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without merit under either alternative formulation, his counsel was not ineffective in not asserting it at sentencing or on 

direct appeal.

CONCLUSION

To summarize, in my view, the rule announced in Miller is 

procedural and does not apply to Mantich on collateral review. 

I would find that Graham has no application to Mantich’s 

sentence of life imprisonment for first degree felony murder, 

a homicide, and that Mantich’s alternative claim that his sentence was grossly disproportionate to his crime is procedurally 

barred. Because these claims are without merit, Mantich’s trial 

and appellate counsel was not ineffective in failing to assert 

them. And because the files and records conclusively show that 

Mantich’s motion for postconviction relief is without merit, the 

district court did not err in denying the requested relief without 

conducting an evidentiary hearing. I would affirm the decision 

of the district court.

Heavican, C.J., joins in this dissen

State of Nebraska, appellee, v.

Eric A. Ramirez, appell

___ N.W.2d ___

Filed February 7, 2014. No. S-11-486.

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 determining 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, an 

appellate court reviews the admissibility of evidence for an abuse of discretion.

3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial 

court’s decision is based upon reasons that are untenable or unreasonable or if its 

action is clearly against justice or conscience, reason, and evidence.

4. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court’s 

conclusions with regard to evidentiary foundation and witness qualification for an 

abuse of discretion.
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5. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within 

the trial court’s discretion, and an appellate court will not disturb its ruling unless 

the court abused its discretion.

6. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal 

case, a motion for new trial is addressed to the discretion of the trial court, and 

unless an abuse of discretion is shown, the trial court’s determination will not 

be disturbed.

7. Appeal and Error. Plain error may be found on appeal when an error unasserted 

or uncomplained of at trial, but plainly evident from the record, prejudicially 

affects a litigant’s substantial right and, if uncorrected, would result in damage to 

the integrity, reputation, and fairness of the judicial process.

8. Trial: Juries: Evidence. Demonstrative exhibits are defined by the purpose for 

which they are offered at trial; demonstrative exhibits aid or assist the jury in 

understanding the evidence or issues in a case.

9. Trial: Evidence. Exhibits admitted only for demonstrative purposes do not constitute substantive evidence.

10. Trial: Evidence: Appeal and Error. On appeal, a defendant may not assert a 

different ground for his objection to the admission of evidence than was offered 

at trial.

11. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.

12. Evidence: Words and Phrases. Cumulative evidence means evidence tending to 

prove the same point of which other evidence has been offered.

13. Trial: Evidence: Appeal and Error. The erroneous admission of evidence is not 

reversible error if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding of the trier of fact.

14. Criminal Law: Statutes: Sentences. Where a criminal statute is amended by 

mitigating the punishment, after the commission of a prohibited act but before 

final judgment, the punishment is that provided by the amendatory act unless the 

Legislature has specifically provided otherwise.

15. Appeal and Error. An appellate court always reserves the right to note plain 

error which was not complained of at trial or on appeal.

16. Sentences: Weapons. Although it is generally within the trial court’s discretion to direct that sentences imposed for separate crimes be served concurrently 

or consecutively, Neb. Rev. Stat. § 28-1205(3) (Reissue 2008) does not permit 

such discretion in sentencing, because it mandates that a sentence for the use of 

a deadly weapon in the commission of a felony be served consecutively to any 

other sentence imposed and concurrent with no other sentence.

17. Sentences: Appeal and Error. An appellate court has the power on direct appeal 

to remand a cause for the imposition of a lawful sentence where an erroneous one 

has been pronounced.

Appeal from the District Court for Douglas County: Joh

D. Hartigan, Jr., Judge. Convictions affirmed, all sentenc

vacated, and cause remanded for resentencing.
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James Martin Davis, of Davis Law Office, and Mark A. 

Weber, of Carlson & Burnett, L.L.P., for appellant.

Jon Bruning, Attorney General, James D. Smith, and Carrie 

A. Thober for appellee.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

Miller-Lerman,

NATURE OF CASE

In this direct appeal, Eric A. Ramirez appeals from his convictions and sentences in the district court for Douglas County 

of two counts of first degree murder, three counts of use of 

a deadly weapon to commit a felony, one count of attempted 

second degree murder, one count of attempted robbery, and one 

count of criminal conspiracy. The first degree murder convictions are each Class IA felonies. Ramirez was 17 years old at 

the time of the murders. Ramirez assigns error to certain rulings regarding the admission and withdrawal of evidence. We 

find no merit to these assignments of error and affirm his convictions. Regarding the sentences imposed for his convictions, 

we conclude that the two life imprisonment sentences without 

the possibility of parole imposed for the two convictions of 

first degree murder, counts I and III, are unconstitutional and, 

accordingly, we vacate those sentences and remand the cause 

for resentencing consistent with Neb. Rev. Stat. § 28-105.02 

(Supp. 2013). We find plain error in regard to the sentences 

imposed for the convictions of use of a deadly weapon to 

commit a felony, counts II, IV, and VII, and we vacate such 

sentences and remand the cause for resentencing consistent 

with Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2012), such 

that each sentence imposed for the conviction of use of a 

deadly weapon runs consecutively to all other sentences and 

concurrently with no other sentence. We also find plain error 

in regard to the three sentences imposed for the convictions of 

count V, attempted second degree murder; count VI, attempted 

robbery; and count VIII, criminal conspiracy, because, as currently written, each of these three sentences was ordered to 
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run concurrently with the sentences for the convictions of use 

of a deadly weapon, and, even after resentencing in counts II, 

IV, and VII, these three sentences as written would impose 

sentences which would run concurrently with at least two 

sentences for the convictions of use of a deadly weapon. We 

vacate the sentences for counts V, VI, and VIII and remand the 

cause for resentencing such that the sentences imposed do not 

run concurrently with the sentences for the convictions of use 

of a deadly weapon. Accordingly, we affirm the convictions, 

vacate all of the sentences, and remand the cause for resentencing consistent with this opinion.

STATEMENT OF FACTS

This case involves three shootings that occurred on the 

night of November 12, 2008, at three separate locations in 

Omaha, Nebraska, within an hour of each other. These shootings resulted in the deaths of two people and injury to a third 

person. Ramirez, Edgar Cervantes, and Juan E. Castaneda 

were later arrested for the crimes; Cervantes testified against 

Ramirez and Castaneda pursuant to a plea agreement.

The first shooting took place at a residence located on 

Dorcas Street, in Omaha, where Luis Silva was shot at approximately 10:45 p.m. outside his residence. Jose Hernandez, 

Silva’s cousin, was living with Silva at the time, along with an 

aunt and another cousin. Hernandez testified that he was home 

at approximately 10:30 p.m. when Silva’s truck, a Chevrolet 

Blazer, arrived and parked in the driveway. Hernandez testified that he went outside to ask Silva to come inside and that 

Silva told Hernandez he was going to finish a telephone call. 

About 2 minutes later, Hernandez heard the truck’s horn honk. 

Hernandez testified that he looked outside and saw Silva lying 

on the ground near the truck and a man with a gun standing 

next to him. Hernandez also saw another man by a tree nearby. 

The man next to Silva pointed his gun at Hernandez and, 

speaking in Spanish, said that “they only wanted money.” The 

other man then said, “Let’s go,” in English. Through his porch 

window, Hernandez watched the two men leave. Hernandez 

testified that the man who pointed the gun at him was wearing black pants and a black, hooded sweatshirt and had a 
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goatee and that the other man was wearing black pants and a 

gray sweatshirt.

Silva was shot twice. One bullet grazed the left side of his 

head. The other bullet entered his upper back, and continued to 

the left side of his chest. Silva was pronounced dead upon his 

arrival at an Omaha hospital.

The second shooting took place near North 50th Street and 

Underwood Avenue. Shortly after Silva was shot, Charles 

Denton and Hilary Nelsen drove to a walkup automatic teller 

machine (ATM). Denton got out of the van he was driving to 

use the ATM, while Nelsen remained in the van. Nelsen and 

Denton saw two people walking toward their vehicle. Nelsen 

testified that they were male and were wearing their hoods up. 

Nelsen testified that after Denton started the van, the two men 

started running toward the van. One of the men approached the 

driver’s-side window and yelled at Nelsen and Denton to give 

him money. The man fired his gun, and Denton drove away. 

Denton called the 911 emergency dispatch service, but after he 

realized that he had been shot, he asked Nelsen to talk to the 

911 operator.

Nelsen testified that she believed the men were not white 

but that she could not tell if they were “Hispanic” or “black.” 

Nelsen and Denton both testified that the gun was silver. 

Denton stated the men were Hispanic and that the man with the 

gun had facial hair. Denton testified that the shooter was wearing a lighter-colored, hooded sweatshirt; that the other man 

was wearing a darker-colored, hooded sweatshirt; and that both 

men were wearing their hoods up. Denton sustained a bullet 

wound through his left bicep and a graze on his chest.

The third shooting took place in the parking lot of a gas 

station at South 52d and Leavenworth Streets. Tari Glinsmann 

was finishing her shift at the gas station. A passerby noticed 

a green Ford Taurus in front of the gas station with the lights 

on, the door open, and the engine running. The passerby saw 

a body and called 911. Glinsmann was dead when the rescue 

workers arrived on the scene.

A crime scene technician with a specialty in fingerprint 

identification was called by the State to testify. The fingerprint 

specialist testified that she dusted the exterior of the Ford 
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Taurus, concentrating on areas where it appeared that the dust 

and dirt on the car had been smudged. She testified that she 

lifted three latent prints from the car: two on the hood of the 

car on the passenger side and one from just above the driver’sside door handle. She testified that the prints from the hood of 

the car appeared to be two parts of a left palmprint. After analysis, the fingerprint specialist determined that the latent prints 

found on the hood of the car matched Castaneda’s prints.

Another of the State’s witnesses was Cervantes, who agreed 

to testify against Ramirez and Castaneda pursuant to a plea 

agreement. Cervantes testified that on November 12, 2008, 

he called Ramirez to see “if he wanted to go jack [rob] some 

people and get some extra money.” When Cervantes called 

Ramirez later, Ramirez said he was at a friend’s house near 

South 24th and L Streets, and Cervantes offered to pick him 

up. Cervantes testified that he drank some beer and used 

cocaine while at the friend’s house. Ramirez asked Cervantes 

if Castaneda could come along and if he could give “Tiny,” 

another friend, a ride home. Cervantes agreed.

Cervantes testified that while he was on his way to drop 

off Tiny at home, Ramirez was in the front passenger seat 

and Tiny and Castaneda were in the back seat. Cervantes 

testified that he passed a gun, which was wrapped in a blue 

bandanna, to Ramirez and that Ramirez put the gun under 

his seat. Cervantes stated that after he dropped off Tiny, they 

proceeded to South 13th and Dorcas Streets where they saw 

“some white guys getting out of [a] truck.” Cervantes testified 

that Ramirez and Castaneda got out of the car and tried to rob 

them. Ramirez and Castaneda then ran back to the car and said 

that the men did not have any money and that they “started 

getting crazy.” Cervantes testified that both he and Ramirez 

were wearing gray, hooded sweatshirts and that Castaneda 

was wearing a black coat with fur trim and orange lining on 

the inside.

Cervantes testified that he then drove west on Dorcas 

Street, when Cervantes saw a man in a Chevrolet Blazer 

and pointed him out to Ramirez and Castaneda. Once again, 

Ramirez and Castaneda got out of the car while Cervantes 

waited. Cervantes heard a gunshot, Ramirez and Castaneda 
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ran back to the car, and Cervantes drove away. Cervantes testified that Ramirez told him that when the man started honking 

the horn, Ramirez shot him through the vehicle’s window. 

Castaneda then pulled the man out of the vehicle and began 

searching him. The people inside the house tried to come out, 

but Ramirez pointed his gun at the house so they would not 

come outside. Ramirez and Castaneda then ran back to the car 

with the man’s wallet.

Cervantes stated that after robbing Silva, he drove to the area 

around North 50th Street and Underwood Avenue, where they 

saw a man at an ATM. Once again, Ramirez and Castaneda got 

out of the car, and Cervantes drove around the block. Cervantes 

heard gunshots, and Ramirez and Castaneda ran back to the 

car. Cervantes testified that Ramirez told him that the man saw 

them coming and started to drive away in his van, so Ramirez 

shot at the van.

Cervantes then drove south until they reached South 52d 

and Leavenworth Streets. Ramirez and Castaneda then saw 

Glinsmann at the gas station and asked Cervantes to stop. 

Ramirez and Castaneda, once again, got out of the car and 

went over to the gas station. Cervantes parked in a nearby lot, 

and he heard a gunshot. Ramirez and Castaneda ran back to 

the car and got in. Cervantes testified that Ramirez said he shot 

Glinsmann in the head.

At trial, the State also called as a witness Preston Landell, 

the operations coordinator for Cricket Communications 

(Cricket) in Omaha and Lincoln, Nebraska, to testify regarding the cell phone records of Ramirez and Castaneda. Landell 

stated that he is essentially a recordkeeper for Cricket and 

that he had testified as a recordkeeper in other cases in the 

past. Landell testified that his duties included maintaining 

records at Cricket and being a resource for direct and indirect 

retail teams.

Landell stated that records of calls made were stored in a 

server for 6 months and that the date was recorded immediately at the time of sending a call. Text messages are stored in 

the same way, but on a different server. Records are kept for 

6 months after the date of sending the text message. Landell 

testified as to the telephone number assigned to Ramirez and 
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the telephone number assigned to Castaneda’s stepmother. The 

records show the cell phone number from which the call or text 

originated and the recipient’s number, the time and duration of 

the call, and the cell tower used to process the call or text. The 

State offered the cell phone and text records for each of these 

accounts for the dates of November 9 to 19, 2008. The records 

were received without objection.

The State also showed Landell exhibit 224, which is a timeline summarizing the calls and texts between the cell phones 

of Ramirez, Castaneda, and a third telephone number from 

November 9 to 19, 2008. The information reflected on the 

timeline was extracted from cell phone account records already 

in evidence. Although exhibit 224 was discussed, it was not 

offered or received into evidence at this point in the trial.

Landell further testified regarding the operation of cell 

towers. He stated that as an operational employee, he had a 

“working knowledge of the infrastructure of the cell phone 

towers.” Landell stated that when a call is made, the caller’s 

cell phone searches for the closest available tower to route the 

call to a “switch.” When the call reaches the switch, certain 

information is recorded in the server, including the date, time, 

and duration of the call; the caller’s telephone number; the 

destination telephone number; the number of the cell tower that 

was used; and any special features that were used during the 

call. The switch then searches for the cell tower closest to the 

destination cell phone and uses that cell tower to route the call 

to the destination telephone. Landell testified that these records 

are kept and stored in the ordinary course of business, at or 

near the time the calls are made.

When the State asked Landell whether a cell phone would 

use the closest cell tower when sending or receiving a call, 

Ramirez objected on the basis of foundation. The objection 

was overruled, and Landell testified that that was generally 

how the system works, but not always. When asked whether 

there was a distance that a tower would pull a call from, 

Landell testified—over Ramirez’ foundation objection—that a 

rural cell tower may have a 20-mile radius while the radius in 

an urban setting is much less because of obstructions and more 

tower traffic.
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The State then offered exhibit 259, which is a map of a 

portion of Omaha showing the locations of the six cell towers 

that were used by Ramirez’ cell phone the night of the shootings, along with the locations of the shootings. The map 

shown on exhibit 259 incorporated information from evidence 

that was previously admitted during trial with the exception 

of the exact street addresses of the cell towers. Landell stated 

that he had reviewed exhibit 259 and that the addresses and 

locations of the cell towers shown on the exhibit were correct. Ramirez objected to exhibit 259 based on foundation 

and was granted permission to voir dire Landell. During voir 

dire, Landell stated that generally, a cell phone call will go to 

the closest tower if it is available, but that he could not say 

with certainty that a call will always go to the closest tower. 

Landell further stated that if the towers are busy, a call may 

go to a number of towers before it is put through. The court 

overruled Ramirez’ foundation objection and received exhibit 

259 into evidence.

There is a suggestion in the record that the parties agreed to 

a stipulation of facts to the effect that Ramirez lived with his 

mother, that he was on probation, and that Ramirez’ mother 

tried to ensure that he was home by curfew every night, but 

that she could not guarantee Ramirez never would have snuck 

out of the house after curfew. After the State rested, the defense 

did not call any witnesses or offer evidence.

Before closing arguments were made, the trial judge summoned counsel outside the presence of the jury to discuss 

exhibit 259, which was the map which showed the locations 

of the shootings and cell towers used by Ramirez’ cell phone 

the night of the shootings. After further discussion, the judge 

withdrew exhibit 259, which had been admitted over Ramirez’ 

foundational objection. The trial judge later orally admonished 

the jury by saying: “One final item on the evidence. Exhibit 

259 has been withdrawn from evidence. You are instructed 

not to consider it in your deliberations or the testimony of . . . 

Landell regarding the location of cell towers insofar as the subscriber’s location is concerned.” Ramirez moved for a mistrial, 

which the court overruled. For completeness, we note that the 
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written jury instructions stated that the jury “must disregard all 

evidence ordered stricken.”

The morning after jury deliberations began, it was noticed 

that exhibit 224, the timeline of the cell phone calls and texts 

which had been made between the cell phones of Ramirez, 

Castaneda, and a third subscriber, had not been offered or 

received into evidence. Exhibit 224 incorporated information 

from previously admitted evidence, primarily Ramirez’ and 

Cervantes’ cell phone records. After hearing arguments from 

both parties outside the presence of the jury, the court allowed 

the State to supplement the record and received exhibit 224 at 

that time. The district court judge commented that exhibit 224

doesn’t contain any information that hasn’t been received 

into evidence, and it had been referenced [sic] to during 

the evidence and closing arguments. . . . It’s a fair representation of a timeline that is already in evidence through 

those records. And so the exhibit will be included among 

the evidence that the court reporter transmits to the jury 

for [its] deliberation.

Ramirez moved for a mistrial, and the court overruled the 

motion.

The jury found Ramirez guilty on all eight counts. Ramirez 

filed a motion for new trial on various bases, including the 

admission and later withdrawal of exhibit 259, the map, and 

the admission of exhibit 224, the timeline of cell phone 

calls and texts. The district court denied Ramirez’ motion for 

new trial.

In ruling on the motion for new trial, the court determined 

that the admission and later withdrawal of exhibit 259 did not 

require a new trial. The court explained: “I withdrew [exhibit] 

259 from evidence, really, in an abundance of caution because 

I didn’t want someone to draw the inference that the subscriber 

or user was in a particular location at a particular time and that 

that was the significance of [exhibit] 259.” In further explaining why the court withdrew exhibit 259, the district court 

judge stated:

It was a belt-and-suspenders approach, really. I don’t 

think he [Landell] ever claimed in his testimony or the 
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exhibit ever stated that the subscriber or the user was in 

a particular location at a given time. He just talked about 

the program; the way, depending upon traffic, cell towers 

are programmed to receive and transmit incoming and 

outgoing calls.

In denying Ramirez’ motion for new trial, the district court 

also stated that the admission of exhibit 224, the timeline of 

cell phone calls and texts, did not require a new trial. The court 

stated that exhibit

224 was not itself an item of evidence but a summary of 

other evidence that had been received and it was referred 

to during the trial for the jury’s benefit by counsel at 

different times, and I did not want to hobble the jury 

in [its] consideration of the evidence by taking an item 

away from [its] consideration that everybody had used, 

and [exhibit 224] was itself not substantive evidence 

but a compilation of other items that had been separately received.

Following denial of the motion for new trial, the court 

conducted the sentencing hearing on December 29, 2010. The 

December 30, written sentencing order stated that Ramirez 

had been informed of his convictions for the following 

eight crimes:

Count I Murder in the First Degree . . . .

Count II Use of a Deadly Weapon to Commit a 

Felony . . . .

Count III Murder in the First Degree . . . .

Count IV Use of a Deadly Weapon to Commit a 

Felony . . . .

Count V Attempted Murder in the Second Degree 

. . . .

Count VI Attempted Robbery . . . .

Count VII Use of a Deadly Weapon to Commit a 

Felony . . . .

Count III Criminal Conspiracy . . . .

We note that counts I and III, murder in the first degree, are 

Class IA felonies. See Neb. Rev. Stat. § 28-303 (Reissue 

2008). We further note that counts II, IV, and VII involve use 

of a deadly weapon to commit a felony.
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The sentencing order set forth Ramirez’ sentences as follows:

Count I Life imprisonment without the possibility 

of parole

Count II 12 - 15 years consecutive to Count I only

Count III Life imprisonment without the possibility 

of parole

Count IV 12 - 15 years consecutive to Count III only

Count V 12 - 20 years concurrent with all

Count VI 12 - 15 years concurrent with all but 

Count VII

Count VII 12 - 15 years consecutive to Count VI only

Count VIII 12 - 15 years concurrent with all

In its sentencing order, the district court ordered that each of 

the sentences for the convictions of use of a deadly weapon 

were to run consecutively only to the sentence for the underlying felony conviction.

On April 13, 2011, we dismissed Ramirez’ first appeal in 

case No. S-11-090, based on Ramirez’ failure to submit a 

docket fee or file a poverty affidavit. Ramirez then filed a 

motion to vacate judgment of conviction in the district court 

for Douglas County, which the district court granted, limiting 

relief to a new direct appeal of the original convictions and 

sentences. This is the direct appeal before us.

While this appeal was pending, the U.S. Supreme Court 

decided Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 

2469, 183 L. Ed. 2d 407 (2012), holding that “the Eighth 

Amendment forbids a sentencing scheme that mandates life 

in prison without possibility of parole for juvenile offenders.” 

Ramirez was born in September 1991, which made him 17 

years old at the time of the crimes. On July 11, 2012, we filed 

an order directing supplemental briefing, instructing the parties 

to address issues raised by Miller v. Alabama, supra.

After this court heard oral argument, the Nebraska 

Legislature passed, and the Governor signed, 2013 Neb. Laws, 

L.B. 44, which amended state law to “change penalty provisions with respect to Class IA felonies committed by persons 

under eighteen years of age [and] to change parole procedures with respect to offenses committed by persons under 

eighteen years of age.” On September 12, 2013, we filed an 
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order directing supplemental briefing, instructing the parties 

to address whether the provisions of L.B. 44 apply to Ramirez 

if the cause is remanded for resentencing.

ASSIGNMENTS OF ERROR

Ramirez claims, summarized and restated, that the district 

court erred when it (1) denied his motion for new trial based on 

the denial of his motion for mistrial resulting from the admission and later withdrawal of exhibit 259, the map, and testimony relative thereto, and (2) denied his motion for new trial 

based on the denial of his motion for mistrial resulting from the 

admission of exhibit 224, the timeline of cell phone calls and 

texts, after the parties had rested.

In his first supplemental brief, Ramirez assigns additional 

errors, rephrased, that (3) the two life sentences imposed 

on him violated the Eighth Amendment’s ban on cruel and 

unusual punishment by imposing lifetime sentences without 

first requiring a sentencing hearing and without any meaningful opportunity for the juvenile to obtain release based 

on demonstrated maturity and rehabilitation, and (4) the district court erred by sentencing Ramirez to two terms of life 

imprisonment without the possibility of parole, because the 

sentences are not authorized under existing Nebraska statutes 

and the sentences are void as unconstitutional under Miller v. 

Alabama, supra.

STANDARDS OF REVIEW

[1-3] 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. State v. Merchant, 285 Neb. 456, 827 N.W.2d 

473 (2013). Where the Nebraska Evidence Rules commit the 

evidentiary question at issue to the discretion of the trial court, 

an appellate court reviews the admissibility of evidence for an 

abuse of discretion. Id. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable 

or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
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[4] An appellate court reviews the trial court’s conclusions 

with regard to evidentiary foundation and witness qualification 

for an abuse of discretion. State v. Richardson, 285 Neb. 847, 

830 N.W.2d 183 (2013).

[5] Whether to grant a mistrial is within the trial court’s 

discretion, and we will not disturb its ruling unless the court 

abused its discretion. State v. Watson, 285 Neb. 497, 827 

N.W.2d 507 (2013).

[6] In a criminal case, a motion for new trial is addressed 

to the discretion of the trial court, and unless an abuse of 

discretion is shown, the trial court’s determination will not 

be disturbed. State v. Williams, 282 Neb. 182, 802 N.W.2d 

421 (2012).

[7] Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. State v. Watt, 285 

Neb. 647, 832 N.W.2d 459 (2013).

ANALYSIS

Exhibit 259 and Related Testimony.

Ramirez contends that it was error to admit certain of 

Landell’s testimony and exhibit 259, a map of a portion of 

Omaha showing the location of the shootings, the residences 

of various persons, and the locations of cell towers that were 

used by Ramirez’ cell phone on the night of the shootings. 

Ramirez contends there was insufficient foundation for the 

evidence. Ramirez further asserts that the district court’s later 

withdrawal of the exhibit, its striking of the testimony, and 

its admonition to the jury were insufficient to cure this error. 

Ramirez thus claims that the district court erred when it overruled his motion for mistrial and denied his motion for new 

trial on the same basis.

In a criminal case, we review the denial of a motion for 

new trial for abuse of discretion. See State v. Williams, supra.

As explained below, exhibit 259 was merely demonstrative, 

and Landell provided sufficient foundation for the information on exhibit 259. We therefore determine that neither the 
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proceedings surrounding exhibit 259 nor the denial of the 

motion for mistrial based on the rulings surrounding exhibit 

259 was an abuse of discretion and that therefore, a new trial 

was not warranted. We find no merit to Ramirez’ argument.

[8] With respect to the nature of exhibit 259, we first note 

that exhibit 259 was admissible at trial as a demonstrative 

exhibit. Demonstrative exhibits are defined by the purpose 

for which they are offered at trial; demonstrative exhibits aid 

or assist the jury in understanding the evidence or issues in 

a case. State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 

(2013). See, also, 2 McCormick on Evidence § 214 (Kenneth 

S. Broun et al. eds., 7th ed. 2013). Demonstrative exhibits “are 

relevant . . . only because of the assistance they give to the 

trier in understanding other real, testimonial and documentary 

evidence.” Id. at 19.

Exhibit 259 reflected numerous undisputed facts already 

in evidence, including the location of the shootings, the residences of various persons, and the location of the cell towers 

used during the timeframe of the shootings. Ramirez does 

not take issue with the depiction of this evidence on the map. 

Overall, exhibit 259 was demonstrative.

Ramirez concedes that his cell phone records and Landell’s 

related testimony explaining how to interpret the information shown in the cell phone records were properly admitted into evidence. These records indicated which cell towers 

were used by Ramirez’ cell phone on the night of the shootings. The information on the map shown on exhibit 259 was 

derived from properly admitted evidence; with the exception 

of the exact street addresses for cell towers, exhibit 259 was 

a demonstrative exhibit that was used to aid the jury in understanding the facts already in evidence. Because exhibit 259 was 

demonstrative, it was not error for the district court to admit it 

or to publish it to the jury during trial.

[9] Although withdrawal was not necessary, we do not 

find an abuse of discretion to the district court’s subsequent 

withdrawal of exhibit 259. We have stated that due to the 

difference in purpose, an exhibit admitted for demonstrative 

purposes—that is, to aid the jury—is not evidence in the same 

way that an exhibit admitted for substantive purposes—that 
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is, as proof of an underlying fact or occurrence—is evidence. 

State v. Pangborn, supra. In Pangborn, we agreed with the 

majority of appellate courts and the major evidence treatises and held that exhibits admitted only for demonstrative 

purposes do not constitute substantive evidence. Id. (citing 

cases). Exhibit 259 aided the jury while it was available during trial. For the district court to withdraw exhibit 259, which 

was not substantive, was not an abuse of discretion. The 

jury was not disadvantaged, nor was Ramirez harmed when 

exhibit 259, which was nonsubstantive evidence, was not ultimately admitted.

[10,11] With respect to the foundation for exhibit 259, we 

note that when the State offered exhibit 259 at trial, Ramirez 

objected to the exhibit only on the basis of foundation. On 

appeal, a defendant may not assert a different ground for his 

objection to the admission of evidence than was offered at 

trial. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012). 

An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any 

other ground. State v. Robinson, 272 Neb. 582, 724 N.W.2d 

35 (2006), abrogated on other grounds, State v. Thorpe, 280 

Neb. 11, 783 N.W.2d 749 (2010). Accordingly, our analysis is 

limited to Ramirez’ claim that the district court initially erroneously admitted exhibit 259 and Landell’s related testimony 

based on insufficient foundation.

Under Neb. Evid. R. 602, Neb. Rev. Stat. § 27-602 (Reissue 

2008), a lay witness will not be permitted to testify as 

to objective facts in the absence of foundational evidence 

establishing personal knowledge of such facts. See State v. 

Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998). Evidence 

rule 602, regarding laying the foundation of personal knowledge, provides:

A witness may not testify to a matter unless evidence 

is introduced sufficient to support a finding that he has 

personal knowledge of the matter. Evidence to prove 

personal knowledge may, but need not, consist of the 

testimony of the witness himself. This rule is subject to 

the provisions of section 27-703, relating to opinion testimony by expert witnesses.
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Pertinent to our analysis in the present case is our decision 

in State v. Robinson, supra. In Robinson, prior to trial, the 

defendant made a motion in limine with respect to the defendant’s cell phone records. The defendant complained that the 

State had gathered data regarding the locations of the towers 

through which the defendant had placed telephone calls, and 

he contended that the location data were not scientifically reliable. The trial court overruled the motion in limine, pending 

the State’s presentation at trial of proper and sufficient foundation for the evidence.

At trial in Robinson, two witnesses who worked for the communications company, Cricket, testified. One was a “‘switch 

tech,’” who worked on the central computer system that interacted with the cellular sites, and the other was a field engineer, who was responsible for maintaining and optimizing the 

network of cellular sites throughout the city of Omaha. Id. at 

611, 724 N.W.2d at 63. During the switch tech’s testimony, the 

State offered the cell phone records. The defendant objected to 

the records on the bases of foundation, hearsay, and Daubert 

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. 

Ct. 2786, 125 L. Ed. 2d 469 (1993). The objections were overruled, and the exhibits were received.

We concluded in Robinson that the cell phone records 

offered by the State fell within the business records exception 

to the rule against hearsay. We then determined that a Daubert

challenge was not pertinent to the cell phone records, because 

they “contained nothing even resembling ‘expert opinion testimony.’” State v. Robinson, 272 Neb. at 619, 724 N.W.2d 

at 69. We further determined that Daubert remained inapplicable even if the defendant’s objections and argument were 

construed to address the field engineer’s testimony relating to 

the cell phone records, because the field engineer’s testimony 

was limited to explaining the data contained in the cell phone 

records, and he did not offer any opinions based on that data. 

We stated that “[t]o the extent that the defendant wanted to 

raise more general questions about the reliability of the records 

and the cellular location data, [the field engineer] was available 

for cross-examination on those issues.” State v. Robinson, 272 

Neb. at 620, 724 N.W.2d at 69. Based on our determinations 
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that the cell phone records fell within the business records 

exception and that given the purpose for which the records 

were offered no Daubert hearing was required with respect to 

the records, we determined that the trial court did not err when 

it admitted the cell phone records into evidence.

After deciding State v. Robinson, 272 Neb. 582, 724 N.W.2d 

35 (2006), we decided State v. Taylor, 282 Neb. 297, 803 

N.W.2d 746 (2011), which also involved the admission of cell 

phone records into evidence. In Taylor, the defendant claimed 

that cell phone records were erroneously admitted into evidence 

due to a lack of foundation. The defendant based his foundational argument on the requirement of authentication provided 

by Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2008). 

In Taylor, the cell phone records at issue were authenticated by 

the same Cricket employee, Landell, who testified in the present case. We rejected the defendant’s argument and determined 

that Landell’s testimony was sufficient to authenticate the cell 

phone records.

In the present case, the cell phone records indicated which 

cell towers were used by Ramirez’ cell phone on the night 

of the shootings, and Ramirez concedes that the cell phone 

records and Landell’s related testimony explaining how to 

interpret the information shown in the records were properly 

admitted into evidence. At trial, Ramirez objected to exhibit 

259 only on the basis of foundation. He does not argue that 

exhibit 259 or Landell’s related testimony was inadmissible 

as expert testimony under Neb. Evid. R. 703, Neb. Rev. Stat. 

§ 27-703 (Reissue 2008), or that the evidence was subject to 

a Daubert hearing. Instead, Ramirez contends that there was 

an insufficient basis that Landell had personal knowledge 

regarding the routing of cell phone calls among cell towers 

and the locations of subscribers in relation to those towers. We 

believe that Ramirez misconstrues the record and the nature of 

Landell’s testimony. We therefore disagree with Ramirez’ argument that there was insufficient foundation for exhibit 259 and 

Landell’s related testimony.

At trial, Landell testified that as an operational employee, 

he was required “to have a working knowledge of the infrastructure of the cell phone towers.” He also testified that he 
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had many discussions with the network operation technicians or engineers at Cricket regarding cell tower locations 

and how the infrastructure is used. Landell also testified 

how, as a general matter, cell phone calls are routed through 

the network.

Landell testified that when a call is made, generally, the 

caller’s cell phone searches for the closest available tower to 

route the call to the switch. The switch then typically searches 

for the closest available tower to the destination cell phone, 

and it uses that tower to route the call to the destination cell 

phone. Landell testified that the closest tower to the caller’s 

cell phone or the destination cell phone will not always be used 

because of too much traffic or some other obstruction. With 

respect to exhibit 259, Landell testified that he had reviewed 

the exhibit and that the addresses and the locations of the cell 

towers shown on the map were accurate.

Based on Landell’s testimony, we determine that he provided sufficient foundational evidence to demonstrate that he 

had personal knowledge generally regarding how cell phone 

calls are routed through the network, which cell towers were 

used by Ramirez’ cell phone on the night of the shootings, 

and that the location on the map of the cell towers used that 

night were accurate. Furthermore, Ramirez cross-examined 

Landell regarding the foregoing issues, and he was permitted 

to question Landell when the State offered exhibit 259. As an 

operational employee of Cricket, Landell was able to verify 

the addresses and locations of the cell towers depicted on the 

exhibit 259 map. It is significant, and we note, that Landell did 

not offer an opinion regarding cell tower locations and their 

relation to Ramirez’ location. Based upon his testimony at trial, 

we determine that there was sufficient foundational evidence 

to demonstrate Landell’s personal knowledge under rule 602, 

and thus the admission of exhibit 259 was not objectionable on 

this basis.

We are aware that there is currently a discussion among the 

courts regarding the reliability and the admissibility of cell 

tower location data and their relation to a defendant’s location. 

See, e.g., U.S. v. Evans, 892 F. Supp. 2d 949 (N.D. Ill. 2012). 

See, also, Aaron Blank, The Limitations and Admissibility of 
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Using Historical Cellular Site Data to Track the Location 

of a Cellular Phone, 18 Rich. J.L. & Tech. 3 (2011). We are 

also aware that there are emerging legislation and discussions 

regarding the necessity of a search warrant to obtain tracking 

information from cell phone providers. See, e.g., Mont. Code 

Ann. § 46-5-110 (2013); State v. Earls, 214 N.J. 564, 70 A.3d 

630 (2013). However, at the trial of the present case, Ramirez 

did not claim that exhibit 259 was inadmissible on these 

bases. Ramirez objected only on the basis of foundation, and, 

as stated above, we have determined that sufficient foundation was laid for the admission of exhibit 259 and Landell’s 

related testimony.

Based on our determination that sufficient foundation was 

laid and based on the fact that exhibit 259 was a demonstrative exhibit, we determine that the district court did not abuse 

its discretion when it admitted exhibit 259 and Landell’s 

related testimony into evidence. Although it was not necessary, the district court did not err when it later withdrew 

exhibit 259 and admonished the jury regarding exhibit 259. 

The district court did not abuse its discretion when it denied 

Ramirez’ motion for mistrial based on exhibit 259, and thus 

it did not err when it later denied his motion for new trial on 

the same basis.

Exhibit 224.

Ramirez contends that it was error to admit exhibit 224, 

a timeline summarizing the calls and texts between the cell 

phones used by Ramirez, Castaneda, and a third telephone 

number. As recited in our “Statement of Facts,” exhibit 224 

was received after the close of evidence. Ramirez contends 

that the district court erred when it denied his motion for mistrial based on admission of exhibit 224 and thus it erred when 

it denied his motion for new trial urged on the same basis. 

Because we determine that the district court did not abuse its 

discretion when it admitted exhibit 224, we determine that the 

court did not err when it denied Ramirez’ motion for mistrial 

on the basis of admitting exhibit 224 and did not err when it 

denied his motion for new trial on this basis. Thus, we find no 

merit to this assignment of error.
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Ramirez concedes that exhibit 224 was referred to during trial and that its contents were derived from documents 

admitted in evidence. He nevertheless contends that it was 

not properly offered or received. He states that after the jury 

began its deliberations, the State could have reopened its case 

to offer exhibit 224. Ramirez contends that because exhibit 224 

was not offered during the evidentiary portion of the trial and 

because there was no motion to reopen the evidence, the district court did not adhere to the proper formalities for receipt of 

evidence and that a mistrial should have been declared.

In the present case, after closing arguments were given and 

after jury instructions were read, the case was given to the 

jury on October 20, 2010, at 4:18 p.m. for deliberations. The 

next day at approximately 9 a.m., during what might fairly 

be characterized as “housekeeping,” the district court judge 

noticed that exhibit 224 had not been received into evidence 

and brought this to the attention of counsel. After arguments 

by both parties, the judge stated outside the hearing of the jury 

that exhibit 224

doesn’t contain any information that hasn’t been received 

into evidence, and it had been referenced [sic] to during 

the evidence and closing arguments. I think that it would 

hobble the jury to take that away from [it]. It’s a fair 

representation of a timeline that is already in evidence 

through those records.

Based upon this reasoning, the court stated that exhibit 224 

would “be included among the evidence that the court reporter 

transmits to the jury for [its] deliberation.” Ramirez moved for 

a mistrial, which was overruled. He later unsuccessfully moved 

for a new trial on this same basis.

[12,13] Exhibit 224 was a demonstrative exhibit. As we 

have recently explained, demonstrative exhibits are exhibits offered at trial to aid or assist the jury in understanding 

the evidence or issues in a case. See State v. Pangborn, 286 

Neb. 363, 836 N.W.2d 790 (2013). See, also, 2 McCormick 

on Evidence § 214 (Kenneth S. Broun et al. eds., 7th ed. 

2013). The information contained in exhibit 224 was a synthesis of information taken from other lengthy exhibits that 

were properly received into evidence during trial without 
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objection. Furthermore, because exhibit 224 contained facts 

already received in evidence, it was cumulative. Cumulative 

evidence means evidence tending to prove the same point of 

which other evidence has been offered. State v. McBride, 250 

Neb. 636, 550 N.W.2d 659 (1996). The erroneous admission 

of evidence is not reversible error if the evidence is cumulative and other relevant evidence, properly admitted, supports 

the finding of the trier of fact. See State v. Robinson, 271 

Neb. 698, 715 N.W.2d 531 (2006). In fact, at the hearing on 

Ramirez’ motion for new trial, Ramirez’ attorney stated that 

exhibit 224 “was merely a summary of telephone records that 

were already in evidence that, I would concede, would have 

been considered cumulative in nature.”

Based on the fact that exhibit 224 was a demonstrative 

exhibit and that it was cumulative of other properly admitted evidence, we cannot say that the district court abused its 

discretion when it admitted exhibit 224 into evidence. We 

acknowledge that the formality of reopening the record was not 

observed, but as we read the record quoted above, exhibit 224 

was added to the evidence at a time previous to when the court 

reporter might later transmit evidence to the jury. We cannot 

find that the procedure employed was prejudicial. Accordingly, 

we determine that the district court did not err when it denied 

Ramirez’ motion for mistrial and, thus, it did not err when it 

denied his motion for new trial with respect to the admission 

of exhibit 224.

Ramirez’ Sentences.

Ramirez claims that the district court erred when it sentenced him to life imprisonment without the possibility of 

parole for counts I and III. After Ramirez filed his notice of 

appeal but before the case was argued before us, the U.S. 

Supreme Court decided Miller v. Alabama, ___ U.S. ___, 132 

S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Miller generally held 

that it is unconstitutional to sentence a juvenile convicted of a 

homicide to a mandatory sentence of life imprisonment without 

the possibility of parole.

This court filed an order directing supplemental briefing, 

instructing the parties to address the issues raised by Miller. In 
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its supplemental brief, the State argued that Ramirez’ sentences 

were unaffected by Miller because they were not sentences 

without the possibility of parole. The State suggested that the 

district court improperly sentenced Ramirez to “[l]ife imprisonment without the possibility of parole” and that instead, under 

Nebraska law, the court should have simply sentenced Ramirez 

to “‘life imprisonment.’” Supplemental brief for appellee at 

2. With the deletion of the phrase “without the possibility 

of parole,” the State contends that Ramirez’ sentences were 

not sentences without the possibility of parole, because upon 

commutation to a term of years, parole would be available 

to Ramirez. The State further argued that if Miller did apply, 

Ramirez’ current life sentences should be vacated and the cause 

remanded for resentencing in light of the sentencing factors 

which are discussed in Miller and which are now reflected 

in § 28-105.02.

Similar to the State, Ramirez argued in his supplemental 

briefing that the district court improperly added the phrase 

“without the possibility of parole” to his sentences of life 

imprisonment. Supplemental brief for appellant at 21. Of 

greater relevance, however, Ramirez argued that Miller is 

applicable to this case and that in light of Miller, Ramirez’ life 

sentences were unconstitutional and his sentences should therefore be vacated and he should be resentenced in accordance 

with § 28-105.02.

We recently addressed similar arguments regarding Miller

and its application in State v. Castaneda, ante p. 289, ___ 

N.W.2d ___ (2014), which, like the current case, was before us 

on direct appeal. In Castaneda, the defendant, a juvenile at the 

time of his crimes, was convicted of two first degree murders 

and was sentenced to two terms of life imprisonment without 

the possibility of parole. In Castaneda, we noted that at the 

time the defendant was sentenced, Nebraska’s statutes provided that a juvenile convicted of first degree murder was subject to mandatory life imprisonment, and although the statutes 

did not expressly contain the qualifier “without parole,” we 

found that “Nebraska’s sentence of life imprisonment is effectively life imprisonment without parole under the rationale of 
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Miller . . . because it provides no meaningful opportunity to 

obtain release.” Ante at 313-14, ___ N.W.2d at ___. We further 

determined that because Castaneda was before us on direct 

appeal, Miller was applicable. The instant case is also before 

us on direct appeal, and we determine, as we did in Castaneda, 

that Miller is applicable.

After we heard oral argument on Ramirez’ appeal, in reaction 

to Miller, the Nebraska Legislature passed, and the Governor 

signed, L.B. 44, which amended state law to “change penalty 

provisions with respect to Class IA felonies committed by persons under eighteen years of age [and] to change parole procedures with respect to offenses committed by persons under 

eighteen years of age.”

Section 28-105.02 provides:

(1) Notwithstanding any other provision of law, the 

penalty for any person convicted of a Class IA felony for 

an offense committed when such person was under the 

age of eighteen years shall be a maximum sentence of not 

greater than life imprisonment and a minimum sentence 

of not less than forty years’ imprisonment.

(2) In determining the sentence of a convicted person 

under subsection (1) of this section, the court shall consider mitigating factors which led to the commission of 

the offense. The convicted person may submit mitigating 

factors to the court, including, but not limited to:

(a) The convicted person’s age at the time of the 

offense;

(b) The impetuosity of the convicted person;

(c) The convicted person’s family and community 

environment;

(d) The convicted person’s ability to appreciate the 

risks and consequences of the conduct;

(e) The convicted person’s intellectual capacity; and

(f) The outcome of a comprehensive mental health 

evaluation of the convicted person conducted by an 

adolescent mental health professional licensed in this 

state. The evaluation shall include, but not be limited to, 

interviews with the convicted person’s family in order 
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to learn about the convicted person’s prenatal history, 

developmental history, medical history, substance abuse 

treatment history, if any, social history, and psychological history.

And Neb. Rev. Stat. § 83-1,110.04 (Supp. 2013) further 

provides:

(1) Any offender who was under the age of eighteen 

years when he or she committed the offense for which 

he or she was convicted and incarcerated shall, if the 

offender is denied parole, be considered for release on 

parole by the Board of Parole every year after the denial.

(2) During each hearing before the Board of Parole 

for the offender, the board shall consider and review, at 

a minimum:

(a) The offender’s educational and court documents;

(b) The offender’s participation in available rehabilitative and educational programs while incarcerated;

(c) The offender’s age at the time of the offense;

(d) The offender’s level of maturity;

(e) The offender’s ability to appreciate the risks and 

consequences of his or her conduct;

(f) The offender’s intellectual capacity;

(g) The offender’s level of participation in the offense;

(h) The offender’s efforts toward rehabilitation; and

(i) Any other mitigating factor or circumstance submitted by the offender.

At the time of Ramirez’ sentencing for first degree murder, 

the district court was required to impose a sentence of life 

imprisonment. See Neb. Rev. Stat. § 28-105(1) (Reissue 2008). 

As we explained above, a sentence imposed under § 28-105(1) 

was tantamount to life imprisonment without the possibility of 

parole and, under Miller, such sentence was unconstitutional. 

Ramirez’ life sentences for counts I and III imposed under 

§ 28-105(1) as it then existed must be vacated, and Ramirez 

must be resentenced.

In view of the enactment of L.B. 44, this court sought 

supplemental briefing regarding the issue of whether Ramirez 

should be resentenced under the provisions of L.B. 44. Both 
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the State and Ramirez contend that L.B. 44 should be utilized 

if this cause is remanded for resentencing.

[14] This court recently discussed the applicability on direct 

appeal of L.B. 44 in State v. Castaneda, ante p. 289, ___ 

N.W.2d ___ (2014). We stated in Castaneda that

the change effected by L.B. 44 does not violate ex post 

facto principles.

Nor is it inconsistent under Nebraska law for this 

mitigation in sentencing to apply upon resentencing. 

“[W]here a criminal statute is amended by mitigating 

the punishment, after the commission of a prohibited act 

but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has 

specifically provided otherwise.” And in this case, the 

Legislature has not provided otherwise.

Ante at 319, ___ N.W.2d at ___. In light of the foregoing 

discussion, we determine that L.B. 44 applies to Ramirez’ 

resentencing upon remand. We therefore vacate Ramirez’ 

life sentences imposed for counts I and III and remand the 

cause for resentencing under the procedures set forth under 

L.B. 44.

[15] In addition to the corrections needed regarding the 

sentences for murder, we also note that upon our review of 

the record, we find plain error in the district court’s sentencing order regarding the sentences for use of a deadly weapon 

to commit a felony, counts II, IV, and VII, and regarding 

the sentences for attempted second degree murder, count V; 

attempted robbery, count VI; and criminal conspiracy, count 

VIII. An appellate court always reserves the right to note plain 

error which was not complained of at trial or on appeal. State v. 

Scott, 284 Neb. 703, 824 N.W.2d 668 (2012). Plain error may 

be found on appeal when an error unasserted or uncomplained 

of at trial, but plainly evident from the record, prejudicially 

affects a litigant’s substantial right and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of 

the judicial process. State v. Watt, 285 Neb. 647, 832 N.W.2d 

459 (2013). As explained below, each sentence for use of 

a deadly weapon, counts II, IV, and VII, should have been 
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ordered to run consecutively to all other sentences imposed 

and not concurrently with any sentence, and the sentences for 

attempted second degree murder, attempted robbery, and criminal conspiracy, counts V, VI, and VIII, respectively, should not 

have been ordered to be served concurrently with any use of a 

deadly weapon sentence.

In its December 30, 2010, order, the district court stated that 

Ramirez had been informed of his convictions for the following crimes:

Count I Murder in the First Degree . . . .

Count II Use of a Deadly Weapon to Commit a 

Felony . . . .

Count III Murder in the First Degree . . . .

Count IV Use of a Deadly Weapon to Commit a 

Felony . . . .

Count V Attempted Murder in the Second Degree 

. . . .

Count VI Attempted Robbery . . . .

Count VII Use of a Deadly Weapon to Commit a 

Felony . . . .

Count III Criminal Conspiracy . . . .

Counts II, IV, and VII involve use of a deadly weapon to commit a felony.

The written order then set forth Ramirez’ sentences as 

follows:

Count I Life imprisonment without the possibility 

of parole

Count II 12 - 15 years consecutive to Count I only

Count III Life imprisonment without the possibility 

of parole

Count IV 12 - 15 years consecutive to Count III only

Count V 12 - 20 years concurrent with all

Count VI 12 - 15 years concurrent with all but 

Count VII

Count VII 12 - 15 years consecutive to Count VI only

Count VIII 12 - 15 years concurrent with all

At the sentencing hearing, the district court judge pronounced Ramirez’ sentences by stating:
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It’ll be the sentence and judgment of the Court on 

Count 1 that [Ramirez] be incarcerated through the 

Department of Correctional Services for murder in the 

first degree to a term of life imprisonment.

Under Count 2, the use of a deadly weapon to commit that felony, it will be the sentence and judgment of 

the Court that he be incarcerated for a period of 12 to 15 

years. The statute . . . requires the sentence to be served 

consecutive to the underlying conviction.

Count 3, murder in the first degree, it will be the sentence and judgment of the Court that [Ramirez] be imprisoned for life.

Under Count 4, [the use of a deadly weapon to commit the felony of murder in the first degree,] it will be 

the sentence and judgment of the Court that [Ramirez] be 

incarcerated for an indeterminate period of 12 to 15 years, 

and the statute requires that that sentence be served consecutive to the underlying conviction.

On Count 5, attempted murder in the second degree, 

it will be the sentence and judgment of the Court that 

[Ramirez] be incarcerated for an indeterminate period of 

12 to 20 years in prison.

Under Count 6, the attempted robbery, it will be the 

sentence and judgment of the Court that [Ramirez] be 

incarcerated for a period of 12 to 15 years.

Under Count 7, use of a deadly weapon to commit 

the felony in Count 6, it’ll be the sentence and judgment of the Court that [Ramirez] be incarcerated for an 

indeterminate period of 12 to 15 years consecutive to 

Count 6 only.

Under Count 8, the criminal conspiracy, it will be 

the sentence and judgment of the Court that [Ramirez] 

be incarcerated through the Department of Correctional 

Services for an indeterminate period of 12 to 15 years.

Now, the sentences in Counts 1 and 2 are, for record 

purposes, imposed concurrent with the sentences in 

Counts 3 and 4 and with Counts 5 and 6. Count 5 

is a sentence that’s concurrent with other convictions.
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Count 6, the attempted robbery, is concurrent with the — 

all but Count 7. And Count 8, the criminal conspiracy, the 

sentence there is concurrent with all of the others.

(Emphasis supplied.)

[16] With respect to the three sentences for the convictions 

of use of a deadly weapon, the record shows that the district 

court has a misperception of the law. Section 28-1205(3) concerns the crimes of use of a deadly weapon and provides: “The 

crimes defined in this section shall be treated as separate and 

distinct offenses from the felony being committed, and sentences imposed under this section shall be consecutive to any 

other sentence imposed.” Although it is generally within the 

trial court’s discretion to direct that sentences imposed for separate crimes be served concurrently or consecutively, we have 

long held that § 28-1205(3) does not permit such discretion 

in sentencing, because it mandates that a sentence for the use 

of a deadly weapon in the commission of a felony be served 

consecutively to any other sentence imposed and concurrent 

with no other sentence. See State v. Sorenson, 247 Neb. 567, 

529 N.W.2d 42 (1995). See, also, State v. Thomas, 268 Neb. 

570, 685 N.W.2d 69 (2004); State v. Decker, 261 Neb. 382, 

622 N.W.2d 903 (2001); State v. Wilson, 16 Neb. App. 878, 754 

N.W.2d 780 (2008).

Because § 28-1205(3) mandates that the sentence imposed 

for a conviction of use of a deadly weapon be consecutive 

to any other sentence and concurrent with no other sentence, 

the district court did not have the authority to order that the 

sentences for the convictions of use of a deadly weapon to 

commit a felony, counts II, IV, and VII, run consecutively 

only to the sentences for the underlying felony offenses. 

Furthermore, the district court erred when it imposed the following sentences to run concurrently with the sentences for 

the convictions involving use of a deadly weapon: count V, 

attempted second degree murder, 12 to 20 years’ imprisonment “concurrent with all”; count VI, attempted robbery, 12 to 

15 years’ imprisonment “concurrent with all but Count VII”; 

and count VIII, criminal conspiracy, 12 to 15 years’ imprisonment “concurrent with all.” The district court did not have 

the authority to order that the sentences for counts V, VI, and 
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VIII run concurrently with any sentences for use of a deadly 

weapon, and the sentences imposed for counts V, VI, and VIII 

constitute plain error.

[17] An appellate court has the power on direct appeal to 

remand a cause for the imposition of a lawful sentence where 

an erroneous one has been pronounced. State v. Gunther, 271 

Neb. 874, 716 N.W.2d 691 (2006); State v. Wilson, supra. 

Therefore, we vacate the sentences imposed in counts II, IV, 

and VII for the convictions of use of a deadly weapon, and 

vacate the sentences imposed for count V, attempted second 

degree murder; count VI, attempted robbery; and count VIII, 

criminal conspiracy, and remand the cause with directions that 

the district court resentence Ramirez such that each sentence 

for the conviction of use of a deadly weapon runs consecutively to any other sentences imposed and not concurrently 

with any other sentence and that the sentences for counts V, VI, 

and VIII not be ordered served concurrently with any sentence 

for use of a deadly weapon.

CONCLUSION

We determine that the district court did not abuse its discretion when it received exhibit 259 and Landell’s related 

testimony into evidence. The district court’s subsequent ruling to withdraw exhibit 259 was not an abuse of discretion. 

Accordingly, the district court did not err when it denied 

Ramirez’ motion for mistrial based on rulings surrounding 

exhibit 259 and, therefore, it did not err when it denied his 

motion for new trial on this basis. We further determine that 

the district court did not abuse its discretion when it received 

exhibit 224. Thus, it did not err when it denied Ramirez’ 

motion for mistrial based on the admission of exhibit 224 and, 

therefore, did not err when it denied his motion for new trial on 

this basis. Ramirez’ convictions are affirmed.

We conclude that the life sentences mandatorily imposed 

upon Ramirez for counts I and III were effectively life 

imprisonment sentences without the possibility of parole and 

unconstitutional under Miller v. Alabama, ___ U.S. ___, 132 

S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Accordingly, we 

vacate those unconstitutional sentences and remand the cause 
Nebraska Advance She

386 287 NEBRASKA REPORTS

for resentencing in accordance with L.B. 44, as codified at 

§ 28-105.02.

Upon our review of the record, we find plain error in the 

district court’s sentencing order, which ordered that the three 

sentences for the convictions of use of a deadly weapon to 

commit a felony, counts II, IV, and VII, run concurrently with 

any other sentence. We also find plain error in the district 

court’s sentencing order, which ordered that the sentences for 

the convictions of count V, attempted second degree murder; 

count VI, attempted robbery; and count VIII, criminal conspiracy, run concurrently with the sentences for use of a deadly 

weapon. We therefore vacate the sentences for counts II, IV, V, 

VI, VII, and VIII, and remand the cause to the district court 

with directions to resentence Ramirez on all these counts, so 

that each sentence for the conviction of use of a deadly weapon 

runs consecutively to all other sentences and concurrently with 

no sentence.

 Convictions affirmed, all sentences vac

and cause remanded for resenten