State v. Ross

following: (1) giving advice or counsel to another entity or
person as to the legal rights of that entity or person or the legal
rights of others for compensation, direct or indirect, where a
relationship of trust or reliance exists between Respondent and
the party to whom it is given; (2) selecting, drafting, or com-
pleting, for another entity or person, legal documents which
affect the legal rights of the entity or person; and (3) represent-
ing another entity or person in a court, in a formal administra-
tive adjudicative proceeding or other formal dispute resolution
process, or in an administrative adjudicative proceeding in
which legal pleadings are filed or a record is established as
the basis for judicial review. Noncompliance with this order
of injunction shall constitute contempt punishable under this
court’s inherent power and § 3-1019.
I njunctIon Issued.
state of nebraska , appellee , v.
MIchael l. ross , appellant.
811 N.W.2d 298
Filed April 26, 2012. 	No. S-11-093.
1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact. The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reason-
able doubt.
2. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is evi-
dence which, without going directly to prove the existence of a fact, gives rise to
a logical inference that such fact exists.
3. Circumstantial Evidence: Proof. Circumstantial evidence is not inherently less
probative than direct evidence, and a fact proved by circumstantial evidence is
nonetheless a proven fact.
4. Convictions: Juries: Circumstantial Evidence. In finding a defendant guilty
beyond a reasonable doubt, a jury may rely upon circumstantial evidence and the
inferences that may be drawn therefrom.
5. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative
value as a matter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt.
742 	283 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

petition for further review from the Court of Appeals,
I nbody, Chief Judge, and sIevers and Moore, Judges, on appeal
thereto from the District Court for Douglas County, patrIcIa a.
laMberty, Judge. Judgment of Court of Appeals reversed, and
cause remanded with directions.
Thomas C. Riley, Douglas County public Defender, Timothy
p. burns, and brenda J. Leuck for appellant.
Jon bruning, Attorney General, kimberly A. klein, and
James D. Smith for appellee.
heavIcan, c.j., WrIght, connolly, stephan, MccorMack ,
and MIller-lerMan, jj.
stephan, j.
Michael L. Ross was convicted by a jury of discharge of a
firearm at a person, building, or occupied motor vehicle while
in the proximity of a motor vehicle he had just exited, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a felon. On direct appeal, the Nebraska Court of
Appeals determined the evidence was insufficient to support
Ross’ convictions. We granted the State’s petition for further
review and now reverse the judgment of the Court of Appeals,
because we conclude that the evidence, when considered under
the deferential standard of appellate review, was sufficient to
support the convictions.
bACkGROUND
The following evidence was adduced at Ross’ trial and per-
tains to the events of February 10, 2010. On that date, a shoot-
ing occurred in Omaha, Nebraska, on the block of North 33d
Avenue, which is intersected by erskine Street on the north and
Grant Street on the south.
Lumonth Coleman and his girlfriend spent the morning
moving out of a house located on North 33d Avenue. This
is the first house south of erskine Street on the east side of
North 33d Avenue. Terrell Smith arrived at that location with
his girlfriend, Tiffany Ross (Tiffany), around 9 a.m. Smith
was driving a white Mercury Grand Marquis, which he parked
STATe v. ROSS 	743
Cite as 283 Neb. 742

facing north on the east side of North 33d Avenue, directly in
front of Coleman’s house. Tiffany remained in the front pas-
senger seat of the Grand Marquis while Smith began to help
Coleman move items from the house to a van parked across
the street.
At one point during the move, Coleman stepped onto the
front porch of his house and saw a northbound two-door silver
vehicle slowly swerve around the parked Grand Marquis. A
passenger in the silver vehicle was facing backward, toward the
south, holding a weapon that Coleman described as a silver .38-
or .44-caliber revolver. Coleman first heard shots when the rear
end of the silver vehicle was square with the front of the Grand
Marquis. He heard approximately five or six shots, a very short
pause, and then about nine additional shots. Coleman described
the second set of shots as faster than the first and sounding
like the shots were being fired from a different gun. The silver
vehicle left the scene by continuing north.
Coleman ran outside and saw a red northbound vehicle far-
ther south on North 33d Avenue. Coleman heard the driver yell,
“I’m going to get you,” followed by a string of expletives. The
driver then backed up his vehicle down North 33d Avenue onto
Grant Street. Coleman saw the driver stop and say something
to a woman before leaving the scene.
Coleman walked south down North 33d Avenue and picked
up two 9-millimeter shell casings, which he testified that
he then threw and stomped on. He retrieved two more 9-
millimeter casings and put them in his pocket. The casings
were found near where Coleman had first seen the red vehicle
on North 33d Avenue.
Smith was inside the house when the shots were fired.
He heard four or five shots, a pause, and then seven to eight
more shots. Smith testified that the seven or eight shots were
fired back-to-back and were slightly louder than the first set.
He went outside and saw that Tiffany had been shot. Tiffany
sustained gunshot wounds to the front of her head and her
arm. Smith drove her to a hospital, where she died about a
month later.
Coleman’s girlfriend was near the parked van in which items
from Coleman’s house were being loaded when the shots were
744 	283 NebRASkA RepORTS

fired. She heard two shots and then eight or nine shots that
were louder and came more rapidly. Following the second set
of shots, she heard a voice say, “I’m going to get you,” fol-
lowed by several expletives.
Jasmine pierce was at a residence located on the west side
of North 33d Avenue, just south of Grant Street. After hearing
what sounded like four or five shots, she stepped onto the porch.
She saw a young man standing outside the driver’s-side door of
a vehicle that was facing north on North 33d Avenue. He was
holding a gun and shooting north at what pierce described as
“her” vehicle. pierce testified that a vehicle parked outside of
a house that people were moving from separated the shooter’s
vehicle and another northbound vehicle located farther north on
North 33d Avenue.
pierce saw the shooter leave the scene by backing up his
vehicle. He stopped in front of a house located on Grant Street,
which is to the west of and adjacent to the house where pierce
was visiting. pierce heard the shooter yell to a woman there to
call “so and so” because people from “29th Street” were shoot-
ing at him. pierce did not hear the shooter ask for the police to
be called. The shooter then drove away on Grant Street. pierce
thought the shooting was gang related, because “29th Street”
was a gang in Omaha. When asked about the color of the
shooter’s vehicle, pierce testified that she could not remember
and thought it could have been either red or white.
Lowell berry, who lived about a block south of pierce’s
location on North 33d Street, also heard the shots. From his
kitchen window, berry saw a woman running and a red vehicle
near Grant Street with a man quickly moving toward it. The
man was wearing a coat and came from the front of the vehicle.
berry observed the man enter the north-facing vehicle, back
up on North 33d Avenue, and then drive away on Grant Street.
berry did not see who had fired the shots. police took berry
to the area of North 14th Avenue and pinkney Street later that
morning, and berry identified a vehicle at that location as the
vehicle he had seen on North 33d Avenue. The vehicle was
later identified as a maroon Chevrolet Impala.
At approximately 3:30 p.m., on February 10, 2012, Ross
gave a statement to police. He said that he went to pick up his
STATe v. ROSS 	745
Cite as 283 Neb. 742

girlfriend in the area of North 33d Avenue and erskine Street
earlier that day and that he was driving a maroon Impala. He
parked in front of a blue house, and his girlfriend came to the
car. He saw people moving items into a van up the street and
said there was a vehicle parked in front of him, and then a
white vehicle. A silver vehicle pulled up to the white vehicle,
and someone in the silver vehicle started shooting. Ross heard
the first shot after a man leaned out of the passenger-side win-
dow and turned around toward the white vehicle. Ross heard
two different guns being fired and thought there were two
people shooting.
Ross saw that the back window of the white vehicle was
shattered and that a woman in the white vehicle was hurt. After
reversing his vehicle, Ross yelled to a person in a nearby pink
house that people from “29th Street” were shooting and to call
the police because someone just got hurt. He left the scene by
backing up his vehicle and going up Grant Street.
Ross said that he then drove to his grandfather’s house near
25th Avenue and pinkney Street. He briefly went inside, along
with his girlfriend. While leaving his grandfather’s house, Ross
saw the vehicle from which the shots had been fired on North
33d Avenue. He identified the vehicle as a silver “G-six.” Ross
said people in the vehicle began to shoot at him, so he drove
off toward North 14th Avenue and pinkney Street.
Several people called the 911 emergency dispatch service
to report someone in a silver vehicle chasing and shooting at a
red vehicle. One caller saw shots fired from the silver vehicle,
and another caller reported a vehicle “dumped” at a location
on North 14th Avenue. The latter reported that two males
had exited the “dumped” vehicle and were hiding behind a
garage. This call was made from the area of North 14th Avenue
and pinkney Street, and the vehicle was later identified as a
maroon Impala.
Ross said that the driver of the silver car ran him off the
road and that its occupants started to chase him, so he ran
behind a house. He said he approached a man who was stand-
ing outside and reported that people were trying to hurt him
and his girlfriend and that he needed to call the police. Ross
said the man went inside his house, so Ross went to a second
746 	283 NebRASkA RepORTS

house and asked to call a tow truck. When he came outside, the
police were there and Ross was arrested.
Ross denied ever having a gun or returning fire. Inspection
of the Impala revealed a bullet hole in the driver’s-side head-
light and another in the trunk. At trial, the parties stipulated
that Ross had a prior felony conviction.
Anthony Rivera lived on North 14th Avenue, near pinkney
Street. As he was returning to his home on the morning of
February 10, 2010, he saw a vehicle in his yard. There were no
passengers in the vehicle. Rivera called the police and then saw
Ross and a woman come out from behind his garage, which
was near a steep, wooded ravine that contained debris. both
persons were wearing big coats, and Ross was holding a shiny
object which “looked exactly like a handgun clip.” It appeared
to Rivera that Ross was trying to conceal the object. Ross said
his vehicle was stuck in Rivera’s yard and asked for help in
pulling it out. Rivera testified that Ross never asked him to call
the police or mentioned that people were shooting at him. The
vehicle in Rivera’s yard was a maroon Impala.
When a police officer arrived at North 14th Avenue and
pinkney Street, he noticed Ross behind a house. Ross peeked
around the corner and saw the officer, but then retreated behind
the house.
Miguel barajas lived nearby on North 14th Avenue. On the
morning of February 10, 2010, Ross came to his door and
asked to use a telephone to call a tow truck, explaining his
vehicle had slid into someone’s yard. When Ross was on the
telephone, barajas did not hear him mention anything about
calling the police or needing help. barajas observed a police
officer come up his driveway and take Ross into custody.
Ross’ hands were tested for gunshot residue, but the analyst
could not give a definite opinion as to whether Ross had fired
a weapon. The analyst explained that particles consistent with
gunshot residue were found on Ross’ hands but that none con-
tained all three components necessary to definitively identify a
particle as gunshot residue.
Several shell casings were found in the area of North 33d
Avenue and erskine Street, including several to the south
of the house from which Coleman and his girlfriend were
STATe v. ROSS 	747
Cite as 283 Neb. 742

moving. Two were identified as FC 9-millimeter Luger cas-
ings, and the rest were identified as WIN 9-millimeter Luger
casings. “WIN” and “FC” are designations for Winchester and
Federal Cartridge, which are popular ammunition brands. An
ammunition holder and unfired FC 9-millimeter Luger rounds
were found in the snow near where the Impala stopped in
Rivera’s yard. Rivera testified that no one in his household
owned a 9-millimeter weapon and that there was no reason for
9-millimeter ammunition to be in his yard.
Three bullet holes were found in the Grand Marquis: one in
the driver’s-side door, one in the rear driver’s-side “wing win-
dow,” and one in the shattered rear windshield. An examiner
determined that the holes in the wing window and rear wind-
shield were made by rounds fired from outside the vehicle.
These holes were consistent with someone’s shooting from near
the spot where the spent shell casings were found on North 33d
Avenue, south of where the Grand Marquis was parked.
Several bullet fragments were also recovered from inside
the Grand Marquis. A ballistics expert opined that the bullets
recovered from the Grand Marquis were fired from at least two
different weapons. Upon examination of the bullet fragments
found in the Grand Marquis as well as bullet fragments found
in Tiffany’s body, a 9-millimeter weapon could not be ruled out
as one of the weapons.
The jury convicted Ross on all counts. The court sentenced
him to 5 to 20 years’ imprisonment for discharge of a firearm
at a person, building, or occupied motor vehicle; 5 to 20 years’
imprisonment for use of a deadly weapon to commit a felony;
and 3 to 10 years’ imprisonment for possession of a deadly
weapon by a felon. The sentences were to run consecutively,
with credit for 329 days of time served on the discharge of a
firearm conviction.
Ross appealed to the Nebraska Court of Appeals. In a
memorandum opinion filed on September 27, 2011, the court
concluded that viewing the evidence in a light most favorable
to the State, the evidence was insufficient to support the jury’s
verdicts. The court reasoned:
The evidence indicates that a witness saw a young man
in a white or red vehicle shooting a gun at the Grand
748 	283 NebRASkA RepORTS

Marquis; that Ross was holding something shiny in his
hand which “kind of looked like a handgun clip”; and
that live ammunition was found outside of the red Impala.
Other witnesses observed a man shooting from a silver
car and ensuing in a chase with a red car, while still other
witnesses saw nothing at all, but only heard two rounds
of gunshots. Not one witness was able to identify that the
shooter was actually in the red vehicle and no one identi-
fied Ross, at any time, as holding a gun, shooting a gun,
or having possessed a gun during the events that unfolded
on February 10, 2010.
The court further noted:
[T]he testimony from the forensic experts was inconclu-
sive. A gun was never located either at the scene of the
shooting or during any subsequent search. The gunshot
residue test of Ross’ hands indicated that Ross may or
may not have discharged a gun on February 10, 2010. No
latent fingerprints were found and the testimony regard-
ing the possible trajectories of the bullets, bullet casings,
and the number of guns involved were also inconclusive
and involved significant speculation as to what location
the bullet fragments came from and what type of gun
was used.
In conclusion, the court opined that the only evidence proved
beyond a reasonable doubt was Ross’ 2003 felony conviction.
The court reversed Ross’ convictions for discharge of a firearm
at a motor vehicle, use of a deadly weapon to commit a felony,
and possession of a deadly weapon by a felon. The State timely
filed a petition for further review, which we granted.
ASSIGNMeNT OF eRROR
On further review, the State assigns error to the Court of
Appeals’ conclusion that the evidence was insufficient to sup-
port Ross’ convictions.
STANDARD OF ReVIeW
[1] 	In 	reviewing 	a 	sufficiency 	of 	the 	evidence 	claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
STATe v. ROSS 	749
Cite as 283 Neb. 742

witnesses, or reweigh the evidence; such matters are for the
finder of fact.1 The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.2
ANALYSIS
Ross was convicted of violating Neb. Rev. Stat. § 28-1212.04
(Supp. 	2009), 	which 	at 	the 	time 	the 	shooting 	occurred
provided:
Any person, within the territorial boundaries of any
city, incorporated village, or county containing a city
of the metropolitan class or primary class, who unlaw-
fully, knowingly, and intentionally or recklessly dis-
charges a firearm, while in or in the proximity of any
motor vehicle that such person has just exited, at or in
the general direction of any person, dwelling, building,
structure, [or] occupied motor vehicle . . . is guilty of a
Class IC felony.
In accordance with this statute, the jury was instructed that the
State had to prove beyond a reasonable doubt that (1) on or
about February 10, 2010, Ross “discharged a firearm, while in
the proximity of any motor vehicle that [Ross had] just exited,
at or in the general direction of any person, dwelling, building,
structure, or occupied motor vehicle”; (2) that Ross “did so in
Omaha, Douglas County, Nebraska”; and (3) that Ross “did so
intentionally or recklessly.”
The State offered some direct evidence to prove its case
against Ross. This included Ross’ admissions to police that
he was driving a maroon Impala on North 33d Avenue at the
time the shots were fired into the white vehicle, that he was
aware that the white vehicle was occupied by a woman, and
that he was aware she had been injured by gunfire. This evi-
dence placed Ross at the scene where shots were fired at an
1 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011); State v. Nero, 281
Neb. 680, 798 N.W.2d 597 (2011).
2 Id.
750 	283 NebRASkA RepORTS

occupied motor vehicle. From the testimony of witnesses who
heard two sets of shots and the ballistics evidence summarized
above, the jury could have concluded that at least two persons
fired shots in the general direction of the white Grand Marquis.
The critical question in this appeal is whether there is evidence
upon which the jury could have concluded beyond a reasonable
doubt that Ross was one of the shooters.
[2-5] As the Court of Appeals noted, no witness identified
Ross by name as a shooter. The evidence on this point was
primarily circumstantial. Circumstantial evidence is evidence
which, without going directly to prove the existence of a
fact, gives rise to a logical inference that such fact exists.3
Circumstantial evidence is not inherently less probative than
direct evidence,4 and a fact proved by circumstantial evidence
is nonetheless a proven fact.5 In finding a defendant guilty
beyond a reasonable doubt, a jury may rely upon circumstan-
tial evidence and the inferences that may be drawn therefrom.6
And as noted above, our standard of review for sufficiency
of the evidence to support a conviction does not differentiate
between direct and circumstantial evidence; we are required to
view the evidence in the light most favorable to the prosecution
and to refrain from reassessing the credibility of witnesses and
reweighing the evidence.7 Only where evidence lacks sufficient
probative value as a matter of law may an appellate court set
aside a guilty verdict as unsupported by evidence beyond a
reasonable doubt.8
The record reflects that only two vehicles were in motion
on North 33d Avenue at the scene of the shooting during the
3 State v. Mowry, 245 Neb. 213, 512 N.W.2d 140 (1994); State v. Thompson,
244 Neb. 375, 507 N.W.2d 253 (1993).
4 State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009); State v. Leibhart,
266 Neb. 133, 662 N.W.2d 618 (2003).
5 State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996); State v. Pierce,
248 Neb. 536, 537 N.W.2d 323 (1995).
6 Leibhart, supra note 4; State v. Miner, 265 Neb. 778, 659 N.W.2d 331
(2003).
7 McCave, supra note 1.
8 Id.; State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
STATe v. ROSS 	751
Cite as 283 Neb. 742

moments immediately before and after it occurred. One was the
silver vehicle occupied by unidentified persons, and the other
was the maroon Impala operated by Ross, who was the only
male associated with that vehicle. The evidence supports an
inference that at the time of the shooting, the Grand Marquis
was situated generally between the silver vehicle to the north
and the Impala to the south, with all three vehicles facing
north. There is evidence that shots fired from outside the Grand
Marquis entered its rear wing window on the driver’s side and
rear windshield. This is consistent with shots fired from the
rear, or south, of the Grand Marquis.
Ross was 26 years old at the time of the shooting. pierce
testified that she observed a “young man” standing outside the
driver’s side of a vehicle “shooting towards her car.” Although
she did not recall the color of the shooter’s vehicle, pierce
testified that the driver left the scene by backing up onto Grant
Street and then driving away. Other witnesses testified that
they observed someone backing up a red vehicle down North
33d Avenue and then onto Grant Street and driving away. Ross
told police that he left the scene of the shooting by backing up
his vehicle and driving away. There is no evidence of anyone
backing up any other vehicle down North 33d Avenue imme-
diately after the shooting. pierce testified that the young man
she had seen firing shots made a reference to “29th Street” as
he left the scene. Ross told police that after backing up his
vehicle down North 33d Avenue, he stopped near a pink house
and shouted that people from “29th Street” were shooting at
him. This evidence supports a reasonable inference that Ross
was the young man pierce observed firing shots in the general
direction of the occupied Grand Marquis.
The subsequent events at North 14th Avenue and pinkney
Street further reinforce and strengthen this inference. berry
identified the Impala in Rivera’s yard as the vehicle he had
observed backing up on North 33d Avenue a short time earlier.
Rivera observed Ross emerge from behind his garage, holding
and attempting to conceal what appeared to be a handgun clip.
Although Ross denied having a weapon, an ammunition holder
and several unfired 9-millimeter Luger rounds were found in
the snow near where the Impala came to rest in Rivera’s yard.
752 	283 NebRASkA RepORTS

Some of the spent shell casings recovered from the scene of
the shooting were marked 9-millimeter Luger casings and were
consistent with the live rounds found near the Impala. Rivera’s
testimony negated an inference that the ammunition holder and
live rounds belonged to him.
In his statement to police, Ross said that he told persons
at the North 14th Avenue and pinkney Street location that
he needed help because people were trying to harm him. but
the testimony of Rivera and barajas indicates that Ross asked
only for assistance in removing the Impala from Rivera’s yard
and that he did not mention a shooting or request any police
assistance. When Ross observed a police officer arriving at the
scene, he retreated behind a house.
Viewing this direct and circumstantial evidence in a light
most favorable to the prosecution, as our standard of review
requires, we conclude that a rational trier of fact could have
found that upon exiting the Impala, Ross unlawfully, know-
ingly, and intentionally or recklessly discharged a firearm in
the general direction of the Grand Marquis in which Tiffany
was seated and that these events occurred in Omaha, Douglas
County, Nebraska. Accordingly, the evidence was sufficient to
support Ross’ conviction for unlawful discharge of a firearm
in violation of § 28-1212.04 and his conviction for use of a
deadly weapon to commit a felony in violation of Neb. Rev.
Stat. § 28-1205(1) (Cum. Supp. 2010). The same evidence,
together with the evidence of Ross’ prior felony conviction, is
sufficient to support his conviction for possession of a deadly
weapon by a felon in violation of Neb. Rev. Stat. § 28-1206(1)
(Supp. 2009). Accordingly, the Court of Appeals erred in
reversing these convictions.
CONCLUSION
For the reasons discussed above, the evidence was sufficient
to support each of the three felony convictions challenged in
this appeal. We reverse the judgment of the Court of Appeals
and remand the cause to that court with directions to affirm the
judgment of the district court.
reversed and reManded WIth dIrectIons.
STATe v. ROSS 	753
Cite as 283 Neb. 742