State v. Poe

award as a result. The review panel did not err in declining to
award Stacy an attorney fee. Therefore, Stacy’s final assignment
of error is without merit.
ConCluSion
The evidence in this case is sufficient to support the single
judge’s finding of a scheduled member injury, because the evi-
dence does not prove, as a matter of law, that Stacy’s medical
condition has resulted in impairment to his body as a whole.
nor did the single judge clearly err in setting Stacy’s date of
maximum medical improvement and declining to award per-
manent total disability or vocational rehabilitation benefits. The
evidence supports the single judge’s finding of a reasonable
controversy regarding Stacy’s disability. And the review panel
did not err in declining to award an attorney fee on review.
Therefore, the judgment of the Workers’ Compensation Court
is affirmed.
A ffirmed .
S tAte of N ebrASkA, Appellee ,
v . ryAN l. poe , AppellANt .
754 n.W.2d 393
Filed August 1, 2008. 	no. S-06-853.
1. Criminal Law: Convictions: Evidence: Appeal and Error. in reviewing a crimi-
nal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the
properly admitted evidence, viewed and construed most favorably to the State, is
sufficient to support the conviction.
2. Rules of Evidence: Appeal and Error. in proceedings where the nebraska
Evidence Rules apply, the admissibility of evidence is controlled by the nebraska
Evidence Rules; judicial discretion is involved only when the rules make such dis-
cretion a factor in determining admissibility. Where the nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
3. Criminal Law: Constitutional Law: Due Process. Whether rooted directly in
the Due Process Clause of the 14th Amendment or in the Compulsory Process or
Confrontation Clauses of the 6th Amendment, the federal Constitution guarantees
criminal defendants a meaningful opportunity to present a complete defense.
258 	276 nEbRASkA REPoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

4. Criminal Law: Constitutional Law: Trial: Witnesses. The right of a person
accused of a crime to confront the witnesses against him or her is a fundamental
right guaranteed by the 6th Amendment to the u.S. Constitution, as incorpo-
rated in the 14th Amendment, as well as by article i, § 11, of the nebraska
Constitution.
5. Constitutional Law: Trial: Juries: Witnesses. An accused’s constitutional right
of confrontation is violated when either (1) he or she is absolutely prohibited from
engaging in otherwise appropriate cross-examination designed to show a prototypi-
cal form of bias on the part of the witness, or (2) a reasonable jury would have
received a significantly different impression of the witness’ credibility had counsel
been permitted to pursue his or her proposed line of cross-examination.
6. Trial: Testimony: Appeal and Error. The scope of cross-examination of a witness
rests largely in the discretion of the trial court, and its ruling will be upheld on
appeal unless there is an abuse of discretion.
7. Constitutional Law: Trial: Witnesses. The Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense might wish.
8. Rules of Evidence: Words and Phrases. Relevant evidence means evidence hav-
ing any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be with-
out the evidence.
9. Trial: Rules of Evidence. in considering the admission of relevant evidence, a trial
court, when requested to do so, is required to weigh the danger of unfair prejudice
against the probative value of the evidence.
10. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in determinations of relevancy under neb. Evid. R. 401, and a trial court’s
decision regarding them will not be reversed absent an abuse of discretion.
11. Verdicts: Juries: Appeal and Error. in a harmless error review, an appellate
court looks at the evidence upon which the jury rested its verdict; the inquiry is
not whether in a trial that occurred without the error a guilty verdict would surely
have been rendered, but, rather, whether the guilty verdict rendered in the trial was
surely unattributable to the error.
Appeal from the District Court for Douglas County: pAtriciA
A. lAmberty, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Mona l.
burton, and Robert Marcuzzo for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
W right, coNNolly, gerrArd, S tephAN, mccormAck, and
miller -lermAN, JJ.
STATE v. PoE 	259
Cite as 276 neb. 258

W right, J.
nATuRE oF CASE
Following a jury trial, Ryan l. Poe was convicted of first
degree felony murder and use of a deadly weapon to commit
a felony. He was sentenced to life in prison plus a consecu-
tive term of 10 to 20 years in prison on the weapon conviction.
Poe appeals.
SCoPE oF REViEW
[1] in reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence
of prejudicial error, if the properly admitted evidence, viewed
and construed most favorably to the State, is sufficient to sup-
port the conviction. State v. Archie, 273 neb. 612, 733 n.W.2d
513 (2007).
[2] in proceedings where the nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the nebraska
Evidence Rules; judicial discretion is involved only when the
rules make such discretion a factor in determining admissibil-
ity. State v. Iromuanya, 272 neb. 178, 719 n.W.2d 263 (2006).
Where the nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, the admissibil-
ity of evidence is reviewed for an abuse of discretion. Id.
FACTS
on november 11, 2004, Trever lee was shot and killed dur-
ing a robbery of his townhouse in omaha, nebraska. lee and his
roommates, nicholas Ertzner and Jeff Connely, were sleeping in
three upstairs bedrooms when the front door of the townhouse
was kicked in.
Connely testified he was awakened when he heard someone
running up the stairs and shouting, “[P]olice.” He opened his
bedroom door and saw a person covered from head to toe in
black and wearing a black mesh mask. The individual pointed
a gun at Connely and told him to “get down.” Connely com-
plied. He saw another person with a gun in front of the door to
lee’s bedroom.
260 	276 nEbRASkA REPoRTS

Connely heard a struggle followed by multiple gunshots
coming from the hallway. After the shooting stopped, he heard
people running down the stairs. He called the 911 emergency
dispatch service, went out into the hallway, and saw lee on the
floor. The autopsy of lee’s body revealed six gunshot wounds,
as well as abrasions and contusions. His death was caused by a
gunshot wound to the head behind the right ear.
Ertzner stated that one of the intruders came into his room,
pointed a gun at him, and asked, “[W]here’s the money[?]”
Ertzner said he did not know what the man was talking about.
The man told Ertzner to get down on the floor. The man took
$50 to $70 cash from the pocket of Ertzner’s pants that were in
a laundry hamper and left the room. A second man came into
Ertzner’s room and also asked for money.
While on the floor, Ertzner looked into the hallway and saw
a scuffle between lee and at least one other person. He heard
shots being fired for 3 to 5 seconds. When it was quiet, he
checked on lee and called to Connely to see if Connely was all
right. Ertzner then returned to his room and stayed there until
police arrived.
Connely testified he saw the wrist of one of the intruders
and his skin was a “darker color.” Ertzner described one of the
intruders as 5 feet 5 inches to 5 feet 7 inches tall and between
170 and 180 pounds. The second man had a similar build. Poe
was 5 feet 4 inches tall and weighed 145 pounds. kashaun
lockett, who was also arrested in connection with the case,
was approximately 5 feet 10 inches tall and weighed 150 to
160 pounds.
Connely had been selling marijuana from the townhouse since
February 2004. Two of his customers were keenan barnes and
Antwine Harper. Harper purchased marijuana from Connely and
then sold it to others, including Poe. Harper testified that he
supported himself by selling marijuana. Connely was Harper’s
supplier for several months prior to the shooting.
Police interviewed Harper as part of the investigation into
lee’s death. Harper initially denied having any information
concerning the shooting. During a second meeting with police,
Harper drove with police to Connely’s townhouse. Harper told
police that Poe had driven him there on one occasion but that
STATE v. PoE 	261
Cite as 276 neb. 258

Poe had not entered the townhouse. During a third interview,
Harper implicated Poe, Donte Reed, and lockett in the shooting.
Several weeks before the shooting, Poe had asked Harper if he
could rob Harper’s supplier. Harper told Poe not to rob Connely
because Harper paid his bills and fed his family by selling the
marijuana he obtained from Connely.
At trial, Harper testified that on the morning of the shooting,
he was at the hospital with his wife for the birth of their second
child. Shortly before noon, Poe called Harper and said, “i just
sent your dude to Texas.” Harper understood that statement to be
a street term for having killed someone.
When Poe was arrested on another charge, he called Harper
and asked him to bail Poe out of jail. Poe said that if he did
not get out of jail, “we’re all going to go down,” or words to
that effect.
Two or three days after the murder, Poe told Harper that he
went to Connely’s house with lockett and Reed. They kicked in
the front door, went upstairs, kicked in another door, and asked
one of the residents “where it was.” Poe said the man stated, “i
don’t have it. it’s not me.” Poe went into another room, put a gun
to the resident’s head, and asked him, “[W]here’s the bud at[?]”
The man said, “[i]t’s not me, it’s not me.”
Poe said he left the room and went to another room, where
he found a naked man sleeping. Poe and lockett woke the man,
and a scuffle started between the man and lockett. During
the scuffle, lockett lost a shoe. Each of the three men carried
a gun, and all three fired at the naked man. Poe told Harper
they disposed of the guns. Poe also said that they wore ski
masks and that they disposed of the clothes worn at the time of
the shooting.
barnes testified that a few weeks prior to the incident, Poe
brought up the subject of robbing Connely. Poe attempted to
recruit barnes on several occasions to participate in the robbery,
including the morning of the shooting. barnes said he refused to
open his door when Poe showed up that morning.
A jury found Poe guilty of first degree murder and use of a
weapon to commit a felony. He was sentenced to life imprison-
ment plus a consecutive term of 10 to 20 years’ imprisonment
for the use of a deadly weapon. He appeals.
262 	276 nEbRASkA REPoRTS

ASSiGnMEnTS oF ERRoR
Poe assigns the following errors: The trial court (1) denied his
right to present a complete defense by refusing to allow Poe to
play the videotape of a police interview with Harper; (2) violated
his right to confrontation by limiting Poe’s cross-examination of
Harper and officers brian bogdanoff and Robert laney con-
cerning the police interview of Harper; (3) erred in allowing
the State to present testimony of Poe’s alleged membership in a
street gang; (4) erred in allowing the State to present evidence of
“field observation cards,” which purportedly connected Poe and
lockett; and (5) erred in allowing testimony regarding owner-
ship of a mask.
AnAlYSiS
right to preSeNt complete defeNSe
Poe claims he was denied his constitutional right to present
a complete defense because the jury was not permitted to view
Harper’s videotaped police interview. The videotape is purport-
edly a January 21, 2005, interview of Harper by bogdanoff and
laney. Poe claimed that Harper was involved in the planning
and execution of the crime, and Poe wanted the jury to observe
the videotape of Harper’s interview. Essentially, Poe wanted to
attack Harper’s credibility by having the jury view the police
interview and compare it with Harper’s testimony at trial.
The interview had not been transcribed, and Poe attempted
to introduce the videotape into evidence and to use portions of
the videotape to show instances when Harper’s statements were
allegedly contrary to his trial testimony. Poe claimed that during
the interview, Harper was threatened with criminal charges, and
that the threat caused Harper to implicate Poe in the robbery
and murder.
The videotape was discussed at several points during the trial.
During cross-examination, Poe’s counsel asked Harper whether
the police had threatened him during the interview, and Harper
stated, “i don’t believe i said that.” Counsel offered the tape to
establish that during the interview, the police showed Harper
a warrant for his arrest on drug charges. Harper testified that
he considered the warrant to be a threat. Counsel then asked
Harper if police told him that he was a “center pivot access in
STATE v. PoE 	263
Cite as 276 neb. 258

this whole thing.” The State’s objection of improper impeach-
ment was sustained. At a sidebar conference, Poe’s counsel
stated he would make an offer of proof of the entire videotape
to prove that the police had threatened Harper. The trial court
expressed concern about showing the entire videotape, because
on direct examination, Harper admitted the police had threat-
ened him.
The videotape was marked as an exhibit, and the trial court
was requested to watch the videotape. After viewing the inter-
view, the court again sustained the State’s objection to the
videotape’s admission. The exhibit was made a part of the
court record, with the provision that it would not be shown to
the jury.
The second offer of the videotape was made during the
cross-examination of laney. Poe’s counsel again requested to
show the interview to the jury because laney stated he could
not remember certain portions of it. The State objected because
showing the interview to the jury was not the proper way to
refresh laney’s recollection. The court again refused to allow
the jury to view the interview, but permitted laney to refresh his
recollection by viewing it. After laney reviewed the videotape,
cross-examination resumed.
At another point, counsel sought to show the videotape to
demonstrate who mentioned certain pieces of evidence first: the
police officers or Harper. The trial court again declined to show
the videotape because Harper and the officers had testified in
court. Finally, after both parties had rested, Poe’s counsel again
asked that the jury be allowed to view a portion of the videotape
to see how Harper’s story had changed. Although the interview
actually lasted 51⁄2 hours, the videotape showed only about 2
hours. The trial court again denied the offer of proof.
Although the jury observed the demeanor of the police offi-
cers and Harper at trial, Poe claims he was denied an oppor-
tunity to present a complete defense, because the jury was not
allowed to view the witnesses’ demeanor, their tone of voice,
and the emotions exhibited during the actual interview. He
claims the jury should have been permitted to see whether “the
threatening nature of the interrogation was the catalyst that
resulted” in Harper’s inculpating Poe. brief for appellant at 16.
264 	276 nEbRASkA REPoRTS

Counsel wanted the jury to assess Harper’s credibility by view-
ing the videotape.
At trial, Harper testified that he had not been honest with
police during the first part of the interview, but that he was
honest after the officers told him they were going to arrest him.
Harper said the police told him there was an arrest warrant for
him on marijuana charges, which Harper considered to be a
threat. Poe’s counsel asked: “Well, you were getting the feeling
that they were putting you, as you put it or they put it, in the
mix, right?” Harper testified: “Yeah. That was kind of sort of.”
Harper testified that after the officers told him about the arrest
warrant, he started crying because “[t]hey tried to take me away
from my family” by bringing up the charges.
Harper said he told the officers he wanted a guarantee that he
would not go to jail, because if he went to jail, there would be no
one to care for his family. The police responded that they could
not provide any guarantees. Harper stated that he was arrested
and booked that day on the charges but was held for only 5
minutes before he was released on a “street release bond.” The
charges included a felony, but it was Harper’s understanding that
they would be dismissed if he cooperated.
bogdanoff was cross-examined concerning any threats made
to Harper. He told Harper there was an arrest warrant for him,
but he denied that he had threatened Harper. bogdanoff said
a statement can be considered a threat, depending on how it
is perceived. He told Harper that lee’s murder could have the
death penalty associated with it and that people can get 50
years in prison on drug charges. The detectives had an affi-
davit for a drug charge on the table during the interview with
Harper. bogdanoff told Harper that it might be arranged for
Harper to go home that day if he cooperated. Poe claimed the
videotape would show how Harper had changed his story from
“i don’t know much to eventually saying that [Poe] confessed
to him.”
[3] The issue is whether the refusal to permit the jury to see
the videotaped interview of Harper violated Poe’s right to present
a complete defense. “Whether rooted directly in the Due Process
Clause of the Fourteenth Amendment . . . or in the Compulsory
Process or Confrontation clauses of the Sixth Amendment . . .
STATE v. PoE 	265
Cite as 276 neb. 258

the Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’” Crane v. Kentucky,
476 u.S. 683, 690, 106 S. Ct. 2142, 90 l. Ed. 2d 636 (1986)
(citations omitted).
We have previously held that it was not an abuse of discretion
to refuse to allow an entire videotaped interview to be shown
to a jury. in State v. Molina, 271 neb. 488, 713 n.W.2d 412
(2006), the trial court denied the defendant’s request to play a
61⁄2-hour interview between the defendant’s wife and a police
officer, because the videotape would cause undue delay and be
a waste of time. We concluded that the trial court did not abuse
its discretion in finding that the relevance of playing the entire
interview was substantially outweighed by considerations of
undue delay or a waste of time.
Here, the content of Harper’s interview was extensively
covered on direct and cross-examination. The videotape shows
that the officers repeatedly told Harper they could not make
any promises to him about what would happen if he told them
the truth. Harper expressed concern about going to jail and not
being able to provide for his family. At one point during the
interview, Harper cried. The officers told Harper a felony war-
rant might be activated if he did not cooperate by telling them
the truth.
During the interview, the officers pointed out inconsistencies
in Harper’s previous statements. Harper eventually said that
he would tell the officers “what [they] want[ed] to hear.” Poe
claims this statement shows that Harper was offering to skew the
facts against Poe. However, Poe is asking this court to consider
the statement out of context. After Harper’s comment, laney
responded: “What you’re saying is, ‘i’m going to give you what
you want to hear.’ What i’m hoping is you’re going to tell me
who did this.” Harper then stated, “i’m going to tell you what
you want, but i’ve got to be able to go home tonight.”
Evidence can be excluded from a criminal trial under rules
established by the legislature and Congress. See Holmes v.
South Carolina, 547 u.S. 319, 126 S. Ct. 1727, 164 l. Ed. 2d
503 (2006). The Court stated:
While the Constitution thus prohibits the exclusion
of defense evidence under rules that serve no legitimate
266 	276 nEbRASkA REPoRTS

purpose or that are disproportionate to the ends that they
are asserted to promote, well-established rules of evidence
permit trial judges to exclude evidence if its probative
value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mis-
lead the jury.
547 u.S. at 326. Where the nebraska Evidence Rules commit
the evidentiary question at issue to the discretion of the trial
court, the admissibility of evidence is reviewed for an abuse
of discretion. State v. Iromuanya, 272 neb. 178, 719 n.W.2d
263 (2006).
The rules of evidence allow the exclusion of evidence if
its probative value is outweighed by other factors. Harper,
bogdanoff, and laney all testified at trial. They were thoroughly
and extensively cross-examined regarding the interview. The
jury observed their demeanor and was able to evaluate their
credibility. Harper was questioned whether he had been threat-
ened and whether he was offered any deal in exchange for his
testimony. Each testified concerning whether threats were made
to Harper during the interview.
We conclude the refusal to allow the jury to view Harper’s
interview did not deny Poe a complete defense. Poe was per-
mitted extensive and thorough cross-examination of Harper,
bogdanoff, and laney. Although the jury did not see the video-
tape of the interview, Poe’s counsel was permitted to question
the witnesses concerning all aspects of it. The district court did
not abuse its discretion in denying Poe’s requests to play the
videotape for the jury.
right to coNfroNtAtioN
in conjunction with his first argument, Poe claims that the
trial court unreasonably limited his cross-examination of Harper,
bogdanoff, and laney and, therefore, violated Poe’s right to
confrontation. Poe alleges he was prevented from fully exploring
the threats and inducements made by police during the interview
in order to get Harper to change his story.
[4-6] The right of a person accused of a crime to confront the
witnesses against him or her is a fundamental right guaranteed
by the 6th Amendment to the u.S. Constitution, as incorporated
STATE v. PoE 	267
Cite as 276 neb. 258

in the 14th Amendment, as well as by article i, § 11, of the
nebraska Constitution. State v. Stark, 272 neb. 89, 718 n.W.2d
509 (2006). An accused’s constitutional right of confrontation is
violated when either (1) he or she is absolutely prohibited from
engaging in otherwise appropriate cross-examination designed
to show a prototypical form of bias on the part of the witness, or
(2) a reasonable jury would have received a significantly differ-
ent impression of the witness’ credibility had counsel been per-
mitted to pursue his or her proposed line of cross-examination.
Id. The scope of cross-examination of a witness rests largely in
the discretion of the trial court, and its ruling will be upheld on
appeal unless there is an abuse of discretion. Id.
Poe attempted to establish that when Harper was threatened
with arrest for selling drugs, he changed his story to implicate
Poe. During the cross-examinations of Harper, bogdanoff, and
laney, a number of the State’s objections were sustained on the
basis of hearsay or improper impeachment. because there was
no transcript of the videotape, Poe argued that his only method
to impeach the witnesses was to show the jury the videotape of
the interview.
Poe’s counsel had viewed the videotape and repeatedly asked
the witnesses about its contents. The record establishes that
Poe’s counsel was permitted extensive cross-examination of all
witnesses concerning the police interview of Harper. Harper
was asked whether the police officers had threatened him,
and he responded that he considered the arrest warrant to be
a threat.
During cross-examination, Poe’s counsel asked Harper if he
felt the officers were putting him “in the mix” and Harper said,
“[k]ind of sort of.” Poe’s counsel continued:
Q. At some point during the interviews did you become
concerned that other people might get arrested and point
the finger at you as being involved?
A. i don’t remember.
Q. okay. Was there conversation about that?
A. i can’t recall.
Q. isn’t that when you get pretty upset?
A. like i said, i know i got mad and i yelled a cuss
word at them.
268 	276 nEbRASkA REPoRTS

on further cross-examination of Harper, counsel asked: “[D]id
the police tell you if you f[___] them, they’re going to f[___]
you back?” The State’s objection was sustained on the ground
of improper impeachment. Counsel then proceeded:
Q. Well, why don’t you tell us what threats specifically
were made to you[?]
A. They just told me about the charges.
Q. no, i want to know what they said.
A. i’m going to go to jail for the charges, for mari-
juana charges.
Q. They said you were going to go to jail?
A. uh-huh, or something similar to that, or i had war-
rants for marijuana charges.
Q. Well, didn’t they tell you what you had to do to stay
out of jail?
. . . .
[A.] i didn’t make no deals.
Poe’s counsel then asked: “Did [the police] tell you it depended
on what you did as to whether they would activate [an arrest
warrant on drug charges] or not?” The State’s objection was
sustained. Poe’s counsel followed with another question:
Q. [S]o you told them what they wanted to hear so you
wouldn’t have to go to jail, right?
A. Yes.
Q. Specifically what were you told as to what could be
done for you if you cooperated and what would happen if
you didn’t cooperate?
A. i don’t remember, but i know no deal was made or
nothing like that.
Q. Do you remember asking them for guarantees?
A. Yes. And they told me no.
on direct examination, laney testified that he had talked to
Harper about the drug charges and that during the interview,
they told Harper that he would be charged with conspiracy to
distribute marijuana. laney believed it was at that point that
Harper began to tell the officers what he knew about Poe’s
involvement in the shooting. laney told Harper the officers
would “go to bat” for him, which meant that they would let it
be known to the county attorney that Harper had cooperated
STATE v. PoE 	269
Cite as 276 neb. 258

with them, but laney also told Harper he could not make any
promises or deals.
Poe was permitted lengthy cross-examination of the witnesses
concerning Harper’s interview with the police. The jury heard
the evidence concerning all aspects of Harper’s interview with
the officers.
[7] The u.S. Supreme Court has stated that the Confrontation
Clause 	“‘guarantees 	an 	opportunity 	for 	effective 	cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’” Delaware
v. Van Arsdall, 475 u.S. 673, 679, 106 S. Ct. 1431, 89 l. Ed. 2d
674 (1986) (emphasis in original), quoting Delaware v. Fensterer,
474 u.S. 15, 106 S. Ct. 292, 88 l. Ed. 2d 15 (1985).
As noted earlier, the scope of cross-examination of a witness
rests largely in the discretion of the trial court, and its ruling will
be upheld on appeal unless there is an abuse of discretion. State
v. Stark, 272 neb. 89, 718 n.W.2d 509 (2006). We conclude that
the trial court did not abuse its discretion in its rulings concern-
ing Poe’s cross-examination of Harper, bogdanoff, and laney.
The record does not establish that Poe’s constitutional right to
confrontation was violated by the trial court.
A lleged gANg memberShip
Poe claims error occurred when the State presented irrelevant
and unfairly prejudicial testimony of his alleged membership
in a street gang. During Harper’s testimony, he was asked if he
knew whether Poe was a member of a gang. Harper testified
that he had met Poe in 2000 or 2001 while they were at the
same high school. Harper said that when he used to “hang out”
on 29th Street in omaha, he would see Poe there. Harper said
there was a gang associated with that area and that he knew
Poe was a member of that gang. Poe’s objection on foundation
and relevance was overruled. Harper testified without objec-
tion that Reed, his cousin, and lockett, also a relative, were
members of the “29th Street gang.” Harper denied that he was a
member of the 29th Street gang. Harper stated that Poe admit-
ted he had committed the robbery and shooting at lee’s home
with Reed and lockett. Harper also said that he was afraid of
lockett’s brother.
270 	276 nEbRASkA REPoRTS

[8,9] Poe claims his gang membership was not relevant.
Relevant evidence means evidence having any tendency to make
the existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence. neb. Evid. R. 401. in considering the
admission of relevant evidence, a trial court, when requested to
do so, is required to weigh the danger of unfair prejudice against
the probative value of the evidence. See State v. Duncan, 265
neb. 406, 657 n.W.2d 620 (2003). The court was not asked to
consider whether the evidence was unfairly prejudicial under
neb. Evid. R. 403. Poe’s objection was based solely on whether
the evidence was relevant.
This court has previously been asked to find that the sug-
gestion of a defendant’s gang ties results in prejudicial error.
in State v. Iromuanya, 272 neb. 178, 191, 719 n.W.2d 263,
279 (2006), the defendant cited to cases from other jurisdic-
tions which held that “purposefully elicited testimony directly
indicating gang membership was highly prejudicial,” citing Ex
parte Thomas, 625 So. 2d 1156 (Ala. 1993). However, we found
that the Iromuanya case differed significantly because the record
contained no explicit reference to street gangs.
it is true that “[g]enerally, the evidence which the State offers
against a criminal defendant is prejudicial,” but this court must
consider whether evidence is unfairly prejudicial. See State v.
Myers, 258 neb. 272, 292, 603 n.W.2d 390, 405 (1999). in that
case, evidence of gang-related activity was offered, and we con-
cluded that it did not create undue prejudice because the defend-
ant’s gang affiliation was related to the drug-dealing activities
and conspiracy which were under investigation by police. We
found no abuse of discretion in the admission of testimony about
the defendant’s gang activity.
The u.S. Court of Appeals for the Eighth Circuit has noted
that while evidence of gang membership is admissible if it is
relevant to an issue in dispute, “gang affiliation evidence is not
admissible where it is meant merely to prejudice the defendant
or prove his guilt by association with unsavory characters.”
U.S. v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005). The appel-
late court found no abuse of discretion in allowing limited
gang-related testimony, because it was relevant to the reasons
STATE v. PoE 	271
Cite as 276 neb. 258

the government did not attempt a controlled buy. in addition,
the court cautioned the jury against using gang affiliation as a
ground for conviction.
We determine in the case at bar that evidence of Poe’s alleged
gang membership was relevant to the issues at trial. it dem-
onstrated a connection or relationship among Poe, Reed, and
lockett, who were all implicated in the robbery and shooting
death of lee. The evidence also was relevant to Harper’s cred-
ibility. it demonstrated Harper’s initial reluctance to cooperate
with police because he was afraid of lockett’s brother, who was
also a member of the gang. The jury was instructed that in deter-
mining the credibility of any witness, it could consider “[a]ny
other evidence that affects the credibility of the witness or that
tends to support or contradict the testimony of the witness.”
[10] The exercise of judicial discretion is implicit in determi-
nations of relevancy under neb. Evid. R. 401, and a trial court’s
decision regarding them will not be reversed absent an abuse of
discretion. See State v. Gutierrez, 272 neb. 995, 726 n.W.2d
542 (2007). We find no abuse of discretion in the admission of
the evidence related to Poe’s gang affiliation.
field obServAtioN cArd
Poe claims the trial court erred when the State was allowed
to present, over objection, evidence of information contained in
a field observation card that purportedly documented personal
connections between Poe and lockett. Poe argues that the field
observation card was used to corroborate Harper’s “theory”
concerning Poe’s involvement in the crime. brief for appellant
at 37.
The police department used field observation cards to main-
tain a databank linking individuals who associate with each other.
During direct examination, bogdanoff stated that police began
to investigate Poe after a search of barnes’ residence revealed
a map labeled “operation Rush,” which identified an area of
townhomes. bogdanoff then looked for any field observation
cards related to Poe, and a card was located which indicated that
Poe and lockett had a connection. Further investigation found
that DnA evidence from a shoe left at the scene of the homicide
matched lockett’s DnA.
272 	276 nEbRASkA REPoRTS

Poe asserts that the reference to the field observation card
was hearsay because the information came from an unknown
declarant at an unknown time and place and under unknown
circumstances. At trial, bogdanoff was asked whether lockett
was arrested in connection with this case. He responded, “Yes.”
no further references were made to any field observation card.
Although bogdanoff did not explain how the field observa-
tion card made the connection between Poe and lockett, we
conclude that the allowance of this testimony, if error, was
harmless beyond a reasonable doubt. The police had obviously
made a connection between Poe and lockett because lockett
was arrested for the same crime. There was other evidence
at trial that connected Poe with lockett, including Harper’s
testimony that Poe had implicated lockett in the robbery
and murder.
[11] in a harmless error review, an appellate court looks at
the evidence upon which the jury rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty
verdict would surely have been rendered, but, rather, whether
the guilty verdict rendered in the trial was surely unattributable
to the error. State v. Morrow, 273 neb. 592, 731 n.W.2d 558
(2007), disapproved on other grounds, State v. McCulloch, 274
neb. 636, 742 n.W.2d 727 (2007). We conclude that the jury
would have reached the same verdict regardless of whether the
information concerning the field observation card was received
into evidence.
oWNerShip of mASk
Poe claims the trial court erred when it allowed, over his
hearsay objections, testimony from a police officer about the
ownership of a black mask. The evidence showed that about
noon on november 11, 2004, Poe flagged down kevin Spellman
near 30th and Spencer Streets in omaha and requested a ride
in Spellman’s vehicle. Poe sat in the back behind the passen-
ger’s seat.
When the car stopped in the parking lot of a liquor store, a
bicycle patrolman for the omaha Police Department smelled the
odor of marijuana coming from the car and obtained Spellman’s
permission to conduct a search of the car. The officer found a
STATE v. PoE 	273
Cite as 276 neb. 258

black mask tucked under the front passenger’s seat. The mask
was made of stretchy material and would cover the entire head.
The officer testified that no one in the car claimed ownership of
the mask.
Spellman testified that he was with his brother, David Moss,
when Poe flagged him down. Poe was the only occupant of the
back seat. While in the liquor store, Spellman saw two police
officers next to the car, while Moss and Poe were outside the car.
After giving the officers permission to search the car, Spellman
saw one of the officers pull a mask from the back seat passen-
ger area where Poe had been seated. Spellman testified that the
mask was not in the car before he picked up Poe and that he
cleaned out his car the day before.
Spellman said the officer pulled the mask out of the car, held
it up, and asked to whom it belonged. Spellman responded,
“it’s not mine.” He heard Poe say that neither the mask nor
the car was his. Spellman described the mask as a black nylon
“whole head” mask with a “[n]etted face area” and no eye or
mouth holes. The mask was then placed back in Spellman’s car.
After he left the liquor store, Spellman threw the mask out of
the car.
officer lowell Petersen, one of the police officers who
searched the vehicle, was asked: “Did you ask any of the par-
ties if the mask belonged to them?” He responded: “no.” He
was then asked whether anyone claimed ownership of the mask,
and Poe objected to the response as hearsay. The objection was
overruled, and Petersen testified, “no.” Petersen testified that he
asked no questions about the mask, no one claimed ownership
of it, and he put the mask back in the car.
Poe argues that the nonverbal conduct of Moss, in failing to
comment about ownership of the mask, was clearly intended
as an assertion that the mask was not his. Moss did not tes-
tify at trial. Poe contends that Moss’ conduct constituted an
out-of-court statement offered to prove the truth of the matter
asserted and that the trial court erred in failing to recognize it
as such.
We conclude the trial court did not err in overruling the
hearsay objections and in admitting Petersen’s testimony that
he asked no questions about the mask and that none of the
274 	276 nEbRASkA REPoRTS

occupants claimed its ownership. Petersen’s testimony was not
hearsay because it was not offered to prove the truth of the
ownership of the mask. Petersen testified to his observations
and not to any statement or nonverbal conduct by any of
the parties involved. The trial court did not err in overruling
Poe’s objections.
ConCluSion
in reviewing a criminal conviction, 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, and a conviction will be affirmed, in the
absence of prejudicial error, if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support the conviction. State v. Archie, 273 neb. 612, 733
n.W.2d 513 (2007). The evidence was sufficient to support the
conviction. We find no prejudicial error and no merit to any
of Poe’s assigned errors. The judgment of the district court
is affirmed.
A ffirmed .
heAvicAN, C.J., not participating.
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	275
Cite as 276 neb. 275
robert m. breNNer ANd liSA d. breNNer , AppellANtS, v .
bANNer couNty boArd of equAlizAtioN, Appellee .
753 n.W.2d 802
Filed August 1, 2008. 	no. S-07-810.
1. Taxation: Judgments: Appeal and Error. Decisions rendered by the Tax
Equalization and Review Commission shall be reviewed by an appellate court for
errors appearing on the record of the commission.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
3. Taxation: Appeal and Error. Questions of law arising during appellate review
of Tax Equalization and Review Commission decisions are reviewed de novo on
the record.
4. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Where
a statute has been judicially construed and that construction has not evoked an