- 856 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

State of Nebraska, appellee, v.

Carlos A. Tucker, appell

___ N.W.2d ___

Filed December 14, 2018. No. S-17-926.

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. Expert Witnesses: Appeal and Error. The standard for reviewing the 

admissibility of expert testimony is abuse of discretion.

3. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for 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. 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 elements of the crime beyond a reasonable doubt.

4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

5. Evidence: Words and Phrases. Evidence is relevant if it tends in any 

degree to alter the probability of a material fact.

6. 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.

7. Evidence. Most, if not all, evidence offered by a party is calculated to 

be prejudicial to the opposing party.

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

Nebraska Supreme Court Online Library

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

03/08/2019 08:06 AM CST
- 857 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

9. ____: ____. 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.

10. Witnesses: Juries: Appeal and Error. The credibility and weight of 

witness testimony are for the jury to determine, and witness credibility 

is not to be reassessed on appellate review.

11. 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.

12. 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.

13. ____. 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.

14. ____. 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 Lancaster County: Darl

S. Ideus, Judge. Affirmed

Joseph D. Nigro, Lancaster County Public Defender, and 

John C. Jorgensen for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, 

and, on brief, Sarah E. Marfisi for appellee.

Heavican, C.J., Cassel, Stacy, Funke, 

Freudenberg, J

Papik, 

Carlos A. Tucker appeals his convictions and sentences for 

one count of first degree sexual assault of a child and two 
- 858 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

counts of incest, related to an incident with his girlfriend’s 

children. Evidence at trial showed that Tucker engaged in 

sex acts with M.T., age 11, and that M.T. and her two brothers, E.T., age 12, and R.T., age 10, engaged in sex acts upon 

Tucker’s instructions. The main issue presented by this appeal 

is whether the district court abused its discretion in admitting 

“Y-STR” DNA evidence over Tucker’s objections. We conclude that it did not. We further reject Tucker’s contentions that 

the evidence was insufficient to support his convictions and 

that the district court imposed excessive sentences. Finding no 

error, we affirm.

BACKGROUND

Charges Against Tucker.

The State charged Tucker with one count of first degree 

sexual assault of a child in violation of Neb. Rev. Stat. 

§ 28-319.01(2) (Reissue 2016) and two counts of incest with 

a person under 18 years of age in violation of Neb. Rev. Stat. 

§ 28-703 (Reissue 2008). The charges arose out of allegations 

by M.T., E.T., and R.T. that Tucker, their mother’s live-in 

boyfriend, had engaged in sex acts with M.T. and that M.T. had 

engaged in sex acts with E.T. and R.T. after being instructed to 

do so by Tucker.

Pretrial Proceedings.

Prior to trial, Tucker filed a motion in limine seeking 

to exclude all evidence of Y-STR DNA testing pursuant to 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 

113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. 

Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) (Daubert/

Schafersman). He also alleged that such evidence would confuse the jury and that its prejudicial effect would outweigh its 

probative value.

At a pretrial hearing on the motion, the district court heard 

expert testimony by Shannen Bishop, a DNA analyst at the 

University of Nebraska Medical Center (UNMC). Bishop testified concerning the Y-STR DNA analysis she conducted on 
- 859 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

DNA found on the interior of the shorts M.T. wore on the 

day of the alleged assault. Bishop also explained the origins, 

mechanics, and limitations of Y-STR DNA testing, as well as 

the extent to which it is accepted in the scientific community. 

Bishop testified that Y-STR DNA testing looks only at the male 

chromosome portion of DNA, while autosomal DNA testing 

looks at all 23 chromosomes inherited by each person. She 

dismissed as irrelevant several journal articles submitted by 

Tucker purporting to discredit the application of Y-STR DNA 

testing to small ethnic populations. Bishop explained that the 

articles examined very small, specific sample sizes and that 

Y-STR DNA science has improved since the articles were published in the early 2000’s. She further pointed out that the U.S. 

Y-STR database, which she used in her analysis, was not even 

established when most of the articles were written.

Following the hearing, the district court denied Tucker’s 

motion in limine. It applied the Daubert/Schafersman analytical framework and determined the reasoning and methodology 

behind Bishop’s opinions and Y-STR DNA testing to be valid 

and reliable. The district court further rejected Tucker’s argument that the prejudicial effect of Y-STR DNA evidence outweighed its probative value.

Evidence at Trial.

At the jury trial, M.T., E.T., and R.T. testified that on the day 

at issue, their mother was at work and Tucker was home with 

them. The children testified that Tucker, then age 31, invited 

them to play a series of games in which he would give the 

winner candy. The games began innocuously enough with the 

children competing to be the last to laugh, but they progressed 

to include the children undressing. In one game, the children 

undressed and Tucker hid their clothes. In another, Tucker 

instructed the children to switch clothing with one another.

The children testified that after a series of these games, 

Tucker directed them to the living room. Tucker instructed 

the children to disrobe completely, and he played pornography 
- 860 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

on the television. The boys testified that Tucker told them to 

masturbate. All three children testified that at some point while 

they were in the living room, Tucker licked M.T.’s vagina, and 

E.T. and R.T. testified that they followed Tucker’s instructions 

to do the same. The three children testified that Tucker also 

directed M.T. to put her mouth on his penis while, M.T. testified, he used his hand to move her head. All three children also 

testified that M.T. complied with Tucker’s instructions to put 

her mouth on E.T.’s and R.T.’s penises as well, with R.T. specifying that M.T. “suck[ed]” on their penises. There was also 

testimony that Tucker placed an electric toothbrush on M.T.’s 

vagina. The children testified that they saw “white stuff” or 

“clear stuff” come out of Tucker’s penis, which he wiped off 

with a tissue or napkin. R.T. observed some of the fluid from 

Tucker’s penis fall onto the carpet. M.T. and E.T. testified that 

Tucker referred to their activities as “sex ed.”

During cross-examination, which referenced previous interviews, it was revealed that the children’s testimony contained 

some inconsistencies on such matters as the sequence of the 

games, the objects of the games, their relative stages of undress 

during portions of the games, who won each game, the content 

of the pornography, the sequence of the sex acts, and whether 

sex acts occurred involving M.T.’s breasts or two persons performing sex acts with M.T. at the same time. However, each 

child testified that on the day in question, M.T. performed fellatio on Tucker and both brothers upon Tucker’s instructions 

and that Tucker performed cunnilingus on M.T.

Contrary to Tucker’s instructions to the children not to disclose what happened, the children informed their mother. After 

law enforcement was alerted, police conducted a search of the 

residence the children shared with their mother and Tucker. 

They found candy wrappers for the same type of candy the 

children reported Tucker had given to them. A stain found on 

the living room rug tested positive for semen. DNA testing 

showed that the semen had the same genetic profile as Tucker 

and that the probability of randomly selecting an unrelated 
- 861 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

individual with a DNA profile matching the sample was 1 in 

752.4 quintillion. The State also introduced Y-STR DNA evidence found on the shorts M.T. wore on the day of the alleged 

offenses. This evidence is discussed in more detail in the section below.

Tucker testified in his own behalf. He denied engaging in 

any sex acts with the children.

Y-STR DNA Evidence.

The State called Bishop to testify regarding Y-STR DNA 

testing. Tucker’s counsel made a continuing objection to the 

Y-STR DNA testing and any opinions derived from such testing based on Daubert/Schafersman, because such evidence 

was “inherently unreliable and unfairly prejudicial and otherwise not relevant.” The district court overruled the continuing objection.

Bishop testified that she is a forensic science DNA analyst 

at UNMC and that she had performed Y-STR DNA testing on 

extractions from the interior of M.T.’s shorts. Bishop stated 

that Y-STR DNA testing was a method of looking only at the 

male Y-chromosome. Bishop explained Y-STR DNA testing 

is often used in sexual assault cases because it can identify a 

male’s contribution to a sample, such as a vaginal swab, that 

may have many more cells from a female contributor than a 

male contributor. Bishop testified that UNMC has performed 

Y-STR DNA analysis since the early 2000’s and that UNMC 

has used the particular Y-STR DNA kit used in this case since 

2012. Bishop stated that Y-STR DNA analysis is an accepted 

forensic tool in the forensic analysis community that has been 

available since the early 2000’s.

Bishop explained that the Y-STR DNA testing process is 

essentially the same as autosomal DNA testing, but admitted 

that there is a great deal of difference between the discriminatory power of autosomal DNA testing versus Y-STR DNA 

testing. She testified that autosomal DNA testing can produce 

results showing that a particular profile is extremely rare in the 
- 862 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

population, but because the same Y-STR DNA profile is passed 

to all males in the same lineage and additionally may be present in unrelated members of the general population, Y-STR 

DNA testing results will not show that a particular profile is 

as rare. She acknowledged that a coincidental random match 

might occur one in several quintillion times with autosomal 

DNA testing but one in a few thousand times with Y-STR 

DNA testing.

Bishop testified that Y-STR DNA testing identified Y-STR 

DNA present on the interior of M.T.’s shorts and that it consisted of a mixture of at least two male individuals. Bishop 

testified that she could not determine what type of cell contributed the Y-STR DNA profile to M.T.’s shorts or how it was 

deposited there. However, she stated that the major Y-STR 

DNA profile she found on the shorts matched Tucker at all 

of the loci obtained and that, consequently, Tucker was not 

excluded as a potential major source of the DNA tested.

Bishop testified that to calculate the frequency of Tucker’s 

Y-STR DNA profile within the population, it was necessary 

to consult a database. Bishop testified and her report reflected 

that according to the U.S. Y-STR database, the probability of 

randomly selecting a second individual with the same Y-STR 

DNA profile, given that Tucker expresses such a profile, was 1 

in 1,842 for African Americans. Tucker does not dispute the he 

is African American.

Bishop’s report reflected that the U.S. Y-STR database was 

maintained by a national institute in the forensic science field. 

Bishop admitted that the U.S. Y-STR database had changed 

since her analysis because it is always gaining contributors. 

She further admitted that it was possible that the more individuals that contribute, the better the database will be at discerning the likelihood of a particular profile appearing in the 

general population.

A forensic scientist with the Nebraska State Patrol Crime 

Laboratory’s biology unit also explained the statistical limitations arising from the patrilineal recurrence of Y-STR DNA 
- 863 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

and the possible occurrence in the general population, consistent with Bishop’s testimony.

Jury Verdict and Sentencing.

The jury returned a verdict finding Tucker guilty on all 

charges. The district court ordered a presentence investigation 

report (PSR). The PSR reflected that Tucker, then age 33, had 

a traumatic childhood. Tucker’s father was not involved in his 

life, and he reported that he and his 10 siblings all have different fathers. Tucker grew up in an area where gang crime 

and drugs were prevalent. He reported that his mother was a 

drug user and that he “‘had to find ways to eat and live.’” As 

a child, he witnessed his mother shoot her boyfriend, and he 

developed post-traumatic stress disorder as a result. He has 

also been diagnosed with paranoid schizophrenia, bipolar disorder, and manic depression.

Tucker has been involved in criminal activity since his 

youth. His criminal history includes a term of probation and 

incarceration for forgery and escape and other jail terms of 

considerable length for theft. His other offenses include a number of drug charges, false information, false reporting, failure 

to appear, attempted tampering with a witness, and various 

traffic offenses.

Tucker had completed an associate degree in theology and 

anthropology, and he wanted to continue his education. At the 

time of the present offenses, he was an owner-employee of an 

aquatic pet store. In the past, Tucker had worked as a dishwasher, cook, and telemarketer. When he was not employed, he 

supported himself by selling marijuana.

The PSR noted that Tucker had refused to take responsibility 

for the crimes charged, consistently maintaining that he had not 

committed them and declining to participate in risk assessment 

for sex offenses. The PSR also included a victim impact letter 

from the children’s mother. She stated that Tucker’s crimes had 

led to a deterioration of her relationships with her children and 

behavior issues.
- 864 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

At the sentencing hearing, the district court stated that it had 

considered the evidence at trial and the PSR in their entirety, 

particularly Tucker’s pattern of criminal behavior and failure to 

take responsibility for his actions or empathize with the victims 

in this case. The district court noted that its sentencing took 

into account the nature and circumstances of the crimes and 

Tucker’s history, character, and condition.

The district court sentenced Tucker to 30 to 50 years’ 

imprisonment for first degree sexual assault of a child and 10 

to 20 years’ imprisonment for each of the two counts of incest, 

with all sentences to be served consecutively.

Tucker now appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Tucker assigns, rephrased, (1) that the district court erred 

in admitting unreliable Y-STR DNA evidence, causing undue 

prejudice; (2) that the evidence was insufficient to prove the 

crimes charged; and (3) that the district court abused its discretion in imposing excessive sentences.

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. State v. Trotter, 299 Neb. 392, 908 N.W.2d 

656 (2018).

[2] The standard for reviewing the admissibility of expert 

testimony is abuse of discretion. State v. Oliveira-Coutinho, 

291 Neb. 294, 865 N.W.2d 740 (2015).

[3] In reviewing a criminal conviction for 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. The relevant question 

for an appellate court is whether, after viewing the evidence in 
- 865 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. State v. Wells, 300 Neb. 296, 912 

N.W.2d 896 (2018).

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

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Ortega, 290 Neb. 172, 859 N.W.2d 

305 (2015).

ANALYSIS

Admissibility of Y-STR DNA Evidence.

Tucker challenges the admission of the Y-STR DNA testing 

and any opinions derived from such testing. His brief contends 

that the probative value of this evidence was outweighed by 

its prejudicial effect because the evidence is unreliable. We 

understand Tucker to be making two basic arguments against 

the admissibility of the Y-STR DNA evidence. The primary 

argument is a contention that the inherent nature of Y-STR 

DNA evidence makes its admission unfairly prejudicial in any 

case. The second challenges the reliability of the conclusions 

regarding the Y-STR DNA evidence reached in this case. We 

take up each of these contentions in turn.

[5-9] We first address Tucker’s arguments that the Y-STR 

DNA evidence was unfairly prejudicial. Evidence is relevant if 

it tends in any degree to alter the probability of a material fact. 

State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016). 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. Grant, 

supra. Most, if not all, evidence offered by a party is calculated 

to be prejudicial to the opposing party. State v. Chauncey, 295 

Neb. 453, 890 N.W.2d 453 (2017). 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.
- 866 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

Tucker’s primary argument against the admission of the 

Y-STR DNA evidence is that juries will inevitably base their 

decision on an improper basis by incorrectly perceiving the 

Y-STR DNA “match” testimony as conclusively connecting 

the defendant to the sample. Tucker asserts that jurors are 

inclined to think of any evidence of a DNA “match” of having 

an extremely small probability of being the result of coincidence. But, as he correctly points out, the Y-STR DNA testing 

in this case led to a 1-in-1,842 chance of a coincidental match. 

According to Tucker, this relatively greater chance of a random 

match renders the evidence “completely unreliable.” Brief for 

appellant at 37.

We have previously recognized a risk that a jury might 

give undue weight to DNA evidence if it is introduced without proper context. See State v. Johnson, 290 Neb. 862, 862 

N.W.2d 757 (2015). In Johnson, we observed that “‘[b]ecause 

the potential precision of DNA testing is so well known, a 

jury might assume that any DNA profile match is extremely 

unlikely and therefore extremely probative’—even when this 

is not true.” 290 Neb. at 883, 862 N.W.2d at 774, quoting 

Peters v. State, 18 P.3d 1224 (Alaska App. 2001). We have 

not, however, concluded that the appropriate measure to prevent a jury from making such an assumption is the wholesale 

exclusion of DNA evidence falling below a certain threshold 

of precision. Rather, we have emphasized the need for evidence of DNA testing to be accompanied by evidence of the 

statistical significance of the findings if it is to be admitted. 

Johnson, supra.

In this case, Tucker cannot contend that the State sought to 

introduce the Y-STR DNA evidence without the necessary statistical context. As we have noted, the State introduced much 

evidence regarding the statistical context for the Y-STR DNA 

evidence. The jury heard explanations of the relative probative 

value of Y-STR DNA testing and autosomal DNA testing. Both 

forensic scientists testified that males share the same Y-STR 

DNA profile with other males in the same paternal lineage, 
- 867 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

as well as others in the general population. Their testimony 

clearly illustrated that due to this recurrence, Y-STR DNA 

testing results are not as probative as autosomal DNA testing results. They both explained that Y-STR DNA statistical 

analysis would not render coincidental random match probabilities such as one in several hundred quintillions, showing a 

particular profile is extremely rare in the population. Instead, 

Bishop testified, Y-STR DNA testing might produce a random 

match probability of one in a few thousand, as it did in this 

case, where Y-STR DNA statistical analysis revealed a 1-in1,842 probability for African-American contributors that a random Y-STR DNA profile unrelated to this case would match 

the profile found on M.T.’s shorts. Because the Y-STR DNA 

testing results were accompanied by the required statistical 

context, its admission was consistent with the principles we set 

forth in Johnson.

Moreover, we do not believe that Y-STR DNA evidence is 

so unique that something other than the principles of Johnson

should govern its admissibility. The probabilities of a coincidental match may be exponentially greater with Y-STR DNA 

evidence than with autosomal DNA evidence, but, if those 

differences are explained to the jury, we see no reason why 

jurors would be incapable of grasping the difference. We have 

previously rejected claims that jurors would not be capable of 

assigning appropriate weight to “the statistical analysis that 

accompanies DNA evidence,” State v. Bauldwin, 283 Neb. 678, 

703, 811 N.W.2d 267, 288 (2012), and reject any suggestion 

that would be the case with Y-STR DNA evidence.

Y-STR DNA evidence may be less probative than other 

DNA evidence, but if we were to find it inherently prejudicial, 

as Tucker urges, we would be treating such evidence differently from other types of evidence that have similar probative 

value and that are introduced for the same purpose. As the 

district court and other courts have observed, Y-STR DNA evidence can be used in much the same manner as shoe imprint 

evidence. Shoe imprint evidence is routinely admitted to show 
- 868 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

that an imprint at a crime scene matches shoes owned by a 

defendant even though any number of individuals may own 

shoes identical to the defendant’s.

The coincidence that [a Y-STR DNA] profile matches that 

of defendant is probative of his guilt in the same manner as if he had owned shoes that matched a foot imprint 

found at the crime scene. It is up to the jury to weigh the 

probative value of that evidence in light of the fact that 

a significant number of other individuals may possess the 

same profile.

State v. Calleia, 414 N.J. Super. 125, 152, 997 A.2d 1051, 1066 

(2010), reversed on other grounds 206 N.J. 274, 20 A.3d 402 

(2011). See, also, People v. Stevey, 209 Cal. App. 4th 1400, 

148 Cal. Rptr. 3d 1 (2012).

Finally, we note that our conclusion that the Y-STR DNA 

evidence introduced in this case was not unfairly prejudicial is not a novel conclusion. Courts in a number of other 

states have reached the same conclusion. See, e.g., State v. 

Escalante-Orozco, 241 Ariz. 254, 386 P.3d 798 (2017), abrogated on other grounds, State v. Escalante, 245 Ariz. 135, 

425 P.3d 1078 (2018) (Y-STR profile evidence is not misleading, nor is its probative value outweighed by risk of unfair 

prejudice; jury is capable of understanding limited probative value of this evidence and giving it whatever weight it 

deserves); State v. Jones, 345 P.3d 1195 (Utah 2015) (Y-STR 

DNA evidence properly explained to jury such that risk of 

unfair prejudice through confusing or misleading jury did not 

substantially outweigh probative value of evidence); People 

v. Wood, 307 Mich. App. 485, 862 N.W.2d 7 (2014), vacated 

in part on other grounds 498 Mich. 914, 871 N.W.2d 154 

(2015) (limitations of Y-STR DNA testing were presented 

to jury such that there was no danger of confusion or other 

unfair prejudice that would substantially outweigh probative value).

Having rejected Tucker’s argument that Y-STR DNA evidence is inherently unfairly prejudicial, we move to Tucker’s 
- 869 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

assertion that the testimony offered regarding the Y-STR DNA 

evidence in this case was unreliable. Here, Tucker claims that 

the database used by Bishop to arrive at her statistical conclusions may not be representative of the population in a given 

area and that therefore, there is a risk that Tucker’s Y-STR 

DNA is even more common than Bishop acknowledged and 

thus there is an even greater chance of a coincidental match. 

This seems to be an attempt at a Daubert/Schafersman challenge, even though Tucker’s brief does not cite to Daubert/

Schafersman or address its framework. But even if we liberally 

construed Tucker’s brief as having framed his argument as a 

Daubert/Schafersman issue, the argument fails.

Tucker’s argument is premised in part on contentions about 

the U.S. Y-STR database made in articles published in 2003. 

Bishop, however, testified at the Daubert/Schafersman hearing 

that she was familiar with the articles Tucker relies upon. She 

explained that she found these articles to be irrelevant, because 

they were about very small sample sizes and Y-STR DNA science has improved since their publication. In fact, she testified 

that the U.S. Y-STR database upon which she relied was not 

even established at the time the articles upon which Tucker 

bases his challenge were written. The remaining article Tucker 

cites to support this argument was not presented to the district 

court and is not in the record before us for consideration. See 

State v. Patton, 287 Neb. 899, 845 N.W.2d 572 (2014) (party’s 

brief may not expand evidentiary record). Given Bishop’s testimony concerning the articles Tucker offered to the district 

court, we see no abuse of discretion in the admission of the 

Y-STR DNA evidence.

In sum, we conclude that the Y-STR DNA evidence in this 

case did not suggest a decision based on an improper basis and 

that thus, its prejudicial effect did not outweigh its probative 

value. Moreover, Tucker’s Daubert/Schafersman arguments 

also fail. Therefore, the district court did not abuse its discretion in admitting such evidence at trial.
- 870 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

Sufficiency of Evidence.

We next address Tucker’s argument that the evidence was 

not sufficient to support his convictions. The relevant question when such a challenge is made is “whether, after viewing 

the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. 

McCurdy, ante p. 343, 351, 918 N.W.2d 292, 298 (2018). 

Tucker, however, does not contend that there was no evidence 

of the essential elements of either first degree sexual assault 

of a child or incest. And, given the testimony at trial that 

Tucker penetrated M.T.’s mouth with his penis when M.T. 

was 11 years old and Tucker was 31 years old; that Tucker 

performed cunnilingus on M.T.; that Tucker placed an electric 

toothbrush on M.T.’s vagina; and that upon Tucker’s instructions, M.T. performed fellatio on E.T. and R.T., and E.T. and 

R.T. performed cunnilingus on M.T., such an argument is not 

available to him.

Instead, Tucker argues that because the children “did not 

testify to a cohesive story either individually or collectively,” 

brief for appellant at 43, no rational juror could have found 

Tucker guilty beyond a reasonable doubt. In other words, 

Tucker is asking us to reweigh the evidence and find that the 

testimony of the children was not credible. “But that is not the 

role of an appellate court.” State v. Jones, 296 Neb. 494, 499, 

894 N.W.2d 303, 307 (2017).

[10] The credibility and weight of witness testimony are 

for the jury to determine, and witness credibility is not to be 

reassessed on appellate review. State v. Archie, 273 Neb. 612, 

733 N.W.2d 513 (2007). Our task is limited to determining 

whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found 

beyond a reasonable doubt that Tucker committed the charged 

offenses. See id. Based on the evidence summarized above, 

we conclude it could.
- 871 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

Excessive Sentences.

Finally, we address Tucker’s claim that he received excessive sentences. Tucker does not dispute that the sentences 

imposed were within statutory limits. Rather, he argues only 

that the district court did not meaningfully consider his childhood trauma, mental condition, and need for rehabilitation. We 

conclude that the district court did not abuse its discretion in 

sentencing Tucker.

[11-14] 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. Russell, 299 Neb. 483, 908 N.W.2d 669 

(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 

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. 

State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018). 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, ante p. 228, 917 N.W.2d 

895 (2018).

Our review of the record demonstrates that the district court 

properly considered and applied the necessary sentencing factors. The PSR shows that Tucker exhibited mental illness after 

having grown up in an environment of poverty, crime, drug 

use, instability, and trauma. Certainly, these disadvantages 

were relevant to the sentencing calculus, but the district court 

stated that it considered the PSR in its entirety, and we have 
- 872 -

Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. TUCKER

Cite as 301 Neb. 856

no reason to believe the district court did not weigh those disadvantages against other factors. Those other factors, however, 

would include Tucker’s significant pattern of criminal behavior and the nature of the offenses at issue. On this point, the 

record shows that Tucker’s crimes against the children in this 

case were particularly serious. Tucker used games and candy to 

systematically lure children in his care into participating in acts 

that will have a lasting negative impact on their lives. And as 

the district court emphasized, Tucker has not taken responsibility for his actions.

Having reviewed the record and the district court’s remarks 

in light of the familiar sentencing factors set forth above, we 

conclude that the district court did not abuse its discretion in 

sentencing Tucker within statutory limits.

CONCLUSION

We conclude that the district court did not abuse its discretion in admitting Y-STR DNA evidence at trial. We further 

determine that the evidence presented at trial was sufficient 

to support Tucker’s convictions and that the district court 

did not abuse its discretion in sentencing him. Consequently, 

we affirm.

Affirme

Miller-Lerman, J., not participat