State v. Taylor

flashbacks, depression, anxiety, and sleeplessness. We affirm
the convictions and sentences.
A ffirmed.
Wright, J., not participating.
state v. taylor 	297
Cite as 282 Neb. 297
StAte of NebrASkA, Appellee , v.
trevelle J. tAylor , AppellANt.
803 N.W.2d 746
Filed september 16, 2011. 	No. s-10-794.
1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
2. Rules of Evidence: Appeal and Error. 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 such
discretion a factor in determining admissibility. Where the Nebraska evidence
rules commit the evidentiary question at issue to the discretion of the trial court,
the admissibility of evidence is reviewed for an abuse of discretion.
3. ____: ____. the exercise of judicial discretion is implicit in the determinations
of relevancy under Neb. evid. r. 403, Neb. rev. stat. § 27-403 (reissue 2008),
and a trial court’s decisions regarding them will not be reversed absent an abuse
of discretion.
4. Trial: Evidence. a court must determine whether there is sufficient foundation
evidence for the admission of physical evidence on a case-by-case basis. Because
authentication rulings are necessarily fact specific, a trial court has discretion to
determine whether evidence has been properly authenticated.
5. Criminal Law: Constitutional Law: Due Process: Presumptions: Proof. a
presumption that relieves the state of its burden of proof beyond a reasonable
doubt on any essential element of a crime violates a defendant’s due process
rights and is constitutionally impermissible.
6. Jury Instructions: Evidence: Proof. When a trial court instructs a jury on an
inference regarding a specific fact or set of facts, the instruction must specifically
include a statement explaining to the jury that it may regard the basic facts as
sufficient evidence of the inferred fact, but that it is not required to do so. and
the instruction must explain that the existence of the inferred fact must, on all the
evidence, be proved beyond a reasonable doubt.
7. Double Jeopardy: Evidence: New Trial: Appeal and Error. the Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict.
8. Homicide: Intent: Time. No particular length of time for premeditation is
required, provided that the intent to kill is formed before the act is committed and
not simultaneously with the act that caused the death.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

9. ____: ____: ____. the time required to establish premeditation may be of the
shortest possible duration and may be so short that it is instantaneous, and the
design or purpose to kill may be formed upon premeditation and deliberation at
any moment before the homicide is committed.
10. Jury Instructions. Whenever an applicable instruction may be taken from the
Nebraska Jury Instructions, that instruction is the one which should usually be
given to the jury in a criminal case.
11. Jury Instructions: Appeal and Error. although the Nebraska pattern jury
instructions are to be used whenever applicable, a failure to follow the pattern
jury instructions does not automatically require reversal.
12. Expert Witnesses. the weight and credibility of an expert’s testimony are a
question for the trier of fact.
13. Rules of Evidence. Under Neb. evid. r. 901(1), Neb. rev. stat. § 27-901
(reissue 2008), the requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.
14. Rules of Evidence: Proof. a proponent of evidence is not required to conclu-
sively prove the genuineness of the evidence or to rule out all possibilities incon-
sistent with authenticity. If the proponent’s showing is sufficient to support a
finding that the evidence is what it purports to be, the proponent has satisfied the
requirement of Neb. evid. r. 901(1), Neb. rev. stat. § 27-901 (reissue 2008).
appeal from the District Court for Douglas County: mArloN
A. polk, Judge. reversed and remanded for a new trial.
thomas C. riley, Douglas County Public Defender, for
appellant.
Jon Bruning, attorney General, and James D. smith for
appellee.
heAvicAN, 	c.J., 	Wright, 	coNNolly, 	gerrArd, 	StephAN,
mccormAck , and miller-lermAN, JJ.
mccormAck , J.
I. NatUre oF Case
trevelle J. taylor was convicted in Douglas County District
Court of first degree murder and use of a deadly weapon to
commit a felony. He was sentenced to serve a term of life
imprisonment on the murder conviction and a consecutive term
of 10 years’ imprisonment on the weapon conviction. taylor
appeals. For the following reasons, we reverse, and remand for
a new trial.
298 	282 NeBraska rePorts

II. BaCkGroUND
Justin Gaines was shot and killed outside his residence on
september 19, 2009. the gunshot entered Gaines’ back and
fatally penetrated his lungs and heart. taylor was arrested
nine blocks from the scene of the shooting. He was tried
before a jury and convicted of first degree murder and use of
a deadly weapon to commit a felony. the following evidence
was adduced at trial:
In the early afternoon on september 19, 2009, Gaines was
driving near his residence on Curtis avenue in omaha, when
he noticed his friend, Catrice Bryson, standing near her car,
which was parked in his driveway. Gaines parked his car in
the driveway behind Bryson’s and spoke with Bryson through
his open driver’s-side window while he remained in his car.
Gaines asked Bryson to write down her telephone number,
and she walked to her car to retrieve a pen. Bryson then
heard numerous gunshots before she was able to return to
Gaines’ car. she observed two men shooting guns at Gaines,
who remained seated in his car. Bryson retreated toward the
residence and heard Gaines yell that he had been shot in the
back. Bryson then observed the two men run from the scene in
opposite directions.
Bryson described the two suspects she witnessed at the
scene. she described the first suspect as an african-american
male, “[s]kinny with a brush cut in a brown shirt with orange
on it,” and holding a gun. Bryson described the second suspect
as an african-american male, light complected with shoulder-
length braids, wearing a white t-shirt with a basketball jersey,
and also holding a gun.
at the scene of the crime, near the end of the driveway
where Gaines’ car was parked, the police collected 16 spent
shell casings from a 9-mm handgun. local residents told police
that they heard the sounds of two different guns. Police also
eventually recovered a 9-mm handgun near the area of the
shooting. a neighbor told police that the day of the shooting,
he heard the gunshots and witnessed a black male run through
the area where the 9-mm handgun was found.
at trial, several local residents testified as to what they wit-
nessed on september 19, 2009. one such witness testified that,
state v. taylor 	299
Cite as 282 Neb. 297

prior to the shooting, she was standing on her porch when she
witnessed a black male jog past her house wearing a white
t-shirt and baggy denim shorts and that the man had long braids
and a goatee. the man proceeded, alone, toward 45th street and
Curtis avenue. the witness went inside her home and then
heard a series of gunshots coming from the area near Gaines’
residence. the witness identified a photograph of Joshua Nolan
as the man she saw jogging past her house.
another such witness testified that she heard the gunshots
from her residence near 44th street and Curtis avenue. she
went outside when she heard the shots, and then witnessed a
black male running east on Curtis avenue, then north through
the yards of homes across the street from her. she described
the man as wearing a brown t-shirt and having a “brush
cut” hairstyle.
a third such witness also testified that she witnessed a black
male running east on Curtis avenue, and through her yard.
she testified that the man was wearing a brown t-shirt and
blue shorts.
a fourth witness testified that she was driving home at the
time of the shooting. she witnessed a man run past her car and
huddle behind some bushes. the man was wearing a tan shirt
and blue shorts, and she overheard him speaking on a cellular
telephone, telling someone to “come get [him].” the witness
identified taylor as the man she saw that afternoon.
officer Joel strominger was on duty on the afternoon that
Gaines was shot. strominger heard a broadcast regarding the
shooting which described the suspects’ vehicle as a small,
white four-door car without hubcaps. strominger observed
a parked white vehicle matching this description in the area
of 40th street and redick avenue. a black male was sitting
in the driver’s seat, and a black male wearing a white t-shirt
and black shorts was standing outside the car, holding what
appeared to be a brown t-shirt. strominger then observed the
driver make a U-turn and drive west on redick avenue, while
the individual outside the car walked east on redick avenue.
strominger followed the car, ran a license plate check and
determined the car was stolen. He then stopped the car, which
was being driven by Joshua kercheval.
300 	282 NeBraska rePorts

officer Jarvis Duncan had also responded to the broadcast
regarding the shooting, and on his patrol of the area, he came
upon a black male running north on 37th street near redick
avenue. Duncan and his partner witnessed the individual throw
a brown shirt to the ground. Duncan and his partner ordered
him to stop, arrested him, and took his cellular telephone
into possession. the individual was later identified as taylor.
strominger identified taylor as the man he observed standing
outside of the car driven by kercheval. taylor was transported
to the omaha Police Department’s headquarters, where his
hands and arms were swabbed for gunshot residue. Police
also seized the brown t-shirt Duncan and his partner observed
taylor throw to the ground. Bryson identified the shirt seized
as the one that was worn by one of the shooters.
Nolan was stopped by police for a traffic violation 8 days
after the homicide. the car Nolan was driving was registered
in his name. Nolan was in possession of a .44-caliber smith
& Wesson revolver, with a laser sight, which was hidden in
his waistband. Nolan was arrested, and his car was impounded
and searched by police. the search produced four spent 9-mm
shell casings.
kercheval testified at trial. He stated that on the morning of
the shooting, he was at his home when taylor and Nolan arrived
in a white car. kercheval had never seen the car before, and the
three agreed to ride around for a while with kercheval driving.
they drove to the area of 45th street and Curtis avenue, and
kercheval noticed a man sitting in a parked car talking to a
woman in a driveway. taylor told him to stop the car and said,
“there’s the weedman.” kercheval pulled over and parked near
45th and Vernon streets.
kercheval testified that he remained in the car at all times,
but that taylor got out of the car on 44th street and that Nolan
got out of the car after it was parked on 45th street. kercheval
then heard a series of gunshots, and he started to leave when
he noticed Nolan running up the street. Nolan entered the car,
and the two men drove east toward 42d street. Nolan then
jumped out of the car, and kercheval made a U-turn and was
then stopped by strominger. kercheval did not see taylor
between the time taylor exited the car and when the police
state v. taylor 	301
Cite as 282 Neb. 297

brought taylor to where strominger had stopped kercheval in
the car.
kercheval was in custody during his testimony, which he gave
only after his arrest on a bench warrant for failure to appear
when subpoenaed to testify earlier in the trial. kercheval stated
that he received a telephone call from taylor the Friday prior to
the scheduled trial date. During that telephone call, taylor told
kercheval not to come to court, and kercheval testified that
he subsequently failed to appear because he felt threatened.
the telephone call from taylor to kercheval was recorded by
a system at the jail. a recording of the call was received into
evidence and played for the jury. During the call, taylor stated,
among other things: “leave this shit alone”; “don’t let me go
out like this”; “if I don’t come home, man, this shit is gonna go
places where it don’t even need to go, man”; and “make sure
you stay out [of] the way.” Prior to receiving the telephone call,
kercheval had told the prosecutor on two separate occasions
that he would appear and testify.
the firearm and toolmark examiner employed by the omaha
Police Department, Daniel Bredow, examined the 9-mm hand-
gun found near the scene of the crime. Bredow determined that
14 of the 16 9-mm shell casings found at the scene were fired
from that gun. the other two casings were consistent with that
weapon, but did not provide conclusive results because of dam-
age to the casings. Bredow also determined that two of the four
9-mm casings found in Nolan’s vehicle were fired from the
9-mm gun found near the scene. additionally, Bredow exam-
ined the spent bullet retrieved from Gaines’ body at the hospital
and determined that it was fired from a .44-caliber weapon.
Bredow could not determine whether it came from the weapon
found on Nolan because of damage to the bullet.
the state also called Preston landell as a witness. landell
is a customer operations coordinator for a cellular telephone
company. landell testified that he was familiar with how that
company, during its course of business, recorded and kept
records of cellular telephone calls. over taylor’s objection,
landell was allowed to testify that, based on the call records
of the telephone seized from taylor and the telephone found
in Nolan’s car, there were a number of contacts between
taylor’s telephone and Nolan’s telephone on september 19,
302 	282 NeBraska rePorts

2009, between 11 a.m. and 2 p.m. the state offered a com-
puter printout of a spreadsheet landall obtained, after receiving
a subpoena from the omaha Police Department for taylor’s
call records for september 19 and 20, by inputting the target
number for taylor’s telephone. taylor objected to the admis-
sion of the printout on the ground of insufficient foundation
pursuant to Neb. evid. r. 9011 and argued that landell had not
provided sufficient information regarding how the information
contained in the spreadsheet was gathered, its accuracy, and
how it is maintained.
the district court overruled taylor’s foundational objection
on the basis of this court’s opinion in State v. Robinson,2 and
stated, “[t]he records have sufficient — the foundation has
been laid as to the trustworthiness of the business records, and
. . . there is no evidence that would go to the untrustworthiness
of the records themselves as testified to by . . . landell.”
Finally, the state called allison Murtha, a forensic scientist
employed by a “materials analysis company” with a forensics
department which analyzes gunshot residue and other trace
evidence. Murtha had examined the swabs taken from taylor
to test for gunshot residue. taylor objected to Murtha’s entire
testimony on the ground of Neb. evid. r. 403.3 the objection
was overruled, and Murtha’s expert testimony was admitted.
Murtha testified that gunshot residue leaves traces of three
elements, lead, antimony, and barium; that all three elements
together form gunshot residue; and that when a gun is fired,
particles of any of the three elements may fuse together. Murtha
stated that if analysis produces particles composed of only one
or two of the three elements, she could not definitively con-
clude that they came from the discharge of a firearm.
the testing instrument utilized by Murtha did not yield
particle results containing all three components comprised
by gunshot residue. However, upon performing a manual
examination of the particles, Murtha identified a particle which
1 see Neb. rev. stat. § 27-901 (reissue 2008).
2 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on
other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
3 see Neb. rev. stat. § 27-403 (reissue 2008).
state v. taylor 	303
Cite as 282 Neb. 297

was composed of all three gunshot residue components. the
particle was found on the back of taylor’s left hand. In
Murtha’s opinion, the presence of the particle indicated that
taylor either “discharged a firearm,” “was in proximity when
a firearm was discharged,” or “came into contact with an area
or an environment that contained gunshot residue.” However,
Murtha was unable to form a conclusive opinion as to whether
taylor fired a gun.
Prior to submitting the case to the jury, the court instructed
the jury on the material elements of first degree murder and
its lesser-included offenses of second degree murder and man-
slaughter in jury instruction No. 4. taylor objected to the step
instruction included in instruction No. 4 because it did not
conform to NJI2d Crim. 3.1. taylor argued that the instruc-
tion required the jury to “acquit first” when considering the
sequential order of first degree murder and its lesser-included
offenses. the court overruled taylor’s objection.
Instruction No. 4 included three sections, each of which
spelled out the material elements for the three grades of
homicide. each section of the instruction then stated that if
the jury found the evidence beyond a reasonable doubt that
each of the material elements set out in that section was true,
the jury should find taylor guilty of that crime. the first sec-
tion went on to state: “If, on the other hand, you find that the
state has failed to prove beyond a reasonable doubt any one
or more of the material elements in this section . . . , it is your
duty to find [taylor] not guilty of the crime of murder in the
first degree.” the second and third sections contained similar
directives concerning second degree murder and manslaughter
respectively, and the first two sections then directed the jury
to “proceed to consider” the specified lesser-included offense
in that event.
the court also instructed the jury on the definition of premedi-
tation in jury instruction No. 8, which stated: “‘Premeditated’
is defined as forming the intent to act before acting. the time
needed for premeditation may be so short as to be instantaneous
provided that the intent to act is formed before the act and not
simultaneously with the act.” taylor objected to jury instruc-
tion No. 8 on the ground that it did not conform to the statutory
304 	282 NeBraska rePorts

definition of premeditation under Neb. rev. stat. § 28-302
(reissue 2008). the court overruled taylor’s objection on the
ground that the instruction conformed to the Nebraska pattern
jury instruction at NJI2d Crim. 4.0.
the district court also gave jury instruction No. 9 over
taylor’s objection. that instruction provided:
you have heard evidence regarding [taylor’s] alleged
attempt to prevent [kercheval] from testifying in this
case. a defendant’s attempt to prevent a state’s witness
from testifying may be evidence of the defendant’s “con-
scious guilt” that a crime has been committed and serves
as a basis for an inference that the defendant is guilty of
the crimes charged. such evidence may be considered by
you in determining whether the [s]tate has proved the
elements of each of the crimes charged beyond a reason-
able doubt.
the jury found taylor guilty of murder in the first degree
and use of a deadly weapon to commit a felony. taylor was
sentenced to life imprisonment on the murder conviction and
a consecutive term of 10 years’ imprisonment on the weapon
conviction. taylor appeals.
III. assIGNMeNts oF error
taylor assigns, renumbered and restated, that the district
court erred in (1) giving jury instruction No. 9, regarding an
inference of guilt; (2) giving jury instruction No. 4, a step
instruction regarding the lesser-included offenses; (3) giving
jury instruction No. 8, regarding the definition of premedita-
tion; (4) receiving expert opinion testimony regarding the pres-
ence of gunshot residue on taylor’s hands, in violation of rule
403; and (5) admitting cellular telephone records purporting to
prove contacts between taylor and his codefendant Nolan, on
the basis of insufficient foundation.
IV. staNDarD oF reVIeW
[1] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.4
4 State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
state v. taylor 	305
Cite as 282 Neb. 297

[2] In proceedings where the Nebraska evidence rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska evidence rules; judicial discretion is involved only
when the rules make such discretion a factor in determining
admissibility.5 Where the Nebraska evidence rules commit
the evidentiary question at issue to the discretion of the trial
court, the admissibility of evidence is reviewed for an abuse
of discretion.6
[3] the exercise of judicial discretion is implicit in the
determinations of relevancy under rule 403, and a trial court’s
decisions regarding them will not be reversed absent an abuse
of discretion.7
[4] a court must determine whether there is sufficient foun-
dation evidence for the admission of physical evidence on a
case-by-case basis. Because authentication rulings are neces-
sarily fact specific, a trial court has discretion to determine
whether evidence has been properly authenticated. We review a
trial court’s ruling on authentication for abuse of discretion.8
V. aNalysIs
1. Jury iNStructioNS
taylor assigns as error the giving of jury instructions Nos. 4,
8, and 9. Whether jury instructions are correct is a question
of law, which an appellate court resolves independently of the
lower court’s decision.9
(a) Inference of Guilt Based on taylor’s alleged
attempt to Prevent state’s Witness
From testifying
the district court gave jury instruction No. 9 over taylor’s
objection. the instruction provided:
you have heard evidence regarding [taylor’s] alleged
attempt to prevent [kercheval] from testifying in this
5 State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
6 Id.
7 see State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
8 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
9 State v. Miller, supra note 4.
306 	282 NeBraska rePorts

case. a defendant’s attempt to prevent a state’s witness
from testifying may be evidence of the defendant’s “con-
scious guilt” that a crime has been committed and serves
as a basis for an inference that the defendant is guilty of
the crimes charged. such evidence may be considered by
you in determining whether the [s]tate has proved the
elements of each of the crimes charged beyond a reason-
able doubt.
taylor argues that because the instruction did not explain to the
jury that it had the option of not drawing the specified infer-
ence, it created an improper presumption of guilt.
the state argues that State v. Thorpe10 supports the pro-
priety of instruction No. 9. an instruction nearly identical to
instruction No. 9 was given to the jury in Thorpe. However, on
appeal, the defendant argued that the evidence adduced at trial
did not sufficiently establish that he either attempted to intimi-
date or intimidated a witness. the defendant argued that the
jury instruction should not have been given, because the issue
of conscious guilt was not properly before the jury. the defend-
ant in Thorpe did not propose any additions or corrections to
the instruction and only argued that it should not be included in
the jury instructions. taylor, in contrast, argues that instruction
No. 9 created an improper presumption or inference in favor
of the state. Thorpe neither addresses this issue nor expressly
approves of the language contained in instruction No. 9, and it
is therefore not controlling.
the U.s. supreme Court has determined that jury instruc-
tions which create mandatory presumptions are improper, but
that those which create merely permissive presumptions are
allowed.11 In Sandstrom v. Montana,12 an appeal from a pros-
ecution for deliberate homicide, the Court held that because
the jury, which was instructed that the law presumes a person
intends the ordinary consequences of his voluntary acts, might
have interpreted the presumption as conclusive or as shifting
10 State v. Thorpe, supra note 2.
11 see Sandstrom v. Montana, 442 U.s. 510, 99 s. Ct. 2450, 61 l. ed. 2d 39
(1979).
12 Id.
state v. taylor 	307
Cite as 282 Neb. 297

the burden of persuasion, and because either interpretation
would have violated the 14th amendment’s requirement that
the state prove every element of a criminal offense beyond a
reasonable doubt, the instruction was unconstitutional.
[5] In Nebraska, instructions as to presumptions in criminal
cases must also conform to the requirements of Neb. evid. r.
303(3),13 which states:
Whenever the existence of a presumed fact against the
accused is submitted to the jury, the judge shall give an
instruction that the law declares that the jury may regard
the basic facts as sufficient evidence of the presumed
fact but does not require it to do so. In addition, if the
presumed fact establishes guilt or is an element of the
offense or negatives a defense, the judge shall instruct the
jury that its existence must, on all the evidence, be proved
beyond a reasonable doubt.
Here, the challenged instruction is based on a common-law
inference rather than a presumption. However, we have previ-
ously determined that references to “presumptions” in rule 303
necessarily include “inferences” in criminal cases as well.14
although frequent reference is made to “presumptions” in
criminal cases, a presumption that relieves the state of its bur-
den of proof beyond a reasonable doubt on any essential ele-
ment of a crime violates a defendant’s due process rights and
is constitutionally impermissible.15
[6] In State v. Parks,16 a theft-by-receiving case, we interpreted
the propriety of an instruction which provided, “‘[P]ossession
of recently stolen property, if not satisfactorily explained, is
ordinarily a circumstance from which you may reasonably
draw the inference and find, in the light of the surrounding cir-
cumstances shown by the evidence in the case, that the person
in possession knew the property had been stolen.’” We reversed
the conviction based on that instruction. We held that when a
13 see Neb. rev. stat. § 27-303(3) (reissue 2008).
14 State v. Parks, 245 Neb. 205, 511 N.W.2d 774 (1994).
15 Id.
16 Id. at 209, 511 N.W.2d at 778.
308 	282 NeBraska rePorts

trial court instructs a jury on an inference regarding a specific
fact or set of facts, the instruction must specifically include a
statement explaining to the jury that it may regard the basic
facts as sufficient evidence of the inferred fact, but that it is
not required to do so. and the instruction must explain that
the existence of the inferred fact must, on all the evidence,
be proved beyond a reasonable doubt.17 Failure to meet these
requirements constitutes reversible error.18
In Parks, the jury might have interpreted the instruction as
conclusive that the state had proved one element of the crime
charged. But here in taylor’s case, in the context of the “con-
scious guilt” doctrine, the instruction allowed the jury to pre-
sume that the defendant was guilty of the crimes charged. Here,
the district court included the requirement that the inferred fact
must be proved beyond a reasonable doubt, but the instruction
failed to specify that the jury was not required to make the
inference of guilt. rule 303(3) is couched in mandatory terms.
the instruction, as given in taylor’s case, failed to inform the
jury that it was not required to draw the inference of guilt. this
omission in the court’s instruction No. 9 is fatal to the consti-
tutional validity of that instruction.19 accordingly, the district
court’s failure to comply with the requirements of rule 303(3)
is a ground for reversal of taylor’s convictions.
[7] Having found reversible error, we must determine whether
the totality of the evidence admitted by the district court was
sufficient to sustain taylor’s convictions. If it was not, then
concepts of double jeopardy would not allow a remand for
a new trial.20 the Double Jeopardy Clause does not forbid a
retrial so long as the sum of all the evidence admitted by a trial
court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict.21 We find that the witness testimony
17 see State v. Parks, supra note 14.
18 Id.
19 see id.
20 see, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007); State v.
Parks, supra note 14.
21 State v. McCulloch, supra note 20.
state v. taylor 	309
Cite as 282 Neb. 297

and physical evidence linking taylor to the crime, and the cir-
cumstantial evidence against taylor, were sufficient to sustain
the verdict. We therefore reverse the convictions and remand
the cause for a new trial. although our determination resolves
this appeal, we address taylor’s remaining assignments of error
because they are likely to recur on remand.
(b) Definition of Premeditation
the court instructed the jury on the definition of premedita-
tion in jury instruction No. 8, which stated: “‘Premeditated’
is defined as forming the intent to act before acting. the time
needed for premeditation may be so short as to be instan-
taneous provided that the intent to act is formed before the act
and not simultaneously with the act.”
taylor objected to jury instruction No. 8 on the ground that
it did not conform to the statutory definition of premeditation
under § 28-302. the court overruled taylor’s objection on the
ground that the instruction conformed to the Nebraska pattern
jury instruction at NJI2d Crim. 4.0.
the definition of “premeditation” in jury instruction No. 8 is
nearly identical to the definition provided in NJI2d Crim. 4.0.
However, § 28-302(3) provides: “Premeditation shall mean a
design formed to do something before it is done.” thus, NJI2d
Crim. 4.0 includes the statutory definition of premeditation con-
tained in § 28-302(3), but adds the sentence “the time needed
for premeditation may be so short as to be instantaneous pro-
vided that the intent to (act) is formed before the act and not
simultaneously with the act.” this explanation has apparently
been added to further specify the meaning of “before” as it is
used in § 28-302(3).
[8,9] this court has consistently determined that no particu-
lar length of time for premeditation is required, provided that
the intent to kill is formed before the act is committed and not
simultaneously with the act that caused the death.22 and we
22 State v. McGhee, 274 Neb. 660, 742 N.W.2d 497 (2007). see, also, State
v. Robinson, supra note 2; State v. Larsen, 255 Neb. 532, 586 N.W.2d 641
(1998); State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997); State v.
Marks, 248 Neb. 592, 537 N.W.2d 339 (1995).
310 	282 NeBraska rePorts

have specifically stated: “the time required to establish pre-
meditation may be of the shortest possible duration and may be
so short that it is instantaneous, and the design or purpose to
kill may be formed upon premeditation and deliberation at any
moment before the homicide is committed.”23 Jury instruction
No. 8 conformed to our interpretation of premeditation as it is
used in § 28-302(3). accordingly, the district court did not err
in giving instruction No. 8 on premeditation.
(c) step Instruction
the court instructed the jury on the material elements of
first degree murder and its lesser-included offenses of second
degree murder and manslaughter in jury instruction No. 4.
taylor objected to the step instruction included in instruc-
tion No. 4 because it did not conform to NJI2d Crim. 3.1.
taylor argued that the instruction required the jury to “acquit
first” when considering the sequential order of first degree
murder and its lesser-included offenses. the court overruled
taylor’s objection.
taylor argues that the step instruction given erroneously
required the jury to acquit taylor of the greater charge and
that this is not in conformity with our law because Nebraska
is not an “acquit first” jurisdiction. taylor also asserts that the
instruction was given in error because it does not conform to
the pattern instruction found at NJI2d Crim. 3.1.
[10,11] Whenever an applicable instruction may be taken
from the Nebraska Jury Instructions, that instruction is the one
which should usually be given to the jury in a criminal case.24
But although the Nebraska pattern jury instructions are to be
used whenever applicable, a failure to follow the pattern jury
instructions does not automatically require reversal.25 NJI2d
23 State v. McGhee, supra note 22, 274 Neb. at 667, 742 N.W.2d at 504. see,
also, State v. Robinson, supra note 2; State v. Harms, 263 Neb. 814, 643
N.W.2d 359 (2002); State v. Sims, 258 Neb. 357, 603 N.W.2d 431 (1999);
State v. Hansen, supra note 22.
24 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006); State v. Putz, 266
Neb. 37, 662 N.W.2d 606 (2003).
25 State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).
state v. taylor 	311
Cite as 282 Neb. 297

Crim. 3.1 includes a listing of the offenses which the jury is
to consider and the elements of each offense. It then instructs
the jury:
you must separately consider in the following order
the crimes of (here insert crimes charged beginning with
the greatest and listing included crimes in sequence). For
the (here insert greatest crime) you must decide whether
the state proved each element beyond a reasonable doubt.
If the state did so prove each element, then you must find
the defendant guilty of (here insert greatest crime) and
[stop]. If you find that the state did not so prove, then
you must proceed to consider the next crime in the list,
the (here insert first lesser included). you must proceed
in this fashion to consider each of the crimes in sequence
until you find the defendant guilty of one of the crimes or
find (him, her) not guilty of all of them.
In State v. Goodwin,26 we concluded that NJI2d Crim. 3.1
provides a clearer and more concise explanation of the process
by which the jury is to consider lesser-included offenses, and
we encouraged the trial courts to utilize the current pattern
instruction in circumstances where a step instruction on lesser-
included homicide offenses is warranted. However, we did
not find error in the court’s use of a step instruction based on
NJI Crim. 14.06.
Instruction No. 4 included three sections, each of which
spelled out the material elements for one of the three grades
of homicide. each section of the instruction then stated that
if the jury found the evidence beyond a reasonable doubt that
each of the material elements set out in that section was true,
the jury should find taylor guilty of that crime. the first sec-
tion went on to state: “If, on the other hand, you find that the
state has failed to prove beyond a reasonable doubt any one or
more of the material elements in this section . . . , it is your
duty to find [taylor] not guilty of the crime of murder in the
first degree.” the second and third sections contained similar
directives concerning second degree murder and manslaughter
respectively, and the first two sections then directed the jury to
26 State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
312 	282 NeBraska rePorts

“proceed to consider” the specified lesser-included offense in
that event. the state argues that instruction No. 4 conforms to
our decisions in State v. Bormann27 and State v. Goodwin.28 the
district court in Bormann gave a step instruction nearly identi-
cal to the one given below. While we agree that NJI2d Crim.
3.1 provides a clearer explanation of the jury’s consideration of
lesser-included offenses, we have previously determined that
so-called acquittal first step instructions are not constitution-
ally deficient.29
the step instruction given in this case did not prevent the
jury from considering taylor’s theory of defense; nor was his
counsel restricted from arguing that taylor did not have the
intent to kill and should therefore be found guilty of the lesser
offense of manslaughter. Further, taylor fails to argue that he
was prejudiced in any manner by the step instruction given.
He instead rests his argument on the instruction’s failure to
conform to NJI2d Crim. 3.1. We determine that taylor was
not prejudiced by jury instruction No. 4. However, as we have
previously noted, NJI2d Crim. 3.1 provides a clearer instruc-
tion, and we once again urge trial courts to use the pattern jury
instruction in the future. and on remand, any step jury instruc-
tion given should conform to NJI2d Crim. 3.1.
2. expert teStimoNy of guNShot reSidue
taylor argues that the district court abused its discretion in
allowing the state to present Murtha’s testimony, over taylor’s
rule 403 objection, that one particle of gunshot residue was
found on a swab of taylor’s hands. taylor argues that because
jurors place elevated trustworthiness on expert testimony, the
risk of unfair prejudice and jury confusion outweighed any
probative value the evidence might have had. In other words,
taylor maintains that the gunshot residue tests had mini-
mal probative value, but were likely given significant weight
by the jury due to the expert testimony which accompanied
the results.
27 State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
28 State v. Goodwin, supra note 26.
29 State v. Bormann, supra note 27.
state v. taylor 	313
Cite as 282 Neb. 297

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 such discretion a factor in determining admis-
sibility.30 Where the Nebraska evidence rules commit the
evidentiary question at issue to the discretion of the trial
court, the admissibility of evidence is reviewed for an abuse
of discretion.31
the exercise of judicial discretion is implicit in determina-
tions of relevancy under rule 403, and a trial court’s decisions
regarding them will not be reversed absent an abuse of discre-
tion.32 rule 403 states: “although relevant, evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.”
[12] taylor’s arguments on appeal largely focus on the
weight that the gunshot residue evidence should be given. the
weight and credibility of an expert’s testimony are a question
for the trier of fact.33 taylor had ample opportunity to cross-
examine Murtha and to present argument to the jury that her
testimony was unreliable. taylor was not unfairly prejudiced
by the admission of the evidence, and we cannot say that the
district court abused its discretion in admitting Murtha’s testi-
mony. taylor’s arguments to the contrary are without merit.
3. AutheNticAtioN of cellulAr telephoNe recordS
Finally, taylor argues that the cellular telephone records
received by the district court were erroneously admitted, due
to a lack of foundation. taylor bases his foundational argument
on the requirement of authentication provided by rule 901 of
the Nebraska evidence rules. Because authentication rulings
are necessarily fact specific, a trial court has discretion to
determine whether evidence has been properly authenticated.
30 State v. Baker, supra note 5.
31 Id.
32 State v. Iromuanya, supra note 7.
33 State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
314 	282 NeBraska rePorts

We review a trial court’s ruling on authentication for abuse
of discretion.34
[13,14] rule 901(1) states, “the requirement of authentica-
tion or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” rule 901 does
not impose a high hurdle for authentication or identification.
a proponent of evidence is not required to conclusively prove
the genuineness of the evidence or to rule out all possibilities
inconsistent with authenticity.35 If the proponent’s showing
is sufficient to support a finding that the evidence is what it
purports to be, the proponent has satisfied the requirement of
rule 901(1).36
taylor is incorrect in suggesting that landell lacked the
knowledge required to lay foundation adequate to support the
authentication of the cellular telephone records. and again,
taylor had the opportunity to cross-examine landell regarding
the process by which the records were created and maintained,
yet there is nothing in the record to suggest that the exhibits
presented in this case were not trustworthy, as such records
are presumed to be when sufficient foundation for the busi-
ness records exception to the rule against hearsay is laid. the
foundation of trustworthiness required by the business records
exception is sufficient to satisfy the authentication requirement
of rule 901.
landell, a customer operations coordinator for a cellular
telephone company, testified that his duties included keeping
records for that company, including “caller-detail records.”
landell testified that he was familiar with how the company,
during the course of its business, created and kept records of
cellular telephone calls. this process involved little more than
the recording of information about a call on a hard drive of
the company’s computer servers. the telephone records made
and saved included the number of the caller, the destination of
34 State v. Epp, supra note 8.
35 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
36 Id.
state v. taylor 	315
Cite as 282 Neb. 297

the caller’s number, where the call came from, and the time
and length of the call. landell further testified that the com-
puter servers where the records are stored are serviced and
tested by the company on a regular basis to make sure they
are accurate. We determine that landell’s testimony provided
sufficient authentication to support the admission of the cel-
lular telephone records. taylor’s arguments to the contrary are
without merit.
VI. CoNClUsIoN
For the foregoing reasons, the district court committed
reversible error in giving jury instruction No. 9. accordingly,
we reverse, and remand the cause for a new trial. on remand,
any step jury instruction given should conform to NJI2d Crim.
3.1, as discussed above.
reverSed ANd remANded for A NeW triAl .
iN re iNtereSt of thomAS m., A child
uNder 18 yeArS of Age .
StAte of NebrASkA, Appellee , v. thomAS m., Appellee ,
ANd NebrASkA depArtmeNt of heAlth ANd
humAN ServiceS, AppellANt.
803 N.W.2d 46
Filed september 16, 2011. 	No. s-10-819.
1. Juvenile Courts: Appeal and Error. an appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes: Appeal and Error. to the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
3. Moot Question. a case becomes moot when the issues initially presented in
litigation cease to exist or the litigants lack a legally cognizable interest in the
litigation’s outcome.
4. Moot Question: Jurisdiction: Appeal and Error. although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts
from exercising jurisdiction.
5. Moot Question: Appeal and Error. Under the public interest exception, an
appellate court may review an otherwise moot case if it involves a matter affect-
ing the public interest or when other rights or liabilities may be affected by
its determination.
316 	282 NeBraska rePorts