State v. Jones

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STATE v. JONES
Cite as 293 Neb. 452
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
State of Nebraska, appellee, v.
Laron M. Jones, appellant.
878 N.W.2d 379
Filed April 28, 2016. 	No. S-15-370.
1. Jury Instructions: Judgments: Appeal and Error. Whether the jury
instructions given by a trial court are correct is a question of law. When
reviewing questions of law, an appellate court resolves the questions
independently of the conclusion reached by the lower court.
2. Criminal Law: Evidence: Appeal and Error. In reviewing a criminal
conviction for 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.
3. ____: ____: ____. The relevant question when an appellate court
reviews a sufficiency of the evidence claim 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.
4. Sentences: Words and Phrases: Appeal and Error. An appellate court
reviews criminal sentences for an abuse of discretion, which occurs
when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
5. Criminal Law: Pretrial Procedure: Motions to Suppress: Appeal
and Error. In a criminal trial, after a pretrial hearing and order over-
ruling a defendant’s motion to suppress, the defendant, to preserve the
issue on appeal, must object at trial to the admission of the evidence
which was the subject of the suppression motion.
6. Appeal and Error. Asserting or arguing plain error does not relieve a
defendant of properly preserving errors for appellate review.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:28 AM CST

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Cite as 293 Neb. 452
7. ____. Plain error exists where there is error, plainly evident from the
record but not complained of at trial, that prejudicially affects a substan-
tial right of a litigant and is of such a nature that to leave it uncorrected
would cause a miscarriage of justice or result in damage to the integrity,
reputation, and fairness of the judicial process.
8. ____. Where an issue is raised and complained of at trial, it cannot be
the basis of a finding of plain error on appeal.
9. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
10. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, an appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
11. Sentences. In imposing a sentence, a sentencing judge should consider
the defendant’s (1) age, (2) mentality, (3) education and experience, (4)
social and cultural background, (5) past criminal record or record of
law-abiding conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense and (8) the amount of violence involved in the
commission of the offense.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Jessica C. West for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ., and Moore, Chief Judge.
Wright, J.
I. NATURE OF CASE
Following a jury trial, Laron M. Jones was convicted of first
degree murder, use of a deadly weapon (firearm) to commit

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STATE v. JONES
Cite as 293 Neb. 452
a felony, and possession of a deadly weapon by a prohibited
person for the shooting death of Brandon Samuels. He was
sentenced to life imprisonment for murder, and consecutive
terms of 10 to 20 years’ imprisonment on each of the other two
convictions. Finding no merit to the errors assigned on appeal,
we affirm Jones’ convictions and sentences.
II. BACKGROUND
1. Events Surrounding
Shooting
In the early morning hours of March 7, 2014, a group of
friends gathered at the home of Alanna Delaney for an “after-
hours” party. Those in attendance included Delaney; Saraha
Richards; Jamie Thiem; Dale Gaver; Josue Sanchez; Giovanni
Barrios; D’Angelo Goods; and the decedent, Samuels, among
others. Around 2:30 a.m., three black males and one black
female arrived uninvited at the party. One of the black males
was Milton Butler, who came to the party to confront Thiem,
his ex-girlfriend and the mother of his child. One of the black
males was identified as Jones. The other black male and black
female were never identified.
Butler barged into the residence and began yelling at Thiem.
Then he pulled her out of the house by her hair, banging her
head against a doorframe on the way out. Others at the party
were concerned and followed them outside. Sanchez came to
Thiem’s aid, and a fight ensued in the front yard with Butler,
Jones, and the unidentified black male teaming up against
Sanchez. Jones brandished a gun and stated that anyone who
jumped in to help Sanchez would be shot. The fight dissipated
after Sanchez was knocked unconscious and taken back into
the house by his friends.
Butler, Jones, and the unidentified black male and black
female got into their vehicles and began leaving the scene.
Most of the people from the party went back inside the house.
As Butler was backing his vehicle out of the driveway, Goods
came outside to retrieve something from the front yard. Butler

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Cite as 293 Neb. 452
then stopped his vehicle, got out, and began a second alter-
cation with Goods. Just as the altercation was about to turn
physical, several shots were fired into the air, followed by
a pause, and then several more shots were fired toward the
house. Samuels was standing on the porch and suffered gun-
shot wounds in his lower right leg and in the right side of his
neck. He died from those injuries.
2. Witness Testimony
(a) Alanna Delaney
Delaney testified that during the initial altercation with
Sanchez, an individual she knew as “Clown” flashed a gun
from his waistband and told her not to interfere with the fight
or she would be shot. She was standing in the middle of the
yard when shots rang out. Gaver pushed her to the ground and
told her to stay down. While lying on the ground, she lifted her
head and clearly observed “Clown” shooting the gun toward
the porch.
Delaney testified that she was familiar with both “Clown”
and Butler and that there was no doubt in her mind it was
“Clown” shooting the gun, not Butler. Delaney knew Butler
due to Butler’s relationship with Thiem, and she had met him
approximately 5 to 10 times. She was familiar with “Clown”
from having met him at a location she described as a haunted
house and a couple of times at her house or a bar when he
was with Butler. Delaney described Butler as “skinnier” and
having a “fade or a brush cut” hairstyle. By contrast, Delaney
stated that “Clown” was “thicker,” and she described his hair-
style as “French braided to the scalp.” She stated that “Clown”
was wearing a black T-shirt and blue jeans. Delaney identified
Jones in court as “Clown.”
(b) Saraha Richards
Richards knew Butler through Thiem and described him
as being skinny and having short hair. She had also met
“Clown” on a couple of prior occasions, including a New

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Year’s Eve party approximately 3 months prior to this inci-
dent. She described “Clown” as similar in height to Butler, but
“heavier.” Richards stated that before the shooting occurred,
“Clown” said that if anyone interfered with the fight that was
going on, that person was going to get shot. She said that
“Clown” fired the first few shots in the air, then lowered the
gun and started shooting at the house. Richards identified Jones
in court as “Clown.”
(c) Dale Gaver
Gaver testified that he saw “Clown” display the gun prior
to the shooting and then observed him fire the gun three times
into the air. Gaver started running toward the side of the house
and heard more shots fired. As he got to the corner of the
house, he turned around and saw “Clown” aiming and shoot-
ing the gun at the house. He explained that although it was
dark outside, he could see what was going on because a street
light was on, and that he was only about 10 feet away when he
observed “Clown” flash the gun. Gaver described “Clown” as
wearing a hoodie and a darker shirt. Gaver stated that “Clown”
was wearing a hat initially, but was no longer wearing the
hat once he became involved in the altercation with Sanchez.
Gaver identified Jones in court as “Clown.”
(d) D’Angelo Goods
Goods described the shooter as shorter and stockier with
“nappy” braided hair that looked as if it had not been freshly
done. Goods testified that during his altercation with Butler,
the shorter, stockier individual approached the yard and asked,
“‘What’s up?’” Goods observed the man firing shots into the
air, then aiming and shooting at the house. He did not see
Butler or anyone else with a gun, other than the stockier black
male with nappy hair.
(e) Giovanni Barrios
Barrios testified that he attempted to stop the fight, but
that one of the black men flashed a gun and told him to back

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Cite as 293 Neb. 452
up. Barrios described this man as having a “[b]igger build,
stockier, facial hair” and wearing jeans and a hoodie. Barrios
identified Jones in court as that man.
3. Investigation
The witnesses were separated at the scene and individually
transported to police headquarters to be interviewed. Jones was
developed as a suspect as a result of those interviews. Delaney,
Richards, and Gaver each identified Jones in a photographic
lineup as the shooter. Barrios identified Jones as the man that
brandished a gun during the initial altercation.
The following day, officers executed a search warrant at
a residence Jones shared with his girlfriend, Jenna McBride.
She confirmed that Jones’ nickname is “Clown.” She described
Jones as “a little bit shorter, stockier with longer hair” that is
“braided back.” McBride directed officers to the clothes Jones
had been wearing the night before, which included a pair of
dark jeans, a black T-shirt, and a light gray zip-up hoodie with
a broken zipper.
McBride was taken in and interviewed by law enforcement.
She testified that she received a text message from Jones at
3:04 a.m. on March 7, 2014, asking her to pick him up at his
aunt’s house as soon as possible. When she picked him up
approximately 15 minutes later, he was with Butler and another
older black male who went by the name of “Mario.” McBride
described Jones’ demeanor as “mad and irritated.” Jones told
McBride about the fight and mentioned that someone had
been shot.
Jones was arrested and charged with first degree murder, use
of a deadly weapon (firearm) to commit a felony, and posses-
sion of a deadly weapon by a prohibited person.
4. Motion to Suppress
Prior to trial, Jones moved to suppress witness identifi-
cation testimony, alleging that the identification procedure
used by police was unnecessarily suggestive and tainted the

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Cite as 293 Neb. 452
identifications. The evidence adduced at the hearing showed
that a lineup consisting of six photographs was used, which
accidentally included two photographs of Jones: one in posi-
tion No. 5, and one in position No. 6. The detective who cre-
ated this lineup attributed the error to sloppiness on his part.
This lineup was shown to at least two witnesses, including
Delaney, who identified Jones in position No. 5. The other wit-
ness did not identify anyone in the lineup and did not identify
Jones at trial. It is unknown whether any other witnesses were
shown this flawed lineup.
At the suppression hearing, the State offered the following
testimony: The police separated the witnesses at the scene and
transported them to the police station in separate cruisers, the
witnesses were kept in separate areas at the station, and offi-
cers were standing by to make sure they did not converse with
one another.
Delaney testified that the fact that “Clown” was depicted
twice in the photographic lineup did not affect her identi-
fication of him. In fact, she did not even notice “Clown’s”
photograph in position No. 6 until she was reviewing the
lineup later in the county attorney’s office. The detective that
administered the lineup was also unaware of the mistake until
she returned to her desk after showing it to Delaney. At that
point, a new photographic lineup was created in which the
photograph in position No. 6 was replaced with a different
photograph; however, the other photograph of Jones remained
in position No. 5.
Richards, Gaver, and Barrios were shown the corrected
lineup. Richards and Gaver identified the shooter in position
No. 5. Richards wrote on the comments section that she was
“110,000%” sure he was the shooter. Barrios identified the per-
son who flashed the gun in position No. 5.
The witnesses’ cell phones were confiscated, and they
were told not to communicate with other witnesses until all
of them had been interviewed. All of the witnesses were
admonished not to speak to other witnesses about their

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STATE v. JONES
Cite as 293 Neb. 452
identifications. Delaney, Richards, Gaver, and Barrios testi-
fied that they did not talk to any other witnesses prior to
being interviewed and did not discuss their identifications
with any other witnesses.
The district court issued a written order denying Jones’
motion to suppress. The court found that Delaney was the only
witness who saw the photographic lineup that had two pictures
of Jones. The other witnesses were shown photographic lineups
that contained only one photograph of Jones.
5. Trial
The evidence at trial was consistent with the facts stated
above. In addition, there was evidence regarding DNA testing
that was performed on a “Brooklyn Nets” ball cap found at the
scene. Although it produced only a partial DNA profile, Jones
could not be excluded as the major contributor. The probability
of a random individual matching that DNA profile is 1 in 7
billion for Caucasians, 1 in 4.28 billion for African-Americans,
and 1 in 16.6 billion for American Hispanics. The parties also
stipulated that Jones had been convicted of a felony and was a
person prohibited from possessing a deadly weapon.
After all the evidence had been presented, a jury instruc-
tion conference was held. Jones offered the following pro-
posed instruction: “Research has shown that people may have
greater difficulty in accurately identifying the members of a
different race. You should consider whether the fact that the
witness and the suspect are not of the same race may have
influenced the accuracy of the witnesses’ identification.” The
State objected, and the district court refused to give the pro-
posed instruction.
The jury found Jones guilty of first degree murder, use of a
deadly weapon (firearm) to commit a felony, and possession of
a deadly weapon by a prohibited person. He was sentenced to
life imprisonment for murder, and consecutive terms of 10 to
20 years’ imprisonment on each of the other two convictions.
Jones appeals.

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STATE v. JONES
Cite as 293 Neb. 452
III. ASSIGNMENTS OF ERROR
Jones assigns that the district court (1) committed plain
error in denying his motion to suppress witness identification
testimony, (2) erred in refusing his proposed jury instruction
regarding cross-racial identification, (3) abused its discretion
by accepting the jury’s guilty verdicts when the evidence was
insufficient to sustain his convictions, and (4) imposed exces-
sive sentences on the weapon convictions.
IV. STANDARD OF REVIEW
[1] Whether the jury instructions given by a trial court are
correct is a question of law.1 When reviewing questions of law,
an appellate court resolves the questions independently of the
conclusion reached by the lower court.2
[2,3] In reviewing a criminal conviction for a sufficiency
of the evidence claim, whether the evidence is direct, circum-
stantial, 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.3 The relevant question when
an appellate court reviews a sufficiency of the evidence claim
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.4
[4] An appellate court reviews criminal sentences for an
abuse of discretion, which occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.5
1 State v. Casterline, ante p. 41, 878 N.W.2d 38 (2016).
2 Id.
3 Id.
4 Id.
5 State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).

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V. ANALYSIS
1. Motion to Suppress
Identification
Jones argues that the district court committed plain error in
overruling his pretrial motion to suppress witness identification
testimony, because the identification procedure used by police
was unnecessarily suggestive and tainted the identifications.
The evidence showed that a lineup consisting of six photo-
graphs was shown to at least two witnesses, which included
two photographs of Jones: one in position No. 5, and one in
position No. 6.
Jones argues that officers made little effort to remedy the
error once it was discovered. They created a new photographic
lineup, but left Jones’ photograph in position No. 5, which
was the same position used when Delaney identified Jones in
the earlier flawed lineup. Once the new lineup was created,
Richards, Gaver, and Barrios also identified Jones in position
No. 5. Jones claims the placement of his photograph in posi-
tion No. 5 was significant, because Delaney could have easily
disseminated information about her identification to other wit-
nesses who were being detained at the police station in hall-
ways, cubicles, and unlocked interview rooms. There was no
evidence that Delaney talked to other witnesses.
Jones further argues that the identification testimony was
unreliable, because the witnesses’ degree of attention and cer-
tainty was low, they were under the influence of alcohol and/or
narcotics on the night in question, and they are all of a differ-
ent race than Jones, which results in less reliable identification
than if both persons are of the same race.
[5] We agree with the State that Jones has waived any
error with respect to the district court’s denial of his motion
to suppress witness identification testimony because he failed
to object at trial when the State’s witnesses identified him in
court as the shooter. In a criminal trial, after a pretrial hear-
ing and order overruling a defendant’s motion to suppress,
the defendant, to preserve the issue on appeal, must object at

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Cite as 293 Neb. 452
trial to the admission of the evidence which was the subject
of the suppression motion.6 Because Jones failed to object to
the identification testimony at trial, he failed to preserve this
issue for appeal.
[6,7] We decline Jones’ invitation to address this issue under
the plain error doctrine. Asserting or arguing plain error does
not relieve a defendant of properly preserving errors for appel-
late review.7 Plain error exists where there is error, plainly
evident from the record but not complained of at trial, that
prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscar-
riage of justice or result in damage to the integrity, reputation,
and fairness of the judicial process.8
[8] Where an issue is raised and complained of at trial, it
cannot be the basis of a finding of plain error on appeal.9 Here,
the issue was raised via Jones’ motion to suppress and a full
suppression hearing was held in the district court. Thus, we
decline Jones’ request that we consider the failure to object
under a plain error analysis.
2. Jury Instruction
Jones asserts the district court erred in refusing his pro-
posed jury instruction regarding cross-racial identification,
which states as follows: “Research has shown that people may
have greater difficulty in accurately identifying the members
of a different race. You should consider whether the fact that
the witness and the suspect are not of the same race may have
influenced the accuracy of the witnesses’ identification.”
[9] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
6 State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).
7 State v. Williams, 247 Neb. 878, 530 N.W.2d 904 (1995).
8 State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014).
9 Wilson v. Wilson, 23 Neb. App. 63, 867 N.W.2d 651 (2015), citing In re
Estate of Morse, 248 Neb. 896, 540 N.W.2d 131 (1995).

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show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction.10
Jones cannot show that the tendered instruction is a correct
statement of the law. There is no precedent in Nebraska for
giving such an instruction, and Jones presented no evidence to
support the theory asserted in his instruction. Given this lack
of record, the district court had no basis upon which it could
determine that the tendered instruction was a correct statement
of the law.
In addition, Jones cannot show that the tendered instruction
was warranted by the evidence, because while there may be an
inference, the record does not reflect the race of the witnesses.
Therefore, we cannot determine whether there were in fact any
cross-racial identifications that might warrant the giving of
such an instruction. The district court did not err in refusing to
give Jones’ proposed instruction.
3. Sufficiency of Evidence
Jones next assigns that the district court erred in accepting
the jury’s guilty verdicts because the entire case was based
upon unreliable and inconsistent eyewitness identification. He
argues that the eyewitness testimony was not sufficient to sup-
port a finding of guilt beyond a reasonable doubt, because the
identification testimony was tainted by the flawed lineup; the
witnesses were vague and inconsistent in their descriptions of
the suspect; and only two of the witnesses had previously met
Jones, and their contact with him was limited.
In reviewing a criminal conviction for a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appel-
late court does not resolve conflicts in the evidence, pass on
10 State v. Casterline, supra note 1.

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the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact.11 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.12
In order to convict Jones of first degree murder, the State
had to prove that Jones killed Samuels purposely and with
deliberate and premeditated malice.13 Jones was also charged
with use of a deadly weapon (firearm) to commit a felony and
possession of a deadly weapon by a prohibited person. To find
him guilty of those offenses, the State had to prove that Jones
knowingly and intentionally used a firearm to murder Samuels
and that he had previously been convicted of a felony.14
Jones’ arguments on appeal are limited to the sufficiency of
the evidence to prove his identity, and he does not specifically
challenge the sufficiency of the evidence as to the remaining
elements of these offenses. We find that a rational trier of fact
could conclude that those elements were satisfied.
Regarding Jones’ identity, he was identified as the shooter
by three separate eyewitnesses: Delaney, Richards, and Gaver.
Each of those witnesses testified that Jones brandished a gun
and threatened to shoot anyone that interfered in the fight.
They each observed Jones fire the first few shots in the air,
then lower the gun and fire shots at the house, striking and
killing Samuels. Both Delaney and Richards had met “Clown”
on multiple prior occasions and were familiar with his physical
appearance. This evidence, viewed in the light most favorable
to the prosecution, was sufficient to establish beyond a reason-
able doubt Jones’ identity as the shooter.
11 Id.
12 Id.
13 See Neb. Rev. Stat. § 28-303(1) (Reissue 2008).
14 See Neb. Rev. Stat. §§ 28-1205 and 28-1206 (Cum. Supp. 2014).

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4. Excessive Sentences
Jones’ final assignment of error is that the district court
abused its discretion by imposing excessive sentences.
Jones was convicted of first degree murder, which car-
ries a mandatory life sentence.15 Use of a firearm to commit
a felony is a Class IC felony, punishable by 5 to 50 years’
imprisonment.16 Possession of a firearm by a prohibited per-
son is a Class ID felony for a first offense, punishable by 3 to
50 years’ imprisonment.17 Jones was sentenced to consecutive
terms of 10 to 20 years’ imprisonment for each of the weapon
offenses. As such, his sentences are well within the statu-
tory limits.
[10] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, an appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed.18 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.19
[11] In imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the offense.20 There is no evidence that the district
15 See § 28-303(1) and Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
16 See §§ 28-1205(1)(c) and 28-105(1).
17 See §§ 28-1206(3)(b) and 28-105(1).
18 State v. Collins, supra note 5.
19 Id.
20 Id.

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court failed to consider the appropriate factors in determining
Jones’ sentences on the weapon offenses.
Jones argues that if the district court had properly sup-
pressed the identification testimony and found that there was
insufficient evidence to convict him of murder, then at worst,
he would have been convicted of possession of a firearm by a
prohibited person and would have been facing a much lesser
sentence. We find no merit in this argument, given that we
have rejected his assignments of error regarding the identifica-
tion testimony and the sufficiency of the evidence. We find no
abuse of discretion in the sentences imposed.
VI. CONCLUSION
For the reasons set forth above, we affirm Jones’ convictions
and sentences.
Affirmed.