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Cite as 302 Neb. 53

State of Nebraska, appellee, v.

Rolander L. Brown, appe

___ N.W.2d ___

Filed January 18, 2019. No. S-17-1039.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. When reviewing a trial court’s ruling on a motion 

to suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

3. Sentences: Appeal and Error. An appellate court will not disturb a 

sentence imposed within statutory limits absent an abuse of discretion 

by the trial court.

4. Telecommunications: Records: Warrants: Probable Cause. The government must generally obtain a warrant supported by probable cause 

before acquiring cell site location information from a wireless carrier.

5. Constitutional Law: Search and Seizure: Evidence. The exclusion 

of evidence obtained in violation of the Fourth Amendment is not a 

personal constitutional right. Rather, the exclusionary rule operates as 

a judicially created remedy designed to safeguard Fourth Amendment 

rights generally through its deterrent effect.

6. Constitutional Law: Search and Seizure: Police Officers and 

Sheriffs: Evidence. The exclusionary rule does not apply to evidence 

obtained by police in objectively reasonable reliance on a statute later 

found to be unconstitutional.

7. Trial: Evidence. Evidence that is irrelevant is inadmissible.

Nebraska Supreme Court Online Library

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

03/22/2019 01:06 AM CDT
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8. Evidence. Evidence is relevant if it has 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.

9. ____. Relevancy requires only that the probative value be something 

more than nothing.

10. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), relevant evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice.

11. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

12. ____: ____. Unfair prejudice speaks to the capacity of some concededly 

relevant evidence to lure the fact finder into declaring guilt on a ground 

different from proof specific to the offense charged, commonly on an 

emotional basis.

13. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

14. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the 

amount of violence involved in the commission of the crime.

15. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

16. ____. Generally, it is within a trial court’s discretion to direct that 

sentences imposed for separate crimes be served either concurrently or 

consecutively.

Appeal from the District Court for Douglas County: James T.

Gleason, Judge. Affirmed

Thomas C. Riley, Douglas County Public Defender, for 

appellant.

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

Vincent for appellee.
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STATE v. BROWN

Cite as 302 Neb. 53

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg,

Papik, J

Following a jury trial, Rolander L. Brown was convicted 

of second degree murder and other offenses arising out of the 

death of Carlos Alonzo. Brown appeals his convictions and 

sentences, primarily arguing that in light of the U.S. Supreme 

Court’s recent opinion in Carpenter v. U.S., ___ U.S. ___, 138 

S. Ct. 2206, 201 L. Ed. 2d 507 (2018), the district court erred 

by denying his motion to suppress cell site location information. We find that the district court did not err in denying 

Brown’s motion to suppress and that Brown’s other assignments of error also lack merit. We affirm.

BACKGROUND

In the early morning hours of May 28, 2016, Alonzo was 

found dead in the front yard of a home near 20th and Lake 

Streets in Omaha, Nebraska. Alonzo died from a single gunshot wound to his head. The State filed several charges against 

Brown arising out of Alonzo’s death: first degree murder, use 

of a deadly weapon to commit a felony, and possession of a 

deadly weapon by a prohibited person.

Brown’s Motion to Suppress.

As part of its investigation into Alonzo’s death, the State 

submitted an application to the district court under the federal 

Stored Communications Act seeking an order compelling the 

disclosure of certain records pertaining to a cell phone that evidence showed was used by Brown. The court granted the order, 

and the State obtained the records from the relevant wireless 

carrier. The records included cell site location information 

(CSLI), the details of which are discussed below.

Brown moved to suppress the CSLI on the ground that the 

State obtained it in violation of his Fourth Amendment rights. 

The district court denied the motion to suppress.
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Trial Evidence.

At trial, the State introduced evidence indicating that 

Alonzo was shot outside the residence of Doloma Curtis. Both 

Alonzo and Brown were dating Curtis at the time. Cell phone 

records introduced into evidence showed that Brown was communicating with Curtis via text message late in the evening of 

May 27, 2016, into the early morning hours of May 28. Cell 

phone records also showed that Curtis did not answer several 

calls from Brown after 1 a.m. The last such call was made at 

2:23 a.m. CSLI from Brown’s cell phone records indicated 

that Brown was in the area of 20th and Lake Streets when he 

made that call.

At approximately 2:24 a.m., Omaha’s “ShotSpotter” location system detected a single gunshot in the vicinity of Curtis’ 

home. Officers were dispatched to Curtis’ home. When they 

arrived, they found Alonzo lying on his back on the sidewalk with a single gunshot wound to the head. During a 

subsequent search of the area, officers found a single Smith 

& Wesson .40-caliber shell casing in the grass not far from 

Alonzo’s body.

Surveillance video from a nearby convenience store showed 

a sedan, which appeared to be missing the hubcap on its front 

passenger-side tire, back into a parking space near the building at 2:21 a.m. A male exited the car and headed toward 

Curtis’ residence. The male ran back from the direction of 

Curtis’ residence a few minutes later and drove out of the 

parking lot. Evidence at trial indicated that Brown had access 

to and drove a sedan that did not have a hubcap on its front 

passenger-side tire.

The State also relied heavily on the testimony of Parris 

Stamps. Stamps was a friend of Brown’s. At the time of 

Alonzo’s death, Stamps lived near 40th and Boyd Streets with 

another friend of Brown’s, James Nelson. Stamps testified that 

in the early morning hours of May 28, 2016, Brown arrived 

at the house where Stamps and Nelson lived. According to 

Stamps, Brown told him and Nelson that he had just come 
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from Curtis’ house, that he had been in an altercation with 

Alonzo, and that he “had to put [Alonzo] down.” Stamps 

testified that Brown then pulled out a black Smith & Wesson 

.40-caliber handgun and removed the clip, which was missing 

one bullet. Stamps testified that after Brown shared this information, the men were concerned that Brown was “hot.” Based 

on this concern, they traveled to Brown’s apartment near 67th 

and Grover Streets to retrieve two firearms that belonged 

to Nelson.

Stamps was also allowed to testify, over Brown’s objection, 

that he and his girlfriend were shot in January 2017 and that as 

a result of the shooting, he was hospitalized and his girlfriend 

died. Prior to this testimony, the district court instructed the 

jury that there was no evidence that Brown was responsible for 

this shooting and that the jury was to consider this evidence 

only for the effect that it had on Stamps.

Brown’s cell phone records corroborated some elements of 

Stamps’ testimony. The cell phone records showed that Brown 

called Nelson at 2:25 and 2:26 a.m. They also showed that 

Brown was in the area of Nelson’s residence at approximately 

2:34 a.m. Brown’s cell phone records also showed that Brown 

returned to his apartment near 67th and Grover Streets around 

3:15 a.m.

Convictions and Sentences.

The jury found Brown guilty of second degree murder, 

possession of a firearm by a prohibited person, and use of a 

firearm to commit a felony. The district court sentenced Brown 

to 90 to 120 years’ imprisonment for second degree murder, 

3 to 50 years’ imprisonment for possession of a firearm by a 

prohibited person, and 10 to 20 years’ imprisonment for use 

of a firearm to commit a felony. The district court ordered the 

sentence for possession of a firearm by a prohibited person to 

run concurrently with the sentence for second degree murder 

and the sentence for use of a firearm to commit a felony to run 

consecutively to the other two sentences.
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Brown appealed his convictions and sentences. We subsequently granted his petition to bypass the Nebraska Court 

of Appeals.

ASSIGNMENTS OF ERROR

Brown assigns, restated, that the district court erred (1) by 

denying his motion to suppress, because the CSLI was obtained 

in violation of his Fourth Amendment rights; (2) by denying 

his motion to suppress, because the CSLI was obtained in 

violation of the Stored Communications Act; (3) by allowing 

Stamps to testify about being shot in January 2017; and (4) by 

imposing excessive sentences.

STANDARD OF REVIEW

[1] When reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. State 

v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018). Regarding 

historical facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or violate 

Fourth Amendment protections is a question of law that an 

appellate court reviews independently of the trial court’s determination. Id.

[2] A trial court has the discretion to determine the relevancy 

and admissibility of evidence, and such determinations will not 

be disturbed on appeal unless they constitute an abuse of that 

discretion. Lindsay Internat. Sales & Serv. v. Wegener, 301 

Neb. 1, 917 N.W.2d 133 (2018).

[3] An appellate court will not disturb a sentence imposed 

within statutory limits absent an abuse of discretion by the trial 

court. State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).

ANALYSIS

Fourth Amendment.

Brown contends that by obtaining CSLI from his cell phone 

without a warrant supported by probable cause, law enforcement violated his Fourth Amendment rights. Brown argues the 
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district court thus erred by denying his motion to suppress. For 

the reasons set forth below, we disagree.

CSLI is generated by cell phone providers. Individual cell 

phones function by communicating with “cell sites,” radio 

antennas that are mounted on towers and other structures. 

See Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206, 201 L. 

Ed. 2d 507 (2018). When a cell phone connects to a cell site, 

a time-stamped record is produced. This record is known as 

CSLI. See id. Because the cell phone will connect to the cell 

site with the best signal, CSLI can be used to determine the 

location of the cell phone when the connection was made. See 

id. Cell phone providers collect and store CSLI for their own 

purposes, but because it can be used to determine where a cell 

phone was at a particular time, it can be useful to law enforcement as well. See id.

In this case, law enforcement relied on the federal statute 

known as the Stored Communications Act, see 18 U.S.C. 

§§ 2701 to 2711 (2012 & Supp. V 2017), to request and 

obtain CSLI relating to the cell phone believed to be used 

by Brown. Under the Stored Communications Act, the government may obtain a court order that requires a cell phone 

provider to disclose a customer’s records if it can demonstrate 

“specific and articulable facts showing that there are reasonable grounds to believe [the information sought is] relevant 

and material to an ongoing criminal investigation.” 18 U.S.C. 

§ 2703(d). Section 2703(d) does not require the government 

to show probable cause. State v. Jenkins, 294 Neb. 684, 884 

N.W.2d 429 (2016).

On May 31, 2016, a city of Omaha police officer submitted to the district court an application requesting an order 

compelling disclosure of CSLI pertaining to the cell phone 

believed to be used by Brown. The district court issued an 

order that same day finding that in the language of § 2703(d), 

the applicant “has offered specific and articulable facts showing that there are reasonable grounds to believe that the 

records or other information sought are relevant and material 
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to an ongoing criminal investigation.” The order compelled 

the cellular service provider to turn over the CSLI to the city 

of Omaha Police Department. Brown later moved to suppress 

the CSLI, contending that it was obtained in violation of his 

Fourth Amendment rights.

The district court denied Brown’s suppression motion, finding that the result was controlled by Jenkins, supra. Jenkins, 

which was released a few months after law enforcement 

obtained the CSLI in this case, held that individuals do not 

have a reasonable expectation of privacy in CSLI and that thus, 

the acquisition of CSLI does not implicate, let alone violate, 

the Fourth Amendment.

[4] While this case was on appeal, however, the U.S. 

Supreme Court concluded in Carpenter v. U.S., ___ U.S. ___, 

138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018), that individuals do

have a reasonable expectation of privacy in the record of physical movements captured by CSLI. Based on this conclusion, 

the Court held that “the Government must generally obtain a 

warrant supported by probable cause before acquiring such 

records.” Id., 138 S. Ct. at 2221.

As the State is forced to concede, our decision in Jenkins 

was effectively overruled by Carpenter. And, without the benefit of Jenkins, the State also concedes that the acquisition of 

CSLI without a warrant supported by probable cause violated 

Brown’s Fourth Amendment rights.

The fact that Brown’s Fourth Amendment rights were violated, however, does not necessarily mean that it was error 

for the district court to deny Brown’s motion to suppress. See 

Herring v. United States, 555 U.S. 135, 141, 129 S. Ct. 695, 

172 L. Ed. 2d 496 (2009) (explaining that application of the 

exclusionary rule is not “a necessary consequence of a Fourth 

Amendment violation”). Indeed, the U.S. Supreme Court has 

observed that the exclusionary rule is to be a “last resort” and 

not a “first impulse.” Hudson v. Michigan, 547 U.S. 586, 591, 

126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). We thus proceed to 

the question of whether the exclusionary rule applies here.
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[5] The exclusion of evidence obtained in violation of the 

Fourth Amendment is “‘not a personal constitutional right.’” 

Davis v. United States, 564 U.S. 229, 236, 131 S. Ct. 2419, 

180 L. Ed. 2d 285 (2011), quoting Stone v. Powell, 428 

U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). Rather, 

the exclusionary rule operates as a judicially created remedy 

designed to safeguard Fourth Amendment rights generally 

through its deterrent effect. State v. Hoerle, 297 Neb. 840, 

901 N.W.2d 327 (2017). With this purpose in mind, the U.S. 

Supreme Court has recognized a number of circumstances 

in which application of the exclusionary rule would not sufficiently deter Fourth Amendment violations and thus the rule 

does not apply. See, e.g., Davis, supra (exclusionary rule does 

not apply when officers conduct search in objectively reasonable reliance on binding appellate precedent); Herring, supra

(exclusionary rule does not apply where officers reasonably 

relied on incorrect information in warrant database); United 

States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 

677 (1984) (exclusionary rule does not apply when police conduct search in objectively reasonable reliance on warrant later 

held invalid).

[6] One circumstance recognized to not trigger the exclusionary rule is of particular relevance to this case. In Illinois v. 

Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), 

the U.S. Supreme Court held that the exclusionary rule did not 

apply to evidence obtained by police in objectively reasonable 

reliance on a statute later found to be unconstitutional. As the 

Court explained, unless a statute is “clearly unconstitutional,” 

application of the exclusionary rule when the officer acts in 

reliance on a statute would not serve the purpose of deterring 

Fourth Amendment violations “[i]f the statute is subsequently 

declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter 

further Fourth Amendment violations by an officer who has 

simply fulfilled his responsibility to enforce the statute as written.” 480 U.S. at 349, 350.
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We have previously followed Krull, declining to apply the 

exclusionary rule when officers obtained evidence in reasonable reliance on a statute later declared unconstitutional. See 

Hoerle, supra.

The rationale for not applying the exclusionary rule in 

Krull applies with full force here. As summarized above, law 

enforcement obtained the CSLI without first securing a warrant supported by probable cause, but did so as authorized 

by the Stored Communications Act. It cannot be said that by 

doing so, law enforcement relied on a statute that was clearly 

unconstitutional. At the time officers obtained the CSLI in this 

case, many courts had held, as we did in State v. Jenkins, 294 

Neb. 684, 884 N.W.2d 429 (2016), that CSLI did not implicate 

Fourth Amendment protection. See, e.g., U.S. v. Graham, 824 

F.3d 421 (4th Cir. 2016) (en banc); U.S. v. Davis, 785 F.3d 

498 (11th Cir. 2015) (en banc); In re U.S. for Historical Cell 

Site Data, 724 F.3d 600 (5th Cir. 2013). And, in Carpenter v. 

U.S., ___ U.S. ___, 138 S. Ct. 2206, 2214, 201 L. Ed. 2d 507 

(2018), while the U.S. Supreme Court ultimately reached a 

contrary conclusion, it acknowledged that the question did “not 

fit neatly under existing precedents.”

By obtaining the CSLI in this case under the Stored 

Communications Act and without the benefit of the U.S. 

Supreme Court’s not-yet-issued decision in Carpenter, officers 

were merely following the statute as written. That is not the 

type of police activity the exclusionary rule seeks to deter. See 

Davis v. United States, 564 U.S. 229, 241, 131 S. Ct. 2419, 180 

L. Ed. 2d 285 (2011), quoting Leon, supra (“the harsh sanction 

of exclusion ‘should not be applied to deter objectively reasonable law enforcement activity’”).

We are hardly the first court to conclude that CSLI obtained 

under the Stored Communications Act prior to Carpenter is not 

subject to exclusion. Many other courts have found the same, 

and Brown has not directed us to any that concluded otherwise. 

See, e.g., U.S. v. Curtis, 901 F.3d 846 (7th Cir. 2018); U.S. v. 

Joyner, 899 F.3d 1199 (11th Cir. 2018); U.S. v. Chavez, 894 
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F.3d 593 (4th Cir. 2018); U.S. v. Chambers, No. 16-163-cr, 

2018 WL 4523607 (2d Cir. Sept. 21, 2018).

Finally, we note that Brown’s only argument against the 

application of the exclusionary rule is misplaced. Brown contends that the State should not be able to argue for the first 

time on appeal that an exception to the exclusionary rule 

applies. Brown argues that he may have been able to introduce factual evidence that would indicate law enforcement 

officers did not act reasonably in this case and that thus, the 

exclusionary rule should apply. Brown claims he did not place 

such evidence into the record at the district court because the 

State did not assert there that the exclusionary rule should 

not apply even if Brown’s Fourth Amendment rights were 

violated. But, in fact, the State did make such an assertion in 

the district court. The State primarily argued that there was no 

Fourth Amendment violation, but counsel for the State also 

argued at a hearing on Brown’s motion to suppress that even 

if the Fourth Amendment were violated, the exclusionary rule 

should not apply, because the officers acted in good faith. 

While it is not clear to us what evidence Brown could have 

offered to negate the applicability of Illinois v. Krull, 480 U.S. 

340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), under these 

circumstances, Brown cannot point us to any such evidence, 

nor can he claim that he lacked the opportunity to present it to 

the district court.

For these reasons, we find that even though the acquisition 

of CSLI violated Brown’s Fourth Amendment rights, the district court did not err by denying Brown’s motion to suppress.

Stored Communications Act.

In addition to his Fourth Amendment argument, Brown 

contends that the CSLI should have been suppressed for 

another reason. Brown contends that the affidavit submitted 

in support of the court order failed to establish reasonable 

grounds to believe that the CSLI was relevant and material to 

an ongoing criminal investigation, as required by the Stored 
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Communications Act. Once again, we find that Brown’s argument lacks merit.

We need not analyze the affidavit or the showing required 

under the Stored Communications Act in order to dispose of 

Brown’s argument. This is so because even assuming the affidavit failed to make the required showing under the Stored 

Communications Act, it does not follow that the CSLI should 

have been suppressed.

The Stored Communications Act provides a number of specific remedies for violations thereof, but suppression of evidence in a criminal case is not one of them. See 18 U.S.C. 

§ 2707(b) and (d). Additionally, the act provides that the 

listed remedies are exclusive. 18 U.S.C. § 2708. On this basis, 

many courts have found that suppression is not an available 

remedy even if evidence is obtained in violation of the act. 

See, e.g., U.S. v. Gasperini, 894 F.3d 482 (2d Cir. 2018); U.S. 

v. Guerrero, 768 F.3d 351 (5th Cir. 2014); U.S. v. Clenney, 

631 F.3d 658 (4th Cir. 2011); U.S. v. Perrine, 518 F.3d 1196 

(10th Cir. 2008); U.S. v. Madison, 643 Fed. Appx. 886 (11th 

Cir. 2016).

We agree that suppression is not an available remedy for a 

violation of the Stored Communications Act, and we thus find 

no merit to Brown’s argument that the evidence should have 

been suppressed.

Stamps’ Testimony.

Brown next argues the district court erred by allowing 

Stamps to testify that months before trial, he and his girlfriend 

were shot, and that as a result, he suffered serious injury and 

his girlfriend died. Brown argues that this evidence was irrelevant and that even if it were relevant, it should have been 

excluded under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), because its probative value was outweighed 

by the danger of unfair prejudice. Brown argues the district 

court committed reversible error by allowing the testimony. 

We disagree.
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[7-9] Evidence that is irrelevant is inadmissible. Neb. Evid. 

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

Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 

133 (2018). Evidence is relevant if it has “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.” Neb. Evid. R. 401, Neb. 

Rev. Stat. § 27-401 (Reissue 2016). The bar for establishing 

relevance is not a high one. Relevancy requires only that the 

probative value be “‘something more than nothing.’” Lindsay 

Internat. Sales & Serv., 301 Neb. at 16, 917 N.W.2d at 144. 

We will not reverse a trial court’s determination regarding the 

relevancy of evidence unless it constitutes an abuse of discretion. See id.

Some background regarding Stamps’ cooperation in this 

case is pertinent to the analysis. Stamps’ cooperation with law 

enforcement in the investigation of Brown was inconsistent. It 

began in July 2016 while Stamps was under arrest and being 

questioned for an unrelated homicide. At that time, Stamps 

offered to provide information regarding the death of Alonzo in 

exchange for a bond reduction. According to Stamps, he provided some information implicating Brown in Alonzo’s death, 

but not all the information he could have provided. Stamps 

received a bond reduction and was released from jail.

Stamps later came to regret this act of cooperation. Stamps 

attended Brown’s preliminary hearing with several of Brown’s 

other friends. At the hearing, the officer to whom Stamps had 

provided information implicating Brown identified Stamps as a 

source of information regarding Brown’s involvement. Stamps 

responded by executing an affidavit denying the statements the 

officer had attributed to him and threatened to sue the officer 

for defamation. Stamps testified that he signed the affidavit in 

an attempt to be “loyal” to Brown.

Stamps would reverse course again, however. He testified 

that on January 26, 2017, he and his girlfriend were shot as 

they sat in a car, and that as a result, he was injured and his 
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girlfriend died. Stamps testified that after he was released 

from the hospital, he came to law enforcement and indicated 

a desire to “cooperate on everything that I knew, clear my 

conscience.”

The State argued in the district court and now argues on 

appeal that the fact that Stamps was shot is relevant because it 

explains why he testified against Brown after initially claiming 

that an officer defamed him by claiming he offered information against Brown. According to the State, Stamps’ experience 

as a victim of gun violence prompted a desire to “clear [his] 

conscience” and thus was relevant to his credibility. Although 

Stamps does not appear to have explicitly testified that his ultimate decision to testify against Brown was influenced by being 

shot, that can be fairly implied from his testimony.

We believe the district court did not abuse its discretion by 

finding such testimony to be relevant. Stamps wavered between 

providing partial information to law enforcement regarding 

Brown’s involvement in Alonzo’s death, to denying having 

provided any information at all, to providing a fuller account 

of Brown’s involvement. The fact that he was shot provided 

an explanation for his ultimate decision to testify, and thus the 

district court did not abuse its discretion by finding it to be 

relevant to his credibility.

[10-12] We also conclude that the district court did not 

abuse its discretion by finding that the testimony was not 

subject to exclusion under rule 403. Under rule 403, relevant 

evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice. State v. Tucker, 

301 Neb. 856, 920 N.W.2d 680 (2018). Unfair prejudice means 

an undue tendency to suggest a decision based on an improper 

basis. Id. It speaks to the capacity of some concededly relevant 

evidence to lure the fact finder into declaring guilt on a ground 

different from proof specific to the offense charged, commonly 

on an emotional basis. Id.

Brown argues that even if the fact that Stamps and his girlfriend were shot were relevant to his credibility, any relevance 
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was outweighed by the danger of unfair prejudice. Brown 

argues that upon hearing the testimony that Stamps and his 

girlfriend were shot, the jury would assume that Brown or his 

associates were responsible. The district court, however, specifically instructed the jury that there was no evidence Brown 

was involved in the shooting and that the evidence was not 

being offered for this purpose. The district court’s instruction 

was as follows:

[Y]ou’re going to hear some testimony on a line of questioning that relates to an event in . . . Stamps’ life. It’s 

being offered for the limited [purpose] of showing the 

effect that that event had on . . . Stamps. There is no evidence of and there is no suggestion by the State that the 

event you’re going to hear described had anything at all 

to do with the defendant, . . . Brown, in any manner or in 

any fashion. This is evidence that you are to hear solely 

for the limited purpose . . . of the effect of this event on 

the witness, . . . Stamps.

In its final jury instructions, the district court again instructed 

the jury regarding evidence received for a limited purpose, stating, “During the trial, I called your attention to some evidence 

that was received for a specific limited purpose. You must consider that . . . evidence only for those limited purposes and for 

no other reason.”

We have recently held that while a limiting instruction or an 

instruction to disregard does not automatically eliminate any 

risk of unfair prejudice, such an instruction can sufficiently 

mitigate the risk of unfair prejudice in a particular case. See 

State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). In 

Rocha, we held that the district court did not abuse its discretion in admitting opinion statements made by a law enforcement officer in a recorded interview of the defendant. We 

noted that the officer’s statements had minimal probative value 

and that they “carr[ied] a special risk of unfair prejudice.” Id.

at 744, 890 N.W.2d at 201. Even so, we held that the district 

court did not abuse its discretion by admitting the statements. 
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We pointed to instructions from the trial court, in which it 

informed the jury that it should not consider the officer’s 

statements as substantive evidence and that they should not be 

given weight in determining the truthfulness of the defendant’s 

statements in response. We held these instructions mitigated 

the risk of unfair prejudice. Id.

For similar reasons, we reach the same conclusion here. 

The district court did not allow the State to introduce evidence suggesting Brown had anything to do with the shooting of Stamps and his girlfriend. And to the extent any juror 

was inclined to speculate about Brown’s involvement, the 

district court’s instruction informed jurors that there was “no 

evidence” and “no suggestion” Brown had anything to do 

with the shooting and that jurors were to consider Stamps’ 

testimony only for the effect the incident had on him. We 

believe these instructions mitigated the risk of unfair prejudice 

and thus cannot say the district court abused its discretion by 

admitting the testimony.

Excessive Sentences.

Lastly, we address Brown’s claim that he received excessive 

sentences. He does not dispute that the sentences imposed were 

within statutory limits for his respective offenses. Rather, he 

argues that the district court did not adequately account for his 

difficult upbringing in fashioning his sentences.

[13-16] Where a sentence imposed within the statutory 

limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well 

as any applicable legal principles in determining the sentence 

to be imposed. State v. Tucker, 301 Neb. 856, 920 N.W.2d 680 

(2018). Relevant factors customarily considered and applied 

are the defendant’s (1) age, (2) mentality, (3) education and 

experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense 
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and (8) the amount of violence involved in the commission of 

the crime. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s 

observation of the defendant’s demeanor and attitude and all 

the facts and circumstances surrounding the defendant’s life. 

Id. And generally, it is within a trial court’s discretion to direct 

that sentences imposed for separate crimes be served either 

concurrently or consecutively. State v. Leahy, 301 Neb. 228, 

917 N.W.2d 895 (2018).

Having reviewed the record, we cannot say that the district 

court abused its discretion in sentencing Brown. The district 

court stated that in sentencing Brown, it had considered, 

among other things, a presentence investigation report and 

a sentencing memorandum provided by Brown’s counsel. 

Both the report and the sentencing memorandum provided 

background on Brown’s difficult upbringing. We thus have 

no reason to believe that the district court failed to consider 

Brown’s upbringing along with other factors in its sentencing 

calculus. Those other factors, however, would include the fact 

that Brown had been previously convicted of three felonies 

and was found responsible for a shooting that left a man 

dead. In light of the relevant sentencing factors, we conclude 

that the district court did not abuse its discretion in sentencing Brown.

CONCLUSION

We conclude that the district court did not err in denying 

Brown’s motion to suppress, in admitting the testimony that 

Stamps and his girlfriend were shot, or in sentencing Brown. 

Consequently, we affirm.

Affirmed