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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. TROTTER

Cite as 299 Neb. 392

State of Nebraska, appellee, v.

Charles S. Trotter, appella

___ N.W.2d ___

Filed March 23, 2018. No. S-16-1146.

1. Rules of Evidence: Appeal and Error. An appellate court reviews 

for abuse of discretion a trial court’s evidentiary rulings on relevance, 

whether the probative value of evidence is substantially outweighed by 

the danger of unfair prejudice, and the sufficiency of a party’s foundation for admitting evidence.

2. Constitutional Law: Sentences. Whether a sentence constitutes cruel 

and unusual punishment in violation of the Eighth Amendment presents 

a question of law.

3. Judgments: Appeal and Error. When reviewing a question of law, 

an appellate court reaches a conclusion independent of the lower 

court’s ruling.

Appeal from the District Court for Douglas County: Leig

Ann Retelsdorf, Judge. Affir

James Martin Davis, of Davis Law Office, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, a

JJ., and Riedmann and Arterburn, Ju

Heavican, C

INTRODUCTION

Charles S. Trotter was convicted of two counts of first 

degree murder and two counts of use of a deadly weapon 

to commit a felony. He was sentenced to a term of 40 to 60 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/13/2018 08:35 AM CDT
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years’ imprisonment for each murder conviction and 5 to 10 

years’ imprisonment for each use conviction, to be served 

consecutively.

On direct appeal, Trotter, who was 16 years of age at the 

time of the events for which he was convicted, alleges that 

the district court erred in not admitting photographs he claims 

support his defense that another individual committed the 

murders and that his collective sentence of 90 to 140 years’ 

imprisonment was the functional equivalent of a sentence of 

life imprisonment. We affirm.

BACKGROUND

Trotter was charged in the January 3, 2015, shooting deaths 

of Marcel Lovejoy and Dexter Joseph. Lovejoy and Joseph 

were shot while attending a party at an apartment complex in 

Omaha, Nebraska. At trial, three eyewitnesses testified that 

Trotter was the shooter.

Trotter’s defense was mistaken identity: He claimed that 

the witnesses who identified him mistook him for DeAndre 

Hines. He attempted to introduce into evidence photographs 

of Hines, which were found on Hines’ cell phone during a 

consensual search of that phone by law enforcement. The 

photographs were taken on two different days toward the end 

of December 2014 and depicted Hines holding a silver and 

black handgun.

Anticipating an objection to these photographs, Trotter’s 

counsel sought a sidebar prior to the offering of the 

photographs:

[Counsel for Trotter]: Okay. Here is the screenshot. 

It’s dated December 29th of 2014, which is a couple of 

days beforehand, and that’s — although you may not be 

able to tell, that clearly is . . . Hines with a gun that is 

similar to the one described by the witnesses as silver 

and black.

Show them the next picture. For your information, the 

next one is taken on — okay. There it is. Similar gun, . . . 
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Cite as 299 Neb. 392

Hines on New Year’s Eve. He doesn’t have — doesn’t 

have the time on there. It’s 7:56 p.m., it looks like, and 

once again, I believe that he’s in possession of a gun 

that is similar to the one described by the witness, silver 

and black.

And so I would — my intention would be to ask him if 

he got them from — captured them from the phone, and 

put them into evidence, and I want to do this beforehand, 

so it’s not —

THE COURT: I appreciate that you are playing fair.

[The State]: The State would object, first off, on relevance. I don’t know if that is, in fact, a gun or a BB gun. 

It looks like a real gun. I can’t tell from looking at the 

photo what caliber of weapon it is. I can’t tell if it’s a 9 

millimeter or a .40 caliber or a .22. In terms of — so we 

have a relevance objection.

I would also object on 403 and also on 404, because 

I think what [Trotter’s counsel] is trying to show is propensity evidence of the fact that this person possessed a 

gun a week or four days before this crime so that he must 

have been the person possessing the gun on the day of.

THE COURT: All right. My — my recollection — I 

don’t recall a witness saying anything about the gun was 

black and silver, maybe there was someone that said 

silver, but I only recall black — a description as black, 

but regardless of that, I would agree that the relevance is 

overweighed by the potential prejudice, and I would not 

allow you to put those in.

[Counsel for Trotter]: May I just respond briefly? This 

is not 404 evidence. This is evidence that he had possession of the weapon or a similar weapon on the day of, 

so I wasn’t trying to show any propensity there. I understand the Court’s ruling. It was more in line with 403 

and relevance.

THE COURT: That’s right. And the other problem that 

I have with that, there is clear gang signs in the second 
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photo, so I wouldn’t let it in because of the motion 

in limine.

I don’t remember the first one. Go back to the first one.

[Counsel for Trotter]: There is none on that one.

THE COURT: Yeah, and, again, that appears to be a 

silver weapon when the only witness description I have is 

black, and, again, I think the small amount of relevance 

is overweighed by the — by 403 on this.

[Counsel for Trotter]: I will — I do have pictures that I 

will ask to be marked during a break. I can make an offer 

of proof that way. Okay?

THE COURT: Absolutely. We will reserve the opportunity to make an offer of proof until the next break, 

which will probably be over the noon hour.

[Counsel for Trotter]: Okay.

THE COURT: All right.

[Counsel for Trotter]: Okay. Thanks.

ASSIGNMENTS OF ERROR

Trotter assigns that the district court erred in (1) not admitting exhibits 292 and 293, which were photographs of an 

individual Trotter argued was the actual perpetrator, wearing 

clothes matching the description of the shooter and holding a 

gun, and (2) sentencing him to a functional life sentence, in 

violation of the Eighth Amendment to the U.S. Constitution.

STANDARD OF REVIEW

[1] An appellate court reviews for abuse of discretion a trial 

court’s evidentiary rulings on relevance, whether the probative 

value of evidence is substantially outweighed by the danger of 

unfair prejudice, and the sufficiency of a party’s foundation for 

admitting evidence.1

[2,3] Whether a sentence constitutes cruel and unusual 

punishment in violation of the Eighth Amendment presents 

1 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
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a question of law.2 When reviewing a question of law, an 

appellate court reaches a conclusion independent of the lower 

court’s ruling.3

ANALYSIS

Admissibility of Photographs.

Trotter first asserts that the district court erred in not admitting exhibits 292 and 293, which were photographs of Hines. 

The district court refused to admit these photographs, contending that “the small amount of relevance is overweighed by 

[evidence rule] 403 on this.”

Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016), 

provides that “relevant evidence is admissible [and] [e]vidence 

which is not relevant is not admissible.” Neb. Evid. R. 403, 

Neb. Rev. Stat. § 27-403 (Reissue 2016), qualifies that admissibility: “Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the 

jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.”

Exhibit 292 is a photograph taken on December 29, 2014, of 

Hines wearing a gray button-up hooded sweatshirt and holding 

a black and silver handgun. Exhibit 293 is a photograph taken 

on December 31 of Hines and another individual. In this latter 

photograph, Hines is apparently wearing the same gray hooded 

sweatshirt, now unbuttoned, and is pointing a gun at the camera. The other individual in the photograph is displaying a 

gang sign. Both photographs are out of focus.

Trotter argues that these photographs are relevant, because 

in them, Hines is wearing a sweatshirt similar to the one which 

witnesses describe the shooter as wearing and is carrying a gun 

similar to the one described by those witnesses. There is no 

merit to Trotter’s assertions.

2 State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).

3 Id.
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We first observe that Trotter did not argue at trial that these 

exhibits were relevant because they showed Hines wearing a 

gray hooded sweatshirt similar to the one worn by the shooter. 

Thus, Trotter has not preserved that argument for purposes of 

this appeal. We note, however, that exhibit 235, which was 

received, is also a photograph of Hines wearing the same 

sweatshirt. To the extent exhibits 292 and 293 might have been 

admissible for that purpose, those exhibits would have been 

cumulative evidence and, on these facts, any error would have 

been harmless.

Nor was the district court’s failure to admit these exhibits because of the depiction of the handgun reversible error. 

Assuming without deciding that these photographs were relevant, any relevance is minimal.

Trotter argued at trial that the photographs were admissible, 

because the gun depicted was “similar” to the one described by 

the witnesses. But as the district court noted, the gun in these 

exhibits was silver and black, while the only testimony at trial 

about the color of the weapon used by the shooter was that 

it was black. Nor was there any evidence presented that this 

handgun was the caliber of weapon used in the shooting or that 

the gun was even a real gun. The gun used in the shootings was 

never recovered by law enforcement. Other evidence at trial 

showed that a bullet matching the caliber of the bullets used in 

the shootings was found in a couch near Trotter’s possessions 

in the home where he was living.

The uncontroverted testimony at trial was that the shooter 

was carrying a black handgun. Exhibit 292 depicts a predominantly silver handgun with some black accents. It is not possible to identify the characteristics of the gun shown in exhibit 

293. Given these contradictions, the risk of juror confusion 

is present. Admitting photographs showing a gun that does 

not match the description offered by any testifying witnesses 

could confuse the issues presented at trial and have a tendency 

to mislead the jury. The members of the jury may place more 

emphasis on exhibits, including a photograph of any handgun, 
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Cite as 299 Neb. 392

particularly given that the gun used in these shootings was 

never recovered and therefore was not offered as evidence at 

trial. Given this risk, we cannot conclude that the district court 

abused its discretion in excluding the exhibits by reasoning that 

“the small amount of relevance [was] overweighed by [evidence rule] 403 on this.”

There is no merit to Trotter’s first assignment of error.

Sentences.

Trotter also argues that the district court’s sentences of a 

combined 90 to 140 years’ imprisonment was the functional 

equivalent of a life sentence, which is a violation of the Eighth 

Amendment as interpreted by Miller v. Alabama.

4

 This argument is without merit.

We recently decided State v. Castaneda.5 At issue in 

Castaneda was whether the defendant’s combined sentence of 

105 to 125 years’ imprisonment was an effective life sentence 

because it did not provide a “‘meaningful opportunity to obtain 

release.’”6 We rejected that contention in Castaneda, reasoning 

in that case:

[T]he court held a full evidentiary hearing concerning 

[the defendant’s] resentencing. Before issuing the sentences, the court discussed the individualized factors it 

was required to consider and how they impacted its decision. Even assuming, without deciding, that a court was 

required to find a juvenile “irreparably corrupt” before 

issuing him or her a life imprisonment without parole 

sentence, [an argument the defendant made on appeal,] 

the court here gave [the defendant] no such sentence; 

instead, it sentenced [him] on the low end of the statutory 

range for each of his eight convictions. Accordingly, [the 

4 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).

5 State v. Castaneda, 295 Neb. 547, 889 N.W.2d 87 (2017).

6 Id. at 559, 889 N.W.2d at 96.
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defendant] received the protections required by Miller for 

a juvenile convicted of a homicide offense.7

Trotter was convicted of two counts of first degree murder 

and two counts of use of a deadly weapon to commit a felony. 

The district court noted at sentencing that it was “clear . . . 

that [Trotter’s] type of antisocial behavior [was] significantly 

attached due to the fact of his age as opposed to being predetermined type of behaviors that the doctor would predict 

would last through adulthood.” Nevertheless, the district court 

observed that it became “an unworkable situation,” because a 

sentence with a reduced upper sentence limit “wouldn’t take 

into account the fact that there [were] two separate victims.” 

The court then imposed the minimum sentence for each of 

the convictions against Trotter and ordered those sentences to 

run consecutively.8

As we found in Castaneda, Trotter received the protections 

required by Miller for a juvenile convicted of a homicide 

offense. We conclude that Trotter’s second assignment of error 

is without merit.

CONCLUSION

The judgment and sentences of the district court are affirmed.

Affirmed

Wright and Kelch, JJ., not participatin

7 Id. at 560, 889 N.W.2d at 97.

8 See Neb. Rev. Stat. §§ 28-105 (Cum. Supp. 2014) and 28-105.02 and 

28-1205 (Reissue 2016).