaun
testified that he did not think C.H. had fallen asleep and that he
talked to her for about 15 minutes before leaving the bedroom
and going upstairs at approximately 5:30 or 6 a.m. Shaun and
one of his roommates then began making breakfast. At the
time, Ford was sleeping in a room located on the main floor
of the residence. About 15 minutes after Shaun came upstairs,
Ford told Shaun and his roommate that they were being too
loud and that he was going downstairs to sleep.
There is sharply conflicting testimony as to what occurred
next. C.H. testified that after Shaun went upstairs, she again fell
asleep. She later woke up in the dark and realized that someone
was vaginally penetrating her. Approximately 15 seconds later,
the person withdrew and then ejaculated on her stomach. C.H.
did not fight or scream during the encounter. She testified that
after the person withdrew, she said, “You’re not Shaun,” and
that he responded, “I told you that five times.” She testified that
it was only then that she realized the person was Ford.
Ford’s account of the event is markedly different. He tes-
tified that when he entered the lower level of the house, he
observed someone lying on the couch so he went into Shaun’s
bedroom, which had been his bedroom when he had previously
lived in the house. Ford had placed his belongings in this bed-
room while he was staying at the residence during his leave.
Ford testified that the television was on in the bedroom. After
entering the bedroom, he took off his shirt and then lay on the
bed. According to Ford, about 30 seconds later, he felt a hand
on his chest and a woman started kissing his neck. When the
woman sat up, he realized it was C.H. Ford testified that C.H.
continued to kiss him and that she spoke seductively. Ford tes-
tified that they had consensual sexual intercourse, which ended
when Ford became tired, withdrew, and ejaculated on her
STATE v. FORD 	455
Cite as 279 Neb. 453

stomach. Ford testified that immediately after the encounter, he
got dressed and talked briefly with C.H. Then, smelling food
being prepared, Ford went upstairs to eat breakfast.
C.H. testified that after Ford went upstairs, she got up and
got dressed. While dressing, she heard voices upstairs and
heard Ford say, “‘I told her that four or five times,’” and
then she heard laughter. C.H. then tried without success to
call her roommate, so she sent her roommate a text message
from her cellular telephone. C.H. estimated that the text mes-
sage was sent about 10 minutes after her encounter with Ford.
Telephone records established that the text message was sent
at 7:20 a.m.
Shaun testified that Ford came upstairs approximately 30 to
45 minutes after he announced that he was going downstairs to
sleep. Ford testified that he sat down at the kitchen table with
Shaun and one of his roommates and that they talked about
the events of the party. Ford stated that he had just had sex
with C.H., and Shaun stated that he had had sex with her also.
This was the first time Ford was aware of the sexual encounter
between C.H. and Shaun. Ford told Shaun that C.H. had initi-
ated the encounter. Shaun suggested that C.H. may have mis-
taken Ford for him, but Ford expressed doubt because of the
difference in their height and weight, and Ford stated that he
had clearly identified himself to C.H. The men laughed about
this, and they suspected that C.H. overheard their laughter and
conversation before she came upstairs and left the house.
C.H. went home and told her roommate that she had been
assaulted by Ford. Her roommate called the police. C.H. drove
to a hospital, where a forensic sexual assault examination was
conducted by a nurse. Ford’s DNA was found on C.H.’s abdo-
men, on the front panel of her underwear, and on her pubic
area. A physician testified that he observed injuries to C.H.’s
vaginal area. The injuries were consistent with nonconsensual
sex, but also could have occurred during consensual sex.
On January 2, 2008, a police investigator instructed C.H. to
place a recorded telephone call to Ford. The investigator was
able to hear C.H.’s part of the conversation, but he could not
completely hear Ford. C.H. knew the call was being recorded,
but Ford did not. The investigator gave C.H. suggestions
456 	279 NEBRASKA REpORTS

regarding the questions she should ask and the information she
should obtain from Ford. During the call, C.H. stated that she
wanted to talk to Ford about “what happened the other night. .
. . [w]hat you did to me.” Ford initially responded, “I didn’t
do anything.” When C.H. continued to insist that he did, Ford
stated, “[Y]ou climbed on top of me.” When C.H. persisted,
Ford eventually apologized but never expressly admitted that
he had assaulted her.
During the trial, the district court made several evidentiary
rulings which are the focus of the appeal. The court sustained
the State’s objections to Ford’s attempt to elicit testimony
concerning certain conduct and statements by C.H. It also
sustained the State’s objections and motions to strike certain
testimony of several of Ford’s character witnesses on the
ground that the testimony was nonresponsive. The court per-
mitted C.H. to testify as to the substance of the text message
and received a photograph depicting the message over Ford’s
objection. And the district court permitted the State to question
Ford regarding a consensual sexual relationship he had had
with another woman which occurred after the charged offense.
We will include additional facts with respect to these rulings in
our discussion of each assignment of error.
2. verdict aNd SeNteNce
At the conclusion of the 7-day trial, the jury found Ford
guilty of first degree sexual assault. After he was sentenced to
4 to 6 years’ imprisonment, Ford filed this timely appeal.
II. ASSIGNMENTS OF ERROR
Ford assigns, restated and renumbered, that the district court
erred in (1) excluding evidence of C.H.’s sexual conduct and
statements on the night of the party, (2) allowing the substance
of and photographs of the text message into evidence, (3) con-
tinually sustaining the State’s objections to the responsiveness
of the answers of his character witnesses, and (4) allowing
evidence of Ford’s subsequent sexual relationship.
III. STANDARD OF REVIEW
[1,2] In proceedings where the Nebraska Evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
STATE v. FORD 	457
Cite as 279 Neb. 453

Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.1 The exercise of judicial discretion is implicit in deter-
mining the relevance of evidence, and a trial court’s deci-
sion regarding relevance will not be reversed absent an abuse
of discretion.2
IV. ANALYSIS
1. coNduct aNd StateMeNtS of c.h.
(a) Additional Background
prior to trial, the State filed motions in limine to prevent
Ford from presenting certain evidence at trial, including testi-
mony regarding C.H.’s sexually related conduct and statements
she made during the party and a photograph taken during the
party which depicted C.H. and two other women making a
sexually suggestive hand gesture. The State argued that this
constituted evidence of C.H.’s prior sexual behavior, which
was inadmissible under Nebraska’s then-applicable rape shield
statute, Neb. Rev. Stat. § 28-321 (Reissue 2008). Ford coun-
tered that the evidence constituted circumstances surrounding
the charged offense, not prior sexual behavior, which was rele-
vant to Ford’s state of mind. The district court sustained the
State’s motions in limine and precluded Ford from offering
the evidence.
During trial, Ford made an offer of proof relating to the tes-
timony excluded by the court’s ruling on the motions in limine.
The offer was that if allowed to testify, one of the male resi-
dents of the house where the party was held would testify that
“he has this strange relationship with [C.H.] where . . . every
time they see each other, she will grab his testicles; in return,
he will grab her breasts. It’s a — kind of a playful interchange
between the two of them.” The offer of proof did not include
any representation that this conduct occurred at the party on
December 27 and 28, 2007, or that Ford had ever witnessed
it. In fact, the offer was that “if” Ford would have observed
1 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009); State v. Edwards, 278
Neb. 55, 767 N.W.2d 784 (2009).
2 State v. Edwards, supra note 1.
458 	279 NEBRASKA REpORTS

this exchange, it “could” have impacted Ford’s later decision-
making with respect to C.H. Ford further offered to prove that
the same witness would testify that there was a conversation
at the party where the witness asked C.H. if she would have
sex with him, and C.H. said that she would if Shaun and the
other roommate approved. The offer of proof did not indicate
that Ford actually heard this conversation, only that “if” Ford
knew of this conversation, it “could” have been a factor in
his decisionmaking. The district court sustained the State’s
objections to the offer of proof and refused to allow the prof-
fered testimony.
However, the court did receive in evidence the photograph
of C.H. and two other women which had been the subject of
one of the State’s motions in limine. In response to the State’s
objection based upon the ruling on the motion in limine, Ford’s
counsel explained that he was offering the photograph to show
that C.H. was flirting with Ford on the night of the party, but
specifically said he was not going to talk about what the hand
gesture meant. The court received the photograph to be admit-
ted on this basis. Later, during his cross-examination, Ford tes-
tified without objection that he took the photograph and that it
depicted C.H. making a “sexual hand gesture,” although he did
not elaborate further and was not asked to do so.
(b) Disposition
Ford argues that the conduct and statements of C.H. directed
to one of the male residents of the house should have been
received under the three-part test articulated in State v. Sanchez-
Lahora.3 But that test corresponds to the provision of the rape
shield statute which permits the court to receive evidence of
the alleged victim’s “past sexual behavior with the defendant
when such evidence is offered by the defendant on the issue
of whether the victim consented to the sexual behavior upon
which the sexual assault is alleged.”4 The statute permits evi-
dence of prior sexual behavior with persons other than the
defendant only when offered by the defendant “upon the issue
3 State v. Sanchez-Lahora, 261 Neb. 192, 622 N.W.2d 612 (2001).
4 § 28-321(2)(b) (emphasis supplied).
STATE v. FORD 	459
Cite as 279 Neb. 453

whether the defendant was or was not, with respect to the
victim, the source of any physical evidence, including but not
limited to, semen, injury, blood, saliva, and hair.”5 Ford did not
offer the evidence in question for this purpose.
[3] Ford also argues that even if the evidence was properly
excluded under the rape shield statute, the exclusion violated
his constitutional right to confront the witnesses against him.
We have recognized that in limited circumstances, a defend-
ant’s constitutional right to confrontation can trump the rape
shield statute.6 But we need not analyze whether this case
presents such a limited circumstance, because Ford did not
assert a confrontation issue at trial. A constitutional issue not
presented to or passed upon by the trial court is not appropriate
for consideration on appeal.7
For the sake of completeness, we find no merit to Ford’s
argument that the excluded evidence was probative of the
“sexually-charged nature of the party” and that “C.H.’s own
conduct could have reasonably led others, including [Ford], to
believe that she was interested in sexual activity with multiple
partners on the night in question.”8 Even if C.H. engaged in the
sexually suggestive conduct or made the statements attributed
to her on the night of the party, there was no showing that
Ford saw or heard such statements or conduct. The offer of
proof stated only that “if” Ford observed the conduct or heard
the statements, it “could” have or “may” have affected his
later determination as to whether C.H. had consented to sex.
Because there was no showing that Ford actually did see or
hear the conduct or statements, they could not be relevant, even
under Ford’s reasoning, to the issue of consent.
Finally, we note that the trial court reversed its ruling on the
State’s motion in limine and received the photograph, taken
by Ford, which depicted C.H. and two other women making
a hand gesture. In arguing for its admissibility, Ford’s counsel
5 § 28-321(2)(a).
6 See State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999).
7 State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006); State v. Diaz, 266
Neb. 966, 670 N.W.2d 794 (2003).
8 Brief for appellant at 18.
460 	279 NEBRASKA REpORTS

stated that it was offered only to impeach the testimony of C.H.
that she did not flirt with Ford at the party and that he did not
intend to inquire into the meaning of the gesture. The record
reflects that the photograph was ultimately received for the
purpose for which it was offered, and thus, the district court’s
preliminary ruling on the motion in limine could not constitute
prejudicial error.
2. obJectioNS to teStiMoNy aS NoNreSpoNSive
(a) Additional Background
During his case in chief, Ford called six witnesses to tes-
tify regarding his general reputation for peacefulness. During
the direct examination of all but one of these witnesses, the
State objected at various times, asserting that the witness’
answer was “non-responsive” to the question asked and at
times asking that the answer be stricken. The district court
sustained each of these objections and motions to strike. All
six witnesses ultimately testified to Ford’s general reputation
for peacefulness.
(b) Disposition
[4] In Cardenas v. Peterson Bean Co.,9 we held “the proper
rule to be that counsel who is not conducting the questioning
has no standing to ask that a nonresponsive answer be stricken
upon the sole ground of lack of responsiveness,” although we
noted that “a voluntary statement by a witness, not responsive
to a question, should be stricken.” In Isham v. Birkel,10 we
stated that “[e]xcluding testimony during oral examination at a
trial on the sole ground of nonresponsiveness raised by coun-
sel who is not interrogating the witness is error.” In State v.
Swoopes,11 we synthesized the holdings of Cardenas and Isham
into the following rule:
9 Cardenas v. Peterson Bean Co., 180 Neb. 605, 609-10, 144 N.W.2d 154,
158 (1966).
10 Isham v. Birkel, 184 Neb. 800, 801-02, 172 N.W.2d 92, 93 (1969).
11 State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986), overruled in
part on other grounds, State v. Jackson, 225 Neb. 843, 408 N.W.2d 720
(1987).
STATE v. FORD 	461
Cite as 279 Neb. 453

One who wishes to object to an answer given by a wit-
ness to a question posed by opposing counsel may not
object on the ground that the answer is not responsive, but
must object on the ground that the answer is a voluntary
statement or for some specific reason such as hearsay
or a conclusion of the witness. Only the party asking
the question can object on the ground that the answer is
not responsive.12
When Ford’s character witnesses were asked on direct exami-
nation whether they had formed an opinion regarding Ford’s
reputation for peacefulness, they initially responded by stating
the substance of the opinion, instead of affirmatively stating
that they had an opinion and waiting for another question elic-
iting its substance. The prosecutor objected and moved to strike
on the sole ground that the answers were “non-responsive.”
Under the authorities discussed above, this was not a proper
objection for the prosecutor, as the nonexamining attorney, to
make, and the district court therefore erred in sustaining the
objections and related motions to strike.
3. photograph of text M eSSage
(a) Additional Background
prior to trial, Ford filed a motion in limine seeking to pre-
vent the State from offering the content of the text message
C.H. sent to her roommate on the morning of December 28,
2007. At a hearing on the motion, Ford argued that the fact
that a text message regarding the incident was sent was admis-
sible but that the exact language of the text was not. The State
argued that it intended to offer the substance of the message
as an excited utterance. The court overruled Ford’s motion
in limine.
At trial, C.H. testified that 10 minutes elapsed between the
sexual encounter with Ford and the text message and that she
was “scared” and “confused” when she sent it. The prosecutor
then asked C.H. to state the substance of the text message, argu-
ing in response to Ford’s hearsay objection that it fell within
12 Id. at 920, 395 N.W.2d at 505. See, also, R. Collin Mangrum, Mangrum on
Nebraska Evidence 34 (2009).
462 	279 NEBRASKA REpORTS

the excited utterance exception to the hearsay rule. The district
court overruled the objection, concluding that the text mes-
sage was both an excited utterance and “part of the res gestae
of this crime.” C.H. then testified that the text message stated,
“I had just got raped by Jake. Don’t know what to do.” C.H.
further testified that a police officer took both a photograph of
the contents of the text message from the screen of her cellu-
lar telephone and a photograph showing the date and time of
its transmission. When the State offered these photographs in
evidence, Ford reasserted his previously made hearsay objec-
tion. The district court overruled the objection and received
the photographs. One of the 8- by 10-inch color photographs
shows the substance of the message: “I just got raped. . By
jake. . I dont know what to do. .” The other shows the date and
time when the message was sent and delivered.
(b) Disposition
We understand Ford’s argument as being twofold. First, he
contends that the admission of the photograph went beyond
the scope of the “complaint of rape” rule, under which the
victim of a sexual assault may testify to a complaint regarding
a sexual assault made within a reasonable time after it occurs,
but not as to the details of the complaint.13 Ford argues that
under the “complaint of rape” rule, a limiting instruction must
be given to advise the jury that testimony regarding the com-
plaint is not to be considered as substantive evidence that the
assault occurred. We note that Ford neither requested a limiting
instruction at trial nor objected to the admission of the photo-
graph based on the “complaint of rape” rule. Ford requests
that we review this under the plain error doctrine. However,
it is clear from the record that the district court also received
the testimony and photographic evidence of the text message
as an excited utterance, and Ford does not assign error to this
independent basis for receiving the evidence. Accordingly, we
do not reach Ford’s argument with respect to the “complaint
of rape” rule because it is unnecessary to do so; and we do
not reach the question of whether the evidence was properly
13 See State v. Daniels, 222 Neb. 850, 388 N.W.2d 446 (1986).
STATE v. FORD 	463
Cite as 279 Neb. 453

received as an excited utterance because Ford does not assign
error with respect to this ruling.
[5] Ford’s second argument is that by receiving the photo-
graph of the text message, to which C.H. had already testified,
the court permitted the State to unduly emphasize a criti-
cal portion of C.H.’s testimony. Our cases impose significant
restrictions on a jury’s access to testimonial evidence during
its deliberation.14 But Ford did not raise this issue at trial; he
objected to both the testimony about the text message and the
admission of the photograph depicting the text message only
on the ground of hearsay. When an issue is raised for the first
time in an appellate court, it will be disregarded inasmuch as
a lower court cannot commit error in resolving an issue never
presented and submitted to it for disposition.15 Because the
issue of whether the admission of the photograph constituted
undue emphasis of the testimony was not preserved for appeal,
we do not address it in this opinion.
4. ford’S SubSequeNt Sexual coNduct
(a) Additional Background
During its case in chief, the State called a female wit-
ness and elicited her testimony that during the last part of
December 2007, she and Ford were “[j]ust friends, trying to
get to know each other.” When the State asked if her relation-
ship with Ford was more than a “friendship,” Ford made a
relevance objection. The State argued that the testimony was
relevant because Ford told the police that he did not know
why he had sex with C.H., and the State wanted to show that
one reason why Ford was not interested in C.H. was that Ford
was interested in the witness. The State specifically stated
that it was “not asking about sexual behavior” and that the
witness did not attend the party. The court allowed the wit-
ness to testify that her relationship with Ford developed into
14 See, State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002); State v. Dixon,
259 Neb. 976, 614 N.W.2d 288 (2000).
15 State v. Thompson, 278 Neb. 320, 770 N.W.2d 598 (2009); State v. Pieper,
274 Neb. 768, 743 N.W.2d 360 (2008).
464 	279 NEBRASKA REpORTS

something more than just friends on or around December 27
or 28, 2007.
No further evidence relating to this witness was offered until
the prosecutor cross-examined Ford about his cellular telephone
records. During this cross-examination, the prosecutor asked
whether Ford had been calling the woman who had previously
testified during the period of December 24 or 25, 2007, until
the time he initially spoke with the police on January 2, 2008,
and Ford stated that he had. When Ford stated that he and the
woman were friends, the prosecutor asked, “Well, that turned
into something more, didn’t it, Mr. Ford?” Ford’s counsel
objected on the basis of relevance, but the objection was over-
ruled. The prosecutor asked, “Did your relationship with [the
woman] ever develop past friendship?” Ford’s counsel again
objected to the question as irrelevant, and the court once again
overruled the objection. The prosecutor then asked, “Did you
engage in sexual intercourse with [the woman] during the last
week of December?” Ford’s counsel again made a relevance
objection, which the court overruled. Ford then answered that
he had not. Finally, the prosecutor asked whether Ford engaged
in intercourse with the woman beginning in January 2008. No
objection was made, and Ford answered in the affirmative.
(b) Disposition
In response to Ford’s argument that the district court erred
in permitting the prosecutor to elicit testimony about his sexual
relationship with another woman commencing several days
after the charged offense, the State contends that the issue is
waived by Ford’s failure to object to the question which elicited
the response. We are not persuaded by this argument. Ford’s
counsel objected on relevance grounds throughout the line of
questioning that led to the response, and his objections were
consistently overruled. Although there was no objection to the
question which immediately preceded the response, it is clear
from the record that the prosecutor and the court were placed
on notice of Ford’s position that evidence of his sexual conduct
subsequent to the charged offense was irrelevant.
[6] And we conclude that it was indeed irrelevant. Evidence
is relevant if it tends in any degree to alter the probability of
STATE v. FORD 	465
Cite as 279 Neb. 453

a material fact.16 The State has offered no cogent explanation,
at trial or on appeal, to support the relevance of Ford’s sexual
relationship with another woman after the date of the charged
sexual assault on C.H. The district court erred in overruling
Ford’s objections to the line of questioning which elicited
this information.
5. harMleSS error aNalySiS
[7-9] Having identified two trial errors, we must now con-
sider whether they were prejudicial or harmless. 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.17 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 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 guilty verdict rendered in the questioned trial was surely
unattributable to the error.19
We have no difficulty concluding that the errors in sustain-
ing the State’s objections to testimony on the part of Ford’s
character witnesses as nonresponsive were harmless beyond
a reasonable doubt, whether considered individually or in the
aggregate. These rulings did not result in the exclusion of any
evidence. In each instance that a nonresponsive objection and
motion to strike was sustained, Ford’s counsel was able to
reformulate his question and elicit favorable testimony regard-
ing Ford’s reputation for peacefulness.
16 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008); State v.
Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
17 State v. Epp, supra note 1; State v. Morrow, 273 Neb. 592, 731 N.W.2d
558 (2007), disapproved on other grounds, State v. McCulloch, 274 Neb.
636, 742 N.W.2d 727 (2007).
18 Id.
19 Id.
466 	279 NEBRASKA REpORTS

The erroneous admission of evidence of Ford’s subsequent
sexual conduct is another matter. The key factual issue in this
case is whether C.H. consented to sexual intercourse with
Ford. The only direct evidence on this issue came from the
testimony of C.H. and Ford. Both, by their own admission,
were significantly impaired by alcohol at the time of the sexual
act. Both claimed that the other initiated the act. There was
no evidence of physical or verbal resistance. The physical evi-
dence was inconclusive. The erroneous admission of irrelevant
evidence of Ford’s subsequent sexual conduct with another
woman could only have prejudiced him in the eyes of the jury.
Given the sharply conflicting evidence on the issue of consent,
we cannot say that the guilty verdict was surely unattributable
to this error, and we therefore conclude that the State has not
demonstrated that the error was harmless beyond a reason-
able doubt.
V. CONCLUSION
[10] The Double Jeopardy Clauses of the federal and state
Constitutions do not forbid a retrial after an appellate deter-
mination of prejudicial error in a criminal trial so long as the
sum of all the evidence admitted by the trial court, whether
erroneously or not, would have been sufficient to sustain a
guilty verdict.20 That is the case here. Therefore, for the reasons
discussed, we reverse the judgment of the district court and
remand the cause for a new trial.
reverSed aNd reMaNded for a NeW trial .
20 See, Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265
(1988); State v. McCulloch, supra note 17.
STATE v. FORD 	467
Cite as 279 Neb. 453