State v. Glazebrook

use and that he freely and voluntarily consents to the entry
of an order of disbarment and freely and voluntarily waives
his right to proceedings prior to entry of an order. The court
accepts respondent’s voluntary surrender of his license to prac-
tice law, finds that respondent should be disbarred, and hereby
orders him disbarred from the practice of law in the State of
Nebraska, effective immediately. Respondent shall forthwith
comply with all terms of Neb. Ct. R. § 3-316 of the discipli-
nary rules, and upon failure to do so, he shall be subject to
punishment for contempt of this court. Accordingly, respondent
is directed to pay costs and expenses in accordance with Neb.
Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and Neb. Ct. R.
§§ 3-310(P) and 3-323 of the disciplinary rules within 60 days
after an order imposing costs and expenses, if any, is entered
by the court.
Judgment of disbarment.
state of nebraska , appellee , v.
Jeffrey d. glazebrook , appellant.
803 N.W.2d 767
Filed September 30, 2011. 	No. S-09-1170.
1. Appeal and Error. Absent plain error, an appellate court will not consider an
issue not raised to the trial court.
2. Constitutional Law: Speedy Trial. The right to a speedy trial, as guaran-
teed under the Sixth Amendment, is not implicated until after the accused has
been charged or arrested, even though the prosecuting authorities knew of
the offense.
3. Constitutional Law: Criminal Law: Due Process: Proof: Time. The Due
Process Clause of the Fifth Amendment protects a criminal defendant against
unreasonable preindictment delay. But dismissal under the Due Process Clause
is proper only if a defendant shows (1) the prosecuting authority’s delay in filing
charges caused substantial prejudice to the defendant’s right to a fair trial and
(2) the delay was an intentional device to gain an unfair tactical advantage over
the defendant.
4. Criminal Law: Due Process: Time. A criminal defendant’s claim of denial of
due process resulting from preindictment delay presents a mixed question of law
and fact.
5. Trial: Due Process: Time: Appeal and Error. When reviewing a trial court’s
determination of a claim of denial of due process resulting from preindictment
412 	282 NeBRASkA RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

delay, an appellate court will review determinations of historical fact for clear
error, but will review de novo the trial court’s ultimate determination as to
whether any delay by the prosecutor in bringing charges caused substantial preju-
dice to the defendant’s right to a fair trial.
6. Due Process: Proof: Time. A defendant alleging that a delay in filing charges
constituted a denial of due process cannot rely on the real possibilities inherent in
the delay, such as dimmed memories, inaccessible witnesses, and lost evidence.
The defendant must show actual prejudice.
7. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
8. ____: ____: ____. In reviewing the admissibility of other crimes evidence under
Neb. evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008), an appellate
court considers (1) whether the evidence was relevant for some purpose other
than to prove the character of a person to show that he or she acted in conform-
ity therewith; (2) whether the probative value of the evidence is substantially
outweighed by its potential for unfair prejudice; and (3) whether the trial court,
if requested, instructed the jury to consider the evidence only for the limited pur-
pose for which it was admitted.
9. Rules of Evidence: Other Acts: Proof. Neb. evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 2008), prohibits the admission of relevant evidence for the
purpose of proving the character of a person in order to show that he or she acted
in conformity therewith; or, stated another way, the rule prohibits the admission
of other bad acts evidence for the purpose of demonstrating a person’s propen-
sity to act in a certain manner. The reason for the rule is that such evidence,
despite its relevance, creates the risk of a decision by the trier of fact on an
improper basis.
10. Evidence: Other Acts. The exclusion of other bad acts evidence offered to show
a defendant’s propensity protects the presumption of innocence and is deeply
rooted in our jurisprudence.
11. ____: ____. evidence of other crimes which is relevant for any purpose other
than to show the actor’s propensity is admissible under Neb. evid. R. 404(2),
Neb. Rev. Stat. § 27-404(2) (Reissue 2008).
12. Evidence: Words and Phrases. evidence that is offered for a proper purpose is
often referred to as having “special” or “independent” relevance, which means its
relevance does not depend on its tendency to show propensity.
13. Rules of Evidence. The proponent of evidence offered pursuant to Neb. evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008), is, upon objection to its
admissibility, required to state on the record the specific purpose or purposes for
which the evidence is being offered, and the trial court is required to state on the
record the purpose or purposes for which such evidence is received.
14. Evidence: Other Acts. In evaluating other acts evidence in criminal prosecu-
tions, the other act must be so related in time, place, and circumstances to the
offense or offenses charged so as to have substantial probative value in determin-
ing the guilt of the accused.
STATe v. glAzeBRook 	413
Cite as 282 Neb. 412

15. Trial: Juries: Evidence: Appeal and Error. An erroneous admission of evi-
dence is considered prejudicial to a criminal defendant unless the State demon-
strates that the error was harmless beyond a reasonable doubt.
16. ____: ____: ____: ____. evidentiary error is harmless when improper admission
of evidence did not materially influence the jury to reach a verdict adverse to
substantial rights of the defendant.
17. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
18. Criminal Law: Trial: Evidence. Where objects pass through several hands
before being produced in court, it is necessary to establish a complete chain
of evidence, tracing the possession of the object or article to the final custo-
dian; and if one link in the chain is missing, the object may not be introduced
in evidence.
19. ____: ____: ____. objects which relate to or explain the issues or form a part of
a transaction are admissible in evidence only when duly identified and shown to
be in substantially the same condition as at the time in issue.
20. ____: ____: ____. It must be shown to the satisfaction of the trial court that no
substantial change has taken place in an exhibit so as to render it misleading.
21. Evidence. Important in determining the chain of custody are the nature of the
evidence, the circumstances surrounding its preservation and custody, and the
likelihood of intermeddlers tampering with the object.
22. Trial: Evidence. Whether there is sufficient foundation to admit physical evi-
dence is determined on a case-by-case basis.
23. Trial: Evidence: Appeal and Error. A trial court’s determination of the admis-
sibility of physical evidence will not ordinarily be overturned except for an abuse
of discretion.
24. Evidence: Words and Phrases. Relevant evidence is that which has any tendency
to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.
The exercise of judicial discretion is implicit in determining the relevance of evi-
dence, and a trial court’s decision regarding relevance will not be reversed absent
an abuse of discretion.
25. 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 would have been sufficient to sustain a guilty verdict.
Appeal from the District Court for Saunders County: mary
C. gilbride, Judge. Reversed and remanded for a new trial.
James 	R. 	Mowbray 	and 	Jerry 	l. 	Soucie, 	of 	Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney general, and James D. Smith for
appellee.
414 	282 NeBRASkA RePoRTS

H eaviCan, C.J., gerrard, stepHan, mCC ormaCk , and miller-
lerman, JJ., and moore , Judge.
stepHan, J.
In 2009, Jeffrey D. glazebrook was convicted of first degree
murder in connection with the 1977 death of Sadie May
McReynolds. He was sentenced to life imprisonment. In this
direct appeal, glazebrook contends that the State’s delay in
charging him with the offense violated his constitutional rights
and that the trial court erred in receiving certain evidence over
his objections. We find no merit in the constitutional claim,
but we determine that the conviction must be reversed because
the district court improperly received evidence of glazebrook’s
criminal history.
I. FACTS AND PRoCeDURAl BACkgRoUND
1. 1977 C rime
Shortly after 1 p.m. on November 7, 1977, the Ashland,
Nebraska, rescue squad was dispatched to the Ashland home of
97-year-old McReynolds. McReynolds was a widow who lived
alone. She was transported to a lincoln, Nebraska, hospital,
where the admitting nurse documented bruises on McReynolds’
right lower leg, left thigh, left wrist, and left hand. McReynolds
also had large amounts of dried blood on her face, abdo-
men, legs, and feet. An examination at the hospital disclosed
that McReynolds sustained injuries to her vagina and ure-
thra. McReynolds died on November 20, 1977, as a result of
her injuries.
2. pretrial proCeedings
In 2008, a Saunders County grand jury indicted glazebrook
on one count of first degree sexual assault and one count of
felony murder in the first degree in connection with the assault
and death of McReynolds. The State later filed the opera-
tive second amended information charging glazebrook with
a single count of first degree murder. The State alleged that
glazebrook killed McReynolds during the perpetration of a
sexual assault or a robbery. Following a preliminary hearing,
the court determined there was probable cause to believe that
STATe v. glAzeBRook 	415
Cite as 282 Neb. 412

glazebrook committed the murder but stated there was no evi-
dence a robbery had occurred.
glazebrook filed a plea in abatement asserting various argu-
ments, including that the delay in filing charges against him
had unfairly prejudiced his right to present a defense, in vio-
lation of his due process rights under the federal and state
Constitutions. The district court overruled the plea in abate-
ment but specifically stated that glazebrook could raise the
issue of preindictment delay at trial. glazebrook then entered a
plea of not guilty.
Before trial, the State filed a motion requesting a hear-
ing on the admissibility of other “crimes, wrongs, or acts”
committed by glazebrook. The pretrial motion asserted the
other crimes were relevant to prove the identity of the person
who killed McReynolds and as “proof of motive, opportunity,
intent, preparation, plan, knowledge, or absence of mistake
or accident.”
A rule 4041 hearing was conducted in June 2009. At the
hearing, the State informed the court that its sole ground for
seeking admission of the other crimes evidence was that it was
relevant to the identity of the person who killed McReynolds.
The State then adduced evidence that in 1978, glazebrook
committed a physical assault in Ashland upon a female victim,
e.S., for which he was convicted and sentenced to 4 to 10
years’ imprisonment. The State also adduced evidence that in
1991, glazebrook committed a sexual assault in lincoln against
another female victim, k.B., for which he was convicted and
sentenced to 15 to 35 years’ imprisonment. We shall discuss
this evidence in more detail in our analysis of glazebrook’s
assignment of error regarding its admissibility. After the hear-
ing, the district court entered an order allowing the State to
adduce the other crimes evidence at trial.
3. trial
First responders testified they found McReynolds lying on
the floor, partially in a hallway and partially in a bathroom,
dressed in a flannel nightgown which she was still wearing
1 Neb. evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2008).
416 	282 NeBRASkA RePoRTS

when she was taken to the hospital. An Ashland police officer
who was one of the first officers at the crime scene arrived
while McReynolds was still being attended to by the first
responders. The officer observed bloodstains primarily in the
bathroom, but also in other rooms in the house. Nebraska State
Patrol Investigator Ron osborne arrived at the scene a short
time later, and osborne thereafter directed the investigation.
At osborne’s request, Trooper James Snyder of the Nebraska
State Patrol went to the lincoln hospital to which McReynolds
was taken. Snyder arrived at the hospital at 1:30 p.m. and was
present in the emergency room when McReynolds was ques-
tioned by a nurse regarding the events which led to her injuries.
McReynolds reported that her doorbell rang sometime after
9:30 p.m. on the preceding day and that when she responded,
an unidentified man grabbed her and pushed her down “‘“over
[her] organs.”’” He told her to do certain things, such as to
“‘spread [her] feet apart.’” McReynolds thought that his objec-
tive was sex. The man eventually apologized and left.
Utilizing a “rape kit,” the nurse assisted an attending physi-
cian in obtaining tissue specimens from McReynolds, including
fingernail scrapings, vaginal and rectal smears, and hair speci-
mens. Snyder took possession of the rape kit and delivered it
the same afternoon to karen Schmidt, who was then the chief
forensic serologist at the State Patrol Criminalistics laboratory
(crime lab) in lincoln. Schmidt placed the rape kit in a locked
evidence room at the crime lab. on the following morning,
osborne brought additional items of evidence to Schmidt,
including a nightgown and a washcloth. Schmidt inventoried
and numbered each item of evidence and placed each item in
a separate paper bag labeled with the case number. The night-
gown and washcloth were placed in a paper bag which was
initialed by Schmidt and osborne.
Schmidt later performed nondestructive testing on the tis-
sue specimens included in the rape kit. She also examined the
nightgown, which had McReynolds’ name on it and was heav-
ily stained with blood and urine. Schmidt was unable to detect
the presence of semen from either the rape kit specimens or
the nightgown. Schmidt did find that the blood on the night-
gown was the same type as the sample of McReynolds’ blood
STATe v. glAzeBRook 	417
Cite as 282 Neb. 412

from the rape kit specimen. Schmidt also observed hairs on the
nightgown, which she removed and mounted on four individu-
ally numbered microscope slides. After examining the slides,
Schmidt determined that slides Nos. 3 and 4 contained hairs
that did not come from McReynolds. Schmidt identified the
hairs on slide No. 3 as head hairs and those on slide No. 4 as
pubic hairs. After examining the slides, Schmidt stored them in
slide mailers and put them in the crime lab’s evidence room;
the nightgown was placed in its paper bag and returned to
the evidence room. The nightgown and other evidence were
later released to osborne, but the slides containing the hair
specimens obtained from the nightgown were retained in the
crime lab.
An 	investigator 	with 	the 	Nebraska 	State 	Patrol 	inter-
viewed glazebrook in December 1977, at osborne’s request.
glazebrook, then a 17-year-old, resided in Ashland, as did
other members of his family. He told the investigator he had
not known McReynolds personally, but he knew who she
was because he had scooped her walks on one occasion and
his brother may have mowed her lawn. glazebrook told the
investigator that on the evening of the assault, he and a few
friends were in Council Bluffs, Iowa, and he returned to his
grandparents’ home in Ashland at approximately 11:45 p.m.
glazebrook’s grandparents lived approximately one block from
McReynolds’ home. He denied assaulting McReynolds and
said he did not know who did.
A urologist who treated McReynolds following the assault
found that her urethra was severely lacerated and torn. A foren-
sic pathologist reviewed the medical records and concluded the
injuries McReynolds sustained in the assault were the direct
cause of her death.
Nebraska State Patrol lt. Robert Frank began reviewing
the McReynolds files as a cold case in 1996. He knew about
advances in DNA testing and was looking for DNA evidence.
When he learned of the slides containing the hair specimens,
Frank went to the locked long-term evidence storage facility,
where he located a cardboard box with the McReynolds case
number on it. Inside the box was a black plastic garbage bag
containing individual brown paper bags and boxes. one of the
418 	282 NeBRASkA RePoRTS

paper bags contained the nightgown and the washcloth. Frank
testified neither this paper bag nor any of the others had been
sealed or stapled shut. He determined the evidence had not
been checked out of the storage facility after 1978, but was
unable to locate the slides.
Frank then contacted the crime lab to ask about the slides.
The crime lab found two of the four slides, Nos. 3 and 4, and
Frank had those slides sent to an outside facility for DNA test-
ing. No nuclear DNA could be obtained from the slides, and
they were returned to the crime lab in November 1997.
In late 1999, Frank learned of a new technology known as
mitochondrial DNA (mtDNA) testing. This technique differs
from nuclear DNA testing in that it utilizes DNA from outside
the cell nucleus which is inherited only from the individual’s
mother. The testing of mtDNA can exclude individuals as
donors, but cannot identify a specific individual as a donor
or identify the donor’s sex, race, or ethnicity. Frank obtained
slides Nos. 3 and 4 from the crime lab and sent them, along
with two vials of glazebrook’s blood, to a testing facility. At
the facility’s request, Frank later sent 19 head hairs obtained
from glazebrook.
Pamela Pogue performed mtDNA testing on the slides pre-
pared by Schmidt and sent to her by Frank. Pogue also tested
the hair specimens and blood obtained from glazebrook. over
a defense objection with respect to chain of custody and rele-
vance, Pogue testified that glazebrook could not be excluded
as the donor of the hair on one of the slides. Pogue sent the
mtDNA sequence she found on that slide to the Federal Bureau
of Investigation’s database to determine how often that par-
ticular mtDNA sequence had been found in an individual. The
database showed that the sequence had been found in 1 of 563
African Americans, 0 of 1,219 Caucasians, 0 of 302 Hispanics,
and 0 of 342 Asians.
Although 19 hair samples taken from glazebrook were sent
to Pogue to serve as known samples of his mtDNA, only 1 hair
sample was returned after the mtDNA testing was completed.
Pogue testified she did not know what happened to the remain-
ing 18 hair samples, but she was confident that they were not
consumed in the testing process.
STATe v. glAzeBRook 	419
Cite as 282 Neb. 412

over glazebrook’s objection, evidence regarding the assaults
committed by glazebrook on e.S. and k.B. was received
at trial. The court instructed the jury that the evidence was
received “for the limited purpose of establishing the identity
of the person responsible for the charged offense” and that the
jury must consider the evidence “for that limited purpose and
for no other.”
After the State rested, glazebrook renewed his plea in
abatement and a hearing was held outside the presence of the
jury. glazebrook adduced evidence that generally showed the
records of his assignments within the penal system had been
destroyed and that certain witnesses he wished to call could not
remember the events. The district court overruled the renewed
plea in abatement.
The jury returned a verdict of guilty, and glazebrook was
sentenced 	to 	life 	imprisonment. 	He 	perfected 	this 	timely
direct appeal.
II. ASSIgNMeNTS oF eRRoR
glazebrook assigns, restated and renumbered, that the dis-
trict court erred in (1) not dismissing the charge on the basis
of preindictment delay, in violation of his rights under the
6th Amendment and the Due Process Clause of the 14th
Amendment to the U.S. Constitution; (2) receiving the other
crimes evidence over his objection; and (3) receiving the
mtDNA evidence over his objection.
III. ANAlYSIS
1. preindiCtment delay
[1,2] glazebrook argues the State’s delay in filing charges
against him in connection with the McReynolds homicide vio-
lated his rights under the 6th Amendment and the Due Process
Clause of the 14th Amendment. He did not assert his Sixth
Amendment claim in the district court. Absent plain error, this
court will not consider an issue not raised to the trial court.2
2 See, State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010); State v.
Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated in part on
other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
420 	282 NeBRASkA RePoRTS

There can be no plain error with respect to this issue, because
the right to a speedy trial, as guaranteed under the Sixth
Amendment, is not implicated until after the accused has been
charged or arrested, even though the prosecuting authorities
knew of the offense.3 Thus, we need not consider glazebrook’s
Sixth Amendment claim.
[3-5] The Due Process Clause of the Fifth Amendment pro-
tects a criminal defendant against unreasonable preindictment
delay.4 But dismissal under the Due Process Clause is proper
only if a defendant shows (1) the prosecuting authority’s delay
in filing charges caused substantial prejudice to the defend-
ant’s right to a fair trial and (2) the delay was an intentional
device to gain an unfair tactical advantage over the defendant.5
our cases do not clearly delineate the standard of review
applicable to trial court rulings on this issue. We conclude that
a criminal defendant’s claim of denial of due process resulting
from preindictment delay presents a mixed question of law
and fact and requires the dual standard of review which we
have employed for other mixed questions, such as ineffective
assistance of counsel6 and juror misconduct.7 Accordingly,
when reviewing a trial court’s determination of a claim of
denial of due process resulting from preindictment delay, we
will review determinations of historical fact for clear error,
but we will review de novo the trial court’s ultimate determi-
nation as to whether any delay by the prosecutor in bringing
charges caused substantial prejudice to the defendant’s right to
a fair trial.8
3 United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 l. ed. 2d 468
(1971); State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abro-
gated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627
(1996).
4 U.S. v. Sturdy, 207 F.3d 448 (8th Cir. 2000). See, also, State v. Huebner,
supra note 3.
5 United States v. Marion, supra note 3; State v. Huebner, supra note 3.
6 Golka v. State, 281 Neb. 360, 796 N.W.2d 198 (2011).
7 State v. Thorpe, supra note 2.
8 See State v. Davis, 345 or. 551, 201 P.3d 185 (2008).
STATe v. glAzeBRook 	421
Cite as 282 Neb. 412

[6] on this issue, glazebrook had the burden of establish-
ing that the delay in filing charges actually prejudiced his
defense and that the State intentionally caused the delay to
gain an unfair tactical advantage.9 on appeal, he argues only
the prejudice prong of this test, contending that the passage of
time dimmed the memories of witnesses and deprived him of
the ability to call witnesses, now deceased, who may have had
knowledge of unspecified facts. But a defendant alleging that a
delay in filing charges constituted a denial of due process “can-
not rely on the real possibilities inherent in the delay, such as
dimmed memories, inaccessible witnesses, and lost evidence.
The defendant must show actual prejudice.”10 glazebrook’s
evidence falls far short of this requirement. And there is no evi-
dence to support the second prong of the test, which requires a
showing that the State intentionally caused the delay to gain an
unfair tactical advantage. As the Supreme Court has noted, “the
due process inquiry must consider the reasons for the delay as
well as the prejudice to the accused.”11 Accordingly, the dis-
trict court’s determination that glazebrook failed to establish a
denial of due process resulting from preindictment delay was
not clearly erroneous.
2. evidenCe of otHer C rimes
(a) Additional Facts
glazebrook argues the district court erred in receiving, over
his objection, evidence of other crimes he committed. We sum-
marize the other crimes evidence here.
(i) Assault on E.S.
In May 1978, glazebrook was convicted by a jury of an
assault with intent to inflict serious bodily injury on e.S.
glazebrook was sentenced to 4 to 10 years’ imprisonment. He
was 17 years old at the time the crime was committed. e.S.
was 56 when she was assaulted and died before the rule 404
9 See State v. Huebner, supra note 3.
10 Id. at 345, 513 N.W.2d at 289.
11 United States v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 52 l. ed. 2d
752 (1977).
422 	282 NeBRASkA RePoRTS

hearing in this case. At trial, the State offered the testimony
of e.S. from the 1978 trial and a portion of glazebrook’s
testimony from that trial. This evidence was received over
glazebrook’s objections under rules 40312 and 404, subject to
the court’s limiting instruction as noted above.
e.S. testified at the 1978 trial that she had fallen asleep on
her living room sofa on the evening of February 1, 1978. She
woke to find a man standing over her and striking her head
with a hammer. e.S. tried to resist, but he struck her several
times. Suddenly he stopped and left. After he left, she discov-
ered that her wallet was missing from her purse, which had
been in her kitchen. The investigation revealed that glazebrook
broke into her house through a basement window and picked
up the hammer in the basement. He could have taken the purse
without disturbing her as she slept. glazebrook testified at the
1978 trial that he knew e.S. from helping his brother mow her
lawn, but stated he had never been in her home.
(ii) Assault of K.B.
In September 1991, glazebrook entered a no contest plea
to a charge of first degree sexual assault of k.B. and was
convicted and sentenced to a term of 15 to 35 years’ imprison-
ment. k.B. testified at the trial of this case, over glazebrook’s
rules 403 and 404 objections, and subject to the same limiting
instruction given with respect to the testimony of e.S.
k.B. was 45 years old at the time of the assault and lived
in a basement apartment at her parents’ home in lincoln.
glazebrook was dating k.B.’s daughter at the time. In February
1991, k.B. was asleep in her apartment when she was awak-
ened at 2 a.m. by a noise at her door. When the noise persisted,
she got up to investigate. She found the door to her apartment
ajar, and when she attempted to close it, glazebrook unex-
pectedly entered. He told k.B. he had had an argument with
her daughter and asked if he could use her restroom. k.B.
agreed. When glazebrook returned, he grabbed k.B.’s shoul-
ders and pushed her to the floor, where they struggled and k.B.
screamed for help. During the struggle, glazebrook removed
12 Neb. evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
STATe v. glAzeBRook 	423
Cite as 282 Neb. 412

k.B.’s underwear and digitally penetrated her. k.B. managed
to break away and run to the door, but glazebrook caught her
and dragged her onto her bed. When k.B.’s father heard the
commotion and called down the stairs to ask what was going
on, k.B., fearing for her life, told glazebrook that if he left
she would not tell about the incident. glazebrook then left, and
k.B. later called the police.
(b) Applicable law and Standard of Review
glazebrook’s principal objection to the evidence of his prior
crimes was based on rule 404(2), which provides that evidence
of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he or she acted in
conformity therewith. Such evidence may, however, be admis-
sible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.13 For completeness, we note that rule 404
has been amended to permit the admission, in a criminal case
in which the defendant is accused of a sexual assault, of evi-
dence of another offense of sexual assault.14 Those amendments
were not in effect at the time of trial in this case and do not
affect our analysis in this appeal.
[7,8] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or acts
under rules 403 and 404(2), and the trial court’s decision will
not be reversed absent an abuse of discretion.15 In reviewing
the admissibility of other crimes evidence under rule 404(2),
an appellate court considers (1) whether the evidence was rele-
vant for some purpose other than to prove the character of a
person to show that he or she acted in conformity therewith;
(2) whether the probative value of the evidence is substan-
tially outweighed by its potential for unfair prejudice; and
(3) whether the trial court, if requested, instructed the jury to
13 Rule 404(2).
14 See rule 404(4) and Neb. evid. R. 414, Neb. Rev. Stat. § 27-414 (Cum.
Supp. 2010).
15 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011); State v. Epp, 278
Neb. 683, 773 N.W.2d 356 (2009).
424 	282 NeBRASkA RePoRTS

consider the evidence only for the limited purpose for which it
was admitted.16
[9,10] Rule 404(2) prohibits the admission of relevant evi-
dence for the purpose of proving the character of a person in
order to show that he or she acted in conformity therewith; or,
stated another way, the rule prohibits the admission of other
bad acts evidence for the purpose of demonstrating a person’s
propensity to act in a certain manner.17 The reason for the rule
is that such evidence, despite its relevance, creates the risk of a
decision by the trier of fact on an improper basis.18 The exclu-
sion of other bad acts evidence offered to show a defendant’s
propensity protects the presumption of innocence and is deeply
rooted in our jurisprudence.19
[11-13] But evidence of other crimes which is relevant for
any purpose other than to show the actor’s propensity is admis-
sible under rule 404(2).20 Such evidence is often referred to as
having “special” or “independent” relevance, which means its
relevance does not depend on its tendency to show propensity.21
The proponent of such evidence is, upon objection to its admis-
sibility, required to state on the record the specific purpose or
purposes for which the evidence is being offered, and the trial
court is required to state on the record the purpose or purposes
for which such evidence is received.22 In this manner, the
claimed independent relevance of the evidence is identified for
the finder of fact and the appellate court.
16 See, State v. Epp, supra note 15; State v. Burdette, 259 Neb. 679, 611
N.W.2d 615 (2000).
17 State v. Ellis, supra note 15. See, also, State v. Trotter, 262 Neb. 443, 632
N.W.2d 325 (2001).
18 State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
19 State v. Trotter, supra note 17; State v. Sanchez, supra note 18.
20 State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010); State v. Kuehn, 273
Neb. 219, 728 N.W.2d 589 (2007).
21 State v. Baker, supra note 20; State v. Sanchez, supra note 18; State v.
McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).
22 State v. Burdette, supra note 16; State v. Sanchez, supra note 18.
STATe v. glAzeBRook 	425
Cite as 282 Neb. 412

[14] Here, the evidence of other assaults committed by
glazebrook was offered and received for the sole purpose of
proving glazebrook’s identity as McReynolds’ assailant. other
acts evidence may have probative value as to identity where
there are overwhelming similarities between the other crime
and the charged offense or offenses, such that the crimes are so
similar, unusual, and distinctive that the trial judge could rea-
sonably find that they bear the same signature.23 In evaluating
other acts evidence in criminal prosecutions, the other act must
be so related in time, place, and circumstances to the offense
or offenses charged so as to have substantial probative value in
determining the guilt of the accused.24 For example, we held in
State v. Burdette25 that evidence of prior crimes was admissible
to prove the identity of the perpetrator of the charged offense,
where the victims of the prior crimes and the charged offense
were chosen from newspaper articles identifying women likely
to be living alone; the victims were bound, gagged, and blind-
folded in a similar manner; and the victims were subjected to
both anal and vaginal penetration.
But in other cases, we have held that general similarities
between prior crimes and the charged offense are insufficient
to establish admissibility of the prior crimes to prove identity
under rule 404. In State v. Trotter,26 we held that prior inci-
dents of spousal abuse perpetrated by the defendant should not
have been admitted on the issue of identity in his prosecution
for child abuse and manslaughter, because the prior crimes and
the charged offense were not so similar, unusual, and distinc-
tive as to establish a “signature” methodology. While noting
that both the charged offense and the prior acts involved abuse
of a person, we reasoned the similarities urged by the State as
the basis for admissibility to prove identity were, “in essence,
the similarities in the statutory definition of the crimes them-
selves, not the manner in which [the defendant] may have
23 State v. Ellis, supra note 15; State v. Trotter, supra note 17.
24 Id.
25 State v. Burdette, supra note 16.
26 State v. Trotter, supra note 17.
426 	282 NeBRASkA RePoRTS

carried them out.”27 Recently, in State v. Ellis,28 we concluded
that evidence of the defendant’s prior sexual assaults directed
at his minor stepdaughters should not have been received on
the issue of identity in his prosecution for first degree murder
in which the State alleged that the death of the minor female
victim occurred in the perpetration of a sexual assault. We
noted the prior acts occurred more than a decade before the
charged offense and that although the victims were approxi-
mately the same age, assaulted in isolated locations, and
subjected to blows on the head, these facts were not “so dis-
tinctive as to separate [the] prior acts from nearly any other
forcible sexual assault.”29
(c) Application of law to Facts
(i) Assault of E.S.
Because McReynolds was unable to identify her assailant
before her death, a jury could have concluded that some-
one other than glazebrook committed the crime. Therefore,
identity was a fact of consequence in the case.30 In deter-
mining that evidence of the assault on e.S. was admissible
under rule 404(2), the district court reasoned (1) both e.S.
and McReynolds were considerably older than glazebrook,
(2) glazebrook had done odd jobs for both women prior to
the assaults, (3) both assaults occurred late at night in the
homes of women who lived alone, (4) both victims lived near
glazebrook’s home, (5) both attacks involved violence and
resulted in serious injuries, and (6) the attacks occurred in
November 1977 and February 1978.
The use of violence and the occurrence of injury are inher-
ent in any assault, and the commission of an assault during
nighttime hours in the victim’s home is hardly unusual. The
temporal proximity of the two attacks and the fact that both
victims lived near glazebrook and near each other lends some
27 Id. at 461, 632 N.W.2d at 340.
28 State v. Ellis, supra note 15.
29 Id. at 581, 799 N.W.2d at 282.
30 See State v. Sanchez, supra note 18.
STATe v. glAzeBRook 	427
Cite as 282 Neb. 412

credence to a finding that the attack on e.S. is probative of
the identity of the attacker of McReynolds. But the key in
any identity analysis is whether the crimes are so unusual and
distinctive that the trial judge can reasonably find that they
bear the same signature.31 Here, the fact that glazebrook knew
both women because he had performed odd jobs for them is
not unusual, especially considering they all lived in a small
town. And although both victims were older than glazebrook,
nothing about their ages creates a signature method of attack.
In addition, we note that the attacks also have substantial dis-
similarities, in that e.S. was attacked with a weapon, while
McReynolds was not. e.S. was robbed, but McReynolds was
not. And McReynolds was sexually assaulted, while e.S. was
not. Viewing the evidence as a whole, we conclude that
although there is some temporal and geographic relationship
between the crimes, the manner in which the attacks on e.S.
and McReynolds were committed is not so similar, unusual,
or distinctive that they could reasonably be found to bear the
same signature. The evidence of the attack on e.S. was there-
fore inadmissible under rule 404(2). Accordingly, we conclude
the district court abused its discretion in receiving evidence of
glazebrook’s assault on e.S.
(ii) Assault of K.B.
In determining that evidence of the assault against k.B. was
admissible on the issue of the identity of McReynolds’ assail-
ant, the district court reasoned (1) both victims were consider-
ably older than glazebrook, (2) both assaults occurred late at
night in the homes of women who lived alone, (3) glazebrook
knew both women, and (4) both women were forced to the
floor and digitally penetrated. But again, the use of violence
and the occurrence of injury are inherent in any assault, and
the commission of a sexual assault during nighttime hours in
the victim’s home is hardly unusual. And although glazebrook
knew both k.B. and McReynolds, the manner by which he
knew them differed greatly, in that k.B. was the mother of his
girlfriend and McReynolds was an elderly woman who lived
31 State v. Ellis, supra note 15.
428 	282 NeBRASkA RePoRTS

in his hometown and for whom he performed odd jobs. And
while both victims were older than glazebrook, nothing about
the age difference creates an inference of a signature method
of carrying out the crimes. It is notable too that McReynolds
was assaulted in Ashland, while the assault upon k.B. occurred
more than 13 years later in lincoln. Viewing the evidence
as a whole, we conclude that while there are some general
and superficial similarities between the crimes, the manner
in which they were committed is not so similar, unusual, and
distinctive that they could be reasonably found to bear the
same signature. The evidence of glazebrook’s assault on k.B.
was therefore inadmissible under rule 404(2). Accordingly, we
conclude the district court abused its discretion in receiving
evidence of glazebrook’s assault of k.B.
(d) Harmless error Analysis
[15,16] An erroneous admission of evidence is considered
prejudicial to a criminal defendant unless the State dem-
onstrates that the error was harmless beyond a reasonable
doubt.32 evidentiary error is harmless when improper admis-
sion of evidence did not materially influence the jury to reach
a verdict adverse to substantial rights of the defendant.33 In
Ellis, we determined that erroneous admission of other crimes
evidence was harmless in light of the strength of other evi-
dence, including DNA test results which linked the defendant
to the crime.
Here, the other evidence of guilt is not as compelling. The
mtDNA testing utilized in this case can exclude individuals as
donors, but it cannot identify a specific individual as a donor or
identify the donor’s sex, race, or ethnicity. Although the testing
established that glazebrook could not be excluded as the donor
of the hair found on the nightgown, it did not establish with
certainty that the hair was his. And, as noted below, there are
32 State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
33 State v. Ellis, supra note 15; State v. Gutierrez, 272 Neb. 995, 726 N.W.2d
542 (2007), abrogated in part on other grounds, State v. Thorpe, supra
note 2.
STATe v. glAzeBRook 	429
Cite as 282 Neb. 412

circumstances affecting the weight to be given to the mtDNA
test results.
Based on our review of the entire record, we conclude that
the erroneous admission of evidence concerning glazebrook’s
other crimes was not harmless beyond a reasonable doubt.
Accordingly, the error requires reversal and a new trial.
3. evidenCe of mtdna testing
[17] An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings.34 We invoke this
principle to discuss glazebrook’s contention that the district
court erred in receiving Pogue’s testimony regarding mtDNA
test results. glazebrook makes a three-part argument. First, he
contends there was insufficient foundation with respect to the
chain of custody of the nightgown from which a hair speci-
men was obtained and subjected to mtDNA testing. Second,
glazebrook contends there were “unexplained alterations” to
the hair specimens which affected the integrity of the testing.35
Third, glazebrook argues there was no comparative mtDNA
profile of McReynolds or other persons who were present at
the crime scene.
(a) Foundation and Chain of
Custody of Nightgown
As noted, the hair specimens tested for mtDNA were taken
from a nightgown which osborne delivered to the crime lab on
the day after McReynolds was hospitalized. osborne died prior
to glazebrook’s trial, and his testimony was not preserved.
glazebrook argues there was insufficient foundational evidence
regarding when, where, or by whom the nightgown was taken
into the custody of law enforcement.
[18-23] Where objects pass through several hands before
being produced in court, it is necessary to establish a complete
34 State v. Riley, 281 Neb. 394, 796 N.W.2d 371 (2011); State v. Parker, 276
Neb. 661, 757 N.W.2d 7 (2008), modified on denial of rehearing 276 Neb.
965, 767 N.W.2d 68 (2009).
35 Brief for appellant at 39.
430 	282 NeBRASkA RePoRTS

chain of evidence, tracing the possession of the object or article
to the final custodian; and if one link in the chain is missing,
the object may not be introduced in evidence.36 objects which
relate to or explain the issues or form a part of a transaction
are admissible in evidence only when duly identified and
shown to be in substantially the same condition as at the time
in issue.37 It must be shown to the satisfaction of the trial court
that no substantial change has taken place in an exhibit so as
to render it misleading.38 Important in determining the chain
of custody are the nature of the evidence, the circumstances
surrounding its preservation and custody, and the likelihood of
intermeddlers tampering with the object.39 Whether there is suf-
ficient foundation to admit physical evidence is determined on
a case-by-case basis.40 our review concerning the admissibility
of such evidence is for an abuse of discretion.41
glazebrook relies on Priest v. McConnell42 and Raskey v.
Hulewicz43 in support of his argument that foundation for the
nightgown was insufficient. In Priest, the defendant sought to
introduce evidence that one of the victims of an automobile
accident was intoxicated at the time he was killed. The record
showed a doctor recalled taking blood samples from the victim
at the mortuary, but did not remember to whom he passed them
for handling. A sheriff testified he took both blood and urine
samples to his office, but did not remember from whom he
received the samples. The doctor who performed the autopsy
received the samples from the sheriff, locked them in his labo-
ratory, and later gave them to the technician who performed
36 State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004); State v. Bobo, 198
Neb. 551, 253 N.W.2d 857 (1977).
37 Id.
38 See, State v. Tolliver, supra note 36; State v. Sexton, 240 Neb. 466, 482
N.W.2d 567 (1992).
39 State v. Tolliver, supra note 36.
40 Id.
41 See id.
42 Priest v. McConnell, 219 Neb. 328, 363 N.W.2d 173 (1985).
43 Raskey v. Hulewicz, 185 Neb. 608, 177 N.W.2d 744 (1970).
STATe v. glAzeBRook 	431
Cite as 282 Neb. 412

the alcohol testing. on that record, we concluded the evidence
of the victim’s level of intoxication was inadmissible because
there was no evidence of the origin of the urine sample of the
victim and little evidence of the origin of the blood sample.
In Raskey, we held the trial court did not abuse its discretion
in refusing to admit the results of a urine test where there was
no evidence regarding customary procedures for obtaining and
preserving a urine sample and the testimony of the person
responsible for taking the sample was equivocal.
The chain of custody evidence is considerably stronger in
this case than in Priest or Raskey. Schmidt, the forensic serolo-
gist who obtained the hair specimens from the nightgown,
testified she took the nightgown from a paper bag osborne
delivered to her on the day after McReynolds was found and
taken to the hospital. osborne was identified as the Nebraska
State Patrol investigator responsible for Saunders County who
responded to the crime scene and directed the investigation.
There was testimony that in 1977, it was standard procedure
for State Patrol investigators to place evidence in a clean
paper bag for delivery to the crime lab. There was evidence
McReynolds was wearing a nightgown when she was found
lying on the floor after the assault and that there was blood
on the floor. There is also testimony that McReynolds was
wearing a nightgown when she arrived at the hospital and that
she had dried blood on her body. Schmidt testified that the
nightgown had McReynolds’ “name on the back cover” and
was heavily soiled with blood and urine. Testing established
that bloodstains on the nightgown matched McReynolds’ blood
type. Schmidt testified as to the manner in which she placed
the hair specimens from the nightgown on microscope slides,
which were retained in the custody of the crime lab from 1977
until they were sent out for DNA testing in 1996 and again in
1999. There is no evidence of tampering. From this evidence, it
is reasonably probable that the nightgown from which the hair
specimen was taken was the nightgown worn by McReynolds
at the time of the assault and that it was on her person or in
the custody of the State Patrol at all relevant times prior to the
mtDNA testing. We therefore conclude the district court did
not abuse its discretion in deciding that there was sufficient
432 	282 NeBRASkA RePoRTS

foundational evidence regarding chain of custody to permit
testimony regarding the results of mtDNA testing on the hair
specimen taken from the nightgown.
(b) Unexplained Alterations in Hairs
glazebrook argues that because two of the original micro-
scope slides containing hair obtained from the nightgown are
now missing and only 1 of the 19 hair samples taken from
him were returned by the crime lab which performed the
mtDNA tests, the test results cannot be associated with the
McReynolds assault with any degree of confidence. We con-
clude these matters go to the weight of the test results, not
their admissibility.
(c) Absence of Comparative mtDNA Profiles
glazebrook argues the results of mtDNA testing should not
have been admitted because “[t]he State did not obtain an elimi-
nation mtDNA profile for . . . McReynolds or any of the other
ten individuals” who were present at the McReynolds residence
during the initial investigation of the crime.44 glazebrook cites
no authority for this argument. We note that the only two bases
for glazebrook’s objection to the mtDNA test results were
“chain of custody,” as discussed above, and “relevancy.” Thus,
the issue presented is whether the mtDNA test results were
relevant in the absence of comparative mtDNA profiles from
other persons at the crime scene.
[24] Relevant evidence is that which has any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less prob-
able than it would be without the evidence.45 The exercise
of judicial discretion is implicit in determining the relevance
of evidence, and a trial court’s decision regarding relevance
will not be reversed absent an abuse of discretion.46 Schmidt
testified that when she examined the hairs she found on the
44 Brief for appellant at 37.
45 State v. Sellers, supra note 2.
46 State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010); State v. Edwards, 278
Neb. 55, 767 N.W.2d 784 (2009).
STATe v. glAzeBRook 	433
Cite as 282 Neb. 412

nightgown under a microscope, they appeared to be of a dif-
ferent color, diameter, and length than hair samples obtained
from McReynolds. There was thus a reasonable inference that
the hairs were left by McReynolds’ assailant. Pogue testified
mtDNA testing can exclude persons as donors of the tissue
from which the mtDNA was extracted, but cannot identify spe-
cific persons as donors.
The State was not required to produce mtDNA profiles of
each person who was present at the crime scene, as glazebrook
contends. But it is clear from the record, and from the juris-
prudence and forensic literature, that mtDNA “is not a unique
identifier because it is shared by individuals within a given
maternal line.”47 Thus, the fact that a defendant cannot be
excluded as the donor of mtDNA found at a crime scene is of
limited probative value in the absence of evidence upon which
to assess the significance of that fact, such as a reliable estimate
of the number of persons who could be excluded as donors.
At least one court has held that statistical statements based
upon a sample of the population may be utilized to estimate
the frequencies of mtDNA types in the general population.48
In cases where mtDNA evidence has been held to be admis-
sible, the evidence has included expert testimony regarding the
statistical significance of the fact that the defendant could not
be excluded as the donor. For example, in State v. Pappas,49
there was evidence that at a 95-percent confidence interval,
99.7 percent of the Caucasian population could be excluded
as the source of the questioned sample. Similarly, in Magaletti
v. State,50 there was testimony that at a 95-percent confidence
interval, 99.93 percent of persons randomly selected would not
match the mtDNA sample.
47 See State v. Pappas, 256 Conn. 854, 882, 776 A.2d 1091, 1109 (2001),
citing Mitchell M. Holland & Thomas J. Parsons, Mitochondrial DNA
Sequence Analysis — Validation and Use for Forensic Casework, 11
Forensic Sci. Rev. 21 (1999).
48 State v. Pappas, supra note 47.
49 Id.
50 Magaletti v. State, 847 So. 2d 523 (Fla. App. 2003).
434 	282 NeBRASkA RePoRTS

As noted, the State presented evidence in this case that
according to the Federal Bureau of Investigation’s database,
the particular mtDNA sequence obtained from the evidence had
been found in 1 of 563 persons of African American descent,
0 of 1,219 Caucasians, 0 of 302 Hispanics, and 0 of 342 per-
sons of Asian descent. But Pogue noted that back in 1999, this
was a small database, and the record includes no explanation of
the significance of this raw data in arriving at a statistical prob-
ability analysis to establish relevancy.51 Although this issue was
not preserved for appeal, we note that the statistical signifi-
cance of the fact that a particular individual cannot be excluded
as the donor of mtDNA is an important factor in determining
the relevancy of mtDNA evidence.
4. suffiCienCy of evidenCe
[25] Having found reversible error, we must determine
whether the totality of the evidence admitted by the district
court was sufficient to sustain glazebrook’s conviction. If it
was not, then concepts of double jeopardy would not allow a
remand for a new trial.52 The Double Jeopardy Clause does not
forbid a retrial so long as the sum of all the evidence admitted
by a trial court would have been sufficient to sustain a guilty
verdict.53 We conclude the evidence against glazebrook was
sufficient to sustain the verdict.
IV. CoNClUSIoN
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 .
C onnolly, J., participating on briefs.
wrigHt, J., not participating.
51 See State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).
52 See, State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011); State v.
McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
53 Id.
STATe v. glAzeBRook 	435
Cite as 282 Neb. 412