State v. Burton

The district court erred when it concluded that the doc
trine of in loco parentis did not apply and dismissed the case.
Latham has standing to seek custody and visitation of P.S., but
there remain genuine issues of material fact bearing on whether
she should be granted relief and whether the relief she seeks is
in the best interests of P.S. Accordingly, we reverse the ruling
granting summary judgment in favor of Schwerdtfeger and the
order of dismissal, and remand for further proceedings consist
ent with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
WRight, J., not participating.
state of nebRaska , appellee , v.
kaRnell d. buRton, appellant.
802 N.W.2d 127
Filed September 2, 2011. 	No. S 10 143.
1. Pleadings. Deciding to grant or deny an amendment to a pleading is a matter
entrusted to the discretion of the trial court.
2. Motions for Mistrial. Deciding whether to grant a motion for mistrial is a matter
entrusted to the discretion of the trial court.
3. Evidence. Determining the relevancy of evidence is a matter entrusted to the
discretion of the trial court.
4. Sentences. Imposing a sentence within statutory limits is a matter entrusted to the
discretion of the trial court.
5. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
6. Speedy Trial. Neb. Rev. Stat. § 29 1207 (Reissue 2008) provides that every per
son indicted or informed against for any offense shall be brought to trial within
6 months.
7. ____. If a defendant is not brought to trial before the running of the time for
trial, as extended by excludable periods, he or she shall be entitled to absolute
discharge from the offense charged.
8. Speedy Trial: Waiver. It is incumbent upon a defendant to file a timely motion
for discharge in order to avoid the waiver provided for by Neb. Rev. Stat.
§ 29 1209 (Reissue 2008).
STATe v. buRToN 	135
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

9. ____: ____. A defendant waives any objection on the basis of a violation of the
right to a speedy trial when he or she does not file a motion to discharge before
trial begins.
10. Rules of Evidence: Witnesses: Prior Statements. The rule against offering
extrinsic evidence of a prior inconsistent statement of a witness does not apply to
admissions of a party opponent.
11. Evidence: Prior Statements. A statement is admissible as substantive evidence
if it is offered against a party and is the party’s own statement.
12. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
13. Motions for Mistrial: Proof. A defendant faces a higher threshold than merely
showing a possibility of prejudice when attempting to prove error predicated on
the failure to grant a mistrial.
14. 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.
15. Sentences. In imposing a sentence, the sentencing court is not limited to any
mathematically applied set of factors. The appropriateness of a sentence is neces
sarily a subjective judgment and includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and all the facts and circumstances sur
rounding the defendant’s life.
16. ____. In imposing a sentence, a sentencing judge should consider the defendant’s
age, mentality, education, experience, and social and cultural background, as
well as his or her past criminal record or law abiding conduct, motivation for the
offense, nature of the offense, and the amount of violence involved in the com
mission of the crime.
Appeal from the District Court for Douglas County: gaRy b.
R andall, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
geRRaRd, J.
The defendant, Karnell D. burton, was convicted of man
slaughter, attempted second degree murder, first degree assault,
and two counts of use of a deadly weapon to commit a felony.
He appeals, claiming that his statutory right to a speedy trial
136 	282 NebRASKA RePoRTS

was violated, that the State committed misconduct during clos
ing statements, that the court erred in excluding evidence that
two of the State’s witnesses belonged to a gang, and that the
sentences imposed were excessive. but we affirm burton’s con
victions and sentences.
I. bACKGRouND
because the issues presented on appeal are relatively nar
row, a detailed recitation of all the evidence presented at trial is
unnecessary. Rather, it will be more helpful to relate a general
summary of the evidence, followed below by a more detailed
examination of the facts relevant to each issue.
This case arises out of the shootings of Timothy Thomas and
his cousin Marshall Turner, which left Thomas dead and Turner
seriously wounded. Generally, the State accused burton and
his alleged accomplice, Thunder Collins, of shooting Thomas
and Turner in an attempt to steal cocaine from them. In con
nection with those shootings, burton was charged with first
degree murder, attempted second degree murder, first degree
assault, and three counts of use of a deadly weapon to commit
a felony.
The State’s evidence at trial, taken in the light most favor
able to the State,1 established that Collins, Turner, and Thomas
had been engaged in transporting cocaine from Los Angeles,
California, to sell in omaha, Nebraska. on the trip that culmi
nated in the shootings at issue in this case, Turner and Thomas
had driven to omaha from California in a sports utility vehicle
(SuV), accompanied by Turner’s girlfriend and another man,
Darryl Reed. The cocaine they were transporting had been hid
den in the body of the SuV.
Collins contacted his friend Ahmad Johnson, who testi
fied at trial that Collins asked him to help Collins “get these
guys.” Collins told Johnson that they needed a secure location
to get the drugs out of the SuV. Johnson asked his friend Karl
Patterson whether they could use Patterson’s automotive repair
shop. Patterson refused, but, according to Johnson, agreed to
give Collins a gun. Collins and Johnson then tried to contact
1 See State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
STATe v. buRToN 	137
Cite as 282 Neb. 135

burton, but failed. So, Collins told Turner and Thomas to fol
low Collins in their SuV to Johnson’s house, to use Johnson’s
garage to remove the drugs from the SuV.
burton called Collins back, and Collins told him to come
to Johnson’s house, so he did. Johnson took the gun that
they had gotten from Patterson and placed it in the kitchen.
burton and Johnson were in the house talking when Collins
came in and asked for a gun burton had brought with him,
which was smaller. Johnson said he told burton to “watch
[Collins’] back,” then went outside and sat in his car, listening
to music.
Turner and Thomas were still in the garage, and Turner was
watching Thomas work to remove the drugs from the SuV,
when Turner was suddenly shot in the neck. Turner fell to the
ground and crawled under the SuV. When he got up, he saw
burton pointing a gun at him and Collins holding Thomas by
the hair. Turner tried to get between Collins and Thomas, so
burton shot Turner in the buttocks. Collins then shot Thomas
in the head. burton went to help Collins move Thomas’ body,
and Turner heard burton say, “Let me make sure this nigger
dead.” Another shot was fired, grazing Turner’s head. Turner
heard Collins and burton go out the back door of the garage,
so he got into the SuV, drove it through the closed garage door,
and fled.
burton was convicted of manslaughter, attempted second
degree murder, first degree assault, and two counts of use of a
deadly weapon to commit a felony, and he was sentenced to a
total of 80 to 130 years’ imprisonment. He appeals.
II. ASSIGNMeNTS oF eRRoR
burton assigns that the district court (1) violated his statu
tory right to a speedy trial when it granted the State’s motion
to file an amended information which added the charges of
first degree assault and use of a deadly weapon to commit a
felony, over his objection; (2) committed reversible error when
it denied his motion for mistrial based on prosecutorial miscon
duct during the State’s rebuttal in final argument; (3) commit
ted reversible error when it refused to allow him to present evi
dence that two of the State’s witnesses, Reed and Turner, were
138 	282 NebRASKA RePoRTS

members of a violent street gang; and (4) abused its discretion
by imposing excessive sentences.
III. STANDARD oF ReVIeW
[1 5] Deciding to grant or deny an amendment to a plead
ing,2 deciding whether to grant a motion for mistrial,3 determin
ing the relevancy of evidence,4 and imposing a sentence within
statutory limits,5 are all matters entrusted to the discretion of
the trial court. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a
just result in matters submitted for disposition.6
IV. ANALySIS
1. speedy tRial
(a) background
burton was initially charged on November 10, 2008, with
four counts: first degree murder, attempted second degree mur
der, and two counts of use of a deadly weapon to commit a
felony. About 3 months before trial was scheduled to begin, the
State moved for leave to file an amended information, adding
a charge of first degree assault and an additional charge of use
of a deadly weapon to commit a felony, both arising out of the
same set of facts as the original charges. burton objected, argu
ing that the “six month statutory requirement for speedy trial
would be, in its spirit, violated.” burton argued that while he
had waived his statutory speedy trial right with respect to the
charges that were already pending, he had not waived it with
respect to the charges the State was proposing to add. but over
burton’s objection, the motion for leave to file an amended
information was sustained, and the amended information was
filed on July 28, 2009.
2 See State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010).
3 See State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
4 See State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010).
5 See State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
6 State v. Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009).
STATe v. buRToN 	139
Cite as 282 Neb. 135

(b) Analysis
[6,7] Neb. Rev. Stat. § 29 1207 (Reissue 2008) provides
that every person indicted or informed against for any offense
shall be brought to trial within 6 months.7 And if a defendant is
not brought to trial before the running of the time for trial, as
extended by excludable periods, he or she shall be entitled to
absolute discharge from the offense charged.8
burton argues that his statutory right to a speedy trial was
violated in this case. burton concedes that the statutory right
to a speedy trial can be waived9 and that he waived his speedy
trial right with respect to the charges originally brought against
him. but, he contends, that waiver was not effective against the
charges that were added before trial—the first degree assault
charge and the associated weapons charge.
[8,9] However, burton never filed a motion to discharge
those counts. And Neb. Rev. Stat. § 29 1209 (Reissue 2008)
clearly provides that the “[f]ailure of the defendant to move for
discharge prior to trial or entry of a plea of guilty or nolo con
tendere shall constitute a waiver of the right to speedy trial.”
We have explained that it is incumbent upon a defendant to
file a timely motion for discharge in order to avoid the waiver
provided for by § 29 120910 and that a defendant waives any
objection on the basis of a violation of the right to a speedy
trial when he or she does not file a motion to discharge before
trial begins.11
burton’s appellate brief characterizes the question presented
as whether he was required to file a notice of appeal within
30 days of the court’s order granting the State’s leave to
amend, as he would have been required to do had a motion
to discharge been made and overruled.12 We agree that burton
7 State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
8 See, Neb. Rev. Stat. § 29 1208 (Reissue 2008); State v. Tamayo, 280 Neb.
836, 791 N.W.2d 152 (2010).
9 See State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
10 State v. Kearns, 245 Neb. 728, 514 N.W.2d 844 (1994), disapproved on
other grounds, State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
11 See State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).
12 See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
140 	282 NebRASKA RePoRTS

could not have appealed from the order granting leave to file
an amended information. but that is not precisely the question.
Rather, given the specific provision of § 29 1209, the question
is whether burton waived his speedy trial right by not moving
for discharge.
obviously, pursuant to § 29 1209, the answer is that he did.
burton contends that the objection to the amended information
was not a motion to discharge, “because the complained[ ]of
additional counts were not pending and there was nothing
from which he could be ‘discharged.’”13 That may have been
the case, but there was nothing preventing burton from mak
ing his motion to discharge after the amended information
was filed.
burton argues at length that procedural problems would
ensue if a defendant were required to appeal when a speedy
trial claim was presented with respect to some, but not all,
of the charges pending. but we are not faced in this appeal
with whether a defendant whose motion to discharge is over
ruled with respect to some but not all of the charges should
be required to appeal, or what effect that would have on the
charges that remained. Instead, the only question is whether
burton had to file a motion to discharge to preserve his speedy
trial claim. And § 29 1209 answers that question.
burton waived any violation of his right to speedy trial by
not moving for discharge before trial. His first assignment of
error is without merit.
2. pRosecutoRial misconduct
(a) background
burton had been taken into police custody at the scene of
the crime and gave a statement to police that was not admit
ted into evidence at trial. but, when burton testified at trial,
his statement was used as the basis for impeachment on
cross examination.
Turner and Johnson testified at trial, and their accounts of
events are essentially set forth above—that Turner and Thomas
were in the garage at Johnson’s house when Collins and burton
13 brief for appellant at 22.
STATe v. buRToN 	141
Cite as 282 Neb. 135

came into the garage and attacked them. Specifically, Turner
said that Collins shot him, then burton shot at him two more
times, while Collins killed Thomas.
burton gave a different account. burton testified at trial
that he and Johnson had both been in the kitchen at Johnson’s
house, when they heard a scuffle in the garage and the sound
of a gunshot. burton said that he grabbed a gun off the stove
and that he and Johnson both ran into the garage. According to
burton, he shot Turner in the buttocks because Collins, fight
ing with Turner and Thomas, had said that Turner had a gun.
burton said that after he shot Turner in the buttocks, Collins
took the gun from him and burton left the garage. burton said
he did not know whether Johnson also left the garage. Then,
burton heard more gunshots, and was leaving when he saw the
SuV crash through the garage door and speed away.
but on cross examination, burton admitted initially telling
police that neither he nor Johnson had been in the garage at
all. Then, eventually, burton had admitted to police that he had
shot Turner. Specifically, burton did not deny telling police that
he and Johnson had been in the garage watching the removal
of the drugs, then gone into the kitchen, where he had been
given a gun to take back into the garage. burton admitted tell
ing police, contrary to his trial testimony, that he and Collins
had been in the garage, but not Johnson. Nor did burton deny
telling police that, contrary to his trial testimony, he had been
present when Collins shot Turner and Thomas and that Collins
had shot both men before burton shot Turner.
burton’s responses to the State’s impeachment were some
what evasive, and it was not always clear whether burton was
admitting the statements he made to police or simply claiming
not to recall whether or not he had made them. Most of the
time, burton simply did not “deny” making the statements with
which he was confronted by the State. but at various other
points, burton seemed to concede at least making those state
ments to police, although he claimed that he had been lying
to them at the time. Some examples of these colloquies will
illustrate the ambiguity:
[Prosecutor:] Now, there was some testimony that
you’ve been asked about, you were there . . . when . . .
142 	282 NebRASKA RePoRTS

Turner [was asked] about saying to take it and just keep
it; is that correct?
[burton:] I didn’t hear it.
Q. you didn’t hear any of that?
A. No.
Q. Didn’t you, in fact, tell the police that you did hear
him begging in the garage to just take it, just leave us
alone and take it?
A. I could have said it.
Q. okay. So —
A. I don’t deny I said it.
. . . .
Q. . . . Did you hear . . . Turner at the time saying to
just take it, just leave us alone?
A. No.
Q. you never heard that?
A. No.
Q. And if you told the police that . . . then that would
be mistaken? you didn’t say that?
A. I probably did say it.
. . . .
Q. And isn’t it true that in that same conversation that
when officer Spencer is talking to you about that, that
based on the tape, you say that the purpose was to scare
them and jack them?
A. I don’t recall it.
Q. once again, do you deny saying that on the tape?
A. No, I don’t deny saying it.
Q. okay. So this is, once again, a little different about
what you actually knew before you went into the garage,
is that correct, from what you said today?
A. I did know. I was making it up.
Q. once again, that’s all made up here, too, with
officer Spencer’s reporting; is that right?
A. It’s not made up. I said it, but it is made up.
Q. I appreciate the difference as well, sir. you’re right.
you made it up but you certainly said it?
A. yes.
. . . .
STATe v. buRToN 	143
Cite as 282 Neb. 135

Q. Do you recall telling officer Spencer that while you
were in the garage you heard [Collins] say, yeah, here it
is — referring to the drugs — and give it up?
A. No, I don’t remember that.
Q. okay. Do you recall — once again, if you said it
to officer Spencer — are you denying you said that to
officer Spencer?
A. I’m not denying it. I just don’t recall it, sir.
Q. but if you said that to officer Spencer — or if you
said that to officer Spencer and he reported that, you’re
not denying that; correct?
A. No, I’m not denying it.
Q. And that’s different from today as well. you actually
were in there to hear . . . Collins say that; correct? Those
two statements are different?
A. I made it up, sir.
. . . .
Q. Do you remember saying this to officer Spencer:
you stated that [Collins] begins to shoot at which point
burton states that he shoots and then gets scared and
runs out of the back of the garage. Did you say that to
officer Spencer?
A. I could have. I don’t deny it, though.
Q. once again, you don’t deny it if he reported it; is
that right?
A. yes.
Q. So, in fact, that’s different from you walking in and
just shooting. you actually said to officer Spencer that
you saw . . . Collins shoot first; correct?
A. yes.
. . . .
Q. Well, at the time that you — time that you were
inside, you were asked by officer Spencer — once again,
he asked you who shot at which time, and you told
him that [Collins] fired the first shot, hitting the dark
skinned male; [Collins] fired the second shot, shooting
the guy with the ponytail; and you claim you fired a third
shot, which hit the dark skinned guy. Do you recall say
ing that?
144 	282 NebRASKA RePoRTS

A. I don’t remember saying it.
Q. you don’t deny it, though. Is that fair to say?
A. No, I don’t deny it.
Q. So, once again, that indicates, with what you’re say
ing to officer Spencer, that you were in there knowing
what . . . Collins was doing in this shooting. That’s what
that sounds like; correct?
A. yes.
. . . .
Q. Well, certainly if you were — if one or two shots
had already been fired and the two victims were scram
bling or scuffling, being physical, isn’t it — based on
what you told officer Spencer, isn’t it likely that they
were scuffling or scrambling because they had just been
shot at?
A. I don’t know.
Q. okay. Although you told officer Spencer that you
saw [Collins] shoot at both of them?
A. I told you that was a lie.
Q. but here’s my question, sir: Although you told
officer Spencer that you saw [Collins] shoot at both of
them, that wouldn’t be a reason for a scuffle. Maybe try
ing to get away?
A. yeah, I told you it was a lie, so I don’t know.
This ambiguity led to some confusion during closing state
ments. Defense counsel conceded, during his closing statement,
that burton had initially lied to police. but, he argued, so had
Johnson and Turner. Defense counsel contended that burton
was more credible, because he had quickly acknowledged his
involvement and was “[t]he only one that takes any responsibil
ity at all from the first day.”
The State replied to that in its rebuttal statement, remarking
that “the defense counsel wants to talk a little bit about day
one and what [burton] said on day one. Well, let’s talk about
what [burton] said on day one . . . .” The State argued that
unlike burton’s testimony at trial, burton’s initial statement
to police had mirrored the statements that Turner was making
to police at the same time in the hospital where he was being
treated. The State’s argument, essentially, was that burton’s
STATe v. buRToN 	145
Cite as 282 Neb. 135

trial testimony was not credible, but that Turner’s testimony
was credible, because the statements that Turner and burton
had given to police just after the shootings were far more con
sistent with each other.
burton objected, asserting that there was “no evidence as
to what the statement was other than the testimony from
[burton].” So, burton argued, the State was making “improper
rebuttal.” The State contended that it had “asked these questions
of [burton] at the time he was on the stand and went through
his entire statement,” so it was in the record. essentially, the
State contended that burton had admitted making the state
ments. burton’s counsel replied that burton had “said he
didn’t remember and he doesn’t deny he said those things”
but that the State could not “come up here and say here’s
what the statement was,” because the statement itself was not
in evidence.
The court agreed that while the State could point out incon
sistency between burton’s testimony and his statement to
police, the State could not refer to parts of the statement to
police that were not in evidence. The State continued its rebut
tal. Then, after another reference by the State to the consist
ency of burton’s statement to police with Turner’s, burton
reasserted his objection and moved for a mistrial. Although
the court cautioned the State that “you need to stay away from
the body of the statement that’s not in,” the motion for mistrial
was overruled.
(b) Analysis
burton’s argument is twofold: First, he contends that his
statements to police were not in evidence, and second, he con
tends that his statements can be used only for impeachment,
not as substantive evidence. burton concludes, therefore, that
the State’s rebuttal was improper to the extent that the State’s
argument relied on the substance of burton’s statement.
We begin with burton’s second point: even assuming, for
the moment, that burton’s statement to police was available
only for impeachment, burton has not clearly explained what
was improper about the State’s argument. burton contends
that the impropriety was in using it to show that Turner’s tes
timony was credible, as opposed to showing that burton’s was
146 	282 NebRASKA RePoRTS

incredible. but it is hard to separate the two. The fundamental
issue at trial was whether the jury should believe burton or
believe Johnson and Turner. The credibility of each witness
was not being judged in a vacuum, and it was hardly improper
for the State to point out that burton’s statement to police was
more consistent with Turner’s statements than with burton’s
own trial testimony. That this would have the effect of bolster
ing Turner’s credibility at the expense of burton’s was simply
a result of the context of this trial, not any impropriety in the
argument. In short, in this case, it would have been hard to
make any argument about the credibility of any of the witnesses
that did not implicate the credibility of the others.
[10,11] but more fundamentally, it is not clear upon what
legal basis burton contends that his statement to police was
not available as substantive evidence. The rule against offering
extrinsic evidence of a prior inconsistent statement of a wit
ness does not apply to admissions of a party opponent, and a
statement is admissible as substantive evidence if it is offered
against a party and is the party’s own statement.14 The ques
tion is really whether burton’s statements to police were in
evidence through his testimony—in other words, not whether
evidence of burton’s statements to police was admissible, but
whether such evidence was even offered at all. burton argues
that it was not.
but evidence of burton’s statements to police was offered
through burton’s own testimony, and although his testimony
was not always clear, he implicitly acknowledged that the
statements with which he was confronted were things he had
actually said to police. We have said, in the context of impeach
ment, that the trial court has “considerable discretion” in deter
mining whether testimony is inconsistent with prior statements
and that a court may find inconsistency in evasive answers,
inability to recall, silence, or changes of position.15 The same
14 See Neb. evid. R. 613(2) and 801(4)(b)(i), Neb. Rev. Stat. §§ 27 613(2)
and 27 801(4)(b)(i) (Reissue 2008).
15 See State v. Marco, 220 Neb. 96, 100, 368 N.W.2d 470, 473 (1985). See,
also, e.g., McAlinney v. Marion Merrell Dow, Inc., 992 F.2d 839 (8th Cir.
1993); United States v. Rogers, 549 F.2d 490 (8th Cir. 1976).
STATe v. buRToN 	147
Cite as 282 Neb. 135

discretion applies here, where the issue was not whether burton
denied the prior statements, but whether he admitted them.
The trial court’s considerable discretion extended to determin
ing whether burton’s testimony was sufficiently affirmative to
constitute admissions that he actually made the statements to
police about which he was cross examined.
As noted above, burton was evasive when confronted with
his alleged statements to police. but burton concedes that,
at the very least, he did not deny making those statements.
And eventually, he at least implicitly acknowledged them.
burton was trying to do two contradictory things during cross
examination: “not deny” making the statements to police, then
also assert that he had been lying when he made them. but
in making the second assertion, he contradicted the first, and
tacitly admitted that the statements had been made. It was
burton’s decision to play cat and mouse with the State dur
ing cross examination, but it was the court’s job to decide
who won. It would certainly not be an abuse of discretion to
conclude that burton’s rather carefully worded “non denials”
were, in fact, acknowledgments. Nor would it be an abuse of
discretion to conclude that, when burton’s entire testimony
is considered, he effectively acknowledged giving the police
the account of events with which he was confronted on cross
examination. And it was certainly not an abuse of discretion
not to grant a mistrial.
[12,13] A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus prevents
a fair trial.16 And a defendant faces a higher threshold than
merely showing a possibility of prejudice when attempting
to prove error predicated on the failure to grant a mistrial.17
Here, no admonition was requested, nor has any prejudice
been shown, particularly given the state of the record and our
standard of review. We conclude that the court did not abuse
16 State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
17 State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
148 	282 NebRASKA RePoRTS

its discretion in overruling burton’s motion for mistrial. His
second assignment of error is without merit.
3. gang membeRship evidence
(a) background
The State filed a motion in limine for an order precluding
burton from adducing evidence that, among other things, any
witness had been a member of a street gang. The State argued
at the pretrial hearing on the motion that such evidence should
be excluded under Neb. evid. R. 401 and 404.18 burton per
suaded the court to wait and hear the State’s evidence at trial
before making a decision on the motion. but the court cau
tioned burton that he should not bring the issue up before the
jury without first approaching the bench and making an offer
of proof, because the court “want[ed] to know the relevancy
before it goes in front of the jury.”
Reed testified at trial, and although he acknowledged that
he was a drug dealer, he neither testified to nor was asked
about gang membership, and no offer of proof was made in
that regard. Turner also acknowledged that he was a drug
dealer and, on cross examination, was asked about the tattoo
on his right arm. The State objected to the question based on
relevance, and the objection was sustained. outside the pres
ence of the jury, Turner explained that the tattoo represented
the 52 Hoover Crips. but, Turner said, his drug dealing was not
related to gang membership.
burton made an offer of proof, arguing that Turner’s gang ties
went to his credibility and background. And, burton argued, it
was unlikely that members of the 52 Hoover Crips would trans
port cocaine from California without firearms or protection, so
burton asserted that Turner’s gang membership was also rele
vant to the possible source of the guns used in the killing. And
because burton was not a gang member, but Collins allegedly
was (although burton conceded there was no evidence of that),
burton argued that Turner’s gang membership went to show the
participants’ ties to one another.
18 Neb. Rev. Stat. §§ 27 401 and 27 404 (Reissue 2008).
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The State objected on several grounds, including Neb. evid.
R. 401, 404, 607, 608, and 609.19 burton agreed to withdraw
the question without a ruling from the court and to provide the
court later that day with what he promised would be relevant
case law. The next day, after reviewing burton’s submission,
the court sustained the State’s motion in limine, based on
relevance. The court noted that there was nothing to preclude
burton from arguing “that the witness was a drug dealer, that
drug dealers are bad guys, that — you know, that whole thing.
you’re perfectly — you got a lot of latitude there, you just . . .
don’t get to say gang.”
Later, burton also made an offer of proof with respect to a
statement Turner had made to police shortly after the shooting,
in which he said that the shooting would not have happened to
him in Los Angeles because, as a member of the 52 Hoover
Crips, he was respected. The court refused the offer of proof,
declining to change its ruling on the motion in limine.
(b) Analysis
Although the State objected on several grounds, the primary
issue is whether the proffered evidence was relevant. Relevant
evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determina
tion of the action more probable or less probable than it would
be without the evidence.20 Here, burton’s argument on appeal is
primarily that Turner’s and Reed’s gang affiliation would have
tended to show that Turner or Thomas, not burton, brought
guns to the scene of the crime.
We are not persuaded by this argument. To begin with, there
is no basis in the record to conclude that gang members are
substantially more likely (as opposed to drug dealers gener
ally) to be carrying weapons. Nor is it clear how burton would
have been prejudiced in that regard. burton argues that he
“was trying to prove the possibility that one of the two guns
involved in the shooting was brought to the scene by Turner
19 §§ 27 401 and 27 404; Neb. Rev. Stat. §§ 27 607 to 27 609 (Reissue
2008).
20 Rule 401, § 27 401.
150 	282 NebRASKA RePoRTS

or Thomas.”21 In other words, burton wanted to suggest that,
contrary to Johnson’s testimony, he had not brought a gun to
the scene. but the issue to which that might have been rele
vant was burton’s premeditation—and burton was acquitted
of first degree murder. burton was convicted of manslaughter,
attempted second degree murder, first degree assault, and two
weapons charges, and his failure to bring his own gun to the
scene would not mitigate his guilt on any of these counts.
burton also argues that the gang membership evidence was
relevant to establish the relationship of Turner, Thomas, Reed,
and Collins. but, as noted above, no offer of proof was made
with respect to Reed or Collins. That leaves Turner and Thomas,
who were actually related, because they were cousins. And
the drug dealing conspiracy was well explained. burton also
argues that if Collins was aware of Turner’s and Thomas’ gang
membership, he would have told burton, and that would have
heightened burton’s apprehension and strengthened his argu
ment that he fired on Turner in defense of Collins. However,
that argument depends not only on Turner’s gang membership,
but upon Collins’ knowledge of it, burton’s knowledge of it,
and burton’s fear of it—none of which were established by
burton’s offer of proof.
In short, if burton wanted to argue that it was unlikely that
Turner and Thomas, as drug dealers, were unarmed, he could
have done so. And given that burton’s offer of proof was lim
ited to Turner, his remaining arguments for how the evidence
was relevant are purely speculative and depend on other evi
dence that he neither adduced nor offered to prove. The district
court did not abuse its discretion in concluding that evidence of
gang membership was not relevant. burton’s third assignment
of error is without merit.
4. excessive sentences
(a) background
The jury found burton guilty of attempted second degree
murder and first degree assault, and corresponding weapons
21 brief for appellant at 29.
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charges. The jury did not find burton guilty of murder, instead
finding that he committed the lesser included offense of man
slaughter and a corresponding weapons charge. The court
granted burton’s motion for judgment notwithstanding the
verdict on that weapons charge, because the underlying offense
was unintentional.22
At sentencing, the court acknowledged burton’s relative
youth and lack of a particularly substantial criminal record.
but, the court explained, even if burton’s testimony were
believed, “you hear that scuffle, and you grab your gun and
you run out there. out of some misplaced sense of loyalty
for a guy that you hardly know, you’re willing to shoot at
someone you don’t know.” And, the court noted, Turner eas
ily could have died. So, the court concluded, “there were any
number of times in that process . . . that you could have turned
back, and you didn’t. And as a result, I have to weight [sic]
the fact that one person died and one person was very seri
ously injured.”
burton was sentenced on each count as follows: 20 to 20
years’ imprisonment for manslaughter, 20 to 40 years’ impris
onment for attempted second degree murder, 20 to 30 years’
imprisonment for first degree assault, and 10 to 20 years’
imprisonment for each of the two weapons convictions. All the
sentences were to be served consecutively, resulting in a total
sentence of 80 to 130 years’ imprisonment.
(b) Analysis
[14] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court.23 All of the sentences imposed upon burton were within
the statutory limits,24 and he does not contend otherwise.
Rather, burton argues that he was only 20 years old at the
time of the offense and that although he had some prior felony
arrests, he had no felony convictions. And burton argues that
22 See State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
23 Erickson, supra note 5.
24 See Neb. Rev. Stat. §§ 28 105, 28 201, 28 304, 28 305, and 28 1205
(Reissue 2008).
152 	282 NebRASKA RePoRTS

there is no way of knowing whether the jury believed that he
brought his own gun to the crime scene or perhaps believed
he was acting in defense of Collins but found that the force
he used was excessive. burton suggests that “it is just as rea
sonable to believe the latter interpretation,” in which case, the
sentences are excessive.25
[15,16] but in imposing a sentence, the sentencing court
is not limited to any mathematically applied set of factors.
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.26 In imposing
a sentence, a sentencing judge should consider the defendant’s
age, mentality, education, experience, and social and cultural
background, as well as his or her past criminal record or
law abiding conduct, motivation for the offense, nature of the
offense, and the amount of violence involved in the commis
sion of the crime.27
The record, as set forth above, shows that the court appropri
ately considered these factors and was persuaded by the nature
of the offenses, and the violence involved, to impose lengthy
terms of imprisonment. The court did not abuse its discretion
in doing so, and we find no merit to burton’s final assignment
of error.
V. CoNCLuSIoN
We find no merit to burton’s assignments of error and, for
the foregoing reasons, affirm his convictions and sentences.
affiRmed.
WRight, J., not participating.
25 brief for appellant at 34.
26 State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009).
27 State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
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