State v. Floyd

CONCLUSION
For the reasons discussed, we find no reversible error and
affirm the judgment of the district court.
A ffirmed.
G errArd, J., participating on briefs.
StAte of NebrASkA, Appellee , v.
WilliAm C. floyd, Jr ., AppellANt.
763 N.W.2d 91
Filed April 3, 2009. 	No. S-08-018.
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 such discretion a factor in deter-
mining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
3. 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
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
4. Trial: Juries: Appeal and Error. The retention or rejection of a venireperson as
a juror is a matter of discretion with the trial court and is subject to reversal only
when clearly wrong.
5. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
6. Evidence: Words and Phrases. Clear and convincing evidence is that amount of
evidence which produces in the trier of fact a firm belief or conviction about the
existence of a fact to be proved.
7. Rules of Evidence: Appeal and Error. Findings of fact made by a district court
pursuant to Neb. Evid. R. 404(3), Neb. Rev. Stat. § 27-404(3) (Reissue 2008), are
reviewed by an appellate court for clear error.
8. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analy-
sis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008), con-
siders whether the (1) evidence was relevant for some purpose other than to prove
the character of a person to show that he or she acted in conformity therewith;
(2) probative value of the evidence is substantially outweighed by its potential for
unfair prejudice; and (3) trial court, if requested, instructed the jury to consider
the evidence only for the limited purpose for which it was admitted.
502 	277 NEbRASkA REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

9. Evidence: Other Acts: Intent: Proof. prior acts evidence may be offered for the
purpose of proving intent where intent is an element of the charged offense.
10. Criminal Law: Words and Phrases. Motive is defined as that which leads or
tempts the mind to indulge in a criminal act.
11. Criminal Law: Intent: Proof. While motive is not an element of first degree
murder, any motive for the crime charged is relevant to the State’s proof of the
intent element.
12. Rules of Evidence: Words and Phrases. pursuant to Neb. Evid. R. 404(1)(b),
Neb. Rev. Stat. § 27-404(1)(b) (Reissue 2008), in order to be admissible, the
evidence in question must be of a pertinent trait of character. “pertinent” is syn-
onymous with “relevant,” which is defined in Neb. Evid. R. 401, Neb. Rev. Stat.
§ 27-401 (Reissue 2008).
13. ____: ____. Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2008), defines
relevant evidence as evidence having 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 without the evidence.
14. Jury Misconduct: Verdicts. In order for a verdict to be set aside because of the
prejudicial effect of newspaper accounts on jurors, there must be evidence pre-
sented that the jurors read newspaper accounts and that the accounts were unfair
or prejudicial to the defendant.
15. Jury Misconduct: New Trial. In order for jury misconduct to be the basis for
a new trial, the misconduct must not only occur but it must be prejudicial to
the defendant.
16. Jury Misconduct: Proof. A criminal defendant claiming jury misconduct bears
the burden of proving, by a preponderance of the evidence, (1) the existence of
jury misconduct and (2) that such misconduct was prejudicial to the extent that
the defendant was denied a fair trial.
Appeal from the District Court for Douglas County: thomAS
A. otepkA, Judge. Affirmed.
Thomas C. Riley, Douglas County public Defender, for
appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
heAviCAN, 	C.J., 	WriGht, 	C oNNolly, 	G errArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
heAviCAN, C.J.
INTRODUCTION
William C. Floyd, Jr., was convicted of first degree murder
and manslaughter of an unborn child. Floyd was sentenced to
STATE v. FLOyD 	503
Cite as 277 Neb. 502

life imprisonment on the murder conviction and 20 to 20 years’
imprisonment on the manslaughter conviction. Floyd appeals
certain evidentiary rulings, as well as the district court’s denial
of his motion for mistrial and motions to strike certain jurors.
We affirm.
FACTUAL bACkGROUND
On July 30, 2004, Floyd was charged with first degree
murder, manslaughter of an unborn child, and being a felon
in possession of a weapon. Floyd was originally convicted in
2005 of these charges; however, the murder and manslaughter
convictions were reversed on appeal by this court as the result
of improper communication between the jury and a bailiff.1
Floyd was retried. Following a jury trial, he was again con-
victed of first degree murder and manslaughter of an unborn
child. Floyd was sentenced to life imprisonment on the murder
conviction and 20 to 20 years’ imprisonment on the manslaugh-
ter conviction.
The charges against Floyd arose out of the shooting death of
Destiny Davis, who was pregnant at the time of her death. The
evidence establishes that on October 7, 2003, Davis and several
other individuals, including Davis’ sister, Shantelle Vickers,
were in the living room in a home in Omaha, Nebraska. Just
before 10:30 p.m., Vickers left the living room for the bath-
room. The other individuals, including Davis, remained in the
living room. While in the bathroom, Vickers heard gunshots.
Those gunshots were fired from outside the living room win-
dow. Davis and two others were hit; Davis and her unborn
child were killed. Vickers testified that after hearing the gun-
shots, she looked out the bathroom window and saw a man she
identified as Floyd outside the house.
The State’s theory of prosecution was that Vickers, who
had previously been romantically involved with Floyd, was
the intended victim of the shooting. In support of this theory,
Vickers testified as to her combative relationship with Floyd,
including specific incidents in which Floyd acted in a violent
1 State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved, State
v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
504 	277 NEbRASkA REpORTS

manner toward her. In particular, Vickers testified to four
separate incidents: one on January 21, 2003; another sometime
in the fall of 2003; one on October 6, 2003; and one in the
afternoon on October 7, 2003, the day of the shooting. Floyd
objected to the introduction of all but the October 7 incident.
Floyd’s motion in limine was denied. The court concluded that
the prior history of violence went not to Floyd’s propensity
for violence, but to Floyd’s motive or intent to commit the
crimes charged.
Voir dire in this case was held on August 20 and 21, 2007.
At the conclusion of the first day of voir dire, the jury was
admonished to not “read, view or listen to any reports about
this case . . . . If any accounts of this case do come to your
attention, you must immediately disregard them.”
An Omaha World-Herald newspaper article regarding the trial
was published during the jury selection process and appeared
in both the August 20, 2007, evening edition and the August 21
morning edition of the newspaper. based upon the publication
of the article, Floyd motioned for a mistrial. The court reserved
ruling on the motion and conducted an inquiry into the jury
pool’s exposure to the article.
During its inquiry, eight members of the jury panel admit-
ted exposure to the article in some form. Each member of the
panel was questioned separately. Four prospective jurors were
struck for cause at the conclusion of their individual question-
ing; another two prospective jurors were excused for cause at
the conclusion of all questioning. At that time, the district court
also denied Floyd’s motion for mistrial.
Floyd also objected to the two remaining members of the
panel, both of whom eventually sat on the jury. The district
court denied those motions. The questioning of juror D.W.
established that he saw the newspaper of a fellow prospective
juror and noticed a headline that contained the words “Floyd,”
“retrial,” and “2003.” D.W. indicated that once he saw the name
and year, he “just looked down,” and that he could not tell what
the exact headline was and had no idea why a retrial was neces-
sary. As for juror F.W., she testified that she was skimming the
newspaper and saw the name “William Floyd” and that she
“quickly put it [the newspaper] into the trash, I mean, as fast as
STATE v. FLOyD 	505
Cite as 277 Neb. 502

I probably have in my life.” F.W. denied seeing or reading any
other information from the article.
ASSIGNMENTS OF ERROR
On appeal, Floyd contends, restated, that the district court
erred in (1) admitting evidence of specific incidents of Floyd’s
abuse of Vickers; (2) basing its ruling on the admissibility
of evidence pursuant to Neb. Evid. R. 404, Neb. Rev. Stat.
§ 27-404 (Reissue 2008), in part on testimony from a prior
rule 404 hearing; (3) using an incorrect definition of “clear and
convincing” in deciding whether the State met its burden under
rule 404; (4) refusing to admit evidence of specific incidents of
violence by Vickers toward her former and current husbands;
and (5) denying Floyd’s motion to strike or motion for mistrial
due to the fact that several prospective jurors were exposed to
a newspaper article regarding Floyd’s retrial.
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 such discretion a factor in determining
admissibility.2 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
[3] 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 rule 404(2), Neb. Rev. Stat.
§§ 27-403 (Reissue 2008) and 27-404(2), and the trial court’s
decision will not be reversed absent an abuse of discretion.4
[4,5] The retention or rejection of a venireperson as a juror
is a matter of discretion with the trial court and is subject to
reversal only when clearly wrong.5 The decision whether to
2 State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008).
3 Id.
4 See State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003).
5 State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
506 	277 NEbRASkA REpORTS

grant a motion for mistrial is within the discretion of the trial
court and will not be disturbed on appeal in the absence of an
abuse of discretion.6
ANALySIS
Rule 404 Evidence.
In his first assignment of error, Floyd contends that the dis-
trict court erred in admitting evidence of specific acts of abuse
he allegedly committed against Vickers. In connection with this
assignment of error, Floyd also argues that the district court
erred in considering evidence from a prior hearing and in utiliz-
ing the wrong standard when concluding that the State had
met its burden of showing that he, in fact, committed the prior
conduct testified to by Vickers.
We first consider Floyd’s allegation that the district court
improperly considered testimony from a previous hearing in
concluding that evidence of specific incidents of Floyd’s abuse
of Vickers was admissible.
prior to Floyd’s first trial, a rule 404 hearing was held with
regard to the previous abuse of Vickers. Upon retrial, the trial
court declined to take judicial notice of the prior hearing and
instead held a new hearing. At this new hearing, Vickers was
cross-examined extensively with respect to her testimony at the
first hearing. The district court then referenced this testimony
in its rule 404 order, noting that Vickers’ testimony was gener-
ally consistent with that prior testimony.
Contrary to Floyd’s assertion that the district court relied
upon this prior testimony when making its rule 404 determina-
tion, a review of the order makes it clear that such reference
was instead done in response to Floyd’s counsel’s continual
attacks on Vickers’ credibility. Other than in regard to Vickers’
credibility, there is no indication the district court relied on
any of the previous testimony in reaching its conclusion that
the evidence of specific incidents of Floyd’s abuse of Vickers
was admissible.
Floyd next alleges that the district court relied upon an incor-
rect standard when concluding the State had met its burden of
6 State v. Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).
STATE v. FLOyD 	507
Cite as 277 Neb. 502

introducing the prior acts. Section 27-404(3) provides in rele-
vant part that in order to be admissible, the State must prove
by clear and convincing evidence that the defendant committed
the prior acts. In the district court’s order, it acknowledged such
clear and convincing standard and suggested that this court had
not yet defined clear and convincing evidence in the rule 404
context. The order then referenced a definition of “clear proof”
taken from an Iowa Supreme Court case as “helpful,” though it
noted that it was not “controlling precedent.”
[6] We note that under these circumstances, the decision to
cite the Iowa authority in question was inapt, particularly since
that authority did not explicitly define the term “clear and
convincing.” We also note that, in fact, “clear and convincing
evidence” has been previously defined under Nebraska law.
To the extent it was not clear before, we specifically note that
the definition of that term is the same in this context as it is
in every other context under Nebraska law. It is that amount
of evidence which produces in the trier of fact a firm belief or
conviction about the existence of a fact to be proved.7
Nevertheless, we disagree with Floyd’s characterization of
the district court’s order. While the order undisputedly refers
to a “clear proof” standard, it also explicitly notes that the
standard is not controlling. At various other points in the order,
the district court again notes that it is applying a clear and
convincing evidence standard. And the district court concludes
the relevant portion of the order by noting that “the State has
met the threshold requirement imposed by Rule 404(3),” which
is the standard of clear and convincing evidence. Indeed, the
district court not only found that the State had met the require-
ments of § 27-404(3), but in its order, also noted that “[the]
evidence describes criminal conduct and is sufficient to warrant
submission to a trier of fact if [Floyd] had been charged with
such crimes.” We further note that other than quoting the “clear
proof” standard at the beginning of its analysis, the district
court does not rely on that language when reaching its conclu-
sion. Floyd’s argument that the district court relied upon an
incorrect standard is without merit.
7 Castellano v. Bitkower, 216 Neb. 806, 346 N.W.2d 249 (1984).
508 	277 NEbRASkA REpORTS

[7] And to the extent Floyd is also arguing that the State
failed to prove by clear and convincing evidence that Floyd
committed the specific incidents of prior abuse toward Vickers,
we disagree. pursuant to § 27-404(3), we review the district
court’s findings of fact in such an instance for clear error.8 In
this case, we find no clear error in those factual findings, and
therefore, we conclude that the State proved by clear and con-
vincing evidence that Floyd committed the acts at issue.
Finally, we turn to Floyd’s contention that the district court
erred in admitting evidence of specific incidents of abuse com-
mitted by Floyd and against Vickers. In this instance, we review
the district court’s order for an abuse of discretion. The admis-
sibility of such evidence is controlled by § 27-404. Subsection
(1) generally provides that “[e]vidence of a person’s character
or a trait of his or her character is not admissible for the pur-
pose of proving that he or she acted in conformity therewith . .
. .” However, subsection (2) further provides that
[e]vidence 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.
[8] An appellate court’s analysis under § 27-404(2) consid-
ers whether the (1) evidence was relevant for some purpose
other than to prove the character of a person to show that he
or she acted in conformity therewith; (2) probative value of the
evidence is substantially outweighed by its potential for unfair
prejudice; and (3) trial court, if requested, instructed the jury to
consider the evidence only for the limited purpose for which it
was admitted.9
Therefore, we first consider whether the evidence of prior
bad acts was relevant for some purpose other than to show
8 Cf., State v. Wenke, 276 Neb. 901, 758 N.W.2d 405 (2008); State v.
Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008); State v. Muro, 269
Neb. 703, 695 N.W.2d 425 (2005); State v. Neal, 265 Neb. 693, 658
N.W.2d 694 (2003); State v. Poe, 266 Neb. 437, 665 N.W.2d 654 (2003).
9 State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001).
STATE v. FLOyD 	509
Cite as 277 Neb. 502

Floyd’s propensity to commit the crimes charged in this case.
The State argued, and the district court agreed, that evidence of
specific instances of Floyd’s abuse of Vickers was admissible
in order to show Floyd’s motive or intent.
In this case, the State’s theory of prosecution was that Vickers
was the intended victim of the shooting but that, by mistake,
Floyd intentionally killed Davis. The jury was instructed on
transferred intent. The State argues that this instruction, as well
as the State’s theory of prosecution, would have made little
sense to the jury unless it was given some history regarding
Floyd and Vickers’ relationship and Floyd’s motive or intent
to kill Vickers. The State therefore contends that evidence of
Floyd’s abuse of Vickers was relevant to show that Floyd had
the motive or intent to kill Vickers.
[9-11] We have held that prior acts evidence may be offered
for the purpose of proving intent where intent is an element
of the charged offense.10 And motive is defined as that which
leads or tempts the mind to indulge in a criminal act.11 While
motive is not an element of first degree murder, any motive
for the crime charged is relevant to the State’s proof of the
intent element.12
Evidence of the prior incidents of abuse against Vickers by
Floyd is probative with respect to the nature of Floyd’s rela-
tionship with Vickers and the hostility he held toward her. And
without evidence of such relationship and hostility, the State’s
transferred intent theory would make little sense. We therefore
conclude that Floyd’s prior abuse of Vickers was relevant to
establish Floyd’s motive or intent with respect to the charges
against him.
Having concluded that the evidence of Floyd’s prior abuse
of Vickers was relevant for proper purposes under § 27-404(2),
we next consider whether the probative value of such evidence
is outweighed by its potential for unfair prejudice.
As an initial matter, we note Floyd argues that the district
court never engaged in an analysis under § 27-403. However,
10 See State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).
11 Id.
12 See, id.; State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).
510 	277 NEbRASkA REpORTS

our review of the district court’s order does not support this
contention. To the contrary, the district court’s order includes
a section entitled “Rule 403.” It is clear that the district court
analyzed this issue and explicitly concluded that “the proba-
tive value of the testimony is not outweighed by a danger of
unfair prejudice.”
An analysis under § 27-403 requires a court to weigh the
probative value of particular evidence against the danger of
unfair prejudice. As was concluded above, the evidence of
Floyd’s prior abuse is probative as to his motive or intent to
harm Vickers; without its introduction, the State’s theory of
prosecution makes little sense.
In considering whether this value is outweighed by the dan-
ger of unfair prejudice, we note that the number of incidents
to which Vickers testified was limited by the State. Moreover,
three of the four incidents in question all happened within a few
months of Davis’ murder, the earliest was less than 9 months
prior. Such proximity in time to the shooting suggests a higher
probative value than if the incidents had been more remote in
time. We, too, conclude that the probative value of the evidence
of Floyd’s prior abuse was not substantially outweighed by the
potential for unfair prejudice.
Finally, we note that limiting instructions were given by
the district court before Vickers testified to each instance
of abuse.
We conclude that the district court did not abuse its dis-
cretion in admitting evidence of specific incidents of Floyd’s
abuse of Vickers. Floyd’s first, second, and third assignments
of error are therefore without merit.
Admissibility of Vickers’ Prior Bad Acts.
In his fourth assignment of error, Floyd contends that the
district court erred in not allowing him to introduce evidence
of “specific incidents of Vickers’ assaultive behavior [toward
her former and current husbands] to combat the allegations”
that Vickers was abused by Floyd.13 Floyd contends that his
inability to introduce such acts limited his ability to attack
13 brief for appellant at 27.
STATE v. FLOyD 	511
Cite as 277 Neb. 502

Vickers’ credibility. Again, we note that we review the district
court’s rulings regarding the admissibility of evidence for an
abuse of discretion.
As was noted above, § 27-404(1) generally provides that
“[e]vidence of a person’s character or a trait of his or her char-
acter is not admissible for the purposes of proving that he or
she acted in conformity therewith . . . .” There are exceptions to
this general rule. As relevant in this case, § 27-404(1) provides
as follows:
(b) Evidence of a pertinent trait of character of the vic-
tim of the crime offered by an accused or by the prosecu-
tion to rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution in
a homicide case to rebut evidence that the victim was the
first aggressor. . . . or
(c) Evidence of the character of a witness as provided
in sections 27-607 to 27-609 [dealing with the impeach-
ment of witnesses].
[12,13] Assuming without deciding that Vickers is a vic-
tim within the meaning of the statute, § 27-404(1)(b) would
nevertheless be inapplicable. In order to be admissible, the
evidence in question must be of a pertinent trait of character.
“‘[p]ertinent’” in the context of Fed. R. Evid. 404(a) is syn-
onymous with “‘relevant,’”14 which is defined in Fed. R. Evid.
401, as well as in Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401
(Reissue 2008). Section 27-401 defines “[r]elevant evidence”
as evidence “having 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 without
the evidence.”
We 	conclude, 	however, 	that 	any 	evidence 	of 	specific
instances of Vickers’ assaultive behavior is not pertinent to
this case. That Vickers and her former and current husbands
might have had violent relationships is of no consequence
when considering whether Floyd had the motive or intent to
harm Vickers or whether he in fact fired the shot that killed
Davis and her unborn child. As such, any specific instances of
14 United States v. Angelini, 678 F.2d 380, 381 (1st Cir. 1982).
512 	277 NEbRASkA REpORTS

Vickers’ behavior do not fall within the exception provided by
§ 27-404(1)(b).
Nor is the evidence admissible to impeach Vickers’ cred-
ibility under § 27-404(1)(c). The ability of a party to attack the
credibility of a witness is set forth in Neb. Evid. R. 607 to 609,
Neb. Rev. Stat. §§ 27-607 to 27-609 (Reissue 2008). Section
27-608 provides:
(1) The credibility of a witness may be attacked or sup-
ported by evidence in the form of reputation or opinion,
but subject to these limitations: (a) The evidence may
refer only to character for truthfulness or untruthful-
ness . . . .
(2) Specific instances of the conduct of a witness, for
the purpose of attacking or supporting his credibility,
other than conviction of crime as provided in section
27-609, may not be proved by extrinsic evidence. They
may, however, in the discretion of the court, if proba-
tive of truthfulness or untruthfulness be inquired into on
cross-examination of the witness (a) concerning his char-
acter for truthfulness or untruthfulness . . . .
In this case, whether Vickers might have engaged in assaul-
tive behavior in relationships with her former and current
husbands is not probative to the truthfulness of her testimony
that Floyd had the motive or intent to shoot her, or her testi-
mony that Floyd fired the shot that killed Davis. As such,
the evidence in question would be inadmissible to attack
Vickers’ credibility.
The district court did not abuse its discretion by refusing to
admit evidence of Vickers’ prior assaultive behavior. Floyd’s
fourth assignment of error is without merit.
Motion to Strike/Motion for Mistrial Regarding
Jurors’ Exposure to Newspaper Article.
In his fifth and final assignment of error, Floyd argues that
the district court erred in not granting his motion for mistrial
or, in the alternative, motion to strike jurors D.W. and F.W. as
a result of their exposure to a newspaper article.
Neb. Rev. Stat. § 29-2006 (Reissue 2008) provides in rele-
vant part:
STATE v. FLOyD 	513
Cite as 277 Neb. 502

The following shall be good causes for challenge to
any person called as a juror or alternate juror, on the
trial of any indictment: . . . (2) that he has formed or
expressed an opinion as to the guilt or innocence of the
accused; Provided, if a juror or alternate juror shall state
that he has formed or expressed an opinion as to the guilt
or innocence of the accused, the court shall thereupon
proceed to examine, on oath, such juror or alternate juror
as to the ground of such opinion; and if it shall appear to
have been founded upon reading newspaper statements,
communications, comments or reports, or upon rumor or
hearsay, and not upon conversations with witnesses of the
transactions or reading reports of their testimony or hear-
ing them testify, and the juror or alternate juror shall say
on oath that he feels able, notwithstanding such opinion,
to render an impartial verdict upon the law and the evi-
dence, the court, if satisfied that such juror or alternate
juror is impartial and will render such verdict, may, in its
discretion, admit such juror or alternate juror as compe-
tent to serve in such case . . . .
In this case, Floyd’s argument that the motions to strike
D.W. and F.W. should have been granted is without merit.
There is simply no evidence to suggest that D.W. or F.W. had
even formed an opinion about Floyd’s guilt. At most, there is
some evidence that both D.W. and F.W. saw Floyd’s name in a
newspaper headline and, in accordance with the district court’s
admonition, “immediately disregard[ed]” it. We therefore con-
clude that the district court did not abuse its discretion in deny-
ing Floyd’s motion to strike these two jurors.
[14-16] Nor did the district court abuse its discretion in
denying Floyd’s motion for mistrial. In order for a verdict to
be set aside because of the prejudicial effect of newspaper
accounts on jurors, there must be evidence presented that the
jurors read newspaper accounts and that the accounts were
unfair or prejudicial to the defendant.15 In order for jury mis-
conduct to be the basis for a new trial, the misconduct must
15 State v. Anderson, 252 Neb. 675, 564 N.W.2d 581 (1997).
514 	277 NEbRASkA REpORTS

not only occur but it must be prejudicial to the defendant.16
A criminal defendant claiming jury misconduct bears the bur-
den of proving, by a preponderance of the evidence, (1) the
existence of jury misconduct and (2) that such misconduct
was prejudicial to the extent that the defendant was denied a
fair trial.17
This court’s decision in State v. Anderson18 is helpful. In
Anderson, we held that jury misconduct occurred when several
jurors read a newspaper headline about the defendant’s retrial
and then discussed the headline with other jurors. Despite this
misconduct, however, we concluded that the defendant failed
to meet his burden of showing that his right to a fair trial was
prejudiced by the misconduct. We noted:
The examination of the jurors in this cause by the trial
court and both counsel failed to disclose either directly
or inferentially that any of the jurors had been prejudiced
by their exposure to the headline or subhead in ques-
tion. Even though three of the jurors acknowledged that
the subhead stated that the instant cause was a retrial,
none of the jurors exhibited any knowledge as to the
circumstances of the retrial or whether the first trial was
terminated prior to its conclusion or was reversed on
appeal. The mere use of the word retrial, without further
explanation, does not automatically connote that a defen-
dant was convicted of particular crimes in a prior trial,
nor does it necessarily mean that a prior trial had reached
its completion. Simply put, none of the jurors testified
that they had any knowledge regarding a prior convic-
tion or as to why [the defendant] was being granted a
new trial.19
As an initial matter, we question whether D.W.’s and F.W.’s
actions in reading a portion of the headline of the article
in question constituted jury misconduct. Unlike the jurors
16 See id.
17 Id.
18 Id.
19 Id. at 684, 564 N.W.2d at 587.
STATE v. FLOyD 	515
Cite as 277 Neb. 502

in Anderson, who had the contents of the headline brought
to their attention and then proceeded to discuss it, there is
no evidence that suggests that D.W. or F.W. discussed the
contents of the headline with anyone. In fact, the record
establishes that F.W. threw the newspaper away “as fast as
I probably have in my life.” And D.W. indicated that he saw
the article’s headline and “just looked down” to avoid seeing
anything further.
Moreover, we conclude that Floyd has failed to meet his
burden of showing that his right to a fair trial was prejudiced
by the alleged misconduct. We noted in Anderson that the
“mere use of the word retrial” was not, on its own, prejudicial.
And as in Anderson, there is nothing in the record that would
suggest either D.W. or F.W. had any knowledge as to Floyd’s
prior conviction or as to why he was being granted a new trial.
In fact, with respect to F.W., there is no evidence that she was
even aware that Floyd’s trial was a retrial. We therefore also
conclude that the district court did not abuse its discretion in
denying Floyd’s motion for mistrial.
Floyd’s fifth and final assignment of error is without merit.
CONCLUSION
Floyd’s convictions and sentences are affirmed.
A ffirmed.
iN re eStAte of JohN t. roNAN, Sr ., deCeASed.
C hArleS h. WiSemAN, AppellANt, v. JeAN t. ruWe ANd
dANiel h. ruWe , C operSoNAl repreSeNtAtiveS of the
eStAte of JohN t. roNAN, Sr ., deCeASed, AppelleeS.
763 N.W.2d 704
Filed April 3, 2009. 	No. S-08-062.
1. Real Estate: Sales: Agents. pursuant to the Nebraska Real Estate License Act,
Neb. Rev. Stat. §§ 81-885.01 to 81-885.55 (Reissue 2008), any person collecting
a fee or commission on the sale of real estate must be a licensed real estate broker
or salesperson unless he or she meets one of the exceptions provided in the act.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
516 	277 NEbRASkA REpORTS