State v. Freemont

STATE v. FREEMONT 	179
Cite as 284 Neb. 179
State of NebraSka, appellee, v.
rufuS b. freemoNt, appellaNt.
817 N.W.2d 277
Filed July 27, 2012. 	No. S-11-243.
1. Rules of Evidence. 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 discretion a factor in determin-
ing admissibility.
2. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
(Reissue 2008) and 27-404(2) (Cum. Supp. 2010), and the trial court’s decision
will not be reversed absent an abuse of discretion.
3. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
4. Trial: Photographs. The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must determine their relevancy
and weigh their probative value against their prejudicial effect.
5. Jury Instructions: Apeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
6. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency of the evidence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. The relevant question for an
appellate court is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
7. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2010), does not apply to evidence of a defendant’s
other crimes or bad acts if the evidence is inextricably intertwined with the
charged crime. This rule includes evidence that forms part of the factual setting
of the crime, or evidence that is 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 if the other crimes or bad acts are necessary for the prosecution to
present a coherent picture of the charged crime.
8. Trial: Evidence: Verdicts: Juries: Appeal and Error. Evidentiary error is harm-
less when improper admission of evidence did not materially influence the jury
to reach a verdict adverse to substantial rights of the defendant. Harmless error
review looks to the basis on which the trier of fact actually 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 actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

180 	284 NEBRASKA REPORTS
9. Trial: Evidence: Appeal and Error. Harmless error review looks to the entire
record and views the erroneously admitted evidence relative to the rest of the
untainted, relevant evidence of guilt.
10. Pretrial Procedure: Evidence. Neb. Rev. Stat. § 29-1912(1)(e) (Cum. Supp.
2010) allows a defendant charged with a felony to request that the prosecuting
authority provide him with copies of the results and reports of scientific tests or
experiments made in connection with the case.
11. 	____: ____. Pursuant to Neb. Rev. Stat. § 29-1912(1)(e) (Cum. Supp. 2010),
following a proper discovery request, the State has an obligation to disclose
information which is material to the preparation of a defense to the charge against
the defendant.
12. Pretrial Procedure: Evidence: Prosecuting Attorneys. Whether a prosecutor’s
late disclosure of evidence results in prejudice depends on whether the informa-
tion sought is material to the preparation of the defense, meaning that there is a
strong indication that such information will play an important role in uncovering
admissible evidence, aiding preparation of witnesses, corroborating testimony, or
assisting impeachment or rebuttal.
13. Homicide: Photographs. In a homicide prosecution, photographs of a victim
may be received into evidence for the purpose of identification, to show the con-
dition of the body or the nature and extent of wounds and injuries to it, and to
establish malice or intent.
14. Criminal Law: Evidence. The State is allowed to present a coherent picture
of the facts of the crimes charged, and it may generally choose its evidence in
so doing.
15. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s refusal to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
16. Jury Instructions. Whenever an applicable instruction may be taken from the
Nebraska Jury Instructions, that instruction is the one which should usually be
given to the jury in a criminal case.
17. Jury Instructions: Appeal and Error. Although the Nebraska pattern jury
instructions are to be used whenever applicable, a failure to follow the pattern
jury instructions does not automatically require reversal.
18. Effectiveness of Counsel: Records: Evidence: Appeal and Error. A claim of
ineffective assistance of counsel need not be dismissed merely because it is made
on direct appeal. The determining factor is whether the record is sufficient to
adequately review the question.
19. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
Appeal from the District Court for Douglas County: W.
mark aShford, Judge. Affirmed.

STATE v. FREEMONT 	181
Cite as 284 Neb. 179
Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
C oNNolly, StephaN, mCC ormaCk, and miller-lermaN, JJ.,
and iNbody, Chief Judge, and SieverS and CaSSel, Judges.
mCC ormaCk, J.
I. NATURE OF CASE
Following a trial by jury, Rufus B. Freemont was convicted
in Douglas County District Court of second degree murder,
use of a deadly weapon to commit a felony, and posses-
sion of a deadly weapon by a prohibited person. The court
imposed an aggregate sentence of 80 to 90 years’ imprison-
ment. Freemont appeals.
II. BACKGROUND
Freemont was charged with second degree murder in con-
nection with the killing of Andrew Galligo on June 18, 2010.
The following evidence was adduced at trial.
Police responded to a report of a shooting on 24th and Vinton
Streets in Omaha, Nebraska. Sgt. Matthew Rech observed
Galligo lying on the ground, surrounded by four individu-
als. Galligo had been shot in the chest and died as a result of
the injury.
Several bystander witnesses, who were either at the scene
or nearby at the time of the shooting, testified at trial. Each
witness testified that prior to the shooting, Galligo had been
engaged in a confrontation with a woman, later identified as
Claudette Loera, in a parking lot.
According to witnesses, prior to the shooting, Loera was
driving a white Chevrolet Cobalt, which was later identified as
belonging to Samantha Vawter. Loera’s sister, Christa Harlan,
was seated in the passenger seat, and Vawter and Freemont
were seated in the back seat. According to Harlan and Vawter,
as the vehicle approached 24th and Vinton Streets, the pas-
sengers saw Galligo walking down 24th Street. Galligo was

182 	284 NEBRASKA REPORTS
wearing red and black, colors which are associated with a
gang to which Loera belonged. Loera turned the car around
and yelled at Galligo, asking about his gang affiliation. Loera
“flipped” a gang sign at Galligo by making a gesture with her
hand. Galligo was a member of a different gang, and “threw
up” a gang sign at Loera in response. Loera then pulled the
vehicle into a nearby parking lot, exited the vehicle, and con-
fronted Galligo.
Loera and Galligo had a verbal confrontation, during which
Harlan exited the vehicle and told Loera to leave Galligo
alone and get back in the vehicle. Loera spit on Galligo and
moved to return to the vehicle. Galligo asked Loera if she
was getting a gun, and attempted to walk away from the
vehicle. Loera followed Galligo, at which time four or five
gunshots were fired from the vehicle and Galligo was struck
in the chest.
Following the shooting, Loera immediately returned to the
vehicle and drove from the scene. Freemont was let out at 17th
and Ontario Streets. Loera then drove to an alley where she,
Vawter, and Harlan changed their clothes to avoid being identi-
fied. Loera attempted to hide the vehicle behind an abandoned
house, and then she walked with the others to the house of a
friend named “Melissa.”
1. WitNeSS teStimoNy
At trial, a witness testified that she and her sister were shop-
ping at a strip mall near 24th and Vinton Streets at the time of
the shooting. As they were leaving a nearby store, the witness
saw a white car, which was parked in front of the exit to the
parking lot. The witness entered her car and waited for the
white car to move so she could exit. She testified that she saw
Loera and Galligo arguing and observed a man in the back
seat of the white car place his hand, holding a gun, out of the
window and shoot Galligo. The witness’ sister also testified
that she saw the argument between Loera and Galligo and wit-
nessed shots being fired from the back seat of the white car,
but she did not see who fired the gun.
Another witness who was also in the parking lot at the time
of the shooting testified that he observed an altercation taking

STATE v. FREEMONT 	183
Cite as 284 Neb. 179
place in front of a white Chevrolet Cobalt and that he heard
gunfire, though he did not see who fired the shots.
An individual who was also present in the parking lot wit-
nessed the altercation in front of a white vehicle. He testified
that he witnessed a person, whom he identified as a passenger
of the vehicle, attempting to break up the fight between the
driver of the vehicle and another person. He stated that the
person who shot Galligo was seated in the back seat of the
vehicle. He testified that he had observed three persons in the
vehicle at the time of the shooting—the driver, front passenger,
and the rear passenger—and that he did not see the gun that
fired the shots.
Another witness testified that she was in the area of 24th
and Vinton Streets at the time of the shooting and that she
observed two people dressed in red engaged in an argument.
She heard the gunfire that followed, and the windshield of her
car was struck with a bullet. She was unaware of who fired
the shots.
Another witness also testified that he was in the area at
the time of the shooting. He was previously acquainted with
Loera and Galligo and heard them arguing in the parking
lot. He heard the gunshots, but could not identify who fired
the shots.
Harlan and Vawter testified. Harlan is Loera’s sister, and
she had been living with Melissa at the time of the shooting.
Harlan testified that she knew Freemont and was acquainted
with Vawter. Loera had contacted Vawter for a ride earlier that
day to go to Westroads Mall and “get some weed.” Loera was
driving Vawter’s car, and on the way home, Harlan and Loera
stopped to pick up Freemont. Harlan testified that Vawter
and Freemont had a child together, but that she was not well
acquainted with Vawter. Freemont was carrying a backpack
when they picked him up earlier that day. After picking up
Freemont, Loera was driving, Harlan was seated in the front
passenger seat, Vawter was in the back seat behind the driver,
and Freemont was in the back passenger seat. They saw
Galligo walking when they stopped at a light.
Harlan recounted the argument that followed and testified
that she got out of the car and told Loera to leave Galligo

184 	284 NEBRASKA REPORTS
alone, that he was their cousin, and to get back into the car.
Loera started back to the car, and Harlan told Galligo to keep
walking, when Loera turned around as if to follow Galligo.
Loera then turned to Harlan and returned to the car. As Harlan
was getting into the car, she heard gunshots and was startled
because neither Loera nor Galligo had a weapon. Harlan testi-
fied that the shots came from the back seat of the car and that
Freemont had fired the gun. She did not observe what kind of
gun it was. Harlan observed Freemont holding the gun toward
the car window. Loera returned to the car and drove Harlan,
Vawter, and Freemont from the scene.
The State asked Harlan if she had witnessed Freemont carry-
ing a gun “a few days before” the incident. Freemont objected
to this question, and an off-the-record discussion was held at
the bench, after which the objection was overruled. Harlan
answered that she had seen Freemont a few days earlier with a
gun. Harlan stated that at the time, Freemont was carrying the
gun in a backpack that looked the same as the one he was car-
rying on the day of the shooting.
The day after the incident, Harlan was questioned by police,
at which time she gave the officers a fake name. Police showed
Harlan a photographic array, and she identified a person other
than Freemont as the shooter. Harlan said she had lied because
she knew she had outstanding warrants and because she was
scared. Loera had apparently threatened Harlan and Vawter,
telling Harlan that if she was going to “cry,” Loera would have
to kill her.
Loera was arrested the day after the incident in connec-
tion with Galligo’s death. Harlan spoke to Loera after she
was arrested, and Harlan told Loera that she had purposely
named the wrong person as Galligo’s shooter. Police con-
fronted Harlan with this conversation, showed her the same
photographic array, and asked her again to identify the shooter.
Harlan identified Freemont as the shooter at that time.
Vawter testified that she was seated in the back seat of
the car at the time of the shooting. She stated she knew
neither Loera nor Galligo possessed a weapon because both
had lifted their shirts to show that they did not. Vawter said
that Freemont told Loera to get back into the car while the

STATE v. FREEMONT 	185
Cite as 284 Neb. 179
two were arguing. After Harlan got out of the car, Freemont
reached into his backpack and pulled out a gun. He told
Vawter to “sit back,” and leaned across her and shot four
rounds out the window at Galligo. Freemont then put the gun
back into his backpack.
Vawter went to Melissa’s house with Harlan and Loera.
Loera threatened Vawter, told her she would probably be
charged because the car was in her name, and told her she
should not say anything. Vawter left the house and returned to
her home. That night, Loera texted her and told her to get new
license plates and hubcaps for the car. The next day, Vawter
returned to Melissa’s house, where Loera told Vawter to “go
dump the car” because the license plate number was all over
the news. Vawter left the house and called the police, inform-
ing them that she had information about the murder.
Vawter met with the police and told them that Freemont
was the shooter. Vawter changed her story a number of times
in speaking to the police, but consistently maintained that
Freemont had fired the shots. Vawter testified that she had lied
because she was afraid of Loera.
Loera was charged with being an accessory to a felony as
a result of her involvement in the incident. Loera testified at
Freemont’s trial and stated that she had not made a deal with
the prosecutor in exchange for her testimony. Loera testi-
fied to the events leading up to the altercation with Galligo
and identified Freemont as the shooter. Loera stated that she
was yelling at Galligo when she heard gunshots. When she
looked behind her, she saw Freemont holding a gun out of the
car window.
The State asked Loera if she had seen Freemont carry a gun
prior to the day of the shooting. Freemont again objected to
this line of questioning on the grounds of relevance and Neb.
Evid. R. 403 and 404, Neb. Rev. Stat. §§ 27-403 (Reissue
2008) and 27-404 (Cum. Supp. 2010). The objection was
overruled, and Loera answered that Freemont had gotten
into an altercation with one of her cousins a week before the
shooting, during which he displayed a gun. Loera testified
that Freemont kept the gun in his backpack and that it was a
.22-caliber revolver.

186 	284 NEBRASKA REPORTS
When the Omaha Police Department discovered Freemont’s
whereabouts, the fugitive unit was directed to the address to
arrest Freemont. Investigator Dan Martin was involved in
the arrest of Freemont. Martin testified that the fugitive unit
entered the building identified as Freemont’s location and that
Martin heard a window break and saw someone attempting to
crawl out of a second-story window. The State offered exhibit
74, which shows the building and the window out of which
Freemont leapt. Freemont objected to the admission of the
exhibit on the bases of relevance and §§ 27-403 and 27-404;
the objection was overruled. Exhibit 73 shows the same win-
dow from a different perspective; it was also admitted into
evidence. Freemont fell to the ground and was immediately
tasered and arrested. Following the arrest, the officers recov-
ered a black backpack. A gun was not recovered at any time in
the investigation.
The pathologist who performed the autopsy of Galligo testi-
fied at trial. During his testimony, the State offered exhibits
56 through 58, showing the injuries Galligo suffered to his
face. Freemont objected to these exhibits on the basis that
they were overly prejudicial under § 27-403; the objection
was overruled. The State also offered exhibit 63, showing the
“exit” site of a bullet which was removed from Galligo’s back.
Freemont again objected on the basis of § 27-403; the objec-
tion was overruled.
Daniel Bredow, a senior crime laboratory technician and
firearm and toolmark examiner employed by the Omaha Police
Department, was called to testify for the State. Bredow testi-
fied regarding a bullet that had been removed from Galligo’s
body, marked as exhibit 41. Bredow stated that the bullet was a
”.22 rimfire caliber” that was consistent with one of “96 differ-
ent models” of .22-caliber weapons, including handguns, rifles,
revolvers, and semiautomatics. However, Bredow ultimately
testified that it was not possible to specifically determine what
weapon fired the bullet marked as exhibit 41.
Freemont objected to the entirety of Bredow’s testimony,
and the court held a hearing outside the presence of the jury.
Freemont objected on the basis that the testimony violated a
discovery order previously entered in the case in July 2010.

STATE v. FREEMONT 	187
Cite as 284 Neb. 179
Freemont stated that he had not received a report regarding
Bredow’s testimony until a week prior to the start of trial.
Freemont argued that he did not know the purpose of
Bredow’s proffered testimony, that he was not allowed to
review the expert’s report, and that he was therefore not
able to retain his own expert for rebuttal purposes. The State
requested the court take judicial notice of the “notice to
endorse” Bredow, which was delivered to defense counsel
on October 25, 2010. Defense counsel conceded that he had
received the notice. The State also argued it had complied with
the July 2010 discovery order by advising defense counsel of
Bredow’s forthcoming testimony in the form of a report sent
January 3, 2011, by e-mail. The State asserted that the report
was transmitted to defense counsel immediately after the State
had received a copy. Neither the e-mail correspondence nor
the report was offered into evidence. The trial court permitted
Bredow to testify and offered defense counsel an opportunity
to depose Bredow before proceeding with cross-examination,
which counsel declined.
Only one witness testified on behalf of the defense. She
was employed by the Omaha Police Department and assisted
in the investigation of Galligo’s death. She interviewed an
eyewitness who testified for the prosecution. Freemont offered
the videotaped interview between the defense witness and the
eyewitness as exhibit 79. The court gave a limiting instruction
to inform the jury that exhibit 79 was to be used for the sole
purpose of impeaching the eyewitness’ testimony at trial. In the
video, the eyewitness identified the shooter as the driver of the
white car and stated that the shooter wore a “do-rag” and had
a thick mustache.
2. Jury iNStruCtioNS
Following the presentation of evidence, an instruction con-
ference was held. Freemont objected to the step instruction
proposed by the court and requested that the court use the pat-
tern jury instruction contained in NJI2d Crim. 3.1. The State
objected to Freemont’s proposed instruction. The court agreed
with the State and ultimately gave the step instruction as jury
instruction No. 4.

188 	284 NEBRASKA REPORTS
Freemont 	proposed 	an 	instruction 	regarding 	eyewitness
identification based on a Connecticut pattern instruction. The
State objected, noting that Nebraska has not created an eyewit-
ness instruction and that it is not required in this jurisdiction.
Freemont’s proposed instruction states:
[Y]ou should bear in mind that there has been a number
of instances where responsible witnesses, whose honesty
was not in question and whose opportunities for obser-
vation had been adequate, made positive identifications
which identifications were subsequently proved to be
erroneous; and accordingly you should be specially cau-
tious before accepting such evidence of identification
as correct.1
The court denied Freemont’s request to issue the instruction.
3. C oNviCtioNS aNd SeNteNCiNg
The jury convicted Freemont on all three charges. At the
sentencing hearing, the court noted that the jury apparently
found Freemont guilty “fairly quickly,” that there was no
rational way to understand the incident, and that it bordered
on “pure evil.” The court sentenced Freemont to serve a term
of 55 to 60 years’ imprisonment on the murder count, 20
years’ imprisonment for use of a deadly weapon, and 5 to
10 years’ imprisonment for possession of a deadly weapon,
to be served consecutively. The court awarded Freemont 264
days’ credit against his sentences for time served. Freemont
timely appeals.
III. ASSIGNMENTS OF ERROR
Freemont assigns that the trial court erred in (1) allowing
the State to introduce evidence that Freemont possessed a fire-
arm prior to the homicide, (2) allowing the State to introduce
evidence of Freemont’s “consciousness of guilt,” (3) allowing
the ballistics expert to testify after failing to comply with Neb.
Rev. Stat. § 29-1912 (Cum. Supp. 2010), (4) allowing the State
to introduce evidence of autopsy photographs, (5) failing to
give the jury an instruction regarding eyewitness identification
1 See United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972).

STATE v. FREEMONT 	189
Cite as 284 Neb. 179
and in giving a step instruction, and (6) finding sufficient
evidence to support the verdicts. Freemont also argues that he
received ineffective assistance of counsel at trial.
IV. STANDARD OF REVIEW
[1,2] 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 discretion a factor in determining
admissibility.2 It is within the discretion of the trial court to
determine relevancy and admissibility of evidence of other
wrongs or acts under §§ 27-403 and 27-404(2), and the trial
court’s decision will not be reversed absent an abuse of
discretion.3
[3] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.4
[4] The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must deter-
mine their relevancy and weigh their probative value against
their prejudicial effect.5
[5] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.6
[6] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for
the finder of fact.7 The relevant question for an appellate
court is whether, after viewing the evidence in the light most
2 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011), cert. denied 565 U.S.
967, 132 S. Ct. 463, 181 L. Ed. 2d 302.
3 Id.
4 Id.
5 State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009), cert. denied 559
U.S. 1010, 130 S. Ct. 1887, 176 L. Ed. 2d 372 (2010).
6 State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
7 See State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011).

190 	284 NEBRASKA REPORTS
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.8
V. ANALYSIS
1. evideNCe of freemoNt’S guN poSSeSSioN
At trial, Harlan and Loera testified that sometime before
Galligo’s murder, they had seen Freemont with a gun, and that
he carried his gun in his backpack. Freemont argues that this
testimony was evidence of a prior crime—possession of a fire-
arm by a felon9—and fell under § 27-404(2). As such, the trial
court erred in failing to hold a hearing outside the presence of
the jury to determine whether the incident occurred pursuant
to § 27-404(3). The State, on the other hand, contends that the
testimony was substantive evidence of a charged crime and that
therefore, § 27-404(2) did not apply. We agree with Freemont
that the testimony fell under § 27-404(2) and that the trial
court erred in failing to hold a hearing pursuant to § 27-404(3).
However, viewed in the context of the whole record, we find
this error harmless.
(a) Form of Objection
As a preliminary matter, the State argues that Freemont
made only a general objection to Harlan’s testimony, rather
than a specific one, and so no error may be predicated upon
that objection. We disagree.
Neb. Evid. R. 103, Neb. Rev. Stat. § 27-103 (Reissue 2008),
explains that error may not be predicated upon an evidentiary
ruling unless “a timely objection . . . appears of record, stating
the specific ground of objection, if a specific ground was not
apparent from the context.”
Here, the specific grounds for the objection are apparent
from the record. Although Freemont made only a general
objection during the relevant portions of Harlan’s testimony,
Freemont made a specific objection toward the same line of
questioning during Loera’s testimony. Specifically, Freemont
8 See id.
9 Neb. Rev. Stat. § 28-1206 (Supp. 2009).

STATE v. FREEMONT 	191
Cite as 284 Neb. 179
objected on the grounds of relevance and §§ 27-403 and
27-404. Thus, when viewed in the context of Freemont’s objec-
tion to Loera’s testimony, the basis for Freemont’s objection to
Harlan’s testimony is apparent. We will therefore consider the
merits of Freemont’s arguments.
(b) Applicability of § 27-404(2) and (3)
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.
Freemont contends that the testimony in question was evi-
dence of a prior crime under § 27-404(2). If so, then the trial
court erred in not holding a hearing pursuant to § 27-404(3),
which 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.
The State argues, however, that § 27-404(2) does not apply
because the evidence was substantive evidence of a charged
crime—possession 	of 	a 	deadly 	weapon 	by 	a 	prohibited
person.
Here, the State charged Freemont only in relation to the
events of June 18, 2010. The prior incident at issue occurred
several days or a week (the record is unclear) before that date.
It was a separate incident. And although it was a crime, it
was not charged by the State in this prosecution. If the State
intended to charge that separate incident, it stands to reason
that there would be two counts charged for possession of a
deadly weapon by a prohibited person—one for the day of the
shooting and one for the prior incident. But the State charged
only one count for the day of the murder. Thus, the State did

192 	284 NEBRASKA REPORTS
not charge Freemont for the prior incident, and evidence of the
incident was therefore not substantive evidence of the charged
crime. The evidence is not excluded from § 27-404(2) on
that basis.
[7] Nor is Freemont’s prior misconduct excluded from
§ 27-404(2) by being “inextricably intertwined” with the
charged crime.10 Section 27-404(2) does not apply to evidence
of a defendant’s other crimes or bad acts if the evidence is
inextricably intertwined with the charged crime. This rule
includes evidence that forms part of the factual setting of
the crime, or evidence that is 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 if the other
crimes or bad acts are necessary for the prosecution to present
a coherent picture of the charged crime.11
The exception does not apply to the challenged evidence
in this case. The prior misconduct involved an altercation
with Loera’s cousin, who played no part in Galligo’s mur-
der on June 18, 2010. The prior misconduct did not pro-
vide any insight into Freemont’s reason for allegedly killing
Galligo. Moreover, it was not part of the same transaction
and occurred several days or a week before Galligo’s murder.
Accepting the State’s argument would open the door to abuse
of the inextricably intertwined exception. Its susceptibility
to abuse is why some federal courts have limited or rejected
the exception.12 We conclude that the prior incident was not
inextricably intertwined with the charged crime. As such, and
because the prior misconduct was not substantive evidence
of a charged crime, the evidence falls under § 27-404(2) as a
prior uncharged crime.
As a result, the prosecution was required by statute to prove
by clear and convincing evidence that the prior misconduct
10 See State v. Wisinski, 268 Neb. 778, 781, 688 N.W.2d 586, 590 (2004).
11 See, State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v.
Wisinski, supra note 10.
12 See, U.S. v. Green, 617 F.3d 233 (3d Cir. 2010), cert. denied 562 U.S. 942,
131 S. Ct. 363, 178 L. Ed. 2d 234; U.S. v. Gorman, 613 F.3d 711 (7th Cir.
2010); U.S. v. Bowie, 232 F.3d 923 (D.C. Cir. 2000).

STATE v. FREEMONT 	193
Cite as 284 Neb. 179
occurred.13 Such proof must be set forth at a hearing outside
the presence of the jury.14 The trial court did not hold such
a hearing. Thus, the court erred when it allowed Harlan and
Loera to testify regarding Freemont’s prior misconduct. The
remaining issue is whether that error was harmless.
(c) Harmless Error
[8] Evidentiary error is harmless when improper admission
of evidence did not materially influence the jury to reach a ver-
dict adverse to substantial rights of the defendant.15 Harmless
error review looks to the basis on which the trier of fact actu-
ally 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 actual guilty verdict
rendered in the questioned trial was surely unattributable to
the error.16
Here, the prosecution used the evidence to help link Freemont
to the murder. Both Harlan and Loera testified that they had
previously seen Freemont with a gun, which he carried in his
backpack. Harlan testified that it was “[p]robably” the same
backpack that Freemont had on the day of Galligo’s murder.
Loera testified that Freemont had the same gun—a .22-caliber
revolver—on the day of the shooting as he had during his
prior “altercation” with her cousin. The prosecution then refer-
enced their testimony during closing argument to reinforce the
connection between that prior incident and Galligo’s murder.
For example, at one point the prosecutor stated that “[j]ust
like [Harlan] and just like [Vawter], [Loera] sees the gun in
[Freemont’s] hand, the same gun that she saw him with two to
three days before this incident.”
[9] These statements, if viewed in isolation, would tend
to militate against a finding that this error was harmless. But
harmless error review looks to the entire record and views
the erroneously admitted evidence relative to the rest of the
13 See § 27-404(3).
14 Id.
15 See State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012).
16 See State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).

194 	284 NEBRASKA REPORTS
untainted, relevant evidence of guilt.17 And after our review of
the whole record, we find this error harmless.
There is no reason to believe that this evidence materi-
ally influenced the jury’s verdicts. It is true that Freemont’s
previous possession of the murder weapon was probative of
his identity as the murderer. But the evidence was relatively
minor in the context of other evidence proving that he shot
Galligo. For example, Vawter testified that Freemont reached
into his backpack and pulled out a gun. Vawter testified that
Freemont told her to sit back and then leaned across her and
shot Galligo. And while Vawter changed her story a number
of times in speaking to the police, she consistently maintained
that Freemont had fired the shots.
The evidence was also undisputed that Freemont was the
only man in the car and that he was seated in the back seat.
The crux of the defense theory involved showing Loera to be
the shooter, rather than Freemont. But all the witnesses with a
view of the crime testified that the driver, Loera, was outside
the car when Galligo was shot. Moreover, there was repeated
testimony from unbiased third parties, whose credibility was
not in question, that the shots came from the back seat of
the car. One witness and her sister both testified that a man
sitting in the back seat of the car shot Galligo. And another
witness testified that the shots came out of the rear window
of the car.
In short, when viewed in relation to the whole record, the
erroneously admitted evidence was relatively insignificant. The
State charged Freemont with second degree murder, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a prohibited person. The jury could find each and
every element of those crimes to be met by the above testi-
mony. Moreover, Harlan and Loera both testified that Freemont
shot and killed Galligo. The erroneously admitted evidence did
not provide some crucial link to allow the State to make its
case and was largely unnecessary. Thus, the erroneously admit-
ted evidence was relatively insignificant and did not materially
influence the jury’s verdicts.
17 See id.

STATE v. FREEMONT 	195
Cite as 284 Neb. 179
Furthermore, Freemont’s defense strategy involved specifi-
cally and repeatedly attacking Harlan’s and Loera’s credibility.
If the jury was convinced by Freemont’s tactics, as it very well
could have been, then it stands to reason that it would disregard
their testimony, including their testimony regarding Freemont’s
prior misconduct. And even assuming the jury gave weight to
their testimony, it would still be tempered by Freemont’s effec-
tive undercutting of Harlan’s and Loera’s credibility. Combined
with the relative insignificance of the testimony in the first
place, we can safely say that the jury’s verdicts are surely unat-
tributable to its erroneous admission.
2. evideNCe of freemoNt’S “flight ”
Freemont argues that the trial court erred in allowing the
State to introduce evidence intended to show Freemont’s “con-
sciousness of guilt.” The court admitted testimony and exhibits
71 through 74, relating to Freemont’s alleged attempt to avoid
arrest by jumping out a second-story window. Freemont did not
object to Martin’s testimony in which he recounted witness-
ing Freemont jump from a second-story window. Following
this testimony, the State offered the related exhibits. Freemont
objected to the admission of the exhibits, citing §§ 27-401,
27-403, and 27-404.18 The objections were overruled, and the
exhibits were admitted into evidence.
Because the exhibits were admitted after Martin’s testimony
recounting the events, the exhibits are cumulative evidence.19
The testimony indicates that Freemont could have only leapt
out of a second-story window to avoid apprehension. This tes-
timony was properly admitted without objection. So, even if
we were to determine that the exhibits were erroneously admit-
ted, such error would be harmless, because Martin’s testimony
presents the primary evidence related to the issue of flight.20
We therefore cannot say that the trial court abused its discre-
tion in admitting the related exhibits.
18 Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2008), and §§ 27-403
and 27-404.
19 See State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).
20 See State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000).

196 	284 NEBRASKA REPORTS
3. expert teStimoNy regardiNg
balliStiCS C ompariSoN
Freemont argues that the trial court abused its discretion
in allowing Bredow to testify regarding his ballistics testing
and report. Freemont argues that the evidence admitted was
within the scope of the court’s July 2010 discovery order and
that the State failed to provide a report detailing Bredow’s
findings and proffered testimony. Freemont also asserts that
the trial court’s proposed remedy—allowing Bredow to testify
and then allowing defense counsel to depose Bredow prior to
cross-examination—would have forced defense counsel “into
a position where he was investigating the case at the same
time he was trying it and, therefore, was insufficient to cure
any prejudice caused by the State’s belated disclosure of the
report.”21 The order upon which Freemont apparently relies is a
journal entry dated July 20, 2010, which states in part: “Mutual
and reciprocal discovery ordered pursuant to statute.”
[10,11] Section 29-1912(1)(e) allows a defendant charged
with a felony to request that the prosecuting authority provide
him with copies of the results and reports of scientific tests
or experiments made in connection with the case. Pursuant
to § 29-1912(1)(e), following a proper discovery request, the
State has an obligation to disclose information which is mate-
rial to the preparation of a defense to the charge against
the defendant.22
The record reflects that the State made Bredow’s report
available to Freemont as soon as the State received it; there-
fore, there is no evidence of prosecutorial misconduct in the
instant case. The only remaining issue we must determine is
whether Freemont was prejudiced by the trial court’s fail-
ure to exclude the expert witness evidence when Freemont
only received the report a week prior to the commencement
of trial.
[12] Whether a prosecutor’s late disclosure of evidence
results in prejudice depends on whether the information sought
21 Brief for appellant at 24.
22 See State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), abrogated
on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).

STATE v. FREEMONT 	197
Cite as 284 Neb. 179
is material to the preparation of the defense, meaning that there
is a strong indication that such information will play an impor-
tant role in uncovering admissible evidence, aiding preparation
of witnesses, corroborating testimony, or assisting impeach-
ment or rebuttal.23
Defense 	counsel 	stated 	that 	he 	received 	the 	notice 	of
Bredow’s endorsement as an expert witness sometime before
December 2010 and, at that time, was made aware that Bredow
would testify regarding the characteristics of a slug recovered
during the victim’s autopsy. At no time prior to trial did defense
counsel ask to depose Bredow. At the hearing, the court gave
defense counsel an opportunity to depose Bredow, but counsel
stated that he did not need to. The court overruled Freemont’s
objection and allowed Bredow to testify.
While recognizing that receiving Bredow’s report so close
to the commencement of trial may have posed a burden on
defense counsel, we do not conclude that such delay rose to
the level of prejudicial error.24 Any prejudice that Freemont
may have suffered as a result of the delay was cured by the fact
that the State and the trial court made every opportunity avail-
able to Freemont to depose Bredow prior to the continuation of
trial. And there is nothing to indicate Bredow could not have
been deposed in the days leading up to trial regarding the tests
already conducted. Because Freemont had the opportunity to
depose Bredow prior to trial and was given ample opportunity
to take a continuance to depose him at a later date, we deter-
mine that Freemont was not prejudiced by the late disclosure of
Bredow’s report. Accordingly, the trial court did not abuse its
discretion in allowing Bredow to testify.
4. admiSSioN of autopSy photographS
The State offered exhibits 56 through 58, which contained
images of Galligo’s face post mortem, and exhibit 63, which
showed the site on Galligo’s back where a bullet was removed
during the autopsy. Freemont objected, on § 27-403 grounds,25
23 State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
24 See State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
25 See § 27-403.

198 	284 NEBRASKA REPORTS
to the admission of exhibits 56 through 58 and 63 and also
asserted a foundational objection to exhibit 63. The objections
were overruled, and the exhibits were entered into evidence.
Freemont argues that the exhibits were unfairly prejudicial
and that they lacked any probative value. Freemont asserts
that the parties did not contest that Galligo’s death was a
result of a gunshot wound to the chest; therefore, there was
no legitimate purpose for the admission of the photographs.
Freemont argues that the photographs of Galligo’s face were
especially prejudicial and lacked any probative value in light
of the fact that Galligo’s death did not result from any wounds
or blows to the face. Because the State introduced evidence
and testimony regarding the fatal gunshot wound, and a pho-
tograph of Galligo taken prior to his death for purposes of
identification, Freemont argues the autopsy photographs only
served to incense the jury. Freemont also states that exhibit
63 was irrelevant to the case, as it depicted “a post-mort[e]m,
pathologist-generated, autopsy-related event” independent of
the shooting.26
The State argues that the photographs contained in exhibits
56 through 58 were not admitted to show the cause of death,
but to corroborate the witnesses’ version regarding what took
place at the scene—that Galligo was shot in the chest and then
fell to the ground, hitting his face and knocking off his glasses.
The State asserts that the photographs are not gruesome in
nature, stating that “[a]s autopsy photographs go, they are
pretty tame.”27
Exhibit 63, the State argues, was necessary to form the foun-
dation of Bredow’s testimony. Exhibit 63 establishes that the
bullet Bredow examined was taken from Galligo’s body dur-
ing the autopsy, as it did not exit the body at the time Galligo
was shot.
[13] Pursuant to § 27-403, “‘unfair prejudice’ means an
undue tendency to suggest a decision based on an improper
basis.”28 In a homicide prosecution, photographs of a victim
26 Brief for appellant at 26.
27 Brief for appellee at 31.
28 State v. Canbaz, 259 Neb. 583, 592, 611 N.W.2d 395, 403 (2000).

STATE v. FREEMONT 	199
Cite as 284 Neb. 179
may be received into evidence for the purpose of identifica-
tion, to show the condition of the body or the nature and
extent of wounds and injuries to it, and to establish malice
or intent.29
[14] A defendant cannot negate an exhibit’s probative value
through a tactical decision to stipulate.30 The State is allowed
to present a coherent picture of the facts of the crimes charged,
and it may generally choose its evidence in so doing.31 Though
the State and Freemont agreed that a gunshot to the chest was
the cause of Galligo’s death, the photograph remained proba-
tive of the condition of the body. The record also reflects that
the exhibits were relevant to Bredow’s expert testimony and to
corroborate eyewitness testimony.
The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must deter-
mine their relevancy and weigh their probative value against
their prejudicial effect.32 Because the exhibits here were used
to present a coherent picture of the crime and to corroborate
witness observations of the events leading up to the shooting,
we cannot say that the trial court abused its discretion in admit-
ting the photographs of Galligo’s body.
5. Jury iNStruCtioNS
Freemont argues that the trial court erred in refusing to give
his proposed instruction regarding eyewitness identification and
in giving an “acquit first” step instruction that is contrary to the
Nebraska pattern jury instructions.33 For the following reasons,
we determine Freemont’s arguments to be without merit.
(a) Eyewitness Identification Instruction
Though the jury was instructed as to issues of witness cred-
ibility, Freemont proposed an additional instruction regarding
reliability of eyewitness identification. Freemont argued that
29 State v. Galindo, supra note 5.
30 Id.
31 Id.
32 Id.
33 Brief for appellant at 29.

200 	284 NEBRASKA REPORTS
the instruction was proper because the facts of the case sup-
port the contention that there was “the possibility of an honest
but mistaken” eyewitness identification. The State objected,
noting that Nebraska has not created a pattern eyewitness
instruction and that such an instruction is not required in
this jurisdiction.
Freemont’s proposed instruction states:
[Y]ou should bear in mind that there has been a number
of instances where responsible witnesses, whose honesty
was not in question and whose opportunities for obser-
vation had been adequate, made positive identifications
which identifications were subsequently proved to be
erroneous; and accordingly you should be specially cau-
tious before accepting such evidence of identification
as correct.34
The court denied Freemont’s request to issue the instruction.
[15] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction.35
Freemont relies on United States v. Telfaire36 and its progeny
for the proposition that, when requested, trial courts should
give a cautionary instruction when identification is a major
factor or when the circumstances of the identification call
into question its reliability. This court has not had occasion to
analyze the implications of Telfaire in this context. However,
we need not determine whether the instruction proposed by
Freemont amounts to a correct statement of the law in this
jurisdiction, because we determine that such instruction was
not warranted by the evidence here.
It has been recognized that it is reversible error to refuse
to give an eyewitness identification instruction where the
34 See United States v. Telfaire, supra note 1.
35 State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).
36 United States v. Telfaire, supra note 1.

STATE v. FREEMONT 	201
Cite as 284 Neb. 179
government’s case rests solely on questionable eyewitness
identification.37 And Telfaire specifically dealt with issues aris-
ing out of the reliability of cross-racial identifications.38 Such
issues are not present here. A number of the witnesses knew
Freemont, and there is no indication of racial bias among any
of the eyewitnesses who identified him as the shooter. Each
identification was corroborated by another witness and by cir-
cumstantial evidence.
Furthermore, the jury here was directed to consider the abil-
ity of each witness to observe matters on which the witness
had testified. Jury instruction No. 17 specifically directed the
jury to consider factors that could impact credibility, includ-
ing the circumstances of the testimony, the witnesses’ conduct
and demeanor, any interest in the outcome, and the witnesses’
opportunity to observe the matters on which they testified. The
court further instructed that the jury should consider the wit-
nesses’ ability to remember and relate the events accurately
and the extent to which the testimony is or is not corroborated.
We determine that Freemont cannot establish prejudice as a
result of the court’s refusal to give the tendered instruction.
The credibility instruction was sufficient to protect against any
prejudice related to the reliability of the eyewitness identifica-
tions, of which there were many. Accordingly, the trial court
did not err in refusing to give the eyewitness identification
instruction in this case.
(b) Step Instruction
Freemont objected to the step instruction given by the
court and proposed that the court use the pattern jury instruc-
tion contained in NJI2d Crim. 3.1. Freemont also informed
the trial court of our previous holding in State v. Goodwin,39
which encourages trial courts to use the pattern instruction.
The State objected to Freemont’s proposed instruction. The
37 See, U.S. v. Grey Bear, 883 F.2d 1382 (8th Cir. 1989); U.S. v. Mays, 822
F.2d 793 (8th Cir. 1987).
38 United States v. Telfaire, supra note 1.
39 State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).

202 	284 NEBRASKA REPORTS
court agreed with the State, overruled Freemont’s objection,
and ultimately gave its proposed step instruction as jury
instruction No. 4.
In State v. Taylor,40 we recently addressed a step instruction
similar to the instruction given here. Taylor was published after
Freemont’s trial and convictions. In Taylor, we determined
that the defendant was not prejudiced by the step instruction,
but again encouraged courts to use the pattern jury instruction
in the future.41 We similarly conclude that Freemont was not
prejudiced by jury instruction No. 4. Therefore, the trial court
did not err in giving the step instruction.
[16,17] Whenever an applicable instruction may be taken
from the Nebraska Jury Instructions, that instruction is the
one which should usually be given to the jury in a criminal
case.42 However, although the Nebraska pattern jury instruc-
tions are to be used whenever applicable, a failure to follow
the pattern jury instructions does not automatically require
reversal.43
NJI2d Crim. 3.1 includes a listing of the offenses which the
jury is to consider and the elements of each offense. It then
provides the following direction for the jury:
You must separately consider in the following order
the crimes of (here insert crimes charged beginning with
the greatest and listing included crimes in sequence). For
the (here insert greatest crime) you must decide whether
the state proved each element beyond a reasonable doubt.
If the state did so prove each element, then you must find
the defendant guilty of (here insert greatest crime) and
[stop]. If you find that the state did not so prove, then
you must proceed to consider the next crime in the list,
the (here insert first lesser included). You must proceed
in this fashion to consider each of the crimes in sequence
40 State v. Taylor, supra note 6.
41 See NJI2d Crim. 3.1.
42 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006); State v. Putz, 266
Neb. 37, 662 N.W.2d 606 (2003).
43 State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).

STATE v. FREEMONT 	203
Cite as 284 Neb. 179
until you find the defendant guilty of one of the crimes or
find (him, her) not guilty of all of them.44
Jury instruction No. 4 includes two sections, each of which
spells out the material elements for the two grades of homi-
cide at issue here. Each section of the instruction then states
that if the jury finds that the State has proved by evidence
beyond a reasonable doubt that each and every one of the
material elements set out in that section was true, the jury
should find the defendant guilty of that crime. Each section
goes on to state that if, on the other hand, it is found that
the State had failed to prove beyond a reasonable doubt any
one or more of the material elements in that section, it is the
jury’s duty to find the defendant not guilty of that crime. The
instruction then directs the jury to “proceed to consider the
lesser included offense.”
Freemont correctly asserts that we encouraged courts to
use NJI2d Crim. 3.1 in Goodwin, and we reiterated this state-
ment in Taylor.45 However, though this court noted the pattern
instruction provides a clearer and more concise explanation of
the process by which the jury is to consider lesser-included
offenses, we found no constitutional infirmity in the step
instructions given in Goodwin and Taylor.46
Freemont fails to specify how he was prejudiced by the step
instruction, nor does he specify a theory which the instruction
prevented the jury from considering. Freemont’s argument that
he lacked the intent to kill and should therefore be found guilty
of manslaughter and acquitted of second degree murder was
presented at trial and argued by defense counsel to the jury.
Accordingly, we determine that Freemont was not prejudiced
by jury instruction No. 4. However, we again urge trial courts
to use the pattern jury instruction in the future. It may not
always be the case that the defendant is not prejudiced by the
failure to give the pattern jury instruction.
44 NJI2d Crim. 3.1.
45 See, State v. Taylor, supra note 6; State v. Goodwin, supra note 39.
46 See id.

204 	284 NEBRASKA REPORTS
6. SuffiCieNCy of evideNCe
Freemont asserts that the State failed to present evidence
sufficient to support his conviction. He argues that the wit-
ness testimony presents a factual conflict: On the one hand,
the bystander witnesses, who were not involved in the inci-
dent, failed to make an in-court identification of Freemont as
the shooter, and some witnesses even identified Loera as the
shooter prior to trial. On the other hand, the witnesses involved
in the incident identified Freemont as the shooter, but those
individuals have a vested interest in the outcome of the case.
Freemont states:
For a trier of fact to conclude that Freemont was the
shooter on the basis of this evidence would require the
trier of fact to ignore facts in evidence from a set of wit-
nesses with no vested interest in the outcome of the pros-
ecution who indicated that a person other than Freemont
shot Galligo.47
Freemont also states that the testimonies of Harlan, Vawter,
and Loera are not reliable because each witness lied to police
prior to testifying. In essence, Freemont argues that the witness
testimony presented by the State was “not sufficient to allow
the jury to rely on it to convict Freemont.”48
In reviewing a sufficiency of the evidence claim, whether
the 	evidence 	is 	direct, 	circumstantial, 	or 	a 	combination
thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.49 The relevant question for an appellate court
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.50
The record reflects that a number of witnesses observed the
altercation between Loera and Galligo, heard gunshots, and
47 Brief for appellant at 31.
48 Id. at 32.
49 State v. Nero, supra note 7.
50 Id.

STATE v. FREEMONT 	205
Cite as 284 Neb. 179
saw either a gun or smoke from the gun coming from the back
seat of a white car. Two bystander witnesses testified that they
observed a male fire the shots from the back seat of the car,
and two others similarly testified that the shots came from the
back seat of the car, though they could not see the shooter. And
each witness who was directly connected with Freemont and
present in or near the car on the day of the shooting identified
Freemont as the shooter.
Freemont’s arguments expressly ask this court to resolve
conflicts in the evidence presented at trial and to pass on the
credibility of witnesses. These are not matters to be resolved
by an appellate court.51 After viewing the evidence presented
in the light most favorable to the prosecution, we conclude
that any rational trier of fact could have found Freemont com-
mitted the essential elements of the crime beyond a reason-
able doubt. Accordingly, the evidence is sufficient to sustain
Freemont’s conviction.
7. iNeffeCtive aSSiStaNCe of C ouNSel
[18,19] Finally, Freemont raises several issues with regard
to his claims of ineffectiveness of trial counsel. A claim of
ineffective assistance of counsel need not be dismissed merely
because it is made on direct appeal.52 The determining fac-
tor is whether the record is sufficient to adequately review
the question.53 An ineffective assistance of counsel claim will
not be addressed on direct appeal if it requires an eviden-
tiary hearing.54
Freemont argues that counsel was ineffective for failing
to (1) elicit evidence of third-party guilt, (2) object to inad-
missible identification evidence during a pretrial suppression
hearing, (3) request a cautionary instruction regarding accom-
plice testimony, (4) request a mistrial when the State put
forward a consciousness of guilt argument during closing
arguments, (5) request a continuance in order to investigate
51 See id.
52 State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
53 Id.
54 Id.

206 	284 NEBRASKA REPORTS
fully Bredow’s ballistics report, (6) adduce significant forensic
evidence regarding bullet trajectory, and (7) elicit evidence
regarding Freemont’s lack of motive. For the reasons that fol-
low, we determine that the record is insufficient to address
Freemont’s arguments.
Freemont’s arguments regarding third-party guilt rest on
claims that three witnesses identified Loera as the shooter prior
to trial and that counsel failed to use this evidence at trial to
impeach those witnesses. There is nothing in the present record
that reflects why counsel did or did not elicit certain testimony
during cross-examination. And we have no way of determining
whether action taken by counsel was misguided or based upon
sound strategic motive. A resolution of this question would
require an evidentiary hearing, and we thus determine that it is
not appropriate for review on direct appeal.
Freemont argues that counsel was ineffective in failing to
object to inadmissible identification evidence. Prior to trial,
counsel filed a motion to suppress identification on the basis
that the procedures used to procure Harlan’s identification of
Freemont were unduly and innately suggestive and, therefore,
prejudicial to Freemont. At the suppression hearing, Martin
testified regarding the identification procedure. Martin con-
ducted the photographic array with Harlan on two occasions.
Martin testified that Harlan told Loera that she had purposely
picked out the wrong photograph in the first array and that
Harlan had told Martin she did so because she was scared.
Freemont claims that these statements, among others, were
inadmissible hearsay and that counsel was ineffective in fail-
ing to object to the statements. Freemont also appears to claim
that counsel should have called Harlan to testify at the hear-
ing. Again, the record is not sufficient to address these claims,
because it does not disclose counsel’s reasons for failing to
call Harlan as a witness or to object to the admission of cer-
tain evidence.
Freemont next claims an accomplice testimony instruction
should have been given regarding Loera’s testimony. But there
is nothing in the record that establishes Loera as an accom-
plice. The record reflects that Loera was charged as an acces-
sory to a felony in relation to Galligo’s death, but such a

STATE v. FREEMONT 	207
Cite as 284 Neb. 179
charge is distinct from the determination that she acted as an
accomplice.55 The record is therefore insufficient to address
this claim.
Freemont asserts that trial counsel was ineffective for failing
to move for a mistrial based on the State’s closing argument.
Freemont claims that because the court declined to issue the
State’s proposed instruction regarding consciousness of guilt,
it was improper for the State to reference this theory during
closing arguments. Again, we cannot speculate as to why trial
counsel did not interpose such an objection, and the issue is
inappropriate for review here.
Freemont claims trial counsel was ineffective for failing to
request a continuance in order to investigate Bredow’s ballistics
report. As noted above, the court gave counsel the opportunity
to depose Bredow and offered a half-day continuance for that
purpose. Though counsel declined this offer, the record does
not indicate counsel’s reasons or motive for doing so. Nor does
the record suggest what evidence, if any, would have resulted
from further investigation into the ballistics report. Thus, the
record is insufficient to address this claim.
Freemont argues that his trial counsel failed to adduce evi-
dence regarding bullet trajectory. Counsel cross-examined the
pathologist who performed Galligo’s autopsy regarding the
trajectory of the bullet that killed Galligo, but there is noth-
ing in the record which reflects that further evidence of this
nature would have been probative or exculpatory. Without
the identification of what evidence could have been produced
that would be probative or exculpatory, this claim cannot
be reached.
Finally, Freemont claims that trial counsel was ineffective
in failing to elicit evidence regarding Freemont’s lack of a
motive to kill Galligo. Freemont argues that counsel should
have offered evidence to establish that Freemont barely knew
Galligo and that he was not a member of any group or orga-
nization that bore hostility toward Galligo. Again, this claim
cannot be addressed on the record before us—there is no indi-
cation of trial counsel’s strategy in presenting or declining to
55 See State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006).

208 	284 NEBRASKA REPORTS
present certain evidence. Freemont is free to raise these issues
of ineffective assistance of counsel in a motion for postconvic-
tion relief.
8. C umulative errorS
Because we find only one error in this case, and that error
was harmless, a reversal cannot be predicated on cumulative
error. Freemont’s arguments to the contrary are without merit.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
trial court.
affirmed.
heaviCaN, C.J., and Wright, J., not participating.
CaSSel, Judge, concurring.
I agree with the majority opinion except in one respect. I
write separately because I agree with the State that the testimo-
nies of Harlan and Loera were not rule 404(2)1 evidence, but,
rather, substantive evidence relating to the charge of possession
of a weapon by a felon.
Because the State charged Freemont with possession of a
deadly weapon by a prohibited person, it had the burden to
prove, as relevant to the facts of this case, that Freemont pos-
sessed a firearm and that he had previously been convicted of
a felony.2 Thus, Harlan’s testimony that she saw Freemont with
a gun a few days before the shooting which looked like the
gun used in the shooting and Loera’s testimony that she saw
Freemont display the same gun that was used in the shooting a
week before the shooting were relevant to prove the charge of
possession of a gun by a prohibited person.
Evidence of Freemont’s earlier possession is intrinsic to and
directly bears on an element of the charged crime of being a
felon in possession of a deadly weapon. Four reasons support
my conclusion. First, this court has previously recognized that
intrinsic evidence is not subject to rule 404(2). Second, several
federal circuit courts, faced with strikingly similar facts, have
1 Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2010).
2 See Neb. Rev. Stat. § 28-1206 (Supp. 2009).

STATE v. FREEMONT 	209
Cite as 284 Neb. 179
determined that evidence of the accused’s prior possession was
intrinsic to and a part of the government’s direct proof of the
charged crime of unlawful possession of a firearm. Third, the
rationale underlying rule 404 does not require the majority’s
narrow view of permissible evidence. Finally, I am not per-
suaded by the majority’s articulated rationale.
This court has repeatedly excluded certain evidence from
the reach of rule 404. In State v. Aguilar,3 the court said, “Bad
acts that form the factual setting of the crime in issue or that
form an integral part of the crime charged are not part of rule
404(2) coverage.” In State v. Wisinski,4 the court again held
that rule 404 did not apply to the evidence. The court accepted
that where evidence of other crimes is so blended or connected
with the ones on trial as that proof of one incidentally involves
the others, or explains the circumstances, or tends logically to
prove any element of the crime charged, it is admissible as an
integral part of the immediate context of the crime charged.5
And in State v. Robinson,6 this court recognized that such
evidence is often referred to as “intrinsic evidence.” The court
again accepted that a trial court does not err in finding rule 404
inapplicable and in accepting prior conduct evidence where
the prior conduct evidence is so closely intertwined with the
charged crime that the evidence completes the story or pro-
vides a total picture of the charged crime.7 Thus, this court has
long recognized that such evidence falls outside the rubric of
rule 404.
I next turn to several federal cases that closely parallel the
factual circumstances present in the case before us and begin
by discussing a case from the circuit that includes Nebraska. In
U.S. v. Adams,8 the Eighth Circuit treated testimony from the
defendant’s roommate that he observed the defendant possess
3 State v. Aguilar, 264 Neb. 899, 909, 652 N.W.2d 894, 903 (2002).
4 State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).
5 See id.
6 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
7 See id.
8 U.S. v. Adams, 604 F.3d 596, 599 (8th Cir. 2010).

210 	284 NEBRASKA REPORTS
a firearm on four occasions, all within a year prior to his
arrest, as intrinsic to the crime charged—being a felon in pos-
session of a firearm—and determined that the testimony was
“evidence of possession that ‘directly supports’ the charge.”
The court reasoned that the testimony helped establish the
defendant’s ownership or control of the gun and that the evi-
dence was not subject to rule 404(b) of the Federal Rules of
Evidence because it “‘tends logically to prove [an] element of
the crime charged.’”9 Similarly, in the instant case, Harlan’s
and Loera’s testimonies that Freemont possessed a gun directly
supported the charged crime and tended to prove an element
of the crime.
At least two other circuit courts have reached a similar con-
clusion. In U.S. v. Dorsey,10 the defendant was charged with
several crimes, including discharging a firearm, and he chal-
lenged the admission of testimony from two witnesses regard-
ing his possession of a Glock-like gun 3 to 4 months before the
shooting. The Ninth Circuit determined that the testimony was
not evidence of prior bad acts under rule 404(b), but, rather,
evidence that the defendant had a gun of the same or a similar
type as the gun used in the shooting, which was relevant to
show that the defendant had the means to commit the charged
crimes and was the shooter. The Ninth Circuit reasoned that the
evidence was inextricably intertwined with the charged crimes
because it bore directly on the commission of those crimes
and that the testimony “added to the circumstantial case” and
“formed part of the prosecution’s ‘coherent and comprehen-
sible story regarding the commission of the crime.’”11 The
Ninth Circuit further concluded that the probative value of the
testimony was not outweighed by a danger of unfair prejudice
because the testimony linked the defendant “to a gun that was
the same as or similar to the gun likely used in the shooting.”12
The Dorsey court reasoned, “Evidence that [the defendant] had
9 Id.
10 U.S. v. Dorsey, 677 F.3d 944 (9th Cir. 2012).
11 Id. at 952.
12 Id.

STATE v. FREEMONT 	211
Cite as 284 Neb. 179
a Glock-like gun in January or February of 2008 made it more
likely that he still had that gun on the night of the shooting
in May.”13
The 10th Circuit considered a situation in United States v.
Mitchell,14 where the defendant was charged with possession of
an unregistered firearm based upon the discovery of a sawed-
off shotgun which was found approximately 100 feet from the
defendant’s home. The government adduced testimony from
witnesses who observed the defendant the night before the
discovery of the firearm: One witness testified that he saw the
defendant with a shotgun that looked similar to the shotgun
introduced in evidence, while another witness testified that he
saw the defendant carrying a sawed-off shotgun. The federal
court concluded that the testimony was not rule 404(b) evi-
dence because the government had to connect the defendant
with the sawed-off shotgun found near the defendant’s home.
The court reasoned that the defendant’s earlier conduct was
closely and inextricably connected with the offense charged
because it showed his possession of a sawed-off shotgun.
In the case before us, the State had the burden of proving
beyond a reasonable doubt that Freemont possessed a deadly
weapon, specifically, a firearm. His possession of a firearm on
the earlier occasions, shortly before the date of the charged
offense, provides circumstantial evidence that he possessed
the firearm on the date of the offense.
I turn to the underlying purpose of rule 404, which oper-
ates to exclude evidence of a person’s past misdeeds if the
sole purpose of the evidence is to prove the existence of a
trait of character, and, from that trait, an inference of particu-
lar conduct. As a commentator long ago summarized, “‘[o]ur
rule, then, firmly and universally established in policy and
tradition, is that the prosecution may not initially attack the
defendant’s character.’”15 As the U.S. Supreme Court stated,
13 Id.
14 United States v. Mitchell, 613 F.2d 779 (10th Cir. 1980).
15 David P. Leonard, The New Wigmore: Evidence of Other Misconduct and
Similar Events § 1.2 at 3 n.5 (Richard D. Friedman ed., 2009), quoting
1 John H. Wigmore, Evidence in Trials at Common Law § 57 (1904).

212 	284 NEBRASKA REPORTS
“The inquiry is not rejected because character is irrelevant; on
the contrary, it is said to weigh too much with the jury and to
so overpersuade them as to prejudge one with a bad general
record and deny him a fair opportunity to defend against a
particular charge.”16
But in the case before us, the evidence speaks not to
Freemont’s character, but, rather, to the likelihood of his pos-
session of a firearm at the time of the charged crimes. Indeed,
this circumstantial evidence of possession of the gun occurred
much closer in time to the charged crimes than did the similar
evidence admitted by the federal courts.
I am not persuaded by either of the reasons articulated by
the majority, which first contends that Freemont’s possession
of a deadly weapon a few days or a week before the shooting
was an uncharged crime because the State charged the pos-
session crime as occurring on June 18, 2010—the day of the
murder. The majority reasons that because the State did not
charge Freemont with a separate crime for either of the prior
incidents, evidence of the incidents was therefore not substan-
tive evidence of the charged crime. But the federal cases I
have already cited emphatically reject this reasoning. To take
the clearest example, evidence that a person possessed a gun
both on the day before and on the day after he is charged with
its possession provides powerful circumstantial evidence that
he or she possessed it on the day of the charge. This evidence
does not speak to the defendant’s character; rather, it is evi-
dence tending to prove that he or she possessed the gun on the
date charged. The majority’s approach would require a rule
404 analysis simply because the observations were not on the
precise day of the charged crime. In the case before us, the
evidence is not so removed in time as to lose its temporal con-
nection to the charged date of possession. While I concede that
such an interval exists, it is clear to me that a matter of a few
days or a week is well within the relevant time.
Second, the majority focuses on the murder, while the
disputed evidence bears on the possession of the gun. The
16 Michelson v. United States, 335 U.S. 469, 475-76, 69 S. Ct. 213, 93 L. Ed.
168 (1948).

STATE v. FREEMONT 	213
Cite as 284 Neb. 179
majority states that “[t]he prior misconduct did not provide any
insight into Freemont’s reason for allegedly killing Galligo.”
This, I contend, misses the point—the evidence directly spoke
to Freemont’s possession of a gun similar, if not identical,
to the one he was charged with possessing on the date of
the crime.
Moreover, the majority overlooks the significance of the lan-
guage of the information setting forth the date of the offense.
Notably, the information charged Freemont with unlawfully
possessing a deadly weapon “on or about the 18th day of June,
2010.” Testimony that Freemont possessed the gun a few days
before June 18 provided confirmation that he possessed it “on
or about” that date. The Eighth Circuit similarly concluded in
U.S. v. Adams.17 In that case, the defendant was convicted of
being a felon in possession of a firearm “‘on or about March
14, 2008,’”18 and one of the defendant’s roommates testified
that he observed the defendant possess the firearm on four
occasions, all within a year prior to his arrest. The defend-
ant argued that the prior possession testimony altered the
date of the offense, but the Eighth Circuit reasoned that “the
government never wavered in its theory of the case at trial:
the location where the gun was found established [the defend-
ant] possessed the firearm ‘on or about’ the charged date and
[the roommate’s] testimony simply provided confirmation of
possession.”19 In my view, Harlan’s and Loera’s testimonies
simply provided confirmation that Freemont was in possession
of a gun “on or about the 18th day of June, 2010.” Because
such testimony proved an element of the crime charged, no
analysis under rule 404 was necessary.
17 U.S. v. Adams, supra note 8.
18 Id. at 597.
19 Id. at 600.