State v. Castillas

174 	285 NEBRASKA REPORTS
State of NebraSka, appellee, v.
DaviD G. CaStillaS, appellaNt.
826 N.W.2d 255
Filed February 8, 2013. 	No. S-11-685.
1. 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
(Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial court’s decision
will not be reversed absent an abuse of discretion.
2. Criminal Law: Evidence: Appeal and Error. In reviewing a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial, or a combination
thereof, the standard 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 reasonable doubt.
3. 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.
4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
5. Rules of Evidence: Appeal and Error. 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. Rules of Evidence. The fact that evidence is prejudicial is not enough to require
exclusion under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008),
because most, if not all, of the evidence a party offers is calculated to be prejudi-
cial to the opposing party; it is only the evidence which has a tendency to suggest
a decision on an improper basis that is unfairly prejudicial under § 27-403.
7. 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.
8. Motions to Dismiss: Evidence: Waiver: Appeal and Error. When a court over-
rules a defendant’s motion to dismiss at the close of the State’s case in chief and
the defendant proceeds to trial and introduces evidence, the defendant waives the
appellate right to challenge the trial court’s overruling of the motion to dismiss.
9. Sentences. It is possible, in limited circumstances, to correct an inadvertent mis-
pronouncement of a valid sentence.
10. ____. When a valid sentence has been put into execution, the trial court cannot
modify, amend, or revise it in any way, either during or after the term or session
of court at which the sentence was imposed.
11. 	____. If there is a conflict between the court’s sentence and its truth in sentencing
advisement, the statements of the minimum and maximum limits control.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

STATE v. CASTILLAS 	175
Cite as 285 Neb. 174
Appeal from the District Court for Douglas County: Gary b.
raNDall, Judge. Affirmed.
Beau G. Finley, of Finley & Kahler Law Firm, P.C., L.L.O.,
for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
H eaviCaN, C.J., WriGHt, C oNNolly, StepHaN, MCC orMaCk,
and M iller-lerMaN, JJ.
WriGHt, J.
NATURE OF CASE
David G. Castillas was convicted of two counts of discharg-
ing a firearm at a dwelling while in or near a motor vehicle,
one count of second degree assault, and three counts of use
of a deadly weapon to commit a felony. He was sentenced to
5 to 20 years in prison on each conviction of discharging a
firearm, 5 to 10 years in prison on the conviction of second
degree assault, and 5 to 10 years in prison on each conviction
of use of a weapon to commit a felony. All sentences were
to be served consecutively. Castillas appeals his convictions
and sentences.
SCOPE OF REVIEW
[1] 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 (Reissue 2008) and 27-404(2) (Cum. Supp. 2012),
and the trial court’s decision will not be reversed absent an
abuse of discretion. State v. Freemont, 284 Neb. 179, 817
N.W.2d 277 (2012).
[2] In reviewing a sufficiency of the evidence claim, whether
the evidence is direct, circumstantial, or a combination thereof,
the standard 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 pros-
ecution, any rational trier of fact could have found the essential

176 	285 NEBRASKA REPORTS
elements of the crime beyond a reasonable doubt. State v.
Howell, 284 Neb. 559, 822 N.W.2d 391 (2012).
[3] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. State v. Smith, 284 Neb. 636, 822 N.W.2d
401 (2012).
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Kass, 281 Neb. 892, 799 N.W.2d
680 (2011).
FACTS
baCkGrouND
On June 5, 2010, a driveby shooting occurred at the home
of Donald Jones in Omaha, Nebraska. On June 11, another
driveby shooting occurred at the home of William Harris, who
lived with his mother at the home, also located in Omaha.
During the second shooting, Harris’ mother sustained a bullet
wound to her left arm.
Castillas, Travis 	Davis, Tiffany 	Fitzgerald, 	and 	Brandy
Beckwith were charged in connection with the shootings. On
April 26, 2011, the State was granted leave to file additional
charges against Castillas. It filed an amended information
charging Castillas with two counts of discharging a firearm at a
dwelling while in or near a motor vehicle, one count of second
degree assault, and three counts of use of a deadly weapon to
commit a felony.
Castillas filed a motion in limine to exclude evidence of
or testimony regarding an incident following the shootings,
during which Castillas allegedly possessed a firearm and bran-
dished it at Donald Betts, a witness for the State. Castillas also
moved to exclude any photographs of him handling a firearm.
Castillas alleged that evidence on this issue would not be reli-
able or relevant, that such evidence would be excludable under
§ 27-404(2), and that any probative value under § 27-403
would be outweighed by unfair prejudice. He also claimed the
evidence would be improper propensity evidence prohibited
under § 27-404. Both motions were overruled.

STATE v. CASTILLAS 	177
Cite as 285 Neb. 174
Jury trial
Castillas’ trial commenced on May 4, 2011, in Douglas
County District Court. The State called Davis, Fitzgerald, and
Beckwith. All three testified that on June 5, 2010, they drove
with Castillas to Jones’ house. They testified that Castillas
and Davis shot at the residence multiple times with firearms.
They also testified that on the night of the second shooting,
all four individuals, along with a person named “Lars,” drove
to Harris’ house and that Castillas and Davis each fired at
the residence.
eveNtS of JuNe 4 aND 5, 2010
On the evening of June 4, 2010, Castillas and Davis were
“partying” with Fitzgerald and Beckwith. The four of them
were taking photographs of themselves holding guns, to “look
cool.” One of the guns was a .45-caliber pistol that belonged
to Davis, and the other was a .22-caliber rifle that belonged
to Fitzgerald’s father. Fitzgerald recalled that the photographs
marked as exhibits 93, 94, 95, and 97 were taken that spe-
cific night, because she recognized the black dresses she and
Beckwith were wearing.
Davis testified that Castillas and Fitzgerald argued about
Betts on the night of the first shooting. Betts had been dating
Fitzgerald, who was Castillas’ girlfriend, and Castillas wanted
revenge. Betts was the son of Jones, and he occasionally lived
with Jones. Davis had never met Betts, but he became upset
with Betts due to rumors that Betts had fired a weapon at
Davis’ car.
Sometime after midnight on June 5, 2010, Castillas accused
Fitzgerald of continuing to talk to Betts. Castillas took the
rifle, Davis took his pistol, and the four got into Beckwith’s
car. Beckwith drove, with Davis in the front passenger seat,
Fitzgerald in the rear passenger seat, and Castillas in the rear
driver’s-side seat. Castillas gave Beckwith directions to Jones’
house. As they drove past the house, Castillas and Davis both
fired at it. Davis sat on “the [front passenger] window sill” and
fired his pistol across the roof of the car, and Castillas fired the
rifle out the back window. Davis testified he fired at least five

178 	285 NEBRASKA REPORTS
or six shots and heard Castillas fire at least two or three shots.
The group then returned to Fitzgerald’s house.
Jones testified that on June 4, 2010, he lived in Omaha with
his wife and three of his children. Betts occasionally resided
there as well. At approximately 1:30 a.m. on June 5, while
Jones and his wife were in their bedroom, a bullet was fired
through the bedroom wall. The couple hid in the closet as sev-
eral more shots were fired. When the shooting stopped, Jones
called the 911 emergency dispatch service. He testified there
were no bullet holes in his house prior to this shooting. Betts
was not at the house when the incident occurred.
A crime scene technician with the Omaha Police Department
crime laboratory testified that she collected shell casings lying
in front of Jones’ house. She found five shell casings in the
street and located 23 bullet holes in the house, which appeared
to have been caused by bullets of two different sizes. Several
bullets from the house were placed in an envelope along with
the five shell casings found in the street.
eveNtS of JuNe 10 aND 11, 2010
On June 10, 2010, Castillas, Davis, Fitzgerald, Beckwith,
and “Lars” were partying at Fitzgerald’s house. Castillas men-
tioned that Betts “hangs out” at Harris’ house, and Castillas
and Davis talked about “shooting that house up.” The five went
in Beckwith’s car. Davis was in front, and Castillas was in the
rear driver’s-side seat. Castillas had the same .22-caliber rifle,
and Davis had a new 9-mm weapon that he had just obtained.
Castillas and Davis fired at Harris’ house. After the shooting,
they returned to Fitzgerald’s house.
Harris’ mother lived in Omaha with Harris and her other
son. She was asleep during the early morning hours of June
11, 2010, and was awakened when a bullet struck and passed
through her left arm. She fell on the floor as several more shots
were fired at her house.
otHer trial eviDeNCe
On June 11, 2010, several hours after the second shooting,
Betts went to Fitzgerald’s house to talk to her about the shoot-
ings. While Betts was talking to Fitzgerald outside, Castillas

STATE v. CASTILLAS 	179
Cite as 285 Neb. 174
and Davis came outside. Castillas went back inside, and Betts
saw him in an upstairs window with a gun that looked like the
.22-caliber rifle used in the shootings.
Det. David Schneider attempted to speak with Fitzgerald fol-
lowing the shootings. Fitzgerald and Beckwith eventually went
to an Omaha police station and spoke with Detective Schneider.
Initially, they were untruthful, but they later admitted that they
were involved in the driveby shootings and provided a detailed
account. A detective went to Fitzgerald’s house and seized the
.22-caliber rifle, two empty magazines, and another magazine
that contained 11 rounds of .22-caliber ammunition.
Davis was arrested at his residence, and police seized his
.45-caliber pistol. He initially denied involvement in the shoot-
ings but subsequently provided a detailed account that matched
the accounts given by Fitzgerald and Beckwith. Detective
Schneider learned that Beckwith had taken Castillas to meet
a family member near Crete, Nebraska, and that Castillas had
gone to Texas. Castillas was apprehended in Corpus Christi,
Texas, and transported back to Nebraska.
The .22-caliber rifle seized from Fitzgerald’s house and the
.45-caliber pistol from Davis’ house were sent to the Omaha
Police Department crime laboratory for ballistic comparison.
A senior technician for the crime laboratory analyzed shell
casings from both shootings. She testified that the five shell
casings from the first driveby shooting were from a .45-caliber
pistol and that two of the bullets recovered from the first shoot-
ing had characteristics that were consistent with the .22-caliber
rifle. Regarding the second driveby shooting, the technician
determined that 11 shell casings were from the .22-caliber
rifle, 5 were from a 9-mm weapon, and all of the bullets recov-
ered that were suitable for comparison were consistent with a
9-mm weapon.
After the evidence was presented, the State rested. Castillas
moved to dismiss all charges against him for lack of evidence.
The motion was overruled, and Castillas called Fitzgerald
to testify.
Following the conclusion of the testimony, the court held
a jury instruction conference. Castillas objected to instruction
No. 11, which dealt with voluntary flight. His objection was

180 	285 NEBRASKA REPORTS
overruled, and the court instructed the jury. After submission of
the case, the jury found Castillas guilty of all six counts. Each
of Castillas’ three convictions for use of a deadly weapon to
commit a felony required a mandatory minimum sentence of 5
years. See Neb. Rev. Stat. §§ 28-1205(1)(c) (Cum. Supp. 2012)
and 28-105(1) (Reissue 2008). Both of his convictions for
discharging a firearm at a dwelling while in or near a vehicle
also required mandatory minimum terms of 5 years each. See
Neb. Rev. Stat. § 28-1212.04 (Supp. 2009) and § 28-105(1).
His conviction for second degree assault had no mandatory
minimum sentence. See Neb. Rev. Stat. § 28-309 (Supp. 2009)
and § 28-105(1).
CaStillaS’ SeNteNCeS
A sentencing hearing was held on July 28, 2011. The
court stated it intended that for purposes of parole eligibility,
Castillas should serve 25 years in the Nebraska Department
of Correctional Services after credit for good time. It initially
sentenced Castillas to aggregate consecutive prison sentences
of 50 to 80 years.
After the court’s first sentence pronouncement, the court
inquired whether counsel agreed that Castillas would be eli-
gible for parole consideration in 25 years. The prosecutor
opined that the court’s understanding was incorrect. Counsel
disagreed on the calculation of parole eligibility. In response
to defense counsel’s statement that Castillas might not be eli-
gible for parole for 35 years, the court stated that was not the
court’s intention.
Before anyone left the courtroom, the court pronounced the
following sentences, which in the aggregate amounted to 30 to
80 years:
• Count I, discharging a firearm at a dwelling while in or near
a motor vehicle, 5 to 20 years.
• Count II, use of a deadly weapon to commit a felony, 5 to
10 years.
• Count III, second degree assault, 5 to 10 years.
• Count IV, use of a deadly weapon to commit a felony, 5 to
10 years.
• Count V, discharging a firearm at a dwelling while in or near
a motor vehicle, 5 to 20 years.

STATE v. CASTILLAS 	181
Cite as 285 Neb. 174
• Count VI, use of a deadly weapon to commit a felony, 5 to
10 years.
The 	court’s 	“truth 	in 	sentencing” 	advisement 	informed
Castillas: “That will be a total of 30 to 80 years, meaning
you have to serve 25 years to be released on parole. And after
40 years, if you lose no good time, you’ll be released.” The
court’s written order directed that the sentences be served con-
secutively and gave Castillas credit for 379 days served.
ASSIGNMENTS OF ERROR
Castillas alleges, summarized and restated, that (1) the court
erred in allowing testimony at trial concerning whether he
possessed firearms after the second shooting, (2) the court
erred in admitting photographs of Castillas possessing fire-
arms, (3) the evidence at trial was insufficient, (4) the court
erred in overruling Castillas’ motion to dismiss at the end of
the State’s case, (5) the court erred in giving jury instruction
No. 11 with regard to voluntary flight, and (6) the court erred
in ordering a sentence that was substantially different from its
intended sentence.
ANALYSIS
eviDeNCe relateD to poSSeSSioN of .22-Caliber
rifle after SeCoND SHootiNG
The State introduced evidence that Betts went to Fitzgerald’s
home several hours after the second shooting. Betts saw
Castillas holding a weapon that looked like the rifle Castillas
was alleged to have used in both shootings. Before trial,
Castillas moved to prohibit the State from presenting such tes-
timony. The court overruled the motion.
Castillas alleges that during the trial, he was granted a
continuing objection to this evidence and that, therefore, his
alleged error concerning the admission of the evidence has
been preserved for review on appeal. Castillas claims that
admission of the evidence violated §§ 27-403 and 27-404.
Section 27-404(2) provides:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may,

182 	285 NEBRASKA REPORTS
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident.
Castillas asserts that the State offered no proper purpose for
this evidence and that the court should have held a rule
404 hearing.
The State argues that Castillas waived any objection to
this evidence by his failure to object during Betts’ testimony.
Although Castillas moved to exclude the evidence before
trial, he did not object or renew his motion during Betts’
testimony that he went to Fitzgerald’s house after the second
shooting and saw Castillas with a gun that looked like the
.22-caliber rifle Castillas allegedly used in the shootings. The
State claims that Castillas did not raise the necessary objec-
tion, because although he had received a continuing objec-
tion during the direct examinations of Davis, Fitzgerald, and
Beckwith, he did not object or renew his objection during
Betts’ testimony.
Neb. Rev. Stat. § 25-1141 (Reissue 2008) provides:
Where an objection has once been made to the admis-
sion of testimony and overruled by the court it shall be
unnecessary to repeat the same objection to further testi-
mony of the same nature by the same witness in order to
save the error, if any, in the ruling of the court whereby
such testimony was received.
The State claims § 25-1141 does not apply to testimony
given by a different witness when no objection is made to
that witness’ testimony. We agree. Castillas failed to object
to Betts’ testimony and has therefore waived his objection to
such testimony.
pHotoGrapHS of CaStillaS, DaviS,
fitzGeralD, aND beCkWitH
During the trial, the State introduced four photographs.
Three of the photographs show Castillas with a rifle that
resembles the .22-caliber rifle allegedly used in the shoot-
ings; the fourth does not depict a firearm. Exhibit 93 is a
photograph of Castillas holding a .22-caliber rifle and posing
alongside Fitzgerald, who is holding Davis’ .45-caliber pistol.

STATE v. CASTILLAS 	183
Cite as 285 Neb. 174
Exhibit 94 is a photograph of Castillas posing by himself with
a .22-caliber rifle. Exhibit 95 is a photograph of Castillas
holding the rifle and posing alongside Beckwith, who is
holding Davis’ .45-caliber pistol. Castillas objected to these
photographs, claiming they were irrelevant, were unfairly
prejudicial, and violated § 27-404(2). The court overruled
these objections.
Castillas claims the photographs were overly prejudicial.
In support of his argument, Castillas attacks the credibility of
Fitzgerald, who testified that the photographs were taken the
evening of the first shooting. He asks this court to disregard
such testimony, because Fitzgerald lied repeatedly to the police
in order to get out of trouble and wrote false accounts of the
shootings months after they occurred and because there was no
other independent evidence offered to establish that the photo-
graphs were taken on the date claimed by Fitzgerald.
[5] Where the Nebraska Evidence Rules commit the eviden-
tiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discre-
tion. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
Fitzgerald’s credibility does not control the admission of the
photographs. On appeal, we do not examine the credibility
of the witnesses. Fitzgerald’s testimony established that the
photographs were taken near the time of the first shooting.
Both Davis and Beckwith acknowledged the photographs were
taken, and Beckwith acknowledged they were taken on the
night of either the first or second shooting.
[6] Whether the evidence was unfairly prejudicial was a
decision for the trial court, whose decision we will not reverse
unless there is an abuse of discretion. See id. The fact that evi-
dence is prejudicial is not enough to require exclusion under
§ 27-403, because most, if not all, of the evidence a party offers
is calculated to be prejudicial to the opposing party; it is only
the evidence which has a tendency to suggest a decision on
an improper basis that is unfairly prejudicial under § 27-403.
State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011). We
conclude Castillas has not established that the admission of the
photographs was unfairly prejudicial. The court did not abuse
its discretion in admitting these photographs.

184 	285 NEBRASKA REPORTS
Castillas’ argument that the photographs should have been
excluded under § 27-404(2) is also without merit. The evi-
dence established that the photographs were taken on or near
the night of the first shooting. They were admissible as intrin-
sic evidence because they corroborated testimony of the wit-
nesses that Castillas had access to and was in possession of a
.22-caliber rifle at the time of the shootings.
SuffiCieNCy of eviDeNCe
[7] In reviewing a sufficiency of the evidence claim, we do
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact. See State v. Howell, 284 Neb. 559, 822 N.W.2d
391 (2012). The relevant question 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 reasonable doubt. See id. Only where evi-
dence 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. Id.
Castillas claims that the evidence was insufficient to find
him guilty of any of the six counts alleged in the amended
information. He claims the State failed to provide even a viable
narrative of why the shootings occurred. We disagree. The
evidence established that Castillas had a desire to injure Betts.
Castillas asserts that Davis had a stronger motive to commit
the crimes, because Davis may have believed that Betts and
Harris fired shots at Davis’ car. The fact that Davis might have
had a motive to injure Betts and Harris supports the evidence
that both Castillas and Davis participated in the shootings.
Castillas also argues that the State’s dependence upon Davis,
Fitzgerald, and Beckwith to support the accusation that Castillas
shot at both houses is insufficient, because all three admitted to
lying to police when questioned about these incidents.
These arguments have no merit. The credibility of Davis,
Fitzgerald, and Beckwith is not part of our review for suf-
ficiency of the evidence. We do not pass on the credibility of
witnesses or reweigh the evidence. Viewing the evidence in
the light most favorable to the State, a rational trier of fact

STATE v. CASTILLAS 	185
Cite as 285 Neb. 174
could have found beyond a reasonable doubt that Castillas
committed the crimes charged. Castillas’ argument that no
rational trier of fact would have found him guilty of these six
offenses because the State’s witnesses were not credible is
without merit.
MotioN to D iSMiSS
Castillas claims the court erred in overruling his motion
to dismiss, which was made after the State presented its case
in chief. After the State rested, Castillas started to make a
motion to dismiss. The court stated that Castillas could defer
the motion, which he did. Castillas then called Davis to the
stand. Later, while the jury was on a lunch break, Castillas
moved to dismiss. He claimed the State had failed to make
a prima facie case against him on any of the charges. The
court overruled the motion. Castillas then called his final wit-
ness, Fitzgerald.
[8] When a court overrules a defendant’s motion to dismiss
at the close of the State’s case in chief and the defendant pro-
ceeds to trial and introduces evidence, the defendant waives
the appellate right to challenge the trial court’s overruling
of the motion to dismiss. State v. Dixon, 282 Neb. 274, 802
N.W.2d 866 (2011). Castillas waived his argument by calling
Fitzgerald as a witness after the State had rested and after his
motion to dismiss was overruled. His assignment of error is
without merit.
Jury iNStruCtioN oN fliGHt
Before the case was submitted to the jury, the court gave
instruction No. 11, which provided:
The voluntary flight of [Castillas] immediately or soon
after the occurrence of a crime, with which [Castillas] has
been charged, is a circumstance not sufficient of itself to
establish guilt, but a circumstance nevertheless which you
may consider in connection with all the other evidence
in this case to aid you in determining the question of the
guilt or innocence of [Castillas].
Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower

186 	285 NEBRASKA REPORTS
court’s decision. State v. Smith, 284 Neb. 636, 822 N.W.2d
401 (2012). Castillas claims he was prejudiced by instruction
No. 11 because the instruction forced the jury to conclude
that his departure from Omaha was a flight. He argues that
the jury should have been instructed in such a way that they
could differentiate between the term “flight” and mere depar-
ture. He alleges that there was no way for the jury to discern
the difference between flight and departure and that without a
definition of flight, the jury would not be able to consider the
distinction between the two. He claims there is little evidence
in the record to suggest that he left Omaha to avoid apprehen-
sion or detection.
Castillas’ arguments have no merit. In State v. Lincoln, 183
Neb. 770, 772, 164 N.W.2d 470, 472 (1969), this court upheld
the giving of a flight instruction that stated:
“You are instructed that the voluntary flight of a person
immediately or soon after the occurrence of a crime, with
which the person so fleeing has been charged, is a cir-
cumstance, not sufficient of itself to establish guilt, but a
circumstance nevertheless which the Jury may consider in
connection with all the other evidence in the case to aid
you in determining the question of the guilt or innocence
of such person.”
This instruction is substantively the same as the instruction
given in the case at bar.
Beckwith testified that she took Castillas to Crete “days to a
week” after the second shooting. She responded “[y]es” when
asked whether Castillas had requested to be taken to Crete
only after Detective Schneider was “kind of poking around.”
Beckwith was then asked, “Did [Castillas] tell you why he
wanted to be taken to Crete, Nebraska?” Beckwith responded
that Castillas said that “if they were looking for anybody they
were looking for him.” There was sufficient evidence for the
jury to infer flight, see State v. Pullens, 281 Neb. 828, 800
N.W.2d 202 (2011), and the court did not err in giving instruc-
tion No. 11 to the jury.
Additionally, 	Castillas 	did 	not 	submit 	a 	proposed 	jury
instruction or request a more specific instruction containing a
definition of flight. If he desired a more precise jury instruction,

STATE v. CASTILLAS 	187
Cite as 285 Neb. 174
Castillas should have requested one at the time the instructions
were being considered. See State v. Lewis, 241 Neb. 334, 488
N.W.2d 518 (1992). His failure to offer a more specific instruc-
tion precludes his raising this objection on appeal. See State v.
Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
SeNteNCiNG
Castillas claims that the court erred by imposing sentences
which failed to achieve the court’s expressed intent of mak-
ing Castillas eligible for parole in 25 years. An appellate court
will not disturb a sentence imposed within the statutory limits
absent an abuse of discretion by the trial court. State v. Kass,
281 Neb. 892, 799 N.W.2d 680 (2011).
At the sentencing hearing, the court initially pronounced con-
secutive sentences resulting in an aggregate sentence of 50 to
80 years. The court stated: “It means that after 25 years, you’ll
be considered eligible for consideration — is that right?” The
prosecutor and defense counsel then disagreed about the cal-
culation of parole eligibility. In response to defense counsel’s
statement that the sentence pronounced might make Castillas
ineligible for parole for 35 years, the court stated that was not
the court’s intention. The court then stated:
My intention is that with the mandatory minimums,
. . . Castillas should serve 25 years in the Nebraska
Department of Correctional Services after credit for good
time. So if the numbers [minimum portion of each sen-
tence] would add up to 30, that would give it a 25-year
mandatory minimum — 25-year minimum, I’m sorry.
After mandatory of 20, he would have 10 years for which
he would get good time credit, which would be divided in
half for the 25. So we will start over.
The court sentenced Castillas to an aggregate prison sen-
tence of 30 to 80 years: 5 to 20 years on counts I and V, for
shooting at a dwelling from a vehicle, and 5 to 10 years on
counts II, IV, and VI, for use of a weapon to commit a felony,
and count III, for second degree assault. All sentences were to
be served consecutively.
For its truth in sentencing advisement, the court informed
Castillas that he would be sentenced to a total of 30 to 80

188 	285 NEBRASKA REPORTS
years, that he would have to serve 25 years to be released
on parole, and that after 40 years, if he lost no good time, he
would be released.
The statutory sentencing requirements for the charges are
as follows:
• Counts I and V: discharging a firearm at a dwelling while
in or near a vehicle, a violation of § 28-1212.04, Class IC
felony, punishable by a mandatory minimum of 5 years and a
maximum of 50 years. § 28-105(1).
• Counts II, IV, and VI: use of a deadly weapon, a firearm, to
commit a felony, a violation of § 28-1205(1)(c), Class IC
felony, punishable by a mandatory minimum of 5 years and a
maximum of 50 years. § 28-105(1).
• Count III: second degree assault, a violation of § 28-309,
Class III felony, punishable by a minimum of 1 year and a
maximum of 20 years. § 28-105(1).
[9,10] It is possible, in limited circumstances, to correct an
inadvertent mispronouncement of a valid sentence. State v.
Clark, 278 Neb. 557, 772 N.W.2d 559 (2009). Hence, it was
permissible for the court to resentence Castillas to correct the
sentence to match the court’s intention. The court stated its
intention to structure an aggregate sentence that would result
in Castillas’ being eligible for parole in 25 years. In imposing
a sentence, it is appropriate for a sentencing court to consider
how good time credit affects a sentence, that is, when a defend-
ant will be eligible for parole and mandatory release. See
State v. Cadwallader, 230 Neb. 881, 434 N.W.2d 506 (1989).
The sentences on all six convictions were within the statutory
limits. And when a valid sentence has been put into execution,
the trial court cannot modify, amend, or revise it in any way,
either during or after the term or session of court at which the
sentence was imposed. State v. Clark, supra.
Though the sentences pronounced were valid, they did
not 	match 	the 	court’s 	intention. 	The 	court 	miscalculated
when Castillas would be eligible for parole and for manda-
tory discharge.
Parole eligibility is governed by Neb. Rev. Stat. § 83-1,110
(Reissue 2008), which provides in relevant part: “(1) Every
committed offender shall be eligible for parole when the

STATE v. CASTILLAS 	189
Cite as 285 Neb. 174
offender has served one-half the minimum term of his or her
sentence as provided in [§] 83-1,107 . . . . No such reduction of
sentence shall be applied to any sentence imposing a mandatory
minimum term.” Pursuant to Neb. Rev. Stat. § 83-1,107(2)(a)
and (3) (Cum. Supp. 2012), the term of a committed offender
is reduced “by six months for each year of the offender’s term
and pro rata for any part thereof which is less than a year,”
but “reductions of terms . . . may be forfeited, withheld, and
restored” by correctional facility officials. Section 83-1,110
makes clear that these good time reductions do not apply to
mandatory minimum sentences.
In Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191
(2002), we considered whether good time credit should be
applied to the maximum portion of a sentence before the
mandatory minimum sentence had been served. We held that
it could not, because good time credit applies only after the
mandatory minimum has been served. One of the purposes
behind § 83-1,107, the good time credit statute, was to
ensure that no one would reach mandatory discharge before
reaching parole eligibility. We stated in Johnson v. Kenney,
supra, that it would defeat the legislative intent if a defend-
ant reached mandatory discharge before being eligible for
parole, because the minimum portion of the sentence would
have no meaning.
In calculating parole eligibility in State v. Kinser, 283 Neb.
560, 811 N.W.2d 227 (2012), this court held that a defend-
ant must serve the mandatory minimum plus one-half of the
remaining minimum sentence before becoming eligible for
parole. A jury found William D. Kinser, Jr., guilty of felony
flight to avoid arrest. After finding that he had five previous
felony convictions, the district court concluded that Kinser
was a habitual criminal and sentenced him to a term of not
less than 18 nor more than 30 years’ imprisonment. Kinser
argued that the sentencing order must be reversed because the
court intended for him to be eligible for parole after 10 years,
whereas under the sentence imposed, he would not be eligible
for parole for 14 years.
We held that with the minimum sentence of 18 years, Kinser
was required to serve a minimum of 10 years plus one-half of

190 	285 NEBRASKA REPORTS
the remaining 8 years before he would be eligible for parole.
During sentencing, the court had stated:
“[Kinser] will be sentenced . . . [o]n Count I [fleeing to
avoid arrest], which is the felony, [to] not less than 18
years and not more than 30 years. The minimum will
include the mandatory minimum of 10 years with a two-
year revocation of his license. Those sentences will be
served concurrent. I give him credit for 190 days that he
has served.”
Id. at 568-69, 811 N.W.2d at 233.
On appeal, Kinser claimed that the district court erred in
sentencing him as a habitual criminal and in imposing an
erroneous sentence. We found that the sentencing court did
not clearly state that Kinser would be eligible for parole after
serving 10 years, but that even if it had, the question would be
resolved by Neb. Rev. Stat. § 29-2204(1) (Reissue 2008). Any
discrepancy between the minimum sentence of 18 years for
Kinser’s flight to avoid arrest conviction and the statements of
the sentencing court regarding parole eligibility would be con-
trolled by the court’s statements with regard to the minimum
sentence. Pursuant to our holding in Johnson v. Kenney, 265
Neb. 47, 654 N.W.2d 191 (2002), good time credit would not
reduce the 10-year mandatory minimum portion of Kinser’s
sentence for flight to avoid arrest. Thus, assuming no loss of
good time credit, Kinser was required to serve the 10-year
mandatory minimum plus 4 of the remaining 8 years of the
minimum sentence, less credit for time served, before becom-
ing eligible for parole.
Logically, a defendant must serve the mandatory minimum
portion of a sentence before earning good time credit toward
the maximum portion of the sentence. Johnson v. Kenney,
supra, indicates that a defendant receives no good time credit
until after serving any mandatory minimum. Thus, a defendant
would be unable to earn good time credit against either the
minimum or maximum sentence until the defendant had served
the mandatory minimum sentence. As noted in State v. Kinser,
supra, the parole eligibility date is determined by subtracting
the mandatory minimum sentence from the court’s minimum
sentence, halving the difference, and adding that difference to

STATE v. CASTILLAS 	191
Cite as 285 Neb. 174
the mandatory minimum. Similarly, the mandatory discharge
date is computed by subtracting the mandatory minimum sen-
tence from the maximum sentence, halving the difference, and
adding that difference to the mandatory minimum.
Mandatory minimum sentences cannot be served concur-
rently. A defendant convicted of multiple counts each carrying
a mandatory minimum sentence must serve the sentence on
each count consecutively.
Accordingly, the court was required to sentence Castillas to
consecutive terms for each conviction carrying a mandatory
minimum. The court incorrectly computed Castillas’ parole
eligibility date because it mistakenly used 20 years as the
mandatory minimum sentence instead of the required 25 years.
Five of the convictions were Class IC felonies, each carrying a
mandatory 5-year minimum. See § 28-105(1).
Castillas was sentenced to 30 to 80 years. Subtracting the
mandatory minimum sentence, 25 years, from the court’s mini-
mum sentence, 30 years, leaves 5 years for which Castillas
could receive good time credit. Castillas must serve half of
those 5 years, or 21⁄2 years, plus the mandatory minimum of 25
years before becoming eligible for parole. Accordingly, under
the court’s sentence, Castillas would be eligible for parole in
271⁄2 years, assuming no loss of good time.
Similarly, subtracting the mandatory minimum sentence of
25 years from the maximum sentence of 80 years leaves 55
years for which Castillas could receive good time credit.
Castillas must serve half of those 55 years, or 271⁄2 years, plus
the mandatory minimum of 25 years before becoming eligible
for mandatory release. Accordingly, under the court’s sentence,
Castillas would reach his mandatory discharge date in 521⁄2
years, assuming no loss of good time.
In summary, based on the sentences pronounced by the
court, Castillas will be eligible for parole in 271⁄2 years and eli-
gible for mandatory discharge in 521⁄2 years, assuming no loss
of good time. However, the court told Castillas that he would
be eligible for parole in 25 years and subject to mandatory dis-
charge in 40 years, assuming no loss of good time.
[11] If there is a conflict between the court’s sentence
and its truth in sentencing advisement, the statements of

192 	285 NEBRASKA REPORTS
the 	minimum 	and 	maximum 	limits 	control. 	Pursuant 	to
§ 29-2204(1), in imposing an indeterminate sentence upon an
offender, the court shall:
(A) Fix the minimum and maximum limits of the sen-
tence to be served within the limits provided by law for
any class of felony other than a Class IV felony . . . .
. . . .
(b) Advise the offender on the record the time the
offender will serve on his or her minimum term before
attaining parole eligibility assuming that no good time for
which the offender will be eligible is lost; and
(c) Advise the offender on the record the time the
offender will serve on his or her maximum term before
attaining mandatory release assuming that no good time
for which the offender will be eligible is lost.
If any discrepancy exists between the statement of
the minimum limit of the sentence and the statement of
parole eligibility or between the statement of the maxi-
mum limit of the sentence and the statement of manda-
tory release, the statements of the minimum limit and
the maximum limit shall control the calculation of the
offender’s term.
Castillas argues that because the court intended to give an
aggregate sentence making him eligible for parole after 25
years, the intention of the sentencing court should prevail.
Castillas asserts that because the sentences rendered in this
case clearly did not comport with the intention of the court,
the sentences are erroneous. He requests that this court remand
the cause for resentencing in conformity with the trial court’s
articulated intentions.
Castillas’ actual aggregate sentence is computed based on
the court’s statement of the minimum and maximum limits of
30 to 80 years. As computed above, Castillas will be eligible
for parole in 271⁄2 years and subject to mandatory discharge in
521⁄2 years, assuming no loss of good time.
Castillas was sentenced after he was convicted; therefore,
no prejudice based on the court’s mathematical error has been
shown. He was given valid sentences within the statutory
range, even though the sentences were contrary to the court’s

STATE v. BROMM 	193
Cite as 285 Neb. 193
intentions. If any discrepancy exists between the statement of
the minimum limit of the sentence and the statement of parole
eligibility or between the statement of the maximum limit of
the sentence and the statement of mandatory release, the state-
ments of the minimum limit and maximum limit shall control
the calculation of the offender’s term. See § 29-2204(1).
CONCLUSION
For the reasons set forth, we find no merit to any of
Castillas’ assignments of error. We therefore affirm the judg-
ments of conviction and the sentences imposed.
affirMeD.
CaSSel, J., not participating.
State of NebraSka, appellee, v.
raNDall J. broMM, appellaNt.
826 N.W.2d 270
Filed February 8, 2013. 	No. S-11-718.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from
the county court, the district court acts as an intermediate court of appeal.
3. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a
motion to suppress is denied pretrial and again during trial on renewed objection,
an appellate court considers all the evidence, both from trial and from the hear-
ings on the motion to suppress.
4. Evidence: Proof: Words and Phrases. Direct evidence is that evidence which
proves the fact in dispute directly without inference or presumption.
5. Evidence. Direct evidence encompasses not just testimonial evidence, but the
admission of documents and other tangible items.
6. Search and Seizure: Police Officers and Sheriffs. The purpose of the exclu-
sionary rule is to deter police misconduct.
7. Constitutional Law: Search and Seizure: Police Officers and Sheriffs:
Negligence. The exclusionary rule should not apply when police mistakes are the
result of negligence rather than systemic error or reckless disregard of constitu-
tional requirements.