State v. Evans

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
State of Nebraska, appellee, v.
Raymond Evans, appellant.
___ N.W.3d ___
Filed July 24, 2026. 	No. S-25-209.
1. Trial: Motions for Mistrial: Appeal and Error. A trial court is vested
with considerable discretion in passing on motions for mistrial, and an
appellate court will not disturb a trial court’s decision whether to grant a
motion for mistrial unless the court has abused its discretion.
2. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for sufficiency of the evidence, 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 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. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
4. Rules of Evidence: Other Acts: Appeal and Error. An appellate court
will review for abuse of discretion a trial court’s evidentiary rulings on
the admissibility of a defendant’s other crimes or bad acts under Neb.
Rev. Stat. § 27-404(2) (Cum. Supp. 2024), or under the inextricably
intertwined exception to § 27-404(2).
5. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:43 AM CDT

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
6. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
7. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
8. Rules of Evidence: Testimony: Juries. Under Neb. Rev. Stat. §§ 27-701
and 27-702 (Reissue 2016), testimony that usurps the jury’s role in mak-
ing credibility determinations is not helpful and thus is improper opin-
ion testimony.
9. Witnesses: Testimony. It is improper for a witness to testify whether
another person may or may not have been telling the truth in a spe-
cific instance.
10. Trial: Police Officers and Sheriffs: Testimony: Juries. It is espe-
cially problematic when an officer testifies at trial that the defendant is
untruthful, because such testimony carries with it the imprimatur of the
government that can induce improper reliance by a jury.
11. Trial: Rules of Evidence: Police Officers and Sheriffs: Extrajudicial
Statements. Statements on veracity by law enforcement officials within
a recorded pretrial interrogation played for the jury at trial are neither
categorically admissible nor categorically inadmissible and are to be
analyzed under the ordinary rules of evidence.
12. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during trial of such a nature that
its damaging effect cannot be removed by proper admonition or instruc-
tion to the jury and thus prevents a fair trial.
13. Motions for Mistrial: Juries: Appeal and Error. Where a motion
for mistrial is premised on adducing evidence that violates an order in
limine, an appellate court will consider that the trial judge was in the
best position to assess the potential impact of such evidence on the jury.
14. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
cated on the failure to grant a mistrial, a defendant faces a higher thresh-
old than merely showing a possibility of prejudice.
15. Motions for Mistrial: Judges: Appeal and Error. An appellate court
reviews rulings on motions for mistrial for an abuse of discretion,
and the deferential standard stems in part from the recognition that
the trial judge is often better situated than a reviewing court to assess
the atmosphere of the trial and the impact of certain evidence or events.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
16. Appeal and Error. To be considered by an appellate court, the party
asserting an alleged error must both specifically assign and specifically
argue the error in the party’s initial brief.
17. Rules of Evidence: Other Acts: Words and Phrases. Though difficult
to define, character, for purposes of § 27-404(2) (Cum. Supp. 2024),
has been described as the generalized disposition or tendency to act in a
particular way in all the varying situations of life, caused by something
internal to the actor that arises from that person’s moral being.
18. Rules of Evidence: Other Acts. Neb. Rev. Stat. § 27-404(2) (Cum. Supp.
2024) does not apply to evidence of a defendant’s other crimes or bad
acts if the evidence is inextricably intertwined with the charged crime.
19. Witnesses: Testimony: Appeal and Error. A continuing objection to a
witness’ testimony does not preserve the alleged error for testimony by
that witness before the objection was made.
20. Trial: Testimony: Appeal and Error. Though whether an error is harm-
less must be a fact-specific inquiry in light of the totality of the record,
the admission of testimony objected to is ordinarily not prejudicial error
when such testimony is substantially identical to testimony admitted
without objection.
21. Criminal Law: Evidence: Other Acts. Other acts are acts not part
of the events giving rise to the present charges, whereas acts that are
inextricably intertwined with the present charges form part of the factual
setting of the crime, are so blended or connected to the charged crime
that proof of the charged crime will necessarily require proof of the
other crimes or bad acts, or are necessary for the prosecution to present
a coherent picture of the charged crime.
22. Rules of Evidence: Other Acts. The State is entitled to present a coher-
ent picture of the facts of the crime charged, and evidence of other
conduct that forms an integral part of the crime charged is not rendered
inadmissible under Neb. Rev. Stat. § 27-404 (Cum. Supp. 2024) merely
because the acts are criminal but have not been charged.
23. Evidence: Other Acts. The relevancy of intrinsically intertwined con-
duct does not rely on propensity reasoning.
24. Evidence: Other Acts: Intent. Evidence of previous discord between
the victim and the defendant is clearly material to issues of motive
and intent.
25. Verdicts: Appeal and Error. The inquiry in a harmless error analysis is
whether the actual guilty verdict rendered was surely unattributable to
the error.
26. Criminal Law: Legislature: Weapons. The Legislature’s purpose in
creating a separate offense of using a weapon in the commission of
a felony was to discourage individuals from carrying deadly weapons

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
while they commit felonies in order to prevent the threat of violence
and accompanying danger to human life present whenever one has a
deadly weapon within one’s immediate control during the commission
of a felony.
27. Criminal Law: Statutes: Weapons: Intent. The statutorily enumerated
weapons are considered deadly weapons per se, when they satisfy the
definitions for those items, whereas whether any “other device, instru-
ment, material, or substance,” as stated in Neb. Rev. Stat. § 28-109(8)
(Reissue 2016), constitutes a deadly weapon depends on the manner in
which it was used or intended to be used.
28. Weapons. A trier of fact can infer from the nature of the victim’s inju-
ries that a deadly weapon was used, without determining the precise
identity of the device, instrument, material, or substance.
29. Evidence: Appeal and Error. An appellate court’s standard of review
directs the appellate court to evaluate the evidence that was actually
before the fact finder, rather than ponder potentially incriminating facts
that were lacking.
30. Convictions: Weapons: Intent: Circumstantial Evidence. So long
as there is sufficient circumstantial evidence that any device, instru-
ment, material, or substance was used to commit a felony, and that such
device, instrument, material, or substance was capable of producing
death or serious bodily injury in the manner it was used or intended to
be used, then there is sufficient evidence to support a conviction for use
of a deadly weapon to commit a felony.
31. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
or her counsel’s performance was deficient and that this deficient per-
formance actually prejudiced the defendant’s defense.
32. ____: ____. To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law.
33. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
34. Proof: Words and Phrases. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
35. Effectiveness of Counsel: Appeal and Error. In determining whether
there is a reasonable probability that any deficient performance of trial
counsel would have resulted in a different outcome in the proceeding,

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
an appellate court may properly consider the strength of the admissible
evidence relating to the controverted issues in the case.
36. ____: ____. An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires examination of facts not con-
tained in the record and, thus, an evidentiary hearing.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Kenneth Jacobs, of Hug and Jacobs, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Freudenberg, J.
I. INTRODUCTION
Raymond Evans was convicted by a jury of first degree mur-
der and use of a deadly weapon (not a firearm) to commit a fel-
ony. Evans, represented by new counsel on appeal, asserts that
(1) the district court erred in denying his motion for mistrial,
(2) the State’s evidence was not sufficient to sustain a convic-
tion for use of a deadly weapon (not a firearm) to commit a
felony, (3) the district court abused its discretion in allowing
the State to present other bad acts evidence, and (4) his trial
counsel was ineffective for failing to properly investigate and
cross-examine the victim’s ex-husband. We affirm.
II. BACKGROUND
Evans’ charges arose after he allegedly bludgeoned to death
his then-girlfriend at her apartment in Omaha, Nebraska, and
dumped her body in a field outside of Lincoln, Nebraska. At
the conclusion of an 11-day jury trial, Evans was found guilty
of both first degree murder and use of a deadly weapon (not
a firearm) to commit a felony. Evans was sentenced to life
imprisonment pursuant to the first degree murder conviction
and 40 to 50 years’ imprisonment pursuant to the use of a

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
deadly weapon (not a firearm) to commit a felony conviction.
The sentences were ordered to be served consecutively.
1. Evidence Presented at Trial
The basic facts adduced at trial showed that Cecilia Perez
met Evans through a “dating app” in the fall of 2022. She was
killed approximately 1 year later, in November 2023.
Evans was “a dog walker and an MMA fighter” who was
living in Lincoln when he met Cecilia. Cecilia lived in Omaha
and worked as a nurse at a local nursing home, primarily work-
ing shifts on the weekends.
Cecilia had three children from two previous relationships.
Two of her children were born from her relationship with
Antonio Ramirez. That relationship ended approximately 10
years before the events in this case. The other child was born
from her relationship with Adam Jones, whom Cecilia mar-
ried in Jamaica in 2015, but never filed paperwork in the
United States to be legally married. Jones and Cecilia split up
in the summer of 2022, when she moved to an apartment at
Woodcrest Plaza (Woodcrest apartment) in Omaha.
When Cecilia and Evans met, her oldest child, N.R.P., was
living with her and the younger two children split time between
Cecilia’s and Jones’ homes. At that time, Cecilia was driving a
vehicle owned by Jones.
Evans moved into Cecilia’s Woodcrest apartment in May
2023, after they had been dating for several months. Cecilia
struggled with an alcohol abuse disorder, and, in March 2023,
Child Protective Services became involved with Cecilia’s
children due in part to Cecilia’s drinking. As a result of
the involvement of Child Protective Services, Cecilia’s two
youngest children were not allowed to live with Cecilia at the
Woodcrest apartment and Cecilia had to have supervised visits
outside of the Woodcrest apartment. N.R.P. moved out of the
apartment after Evans moved in, due to her constant arguments
and confrontations with Evans. N.R.P. went to live with a
friend’s mother, Kathryn Diaz.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
N.R.P. testified that Evans did not have his own vehicle
and used Cecilia’s vehicle every day. Jones testified that when
he learned Evans was the primary user of the vehicle he
owned and was allowing Cecilia to drive, he took it back. In
October 2023, Cecilia purchased a red 2013 GMC Acadia from
Automart 150 in Council Bluffs, Iowa. After her murder, the
vehicle still had paper dealer plates showing it had been pur-
chased from Automart 150.
Cecilia was last seen by someone other than Evans on
Friday, November 17, 2023. That evening, Cecilia had a
scheduled supervised visit with her youngest child. Cecilia
arrived at the supervised visit at 6 p.m. Marquetta McGee,
Cecilia’s supervised visitation specialist, described Cecilia’s
demeanor as quiet and “off.” Cecilia’s mannerisms concerned
McGee, who suspected Cecilia may have been under the influ-
ence of alcohol. When Cecilia admitted to being under the
influence of alcohol, McGee ended the visit. McGee suggested
that Cecilia “get a ride” and asked that Cecilia text her when
she got home safely. McGee reported that Cecilia was crying
after this conversation and that Cecilia texted her twice that
night, with the second time being around 11 p.m. According to
McGee, the second text asked what time the visit ended, which
McGee found to be “weird” and “confusing.”
Cecilia was scheduled to work on both Saturday, November
18, 2023, and Sunday, November 19, but did not show up for
work either day. Cecilia called on Saturday morning to say she
was not going to be at work. Barbara Renken answered the
call. Renken testified that Cecilia sounded like “she had been
crying for some time, or had a really bad head cold.” This was
the last time anyone other than Evans reported seeing or hear-
ing from Cecilia.
On 	Sunday 	morning, 	Regina 	Yokwe, 	a 	charge 	nurse,
answered a call that was reportedly from Cecilia, who said
she would not be going to work that day. According to Yokwe,
however, the caller had a “male voice.” Yokwe testified she

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
confronted the caller about sounding like a man, and the caller
immediately hung up.
(a) Initial Missing Persons Investigation
In the early evening of Tuesday, November 21, 2023, Emma
Wineinger, Cecilia’s younger sister, called the 911 emergency
dispatch service to report that Cecilia was missing. After
police officers Brandon Fender and Christopher Overton met
with Wineinger and Brandy Perez, another of Cecilia’s sisters,
the officers made their way to Cecilia’s Woodcrest apartment.
Officers were on the lookout for Cecilia’s Acadia. When the
officers arrived at the apartment, they noted that the Acadia
was not in the parking lot.
The officers entered the apartment building and knocked
on the door of Cecilia’s apartment but there was no answer.
Overton began checking with neighbors inside the apartment
building and spoke with a neighbor who lived immediately
above Cecilia’s apartment, who said he had concerns about a
dog in Cecilia’s apartment barking a few days before.
Fender and Overton were continuing their investigation,
when Evans entered the apartment building, approached the
officers, and said he needed to talk with them. Evans invited
Fender into the apartment to talk while Overton remained in
the hall.
Fender described Evans as “very forthcoming” during this
initial interaction, noting that he did not have to ask followup
questions 	before 	Evans 	continued 	providing 	information.
Evans told Fender that Cecilia had planned to meet up with
her friend, Monica Durand, the prior weekend and that he had
not seen or heard from Cecilia since. Before the officers left
the apartment, Fender called Durand, who informed Fender
that she had not seen Cecilia in the recent past, was unaware of
her whereabouts, and had no plans to meet up with her during
the prior weekend.
When Fender and Overton left the Woodcrest apartment,
they noticed that Cecilia’s Acadia was parked outside.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
(b) November 21, 2023, Initial Search
of Woodcrest Apartment
Later that same night, Fender and Overton returned to the
Woodcrest apartment with their supervisor, Sgt. David Preston,
Jr., to do a check of the apartment to see if Cecilia was inside.
Preston talked with Evans in the living room of the apartment
while Fender and Overton searched the apartment in areas
large enough for a person to fit in, which Preston described
as “standard protocol for missing persons reports.” Overton
observed blood on the wall and on a television in the master
bedroom. Fender observed blood spatter on the wall in the
closet. Fender also noticed the carpet in the master bedroom
had differing colors “from a darker brown to almost a white
color,” which he attributed to cleaning. Fender noted there was
no bedding or sheets on the bed in the master bedroom, but
Preston testified there were two pillows with pillowcases.
Preston described Evans as cooperative during their con-
versation in the living room but that he gave information that
did not “seem like [it] fit the situation.” Evans voluntarily
described where he was when asked about the last time he
saw Cecilia. Evans was also “pushing” his phone on Preston,
showing him text messages between him and Cecilia, rather
than providing information about Cecilia and places she may
be or often “hang[s] out.”
Before leaving, the officers did a brief check of the Acadia,
which Evans unlocked for them. The officers did not find any-
thing of note, but Fender observed that the vehicle was very
clean inside.
(c) Cecilia’s Body Found and Autopsy
Cecilia’s body was found near the intersection of 98th
Street and Havelock Avenue on the outskirts of Lincoln on the
afternoon of Tuesday, November 21, 2023. Officers observed
that the body was wrapped in several items, including a “mer-
maid comforter” and a black plastic trash bag. Law enforce-
ment surmised that the body had been dumped in the location

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Nebraska Supreme Court Advance Sheets
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STATE v. EVANS
Cite as 321 Neb. 841
very recently, because it lacked apparent decomposition and
was dry even though it had rained in that area up until
Monday night. Law enforcement also noted the presence of
tire tracks pulled over toward the side of the gravel road
adjacent to where the body had been found. Later testing and
analysis showed that Cecilia’s Acadia was a possible source
of the tire tracks.
Dr. 	Erin 	Linde, 	a 	forensic 	pathologist, 	performed 	the
autopsy on Cecilia’s body. She first observed that the outer
layer of materials wrapped around the body consisted of a
mermaid comforter and black plastic trash bag, with clear tape
wrapped around. Underneath the outer layer, Linde observed
a black fabric material, which Linde described as a “satin-like
microfiber sheet.” Under the black sheet, Cecilia was clothed
in sweatpants and a T-shirt.
Linde performed a series of x rays and a full external exam-
ination of Cecilia’s body in order to determine the cause of her
death, which was found to be extensive blunt force injuries.
X rays showed that Cecilia had a fracture in her left forearm
but no other visible fractures or foreign objects or projectiles
inside her body. Upon further internal inspection, Linde dis-
covered fractures to Cecilia’s spine and ribs. During the exter-
nal examination, Linde noted extensive bruising on Cecilia’s
head, arms, and legs, as well as some bruising on her torso
and back. Linde also observed that Cecilia’s nose was broken
and that she had various abrasions and lacerations in many
places on her body, including her head, face, arms, and legs.
Linde noted that many of the bruises and abrasions on
Cecilia’s body were curved or circular in shape, which she
found suggestive of a “round-type object” being used to strike
the skin repeatedly. Additionally, there were several paired,
clawlike injuries on Cecilia’s body, including on her thigh just
below her hip. Photographs of Cecilia’s body entered into evi-
dence at trial showed the curve-shaped bruises and abrasions,
as well as the paired, clawlike injuries.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
When asked about the nature of Cecilia’s wounds and what
may have caused them, Linde explained that “the paired inju-
ries, the rectangular shape, the round patterned contusions and
abrasions . . . we’re seeing would suggest more of a hammer-
type object, including . . . a claw-type hammer, which has
those paired tong or prongs at the back.” Linde opined that
the injuries on Cecilia’s hands, forearms, and legs appeared
to be defensive, where she appeared to be attempting to keep
an “object” from striking her, whether it was a knife or “some
other object.”
Overall, Linde testified that Cecilia’s blunt force injuries
were unlike anything she had seen in the 3,100 autopsies she
had performed; the injuries to Cecilia’s tissue were similar to
a pedestrian being hit by a vehicle. Linde described the tissue
under Cecilia’s arms and legs as “fluid-like,” indicating suf-
ficient, repetitive blunt force trauma to break down the tissue.
Linde opined there was likely repetitive force that caused the
nature of Cecilia’s injuries and ultimately her death.
(d) Sgt. David Hinsley’s Interview With Evans
On Wednesday, November 22, 2023, the day after Cecilia’s
body was found and the same day as the autopsy, Evans,
not knowing a body had been found, went to a cellular ser-
vice provider’s retail location at the suggestion of Cecilia’s
aunt, Dawn Van Sloun, to access Cecilia’s phone records
and potentially find information concerning her whereabouts.
When Evans was unable to get that information, he called the
missing persons report line and spoke with a sergeant, who, at
the request of the detectives investigating the murder, asked
Evans if he would be interested in reporting to the Omaha
Police Department’s headquarters for an interview. Evans
agreed to do so.
Evans arrived at police headquarters in downtown Omaha
in Cecilia’s Acadia. Hinsley, before commencing the inter-
view, assigned a detective to go to Automart 150 to get physi-
cal access to the “GPS” records for the Acadia, and Hinsley

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STATE v. EVANS
Cite as 321 Neb. 841
learned that the Acadia’s GPS records showed the vehicle
had been in Lincoln at 4:17 a.m. the day before, Tuesday,
November 21, 2023, near the intersection of 98th Street and
Havelock Avenue, where Cecilia’s body was found. With this
information in mind, Hinsley began interviewing Evans.
A video recording of the interview was played for the
jury, with certain statements redacted. The redacted video
was almost 4½ hours long. In the redacted video played for
the jury, Hinsley began the interview by having an informal
conversation with Evans wherein Evans was very forthcom-
ing with information from his phone, including texts from
Cecilia’s phone, and with information about his going to his
grandmother’s house over the weekend and Cecilia’s wanting
to meet up with Durand on Sunday. Evans waived his rights
and then walked Hinsley through his version of the events
of the previous weekend, using his phone to show texts and
phone calls with Cecilia and her friends and family. Evans
told Hinsley that he and Cecilia were at the apartment essen-
tially all weekend, except for when Evans went to his grand-
mother’s house in northeast Omaha on Sunday afternoon.
Evans described the weekend as normal and denied that there
were any arguments between him and Cecilia, even when
Hinsley told Evans a neighbor had reported hearing an argu-
ment on the prior Sunday. Evans explained he and Cecilia had
a conversation about him getting a job but adamantly denied
having an argument or fight.
Evans talked at length about his poor relationship with
Cecilia’s family and friends, including her daughter N.R.P.
Evans also discussed Jones a great deal, detailing how Jones’
relationship with Cecilia ended, how Jones allegedly told
Evans that Cecilia was probably cheating on him and had
been kidnapped, and how the last known location of Cecilia’s
phone was near Jones’ house and workplace. Evans explained
that Cecilia would sometimes meet up with other men for
money, which was acceptable to him if she was honest
about it.

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STATE v. EVANS
Cite as 321 Neb. 841
Evans confirmed that no one else besides him or Cecilia had
been driving the Acadia and that, since Cecilia had been miss-
ing, he was the only one who had the vehicle. Evans explained
there was only one set of keys to the Acadia, which he pos-
sessed. This was corroborated by the detective who went to
Automart 150 and learned that Cecilia was given one set of
keys, while the dealership retained the other until the vehicle
was paid off.
Evans told Hinsley the last time he was in Lincoln was the
previous Thursday. When Hinsley asked Evans to tell him
about his trip to Lincoln the day prior, Tuesday, November
21, 2023, Evans denied making any such trip. At that point,
Hinsley informed Evans of the GPS on the Acadia and how it
“pinged” near 98th Street and Havelock Avenue at 4:17 a.m. on
the previous day. Evans denied being at that area at that time
and said he was at home. Evans said his phone would show his
location was at the apartment at 4:17 a.m. He could not explain
the Acadia GPS information.
During the interview, a search warrant had been obtained
and a search of the Woodcrest apartment was conducted.
Hinsley informed Evans of the search and that castoff, high-
velocity blood spatter, was observed at the apartment. Evans
said nothing had happened at the apartment and asked where
his DNA was in relation to the blood. When Hinsley asked
about a ring found on the sink of the master bathroom during
the search, Evans said there was no blood on the ring. Hinsley
informed Evans there was blood observed on the ring, to
which Evans explained that his fingers were not swollen and
that they would have been had he punched Cecilia while
wearing the ring.
Hinsley told Evans that Cecilia’s body had been located
and showed Evans a photograph of Cecilia’s body as it was
found in the field outside of Lincoln. Evans did not react
to the photograph and continued to deny that he had gone
to Lincoln the day before. Evans also continued to deny
that he hit Cecilia while wearing the ring or anything else.

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321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
Evans again emphasized that the location information from
his phone would not match up with where Cecilia’s body
was found.
When Hinsley returned to the interview after a short break,
Evans was visibly emotional and made statements such as,
“[t]here is no future,” “I don’t have a life after here,” “[i]t’s
over with,” and “[m]y life is over.” Evans also said he needed
a few days to think about things before he could say what
happened. Hinsley ended the interview after Evans asked for
an attorney.
The redactions from the video had been made pursuant to
Evans’ oral motion to redact portions where marijuana use,
past domestic violence allegations, 911 calls alleging Evans
beat dogs, and DNA evidence were discussed. Evans also
sought to redact statements made by Hinsley about Evans’
being untruthful or being guilty. The court agreed to redact ref-
erences to past domestic violence allegations, beating dogs, and
Evans’ truthfulness. The court stated it would give a limiting
instruction covering those acts not redacted, such as the mari-
juana use. Before any part of the video of the Hinsley-Evans
interview was played for the jury, the court instructed the jury
as follows:
Ladies and gentlemen, we’re about to hear and see a
recording of the interview with Raymond Evans and
Sergeant Hinsley. I’ve ordered parts of the recording to
be deleted for efficiency purposes and because the deleted
portions are not relevant for purposes of this trial.
You’re not to concern yourself with the contents of
the deleted portions, or consider them at all in your
deliberations, or speculate as to their content. In addition,
you may hear evidence of bad acts about Raymond Evans
other than the charge for which he is on trial. You should
not consider those acts, including possessing or smoking
marijuana for purposes of Raymond Evans[’] character.
Raymond Evans is on trial only for the charges that I’ve
instructed you in the beginning of the case.

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STATE v. EVANS
Cite as 321 Neb. 841
A couple of hours into the playing of the interview at trial,
Evans’ attorney requested a sidebar to discuss a statement that
was supposed to have been stricken from the video but was
played for the jury. Specifically, Hinsley’s statement “you’re
not being truthful, though,” was played to the jury. Hinsley’s
statement came after Evans said he was being cooperative,
and Hinsley told Evans there was a difference between being
cooperative and being truthful. Evans moved for a mistrial on
the grounds that the stricken statement was played for the jury.
The court denied the motion for mistrial but stated it would
formulate a limiting instruction to address the error.
The court allowed the State to resume the video for about
another hour before the court adjourned for the day. No limit-
ing instruction was given at the conclusion of the portion of
the video played that day. However, the next morning before
trial resumed, the court granted Evans’ request that a limiting
instruction be given before and after the playing of the remain-
der of the video that the jury had not yet heard. Before the
redacted interview video was resumed, the court gave the new
limiting instruction to the jury, which provided:
And, ladies and gentlemen, before we resume playing
of the interview, I would like to read an instruction to
you. Members of the jury, you are about to hear and
have been listening to a video where Detective Ryan
Hinsley questioned Raymond Evans. This is admitted
for Raymond Evans[’] statements. Detective Hinsley’s
statements are included to give context to Raymond
Evans[’] statements. Detective Hinsley’s statements were
part of interview techniques and should not be considered
as substantive evidence in any way in determining if
Raymond Evans committed first degree murder or use of
a weapon, not a firearm, to commit the same. Raymond
Evans[’] statements are evidence in this case.
Following the conclusion of the video and the end of Hinsley’s
testimony that day, the court again read the above limiting
instruction to the jury.

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After the State rested its case in chief, Evans again moved
for mistrial on the grounds of Hinsley’s statement about Evans’
being untruthful. The State countered that Hinsley’s comment
was unintentionally played, all other similar statements were
redacted, and the single comment did not rise to the level of
a mistrial. The court again denied Evans’ motion for mistrial,
explaining it believed the comment was inadvertently not
redacted and the limiting instruction was sufficient to resolve
the issue.
Several instructions in the court’s instructions at the close
of all the evidence addressed the video of Hinsley’s interview
with Evans and any prior bad acts or commentary on truthful-
ness. Instruction No. 13 provided:
You may have heard evidence of bad acts about
Raymond Evans other than the charges for which he is
on trial. You should not consider those acts (including
possession and/or smoking marijuana) for purposes of
Raymond Evans’ character. Raymond Evans is on trial
for only the charges that I have instructed you in the
beginning of the case.
Instruction No. 14 continued:
You heard and saw a recording of an interview with
Raymond Evans and Sgt. Hinsley. I have ordered parts
of the recording to be deleted for efficiency purposes and
because the deleted portions are not relevant for purposes
of this trial. You are not to concern yourself with the
contents of the deleted portions, consider them at all in
your deliberations, or speculate as to their content.
Finally, instruction No. 15 provided:
You heard and saw a video where Detective Ryan
Hinsley questioned Raymond Evans. This is admitted
for 	Raymond 	Evans’ statements. 	Detective 	Hinsley’s
statements are included to give context to Raymond
Evans’ statements. Detective Hinsley’s statements were
part of interview techniques and should not be considered
as substantive evidence in any way in determining if

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Raymond Evans committed first degree murder or use of
a weapon, not a firearm, to commit the same. Raymond
Evans’ statements are evidence in this case.
During closing argument, counsel for the State said to the
jury, “There’s a difference between being cooperative and
being truthful. And I — I’m positive you know the difference.”
Evans did not object to this statement during closing argument.
(e) November 22, 2023, Woodcrest Apartment
Search and Followup Investigation
In the search conducted during the Evans-Hinsley inter-
view, 	detectives 	found 	black 	satin 	and 	mermaid 	pillow-
cases matching the black satin sheet and mermaid comforter
Cecilia’s body was found wrapped in. In the kitchen of
Cecilia’s Woodcrest apartment, detectives observed a black
plastic trash bag with a blue tie, which matched the trash bags
found wrapped around Cecilia’s feet and head. While looking
for a hammer, based on Linde’s opinion from the autopsy,
detectives found a toolbox containing common household
tools, including a socket wrench set, a measuring tape, a
level, screwdrivers, Allen wrenches, and adjustable wrenches,
but no hammer. Detectives did not locate a hammer in the
apartment and did not find any other tools in the apartment.
Detectives found evidence of blood and cleaning throughout
the apartment. Blood was found on the walls and television in
the master bedroom, on a gold ring found in the master bath-
room, on the carpet in the master bedroom, in a wet rug and
underlying flooring in a secondary bedroom, and on a pair of
men’s compression shorts.
A forensic DNA analyst testified that Cecilia and Evans
were included as contributors to a mixture of DNA found on
clear plastic tape taken from the comforter wrapped around
Cecilia’s body. She testified that the blood swabbed from
various places in the apartment was determined to be Cecilia’s.
This included blood found on Evans’ gold ring, on the wall
in the master bedroom, on the closet doorframe in the master

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bedroom, on the television in the master bedroom, and on the
cement under the carpet in the secondary bedroom.
Detectives searched the Acadia and observed it was very
dusty and dirty on the outside, particularly in the tailgate area,
which was consistent with the Acadia’s being driven on the
gravel roads near 98th Street and Havelock Avenue in Lincoln
a few days before. Detectives also noted that there were areas
on the outside of the Acadia where it looked like something
was leaned up against it and that someone appeared to have
attempted to wipe down the vehicle very quickly. Inside the
Acadia, detectives found several personal items, some appar-
ently belonging to Cecilia, including various articles of cloth-
ing, a wallet, a debit card, and keys to the Woodcrest apart-
ment. Detectives looked for blood or fluids inside the Acadia
but found nothing of significance.
A digital forensics expert analyzed location information
from Evans’ and Cecilia’s phones and tied that with GPS data
for Cecilia’s Acadia obtained with the assistance of Automart
150. The digital forensics expert explained that on Sunday,
November 19, 2023, which was the last day Evans claimed he
had seen Cecilia before she supposedly met up with Durand
but the day after anyone besides Evans reported having seen
or heard from her, Cecilia’s and Evans’ phones were both
at the Woodcrest apartment until about 2 p.m., when Evans
left the apartment. Shortly before Evans left, the two phones
exchanged messages about Evans going to his grandmother’s
house and Cecilia’s going to meet up with Durand later. Just
after 2 p.m., Evans’ phone traveled from the Woodcrest apart-
ment to the area of 33d Street and Fowler Avenue in northeast
Omaha, where Evans had told Hinsley that his grandmother’s
house is located. GPS data from the Acadia shows the same
path of travel from the Woodcrest apartment to the area of
33d Street and Fowler Avenue.
Evans’ phone remained at the area of 33d Street and Fowler
Avenue until approximately 8:43 p.m., except for a brief trip
to and from nearby 50th Street and Ames Avenue around

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5 p.m. Although Evans’ phone remained in northeast Omaha,
GPS data from the Acadia showed that the Acadia traveled
from northeast Omaha to the Woodcrest apartment and back
between 6:26 and 8:26 p.m.
Between 6:24 and 7:32 p.m., data from Evans’ phone shows
that the phone was locked and “no apps” were used, which
coincides with the time when the Acadia left the area of 33d
Street and Fowler Avenue. During the interview with Hinsley,
Evans said he was at his grandmother’s house all afternoon on
November 19, 2023, until he returned to the Woodcrest apart-
ment later that night.
Cecilia’s phone sent text messages to Evans’ phone at 6:49
and 7:15 p.m. on Sunday, November 19, 2023. The first text
read, “I’m heading to [Durand’s] now,” and the second read,
“I just made it to [Durand’s,] I love you.” Data from Cecilia’s
phone indicates that it remained at the Woodcrest apartment
from 9:54 p.m. on Friday, November 17, until 6:58 p.m. on
Sunday, November 19.
Corresponding to the Acadia’s GPS data at the same time,
Cecilia’s phone data shows it traveled from the Woodcrest
apartment at 6:58 p.m. until 7:15 p.m., ending near the
“Aksarben” area where the “I just made it to [Durand’s,] I love
you,” text was sent. At that point, Cecilia’s phone was either
shut off or destroyed because it stopped communicating with
the cell towers.
The Acadia then returned to the area of 33d Street and
Fowler Avenue. Data from Evans’ phone showed that Cecilia’s
text messages were not read until 8:04 p.m. At 8:43 p.m.,
Evans’ phone and the Acadia returned from the area of 33d
Street and Fowler Avenue to the Woodcrest apartment.
Detectives utilized surveillance footage to corroborate the
accuracy of the Acadia’s GPS data. On Monday, November
20, 2023, at 5:55 p.m., the Acadia “pinged” near 72d Street
and Ames Avenue. Surveillance footage from stores at that
area showed a red Acadia with paper dealer plates and a
driver wearing a “red top” arriving at the parking lot at that

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location shortly after 5 p.m. The Acadia remained parked for
about 3½ hours before leaving at 8:31 p.m.
Early the next day, on Tuesday, November 21, 2023, at
3:33 a.m., surveillance footage from near the Woodcrest apart-
ment showed a figure, who appeared to be carrying a large
item, exiting the door to Cecilia’s apartment building. A short
time later, headlights illuminated the apartment building, and
the vehicle left the parking lot. The vehicle left the apartment
complex and headed in the direction of the nearby interstate.
An internet search showed that it is a 39-minute drive
to travel from the Woodcrest apartment to 98th Street and
Havelock Avenue, 	just 	outside 	of 	Lincoln, 	which 	corre-
sponded with leaving the apartment at 3:33 a.m. and being at
98th Street and Havelock Avenue at 4:17 a.m. At 4:17 a.m.,
the key GPS data point for the Acadia’s location was near the
intersection of 98th Street and Havelock Avenue, which is
adjacent to the field where Cecilia’s body was found later that
same day.
The digital forensics expert testified that cellular data from
3:26 to 4:16 a.m. on Tuesday, November 21, 2023, showed the
Acadia connected with six different cell towers, starting near
the Woodcrest apartment and following along Interstate 80
toward Lincoln, with the last cell tower connected to being in
northeast Lincoln near where Cecilia’s body was found. GPS
data showed that between 4:17 and 5:17 a.m., the Acadia trav-
eled back from Lincoln to southwest Omaha along the same
path in reverse, ending back at the Woodcrest apartment.
2. State’s Evidence of Evans’ Relationship With
Cecilia, Evans’ Concerns for Her Safety,
and Evans’ Other Bad Acts
At trial, the court allowed the State to admit statements by
Cecilia’s family members and coworkers about her relation-
ship with Evans and safety concerns they had for Cecilia.
The court overruled objections by Evans to such testimony
on the grounds of relevance, undue prejudice, and prior bad

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acts. Evans first objected, during opening statements, to the
State’s characterization of Evans’ control over Cecilia. The
court overruled the objection and stated, “You can have a
continuing objection,” but it did not specify the limits of that
continuing objection. Throughout trial, Evans objected dur-
ing most witnesses’ testimony on these topics, albeit not all.
Evans objected on the grounds of relevance and Neb. Rev. Stat.
§§ 27-403 and 27-404 (Cum. Supp. 2024), to such testimony
from Tyrone Charleston, Tyara Morris, Donna Balkus, Durand,
Brandy, Wineinger, Jones, Diaz, and N.R.P. Only one objec-
tion on these grounds was sustained by the court, while the
remainder of Evans’ objections were overruled. In each case,
the court stated that Evans could have “a continuing objection”
to the witness’ testimony, but it did not state that the continuing
objections would apply across witnesses.
Charleston, a Department of Health and Human Services
caseworker, testified that he became involved with Cecilia’s
family because of safety concerns about Cecilia’s drink-
ing and Evans’ living in the apartment with Cecilia. Morris,
Cecilia’s coworker, testified that she spoke with Cecilia about
her relationship with Evans and that those conversations
caused her concern for Cecilia’s safety. Morris further testi-
fied that Evans dropped Cecilia off for work and would be
waiting for her in the parking lot during her breaks and at
the end of her shifts. Balkus, another of Cecilia’s coworkers,
broadly testified that she had concerns for Cecilia’s safety
due to her relationship with Evans. Durand, a close friend
who often “h[u]ng out” with Cecilia, testified that she had
concerns for Cecilia’s safety after she did not answer the door
at her apartment when Durand and Cecilia had made plans to
watch a movie in September 2023.
Brandy, one of Cecilia’s sisters, testified that, based on her
conversations with Wineinger and N.R.P. between Christmas
2022 and the spring of 2023, Brandy had concerns for Cecilia’s
safety because of her relationship with Evans. Brandy also
explained that Child Protective Services had a rule that Evans

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could not be present when Cecilia saw her children. Brandy
testified about a confrontation she had with Evans sometime
in the summer of 2023 when she came to the Woodcrest apart-
ment to pick Cecilia up for a visit with her children. Brandy
arrived early to pick Cecilia up, which led to an argument
with Evans while Cecilia was in the back bedroom of the
apartment, and Brandy testified that Evans treated her like he
was “intimidated” by her and did not want her there.
Wineinger, another sister of Cecilia’s, testified about some
of her experiences with Evans and how Evans treated Cecilia
when Wineinger was living at the Woodcrest apartment around
April 2023. Wineinger described her first interaction with
Evans as “weird,” explaining that Evans drove chaotically
while driving her to work with Cecilia in the vehicle. Further,
when Evans would drive Wineinger to and from work without
Cecilia in the vehicle, Evans would drive very cautiously,
which would cause Wineinger to be late to work. Wineinger
described Evans as being possessive of Cecilia, by keeping
her in her bedroom and often blocking the door to the bed-
room so no one could get in, as well consistently referring
to Cecilia as “woman” or “my woman.” Wineinger also testi-
fied that Evans would buy Cecilia alcohol, despite Cecilia’s
struggling with sobriety. Wineinger testified that Evans would
stare her down and eat her food and that she had once woken
up to him staring at her, all of which she said made her feel
threatened. Wineinger explained that while she was concerned
for her own safety at first, she became concerned for Cecilia’s
safety based on how Evans was treating her. Wineinger testi-
fied that Evans changed the locks to the apartment around
June or July 2023, and she was not able to retrieve her things
from the apartment until after Cecilia died. Wineinger said she
remained in contact with Cecilia over text and would see her
at visitations at Brandy’s. Wineinger described Cecilia during
July and August 2023 as “really sad.”
N.R.P. 	testified 	at 	length 	about 	her 	relationship 	with
her mother, the impact Evans had on that relationship, and

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her interactions with Evans. N.R.P. was asked if she “saw
something on” her mother that caused her to confront Evans,
which drew an objection “as to relevance, 403, 404, not inex-
tricably intertwined.” During a sidebar, the court explained
that N.R.P. could explain that she confronted Evans about
her mother’s having a black eye but could not testify that she
thought Evans did it. N.R.P. explained that she confronted
Evans sometime after Christmas 2022 about what she had
seen, to which Evans explained to N.R.P. that he and Cecilia
were “play fighting.” N.R.P. also testified about her interac-
tions with Cecilia in November 2023, where N.R.P. described
Cecilia as being “extremely upset,” mostly due to the fact
that N.R.P. was not moving back into the apartment because
Evans was still living there. N.R.P. testified that she was con-
cerned for her mother.
Evans did not object when Van Sloun generally testified
that she had concerns for Cecilia’s safety as it related to her
relationship with Evans. Evans also did not object to Diaz’
testimony that she had safety concerns for Cecilia because
of her relationship with Evans. Evans only objected later in
Diaz’ testimony when she was asked about her concerns with
Evans’ living in the apartment with Cecilia.
After the State rested its case in chief, Evans moved for a
mistrial, in part on the grounds that the evidence of Evans’
other bad acts were wrongfully admitted. The court denied
the motion.
3. Evans’ Defense of Other Possible Suspects
As part of Evans’ defense, defense counsel emphasized
Cecilia’s past relationships with Ramirez and Jones and the
police’s apparent lack of investigation into the two men
as 	potential 	suspects. 	Through 	counsel, 	Evans 	attempted
to cross-examine Brandy about Cecilia’s relationship with
Ramirez. The court sustained the State’s relevance objec-
tion and explained in a sidebar that it was concerned about
getting into the details of a relationship that had taken place

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over a decade ago. Evans also asked Det. Cortes Clark if
Omaha Police Department’s investigation included looking
into Ramirez’ background. This line of questioning again
drew a relevance objection from the State, which the court
sustained after another sidebar.
On cross-examination of Brandy, Evans tried to inquire into
what ended the relationship between Cecilia and Jones in 2022.
The court sustained the State’s relevance objection to that line
of questioning. During a sidebar, the court explained that it did
not see the relevance of a disagreement or argument between
Jones and Cecilia from 2021 or 2022. The court explained that
Evans could ask police officers about investigating Jones as a
suspect, but it was not relevant during Brandy’s testimony.
Van Sloun testified that when she served as the personal rep-
resentative of Cecilia’s estate, she learned Cecilia had “taken
out” a life insurance policy in August 2023 and named N.R.P.
and Jones as equal beneficiaries of the policy. On cross-
examination, Evans elicited that Cecilia’s life insurance policy
was worth $150,000.
On cross-examination of Jones, Evans inquired into Jones’
relationship with Cecilia’s sisters, Cecilia’s alcohol problem,
and his knowledge of Ramirez. Evans did not ask about the
last time Jones saw Cecilia, what he was doing around the time
she went missing, or Jones’ being a beneficiary on Cecilia’s
life insurance policy.
On cross-examination of Clark, Evans asked if he had
tried to reach out to Jones as part of the investigation. Clark
explained that he had reached out to Jones, who told Clark that
he was represented by an attorney and that Clark should speak
to the attorney. Clark explained that both Ramirez and Jones
were eliminated as suspects based on the evidence. Hinsley
likewise testified that Ramirez and Jones were excluded as
suspects based on the evidence.
Evans called as witnesses three of his family members con-
cerning his whereabouts over the weekend of November 17,
2023: Evans’ father, Evans’ cousin, and Evans’ aunt. All three

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testified that they had seen Evans at the family residence on
Fowler Avenue in Omaha at least some over that weekend.
Evans’ father testified that Evans was at the family residence
most of the day on Sunday that weekend. Evans’ cousin testi-
fied that he and Evans went to a discount department store
and a fast-food restaurant and stopped to get beer, but he
could not remember which day it was that weekend. Evans’
aunt testified that Evans drove her to the store to get grocer-
ies for Thanksgiving, but she also could not remember when
that occurred.
4. Evans’ Motion for Directed Verdict on Use of
Deadly Weapon to Commit Felony
At the conclusion of the State’s case in chief, Evans moved
for a directed verdict on the use of a deadly weapon (not a
firearm) to commit a felony charge. Evans argued that the State
never introduced an exhibit or any weapon to support a finding
of guilt on that charge. The State countered that the absence
of a specific weapon is not grounds alone for a directed ver-
dict on the use charge. The State pointed to Linde’s testimony
about Cecilia’s cause of death being blunt force trauma caused
by a weapon, “whether it was one or two or more.” The court
denied Evans’ motion for directed verdict.
When the case was submitted, the court instructed the jury
on the elements of use of a deadly weapon (not a firearm) to
commit a felony. The first element required the jury to find that
Evans “intentionally used a deadly weapon.” A deadly weapon
was defined as “anything that is used or intended to be used in
a way that could produce death or serious bodily injury.”
After less than 1½ hours, the jury returned verdicts finding
Evans guilty of first degree murder and use of a deadly weapon
(not a firearm) to commit a felony. Evans was sentenced and
timely appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Evans asserts the following errors, restated: (1)
The district court erred in overruling his motion for mistrial

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when a statement accusing him of being untruthful, which was
ordered to be excluded from trial, was played during a video
shown to the jury; (2) there was not sufficient evidence to
support a conviction of Evans for use of a deadly weapon (not
a firearm) to commit a felony; (3) the district court abused
its discretion in allowing the State to present other bad acts
evidence over the objection of trial counsel, after the district
court ruled it was inextricably intertwined; and (4) Evans
received ineffective assistance of trial counsel when counsel
failed to adequately investigate the victim’s ex-husband as a
potential suspect and failed to adequately cross-examine the
ex-husband at trial.
IV. STANDARD OF REVIEW
[1] A trial court is vested with considerable discretion in
passing on motions for mistrial, and an appellate court will not
disturb a trial court’s decision whether to grant a motion for
mistrial unless the court has abused its discretion. 1
[2] In reviewing a criminal conviction for sufficiency of the
evidence, 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. 2 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. 3
[3-5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility. 4 An appellate
1 See State v. Price, 320 Neb. 1, 26 N.W.3d 70 (2025).
2 State v. Haynie, 317 Neb. 371, 9 N.W.3d 915 (2024).
3 Id.
4 State v. Allen, 318 Neb. 627, 17 N.W.3d 794 (2025).

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court will review for abuse of discretion a trial court’s evi-
dentiary rulings on the admissibility of a defendant’s other
crimes or bad acts under § 27-404(2), or under the inextrica-
bly intertwined exception to § 27-404(2). 5 A judicial abuse of
discretion exists when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a sub-
stantial right and denying just results in matters submitted
for disposition. 6
[6,7] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. 7 In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 8
V. ANALYSIS
1. Motion for Mistrial Regarding Officer’s
Interview Statement That Evans
Was Untruthful
Evans’ principal argument on appeal is that the court abused
its discretion in denying his motion for a mistrial after the jury
heard, in the video recorded police interview, an officer say
to Evans, “[Y]ou’re not being truthful.” He argues the court’s
limiting instructions were insufficient to remove the damaging
effect of the officer’s imprimatur of the government that may
have led the jury to improperly rely on the officer’s opinion of
Evans’ credibility.
[8-10] 	Under 	Neb. 	Rev. 	Stat. 	§§ 	27-701 	and 	27-702
(Reissue 2016), testimony that usurps the jury’s role in making
5 State v. Logan, 320 Neb. 554, 28 N.W.3d 510 (2025).
6 State v. Allen, supra note 4.
7 State v. Rezac, 318 Neb. 352, 15 N.W.3d 705 (2025).
8 Id.

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credibility determinations is not helpful and thus is improper
opinion testimony. 9 Accordingly, it is improper for a witness
to testify whether another person may or may not have been
telling the truth in a specific instance. 10 It is especially prob-
lematic when an officer testifies at trial that the defendant is
untruthful, because such testimony carries with it the impri-
matur of the government that can induce improper reliance by
a jury. 11
[11] However, an officer’s statement in the course of a
taped interrogation is not “testimony.” 12 In State v. Rocha, 13 we
adopted the rule that statements on veracity by law enforce-
ment officials within a recorded pretrial interrogation played
for the jury at trial are neither categorically admissible nor
categorically inadmissible and are to be analyzed under the
ordinary rules of evidence. 14
We elaborated that law enforcement statements in a police
interview are not admissible to prove the truth of the mat-
ter asserted in the commentary but may be independently
admissible for the purpose of providing necessary context
to a defendant’s statements in the interview which are them-
selves admissible. 15 The police commentary must be probative
and material in light of the permissible purpose of provid-
ing context to the defendant’s responses. 16 Further, interview
9 See State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
10 See id.
11 See, State v. Rocha, supra note 9; State v. Demery, 144 Wash. 2d 753, 30
P.3d 1278 (2001).
12 See id. See, also, Black’s Law Dictionary 1784 (12th ed. 2024).
13 State v. Rocha, supra note 9.
14 See, also, State v. Vazquez, 319 Neb. 192, 21 N.W.3d 615 (2025); State v.
Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023); State v. Senteney, 307 Neb.
702, 950 N.W.2d 585 (2020); State v. Baker, 298 Neb. 216, 903 N.W.2d
469 (2017).
15 See id.
16 Id.

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statements that are otherwise admissible may be excluded as
unfairly prejudicial under § 27-403 due to, among other things,
the “aura of reliability as a law enforcement officer.” 17 Upon
request, a defendant is entitled to a limiting instruction that
such statements are to be considered only for the permissible
purpose of providing context to the defendant’s statements in
the interview.
We clarified in Rocha that we were not opening a “back
door” to allowing the admission of improper opinion testimony
by simply labeling it as “context”; trial courts have a seri-
ous responsibility to ensure that such statements are relevant
for the permissible purpose of providing necessary context
to a defendant’s statements and that they do not run afoul
of § 27-403. 18 A limiting instruction does not “automatically
eliminate any risk of unfair prejudice.” 19
We ultimately affirmed in Rocha the court’s decision to per-
mit, as relevant for context, the introduction of a police inter-
view wherein law enforcement repeatedly and directly ques-
tioned the defendant’s honesty, including stating, “[Y]ou’re
not being honest though.” 20 In so holding, we noted that
the trial court gave a limiting instruction that the statements
questioning the defendant’s honesty were part of an interview
technique and should not be considered substantive evidence
or given any weight when considering the truthfulness of the
defendant’s statements.
In this case, the court, following our mandate in Rocha, eval-
uated the potential probative value of the officer’s statements
against their potential for unfair prejudice and granted Evans’
motion in limine to redact the statements. Nevertheless, one of
the statements subject to the court’s order was inadvertently
17 State v. Rocha, supra note 9, 295 Neb. at 744, 890 N.W.2d at 201.
18 Id. at 741, 890 N.W.2d at 199 (internal quotation marks omitted).
19 Id. at 744, 890 N.W.2d at 201.
20 Id. at 724, 890 N.W.2d at 189 (internal quotation marks omitted).

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played for the jury. Evans does not argue prosecutorial mis-
conduct in failing to adhere to the trial court’s order.
In the segment of the taped interview at issue, Evans was
telling Hinsley that he was being cooperative and Hinsley
responded that there was a difference between being coopera-
tive and truthful. In further debate on the issue, Hinsley said,
“[Y]ou’re not being truthful, though.” Before that statement
was played for the jury, the court had instructed that the jury
should not concern itself with deleted portions of the inter-
view, which were not relevant for the purposes of this trial.
The statement was played near the end of the day. The fol-
lowing morning, before the jury heard any more of the video,
the court instructed the jury in relevant part that Hinsley’s
statement were included to give context and were part of inter-
view techniques that “should not be considered as substantive
evidence in any way.” When the court finished playing for the
jury the entirety of the redacted video, it again set forth this
admonition. Then, at the close of all the evidence and before
submitting the matter for deliberation, the court generally
instructed the jury that it should be focused on Evans’ state-
ments and not Hinsley’s, reiterating that Hinsley’s statements
were “part of interview techniques and should not be consid-
ered as substantive evidence in any way.”
[12-15] A mistrial is properly granted in a criminal case
where an event occurs during trial of such a nature that its
damaging effect cannot be removed by proper admonition or
instruction to the jury and thus prevents a fair trial. 21 Where
a motion for mistrial is premised on adducing evidence that
violates an order in limine, an appellate court will consider
that the trial judge was in the best position to assess the
potential impact of such evidence on the jury. 22 To prove
error predicated on the failure to grant a mistrial, a defendant
faces a higher threshold than merely showing a possibility of
21 See State v. Vazquez, supra note 14.
22 Id.

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prejudice. 23 The defendant must prove the alleged error actu-
ally prejudiced him or her, rather than creating only the possi-
bility of prejudice. 24 We review rulings on motions for mistrial
for an abuse of discretion, and our deferential standard stems
in part from the recognition that the trial judge is often better
situated than a reviewing court to assess the atmosphere of the
trial and the impact of certain evidence or events. 25
The district court did not abuse its discretion in denying
Evans’ motion for mistrial. Evans focuses on the alleged
inadequacy of the instruction given before the statement was
played, which instruction he claims was focused only on
use and possession of marijuana. He does not take issue
with the wording of the instructions given after the offi-
cer’s statement was played; instead, he suggests the instruc-
tions were insufficient because the jury “had time to think
about the statement overnight before coming back the next
morning.” 26 We disagree with Evans’ suggestion that not giv-
ing the admonishment until the next morning is decisive of
whether Evans was prejudiced. While we have emphasized
trial courts’ responsibility to ensure that such statements are
relevant for the permissible purpose of providing necessary
context to a defendant’s statements and that they do not run
afoul of § 27-403, it is also true that statements during police
interrogations are part of common interrogation techniques
and not attempts by the officer to convince anyone that the
defendant was lying. 27 This fact is not outside of a jury’s com-
mon understanding, and the court admonished the jury not to
consider the officer’s statements “as substantive evidence in
any way.” The court gave this instruction not just once, but
three times. Considering the clarity of the court’s repeated
23 Id.
24 Id.
25 Id.
26 Brief for appellant at 21.
27 See, e.g., Lanham v. Com., 171 S.W.3d 14 (Ky. 2005).

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admonishment to the jury, we cannot say that the damaging
effect of this singular exchange, within the 4½ hours of video,
prevented a fair trial.
2. Other Acts Objection to Concerns
Over Relationship
Evans asserts the court abused its discretion in admit-
ting “other bad acts evidence” through the testimony of
Cecilia’s friends, coworkers, and relatives that they were con-
cerned about Cecilia’s relationship with Evans. Specifically,
on appeal, Evans takes issue with the court’s admission of
Morris’, Durand’s, Balkus’, and Brandy’s generalized state-
ments that they were concerned about Cecilia’s safety. He also
takes issue with (1) N.R.P.’s testimony describing how she
asked Evans about her mother’s having a black eye and he
said it happened when he and Cecilia were “play fighting”; (2)
Balkus’ testimony that Evans waited in the parking lot when
Cecilia was working; (3) Brandy’s testimony that Evans was
not allowed to be present during Cecilia’s supervised visitation
with her children; and (4) Wineinger’s testimony that Evans
was hostile and possessive of Cecilia, would cross boundaries
by eating Wineinger’s food and staring at her while she slept,
and once drove chaotically.
[16] Evans specifically assigns and argues that the court
abused its discretion in overruling his objections to these
statements under § 27-404(2), on the grounds that it was
inextricably intertwined with the charged crimes. We limit our
analysis to that argument. Evans does not specifically assign
that the court erred by overruling an objection based on the
evidence being unfairly prejudicial under § 27-403, or on any
other grounds. To be considered by an appellate court, the
party asserting an alleged error must both specifically assign
and specifically argue the error in the party’s initial brief. 28
An appellate court will review for abuse of discretion
a trial court’s evidentiary rulings on the admissibility of a
28 State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).

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defendant’s other crimes or bad acts under § 27-404(2), or
under the inextricably intertwined exception to the rule. 29 A
judicial abuse of discretion exists only when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. 30
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, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Section 27-404(3) provides:
When such evidence is admissible pursuant to this sec-
tion, in criminal cases evidence of other crimes, wrongs,
or acts of the accused may be offered in evidence by the
prosecution if the prosecution proves to the court by clear
and convincing evidence that the accused committed the
crime, wrong, or act. Such proof shall first be made out-
side the presence of any jury.
[17,18] 	Under 	§ 	27-404(2), 	evidence 	of 	other 	crimes,
wrongs, or acts is not admissible to prove the character of
a person in order to show that he or she acted in conformity
therewith. 31 Though difficult to define, character has been
described as the generalized disposition or tendency to act
in a particular way in all the varying situations of life,
caused by something internal to the actor that arises from that
person’s moral being. 32 Section 27-404 attempts to prevent
juries from convicting because the defendant is a bad person
deserving of punishment, rather than because the crime was
29 State v. Boswell, 316 Neb. 542, 5 N.W.3d 747 (2024).
30 State v. Cooke, 311 Neb. 511, 973 N.W.2d 658 (2022).
31 State v. Logan, supra note 5.
32 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

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proved beyond a reasonable doubt. 33 Section 27-404(2) does
not apply, however, to evidence of a defendant’s other crimes
or bad acts if the evidence is inextricably intertwined with the
charged crime. 34
As Evans points out, “[t]here was nothing substantive” 35 in
the witnesses’ general testimony that they had concerns for
Cecilia’s safety. Indeed, we conclude that this is not testimony
of other “crimes, wrongs, or acts” at all. 36 Many courts limit
the scope of the “other acts” prohibition to “an activity or
conduct” that tends to impugn or reflect adversely upon one’s
character. 37 Without deciding whether innocuous acts fall out-
side the purview of § 27-404(2), we agree that there must be
“an activity or conduct” for § 27-404(2) to apply. Under the
plain language of § 27-404(2), there must be “crimes, wrongs,
or acts” by the defendant. The evidence of people’s general
concerns for Cecilia’s safety was not evidence of Evans’
activities or conduct.
[19,20] We also note that the substance of the testimony
from these witnesses, i.e., that they were concerned about
Cecilia’s safety as it related to her relationship with Evans,
was cumulative of the testimony of Van Sloun and Diaz,
which Evans did not object to. Consistent with Neb. Rev.
Stat. § 25-1141 (Reissue 2016), an objection must be renewed
with each witness in order to preserve for appeal an alleged
error as to each witness, 38 with the only possible exception
33 See id.
34 State v. Logan, supra note 5.
35 Brief for appellant at 29.
36 See § 27-404.
37 Klauenberg v. State, 355 Md. 528, 549, 735 A.2d 1061, 1072 (1999). See,
also, e.g., State v. Kille, 471 N.J. Super. 633, 274 A.3d 704 (2022); Gattis
v. State, 637 A.2d 808 (Del. 1994).
38 See, State v. Elias, 314 Neb. 494, 990 N.W.2d 905 (2023); State v.
Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved on other
grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015). See, also,
State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998).

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being a standing objection the court has explicitly stated
covers multiple witnesses’ testimony of the same nature. 39
Furthermore, a continuing objection to a witness’ testimony
does not preserve the alleged error for testimony by that wit-
ness before the objection was made. Though whether an error
is harmless must be a fact-specific inquiry in light of the
totality of the record, 40 the admission of testimony objected to
is ordinarily not prejudicial error when such testimony is sub-
stantially identical to testimony admitted without objection. 41
The evidence of people’s general concerns for Cecilia’s safety
was harmless.
We turn next to the activity or conduct reflected in the testi-
mony that Evans once said he was “play fighting” when ques-
tioned about giving Cecilia a black eye, waited in the parking
lot when Cecilia was working, was not allowed to be present
during Cecilia’s supervised visitation with her children, once
drove chaotically with Cecilia in the vehicle, was hostile and
possessive of Cecilia, and would cross “boundar[ies]” by eat-
ing Wineinger’s food and staring at her while she slept. The
district court determined these were inextricably intertwined
with the charged crimes and, thus, were not “other” acts.
Apart from Evans’ actions toward Wineinger, we agree.
[21-23] Other acts are acts “not part of the events giving
rise to the present charges,” 42 whereas acts that are inextri-
cably intertwined with the present charges form part of the
factual setting of the crime, are so blended or connected to
the charged crime that proof of the charged crime will nec-
essarily require proof of the other crimes or bad acts, or are
39 See, State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017); State v.
Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011). See, also, State v.
Kalmio, 846 N.W.2d 752 (N.D. 2014); Davis v. Com., 147 S.W.3d 709
(Ky. 2004); Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897 (Tex.
2004).
40 See State v. Torres Aquino, 318 Neb. 771, 19 N.W.3d 222 (2025).
41 See State v. Kirksey, supra note 38.
42 U.S. v. Gorman, 312 F.3d 1159, 1162 (10th Cir. 2002).

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necessary for the prosecution to present a coherent picture of
the charged crime. 43 The State is entitled to present a coher-
ent picture of the facts of the crime charged, and evidence of
other conduct that forms an integral part of the crime charged
is not rendered inadmissible under § 27-404 merely because
the acts are criminal in their own right, but have not been
charged. 44 The relevancy of inextricably intertwined conduct
does not rely on propensity reasoning. 45
[24] We have held in other cases that prior acts of the
defendant toward the victim, which reflected an escalating
pattern within the relationship, were inextricably intertwined
with the charged crimes where they reflected the defendant’s
mens rea for the crime. As another court has explained, “In a
prosecution for homicide arising out of a marital or romantic
relationship, evidence of previous discord between the victim
and the defendant is clearly material to issues of motive and
intent.” 46 We agree. Thus, in State v. Cullen, 47 we found that
evidence of an infant’s injuries in the defendant’s care, over
approximately 7 weeks leading up to the infant’s death, was
admissible as inextricably intertwined with the charged crime
of intentional child abuse resulting in death, because the acts
presented a complete picture of the defendant’s relationship
with the infant and his parents and placed those fatal injuries
in the context of an escalating pattern of abuse, shedding
light on whether the defendant’s actions were intentional or
43 See State v. White, 321 Neb. 1, 32 N.W.3d 256 (2026).
44 State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
45 See 3 Clifford F. Fishman, Jones on Evidence Civil and Criminal § 17:14
(7th ed. 1998). See, also, 1 McCormick on Evidence § 190.9 (Robert M.
Mosteller ed., 8th ed. 2020).
46 Gattis v. State, supra note 37, 637 A.2d at 818, citing Hutchins v. State of
Del., 52 Del. 98, 153 A.2d 204 (1959). See, also, State v. Smith, 275 Conn.
205, 881 A.2d 160 (2005); Abrams v. State, 331 So. 3d 1184 (Ala. Crim.
App. 2021).
47 State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).

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negligent. 48 We distinguished the facts in Cullen from other
cases where prior abuse was not considered inextricably
intertwined, by pointing out that both the evidence the State
sought to introduce and the crime charged involved the same
type of offense and the same victim. 49 Similarly, in State
v. Burries, 50 we held that the evidence of the defendant’s
assault approximately 17 months before the murder of the
victim, with whom he was romantically involved, as well as
evidence of prior threats by the defendant toward the victim,
were admissible as inextricably intertwined because these acts
formed part of the factual setting for the charged crime of first
degree murder and showed the defendant acted intentionally
or with premeditation.
Likewise, in this case, it was not untenable for the district
court to conclude that the evidence of controlling or abusive
behavior by Evans toward Cecilia in the months leading up
to her death was inextricably intertwined with the charge of
first degree murder. The court did not err in admitting the
testimony describing Evans’ acts toward Cecilia over Evans’
§ 27-404 objection.
We find, in contrast, that the court abused its discretion
by concluding that Evans’ behavior toward Wineinger was
inextricably intertwined with Cecilia’s murder. It is difficult
to see how Evans’ unpleasant behavior toward Wineinger
could be seen as part of his attempt to exert control over
Cecilia. Furthermore, the evidence of Evans’ behavior toward
Wineinger carries the danger of propensity, reasoning that
Evans 	committed 	the 	crime 	because 	he 	was 	a 	generally
unpleasant and creepy person, which is outweighed by any
nonpropensity relevancy of these acts to prove the elements of
the charged crimes.
48 See id.
49 See id.
50 State v. Burries, supra note 39.

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[25] But we find the admission of this testimony was harm-
less error. The inquiry in a harmless error analysis is whether
the actual guilty verdict rendered was surely unattributable
to the error. 51 Whether error is harmless in a particular case
depends upon a host of factors. 52 An appellate court looks
to the entire record and views the erroneously admitted evi-
dence relative to the rest of the untainted, relevant evidence
of guilt. 53 Overwhelming evidence of guilt can be considered
in determining whether the verdict rendered was surely unat-
tributable to the error, but overwhelming evidence of guilt is
not alone sufficient to find the erroneous admission of evi-
dence harmless. 54
The acts described by Wineinger were minor and were
eclipsed by the evidence, properly admitted, of broadly similar
acts toward Cecilia, as well as the heavy weight of the evi-
dence against Evans, including the evidence that Cecilia was
killed in her apartment and taken, in her vehicle, to the loca-
tion where her body was found and that only Evans had the
keys to her vehicle. We also find relevant to our harmless error
analysis that during the trial, the court generally admonished
the jury that prior acts should not be used to determine Evans’
character and that Evans was not on trial for any prior acts.
Further, in its final instructions before jury deliberations, the
court instructed the jury:
You may have heard evidence of bad acts about
Raymond Evans other than the charges for which he is on
trial. You should not consider those acts . . . for purposes
of Raymond Evans’ character. Raymond Evans is on trial
for only the charges that I have instructed you in the
beginning of the case.
51 See State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).
52 State v. Torres Aquino, supra note 40.
53 State v. Kidder, supra note 51.
54 Id.

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In light of all these facts, the actual guilty verdicts rendered
were surely unattributable to the error of admitting Evans’
unusual or rude behavior toward Wineinger.
3. Sufficiency of Evidence of
Use of Deadly Weapon
Evans contends that the evidence was insufficient to support
the jury’s verdict that he used a deadly weapon in the commis-
sion of the underlying felony. We disagree.
Evans argues there was no evidence of any weapon capable
of producing death or serious bodily injury in the manner it
was used or intended to be used, pointing out that the State
failed to offer into evidence the hammer the State proposed
was the deadly weapon and that Linde could not be certain the
“sharp-force puncture-type” injuries were specifically caused
by a claw-type hammer. To the extent the State suggested a
ring was the weapon, Evans argues there was no evidence
that the ring could have contributed meaningfully more to
Cecilia’s bodily injuries than someone’s fist.
[26] 	The 	Legislature’s 	purpose 	in 	creating 	a 	separate
offense of using a weapon in the commission of a felony
was to discourage individuals from carrying deadly weapons
while they commit felonies 55 in order to prevent the threat
of violence and accompanying danger to human life present
whenever one has a deadly weapon within one’s immedi-
ate control during the commission of a felony. 56 Pursuant to
Neb. Rev. Stat. § 28-1205 (Cum. Supp. 2024), “Any person
who uses a firearm, a knife, brass or iron knuckles, or any
other deadly weapon to commit any felony which may be
prosecuted in a court of this state commits the offense of use
of a deadly weapon to commit a felony.” In turn, Neb. Rev.
Stat. § 28-109(8) (Reissue 2016) defines a “[d]eadly weapon”
55 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006), disapproved on
other grounds, State v. Rejai, 320 Neb. 599, 29 N.W.3d 225 (2026).
56 State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

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as “any firearm, knife, bludgeon, or other device, instrument,
material, or substance, whether animate or inanimate, which in
the manner it is used or intended to be used is capable of pro-
ducing death or serious bodily injury.” “Serious bodily injury”
is “bodily injury which involves a substantial risk of death, or
which involves substantial risk of serious permanent disfigure-
ment, or protracted loss or impairment of the function of any
part or organ of the body.” 57
[27,28] The statutorily enumerated weapons are considered
deadly weapons per se, when they satisfy the definitions for
those items, whereas whether any “other device, instrument,
material, or substance,” as stated in § 28-109(8), constitutes
a deadly weapon depends on the manner in which it was
used or intended to be used. 58 It is up to the State to prove
and the trier of fact to decide whether a deadly weapon was
used. 59 But Evans erroneously assumes that to be convicted
of use of a deadly weapon in violation of § 28-1205, which
is not a “firearm, a knife, brass or iron knuckles,” the State
must prove beyond a reasonable doubt exactly what external
device, instrument, material, or substance was used to com-
mit the felony. We agree with other courts 60 that a trier of fact
can infer from the nature of the victim’s injuries that a deadly
weapon was used, without determining the precise identity of
the device, instrument, material, or substance.
[29,30] As we have explained, our standard of review
directs us to evaluate the evidence that was actually before
the fact finder, rather than ponder potentially incriminat-
ing facts that were lacking. 61 When a criminal defendant
57 § 28-109(21).
58 See, State v. Nguyen, 293 Neb. 493, 881 N.W.2d 566 (2016); State v.
Pierson, 239 Neb. 350, 476 N.W.2d 544 (1991).
59 See State v. Bottolfson, 259 Neb. 470, 610 N.W.2d 378 (2000).
60 See, People v. Alvarez, 14 Cal. 4th 155, 926 P.2d 365, 58 Cal. Rptr. 2d 385
(1996); Mixon v. State, 781 S.W.2d 345 (Tex. App. 1989).
61 State v. King, 316 Neb. 991, 7 N.W.3d 884 (2024).

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challenges the sufficiency of the evidence upon which a con-
viction is based, 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 reasonable
doubt. 62 Circumstantial evidence is evidence of one or more
facts from which the existence of the fact in dispute may
logically be inferred. 63 Circumstantial evidence is not inher-
ently less probative than direct evidence, and a fact proved by
circumstantial evidence is nonetheless a proven fact. 64 Thus,
so long as there is sufficient circumstantial evidence that any
device, instrument, material, or substance was used to com-
mit a felony, and that such device, instrument, material, or
substance was capable of producing death or serious bodily
injury in the manner it was used or intended to be used, then
there is sufficient evidence to support a conviction for use of
a deadly weapon to commit a felony. 65
There was sufficient evidence in this case to support the
jury’s verdict that Evans was guilty of use of a deadly weapon
to commit a felony. Linde testified that the “patterned inju-
ries,” consisting of chains of circular abrasions on Cecilia’s
body, were from a “rounded-type object.” She testified that the
“sharp-force . . . injuries,” which were clustered on Cecilia’s
body, were caused by a “sharp object going in.” Photographs
entered into evidence show the round abrasions and clawlike
injuries on various parts of Cecilia’s body. Evans does not
contest that these were serious bodily injuries.
Linde testified that these injuries suggested a claw-type
hammer. Alternatively, the injuries could be from more than
one “implement,” one round and blunt and the other clawlike.
Linde did not suggest the instrument causing these injuries
62 See State v. Liech, 320 Neb. 843, 30 N.W.3d 847 (2026).
63 State v. Dap, 315 Neb. 466, 997 N.W.2d 363 (2023).
64 See, id.; State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).
65 See Mixon v. State, supra note 60.

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could have been a ring worn on the perpetrator’s finger or
merely someone’s fists. Detectives found in the Woodcrest
apartment a toolbox containing common household tools, but
not a hammer, and detectives could not find a hammer any-
where in the apartment. The State generally argued at trial
that a claw-type hammer caused the patterned and sharp-force
injuries covering Cecilia’s body, and the jury was properly
instructed on the definition of a deadly weapon.
Under the evidence presented, the jury could have reason-
ably inferred that the patterned and sharp-force injuries were
caused by a singular claw-type hammer, by a similar instru-
ment, or by two instruments, one round and flat and the other
clawlike. Any of those inferences satisfy the essential ele-
ments of a “deadly weapon.” 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. Ineffective Assistance of Counsel
Lastly, Evans asserts that his trial counsel was ineffective
by failing to investigate and cross-examine witnesses at trial
in pursuit of a defense that Jones, not Evans, was the perpe-
trator. We find that the record is sufficient to determine as a
matter of law that trial counsel was not ineffective.
[31-35] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 66 the defendant must
show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. 67 To show that counsel’s performance was
deficient, a defendant must show that counsel’s performance
did not equal that of a lawyer with ordinary training and skill
66 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
67 State v. Wilson, 320 Neb. 728, 30 N.W.3d 165 (2026).

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in criminal law. 68 To show prejudice in a claim of ineffective
assistance of counsel, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. 69 A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. 70 In determining whether there is a
reasonable probability that any deficient performance of trial
counsel would have resulted in a different outcome in the pro-
ceeding, an appellate court may properly consider the strength
of the admissible evidence relating to the controverted issues
in the case. 71
[36] An appellate court resolves claims of ineffective assis-
tance of counsel on direct appeal only where the record is suf-
ficient to conclusively determine that trial counsel did or did
not provide deficient assistance or the defendant was or was
not prejudiced by counsel’s alleged deficient performance as
matters of law. 72 An ineffective assistance of counsel claim will
not be addressed on direct appeal if it requires examination of
facts not contained in the record and, thus, an evidentiary hear-
ing. 73 Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law. 74
Evans points out that, despite knowing Jones was a ben-
eficiary of Cecilia’s life insurance policy, the record did not
indicate defense counsel had “actually done any investigation
into Adam Jones” and “simply relied on cross-examining
him.” 75 Further, Evans contends he told his defense counsel
68 Id.
69 Id.
70 See State v. Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023).
71 State v. Vazquez, supra note 14.
72 See State v. Kruger, 320 Neb. 361, 27 N.W.3d 398 (2025).
73 See, State v. Wilson, supra note 67; State v. Kruger, supra note 72.
74 State v. Wilson, supra note 67.
75 Brief for appellant at 32.

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STATE v. EVANS
Cite as 321 Neb. 841
about recent occurrences of harassment by Jones toward
Cecilia, which counsel apparently did not investigate. Finally,
Evans points out that defense counsel did not depose Jones
before trial and did not cross-examine Jones at trial about the
life insurance policy, acts of harassment of Cecilia, or to try
to confirm Jones’ address to show that Cecilia’s phone was
near Jones’ house at 7 p.m. on Sunday, November 19, 2023.
Regarding this last point, Evans points to an exhibit, entered
in evidence at trial, which consists of a screenshot of the
“Find My iPhone app” showing Cecilia’s phone was near an
Omaha neighborhood, which was near the location of “AJ.” 76
The exhibit also shows that this information was retrieved at
8 a.m. on November 20. Evans concludes that, had these mat-
ters been fully investigated, there would have been a reason-
able probability the jury’s verdicts would have been different.
He does not allege what would have been discovered through
said investigation.
The trial record shows that defense counsel pursued a
defense that Jones murdered Cecilia. Much of the evidence
defense counsel attempted to adduce was not permitted by the
trial court, and Evans does not raise those rulings as error on
appeal. Testimony was adduced at trial that Jones was a ben-
eficiary of a life insurance policy covering Cecilia. And while
the record does not reflect what Jones would have testified to
or been able to have been impeached on had he been deposed
before trial and cross-examined, it does reflect that the detec-
tives investigating the crimes eliminated Jones as a suspect.
It would have been reasonable for defense counsel to assume
Evans would be unable to obtain admissions from Jones that
law enforcement could not.
Furthermore, whatever Jones would have said, the jury
had the information from the “Find My iPhone app,” 77 knew
Jones’ initials, and knew that Jones financially benefited from
76 Id. at 34.
77 Id.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. EVANS
Cite as 321 Neb. 841
Cecilia’s death. The jury knew the theory of the defense that
Jones, not Evans, was the perpetrator. Indeed, it heard Evans
in his police interview espousing this theory. The jury implic-
itly determined that any theory that Jones was the perpetrator
was significantly undermined by the strength of the evidence
at trial showing that Evans committed the crimes. In fact, the
jury likely surmised that part of Evans’ plan to avoid prosecu-
tion was to frame Jones for the crimes. The evidence against
Evans was substantial. It clearly demonstrated that Cecilia
was killed in her apartment, wrapped in sheets and a blanket,
carried from the apartment to her Acadia, and taken in the
Acadia to Lincoln where her body was dumped. Evans had
no explanation for the blood found in the apartment and the
evidence of attempts to clean it up. Evans was the only person
with keys to the Acadia when it traveled from Cecilia’s apart-
ment to the site where her body was dumped and back to the
apartment. We conclude that defense counsel’s doing more
to investigate and present Jones as the perpetrator would not
have created a reasonable probability of a different outcome
in the trial.
VI. CONCLUSION
For the foregoing reasons, we affirm.
Affirmed.