- 949 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

State of Nebraska, appellee, v. 

Michael D. Benson, appellant.

___ N.W.2d ___

Filed May 29, 2020. No. S-19-486.

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

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

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

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

error, but whether those facts trigger or violate Fourth Amendment 

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

2. Pleadings: Judgments: Appeal and Error. A trial court’s denial of 

a motion to sever will not be disturbed on appeal absent an 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. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless 

the prosecution demonstrates the use of procedural safeguards that are 

effective to secure the privilege against self-incrimination.

5. Miranda Rights: Self-Incrimination. Miranda v. Arizona, 384 U.S. 

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), requires law enforcement to give a particular set of warnings to a person in custody before 

Nebraska Supreme Court Online Library

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

07/31/2020 08:11 AM CDT
- 950 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

interrogation, including that he or she has the right to remain silent, that 

any statement he or she makes may be used as evidence against him or 

her, and that he or she has the right to an attorney.

6. Miranda Rights: Self-Incrimination: Evidence. Miranda warnings are 

considered prerequisites to the admissibility of any statement made by a 

defendant during custodial interrogation.

7. Miranda Rights. Miranda warnings are required only when a suspect 

interrogated by the police is in custody.

8. ____. The ultimate inquiry for determining whether a person is in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966), is whether there is a formal arrest or restraint 

on freedom of movement of degree associated with a formal arrest.

9. ____. Custody under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 

1602, 16 L. Ed. 2d 694 (1966), is to be determined based on how a 

reasonable person in the suspect’s situation would perceive his or her 

circumstances.

10. Constitutional Law: Search and Seizure. A seizure under the Fourth 

Amendment occurs only if, in view of all the circumstances surrounding 

the incident, a reasonable person would have believed that he or she was 

not free to leave.

11. Miranda Rights. In considering whether a suspect is in custody for 

purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. 

Ed. 2d 694 (1966), relevant considerations include, but are not limited 

to: the location of the interaction, who initiated the interaction, the 

duration of the interaction, the type and approach of questioning, the 

freedom of movement of the suspect, the duration of the interaction, 

and whether the suspect was placed under arrest at the termination of 

the interaction.

12. ____. The test for determining custody under Miranda v. Arizona, 384 

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is an objective 

inquiry that does not depend on the subjective views harbored by either 

the interrogating officer or person being interrogated.

13. Miranda Rights: Waiver: Words and Phrases. To be a valid waiver 

of Miranda rights, a waiver must be knowingly and voluntarily made. 

A waiver is knowing if it is made with a full awareness of both the 

nature of the right being abandoned and the consequences of the decision to abandon it. A waiver is voluntary if it is the product of a free 

and deliberate choice rather than through intimidation, coercion, or 

deception.

14. Miranda Rights: Waiver. Whether a knowing and voluntary waiver of 

Miranda rights has been made is determined by looking to the totality 

of the circumstances.
- 951 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

15. Miranda Rights: Waiver: Police Officers and Sheriffs. While waiver 

must be knowingly made, law enforcement is not required to inform a 

suspect of all aspects of the investigation prior to the waiver of the suspect’s Miranda rights.

16. Miranda Rights: Police Officers and Sheriffs. Law enforcement officers are not required to rewarn suspects from time to time of their 

Miranda rights. The Miranda rule and its requirements are met if a 

suspect receives adequate Miranda warnings, understands them, and 

has an opportunity to invoke the rights before giving any answers or 

admissions.

17. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In 

reviewing the strength of an affidavit submitted as a basis for finding 

probable cause to issue a search warrant, an appellate court applies a 

totality of the circumstances test.

18. ____: ____: ____: ____. In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, 

the question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for 

finding that the affidavit established probable cause.

19. Search Warrants: Probable Cause: Words and Phrases. Probable 

cause sufficient to justify issuance of a search warrant means a fair 

probability that contraband or evidence of a crime will be found.

20. Search Warrants: Affidavits: Evidence: Appeal and Error. In evaluating the sufficiency of an affidavit used to obtain a search warrant, 

an appellate court is restricted to consideration of the information and 

circumstances contained within the four corners of the affidavit, and 

evidence which emerges after the warrant is issued has no bearing on 

whether the warrant was validly issued.

21. Search Warrants: Time: Appeal and Error. A search warrant and 

application’s indicating incorrect dates of their drafting and signing is 

not per se fatal to the validity of a warrant.

22. Search Warrants: Appeal and Error. Misstatements within an application and warrant may still produce a valid warrant if the rest of the 

warrant and attached application cures any defect resulting from the 

scrivener’s error when read together.

23. Constitutional Law: Trial: Joinder. There is no constitutional right to 

a separate trial.

24. Trial: Joinder: Appeal and Error. Whether offenses were properly 

joined involves a two-stage analysis: (1) whether the offenses were sufficiently related to be joinable and (2) whether the joinder was prejudicial to the defendant.

25. Trial: Joinder: Presumptions. There is a strong presumption against 

severing properly joined counts.
- 952 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

26. Trial: Joinder: Appeal and Error. While Neb. Rev. Stat. § 29-2002 

(Reissue 2016) presents two separate questions, there is no error under 

either subsection (1) or (3) if joinder was not prejudicial, and a denial of 

a motion to sever will be reversed only if clear prejudice and an abuse 

of discretion are shown.

27. ____: ____: ____. An appellate court will find an abuse of discretion in 

the denial of a motion to sever only where the denial caused the defendant substantial prejudice amounting to a miscarriage of justice.

28. Trial: Joinder. Prejudice from joinder cannot be shown if evidence of 

one charge would have been admissible in a separate trial of another 

charge.

29. Criminal Law: Witnesses. Evidence of a defendant’s attempted intimidation or intimidation of a State’s witness is relevant evidence of a 

defendant’s conscious guilt that a crime has been committed.

30. Trial: Joinder: Juries: Evidence. Joined charges do not usually result 

in prejudice if the evidence is sufficiently simple and distinct for the 

jury to easily separate evidence of the charges during deliberations.

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Affirmed.

Beau Finley, of Law Offices of Beau Finley, P.C., L.L.O., 

for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

Michael D. Benson was convicted of second degree murder, 

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

deadly weapon by a prohibited person, and two counts of tampering with a witness. On appeal, Benson claims the district 

court erred in failing to suppress statements he made to law 

enforcement and cell phone data acquired pursuant to a search 

warrant. Benson also claims the court committed reversible 

error by declining to sever the two counts of tampering with 

a witness from the other charges. Finally, Benson claims there 
- 953 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

was insufficient evidence to support his convictions. For the 

reasons set forth herein, we affirm.

BACKGROUND

This case concerns the fatal shooting of James Womack on 

September 18, 2017. Pursuant to this shooting, Benson was 

charged by amended information with second degree murder, 

use of a deadly weapon (firearm) to commit a felony, and 

possession of a deadly weapon by a prohibited person. The 

information was amended a second time to add two counts of 

tampering with a juror, witness, or informant regarding telephone calls made by Benson to witnesses Deja Jefferson and 

Erica Guitron on February 11 and 12, 2019.

Motion to Suppress Statements

Prior to trial, Benson filed a motion to suppress and exclude 

any and all statements made by him to officers of the Omaha 

Police Department (Department) on September 20 and 23, 

2017. On September 20, Benson had made statements to Officer 

Mark Negrete to report that his pickup had been stolen and that 

he believed it may have been used in the commission of the 

shooting. Benson argued that his statements on September 20 

were inadmissible because he was subjected to custodial interrogation and never informed of his Miranda rights. Benson’s 

statements on September 23 occurred in an interview with 

Det. Ryan Davis on the report that his pickup had been stolen. 

Davis, who had been investigating Womack’s death, had evidence contradicting Benson’s claim that his pickup had been 

stolen and had evidence that indicated Benson was a party with 

knowledge of the shooting. While Benson waived his rights 

following Davis’ reading of a Miranda notice, Benson argued 

such waiver was not knowingly and freely given.

At a hearing on the motion, Negrete testified he was working patrol in his police uniform on September 20, 2017, and 

responded to a call concerning an individual wishing to report 

a stolen vehicle. Negrete first spoke to Sgt. Michael Ratliff of 

the homicide division, who gave him the assignment. Negrete 
- 954 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

testified that it was not typical on a day-to-day basis to get 

assignments from the homicide unit. Ratliff told Negrete that 

he wanted him to take the report from the vehicle’s owner, 

advised that the “vehicle may have been involved in a homicide,” and mentioned Benson’s name. Ratliff talked to Negrete 

about Negrete’s body camera recording of his interaction with 

Benson. Ratliff’s call with Negrete lasted about 3 minutes 

and occurred about 15 minutes prior to Negrete’s receiving 

another call from dispatch about taking the report on the stolen vehicle.

When Negrete arrived at Benson’s apartment, he met Benson 

in the parking lot. Negrete asked for Benson’s name and proof 

of identification, but Benson did not have his identification, so 

he turned to get it from his apartment. Before Benson could go 

to his apartment, however, Negrete continued to ask him questions and get the information about the stolen vehicle while the 

parties were in the parking lot. Benson reported that at about 

2 to 3 a.m. on September 17, 2017, he was visiting someone’s 

residence and went outside to find his pickup was missing. 

After taking most of the information for the report, Negrete 

returned to his patrol vehicle, and Benson went to his apartment, where he located his identification and then provided it 

to Negrete.

Det. Derek Mois testified that he works on a team within 

the homicide division led by Ratliff and in which Davis was 

a member. This team was assigned the Womack homicide, 

and Davis was its lead detective. Mois explained that through 

initial investigation, the Department had acquired and released 

to the public details and photographs of a potential suspect’s 

vehicle. Pursuant to calls from the public describing the location of a pickup matching the released information, officers 

were able to locate a pickup matching the description and 

observed particular identifiers known by the Department. This 

pickup was registered to Benson and to Jefferson, and Mois 

explained that Davis obtained a search warrant to collect 

and process it. The processing of the pickup revealed items 
- 955 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

including shell casings and a September 18, 2017, receipt 

from a Hy-Vee grocery store on 96th and Q Streets in Omaha, 

Nebraska. Mois testified that he conducted followup with 

Hy-Vee employees and watched Hy-Vee’s video surveillance, 

which showed Benson with his pickup at around 2 p.m., about 

3 hours before Womack was shot.

Mois testified that on September 20, 2017, he fielded a call 

from a man identifying himself as the owner of the pickup 

which had been seized the day before. The man was concerned 

about reports that the pickup had been used in connection with 

a crime and wanted to report it as stolen. Mois told the man 

that if he had not been in possession of the pickup and believed 

it was stolen, he first needed to call the 911 emergency dispatch service to issue a report. The parties did not discuss the 

matter further, and Mois informed Ratliff of the call once he 

hung up. Mois explained that at the time of the call, the team 

only had reason to believe the pickup was potentially involved 

in a crime and had no other reasons to suspect that Benson, as 

the owner of the pickup, was himself involved.

Mois described that he was in his Department office on 

September 23, 2017, when Davis interviewed Benson concerning the pickup and the evidence conflicting with the report 

Benson gave to Negrete. At that point, Mois explained, investigators suspected Benson’s participation in Womack’s homicide 

due to the identification of his pickup, evidence found in the 

search of the pickup, and evidence contradicting Benson’s 

report that his pickup was stolen. Mois testified that the 

interview was conducted on the fourth floor of Department 

headquarters in a homicide interview room. Mois had been 

in and out of a conference room where detectives could listen in on the interview, and he later reviewed a recording of 

the interview.

Mois explained that Davis read Benson his Miranda rights 

and that Benson waived his rights and agreed to speak. Davis 

initially asked Benson for details surrounding the theft of his 

pickup, and Benson’s answers did not vary substantively from 
- 956 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

the report he gave Negrete. After this initial questioning, Davis 

left the room for around 90 seconds, and when he returned, 

Mois described that the questioning changed. For about the 

next 11⁄2 hours, Davis confronted Benson about evidence which 

contradicted his report and repeatedly brought up the evidence 

that showed Benson with the pickup at Hy-Vee after the time 

he reported the pickup had been stolen. Benson was arrested 

after the interview once Davis had an opportunity to confer 

with Ratliff and possibly the county attorney’s office.

Davis also testified concerning Benson’s interview on 

September 23, 2017. According to Davis, Ratliff had informed 

him earlier in the day that Benson would be coming in for 

the interview. Davis’ first interaction with Benson was after 

he had already been led into the interview room by other law 

enforcement personnel. Davis explained that he performed 

a pat-down search, introduced himself, and asked Benson 

identifying information. At this point, Davis read Benson his 

Miranda rights and Benson waived those rights and agreed to 

speak with Davis. For around the first 45 minutes, Davis and 

Benson discussed Benson’s report. However, Davis was aware 

of Benson’s previous statements to Negrete and the evidence 

contradicting his allegations and the timeline. Davis left the 

interview room briefly, and when he returned, his questioning shifted to confronting and questioning Benson about the 

contradictions, including the evidence about his presence at 

Hy-Vee with the pickup after he alleged that it had been stolen. 

Davis explained that this shift in questioning was because he 

first wanted to give Benson an opportunity to provide clarifying information that explained the contradictions. After the 

interview, Benson was arrested.

Following the hearing, the district court denied Benson’s 

motion. The court found Benson’s September 20, 2017, statements to Negrete were admissible because Benson was not 

in custody when Negrete was taking his report and, as such, 

Benson was not required to make a knowing and voluntary 

waiver of his Miranda rights before he could be questioned. 
- 957 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

The court also found Benson’s September 23 statements to 

Davis were admissible because Davis informed Benson of his 

Miranda rights, Benson waived his rights and agreed to talk to 

Davis, and there is no requirement that law enforcement officers fully inform a suspect of all the evidence they have before 

that suspect can make a knowing and voluntary waiver.

Motion to Suppress 

Cell Phone Data

Benson filed an additional motion to suppress any and all 

evidence obtained from the execution of a search warrant of 

Benson’s cell phone data. Benson argued that the search warrant and application were facially invalid due to their use of an 

incorrect date and that there was insufficient credible evidence 

to establish the necessary probable cause.

A hearing was held in which Davis testified that on 

September 20, 2017, he applied for a search warrant for 

telephone numbers connected to Benson, which was granted. 

Davis explained that the county attorney’s office notified him 

in November 2018 that there appeared to be a discrepancy 

with some of the dates in the search warrant and application. 

Davis subsequently reviewed the search warrant and observed 

typographical errors. Davis testified he did not know about the 

incorrect date at the time of applying, executing, or returning 

the search warrant.

Although Davis filled out the application and search warrant on September 20, 2017, the application and search warrant listed September 18, which is the date of Womack’s 

homicide, as the date the application and warrant were filled 

out and signed. Davis explained he used a template created by 

the Department’s forensic unit and that when he mistakenly 

put September 18 into the application, the template automatically filled in that date throughout the application and 

search warrant.

The narrative portion of the affidavit in support of the application lists correct dates in the timeline of the offense and 
- 958 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

investigation, including reference to the September 20, 2017, 

execution of a different search warrant. Additionally, the order 

to seal attached to the search warrant and signed by the court 

was dated September 20, 2017, and the return and inventory 

filed by Davis described serving the warrant on September 

20. A fax cover sheet sent with the application for the cell 

service carrier to execute the search warrant, a confirmation 

sheet from the fax machine to confirm the fax was sent, and 

emailed correspondence with the cell service carrier also listed 

September 20.

Following the hearing, the district court denied Benson’s 

motion. The court found that there was sufficient evidence to 

establish probable cause and that the erroneous dates appearing on the application and search warrant were inadvertent 

errors which did not affect their validity.

Motion to Sever

Benson filed a motion to sever the charges of second degree 

murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person from the 

two counts of tampering with a juror, witness, or informant. 

Benson argued that the claimed offenses were not similar in 

character and that Benson would be prejudiced in the joining 

of the charges.

The district court overruled Benson’s motion. The court 

found that the counts were properly charged in the second 

amended information and that joining the tampering charges to 

the other charges would not prejudice Benson pursuant to Neb. 

Rev. Stat. § 29-2002(3) (Reissue 2016).

Trial

Evidence presented at trial showed that around 4:30 p.m. 

on September 18, 2017, law enforcement responded to 911 

calls regarding a shooting at the intersection of 60th and L 

Streets in Omaha. Officers observed a man, later identified as 

Womack, lying on the median near the intersection. Medical 

personnel arrived, took over Womack’s care, and transported 
- 959 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

him to a hospital where he later died from his wounds. Officers 

discovered a spent “5.7 by 28 caliber casing” on the ground at 

the scene.

Officers interviewed witnesses as part of their initial investigation. These witnesses, taken together, indicated that Womack 

and a tan-colored pickup with two occupants were stopped at a 

red light. Womack’s semi-truck was in a through lane while the 

tan-colored pickup was stopped in a left-turn lane. Womack got 

out of his semi-truck, approached the pickup, hit the pickup’s 

window with his hand, and said something to the occupants. 

Womack then turned around and began walking back to his 

semi-truck, and one of the pickup’s occupants fired a gun 

which hit Womack twice in the back. The pickup then ran the 

red light, turned left, and sped off.

Law enforcement obtained video recordings from nearby 

businesses and vehicles at the intersection. From these videos, 

officers were able to develop a description of the pickup as 

an older, tan-colored extended-cab model with heavily tinted 

windows, noticeable damage to the rear quarter panels, and a 

distinctive rear bumper sticker. The video from a vehicle also 

allowed officers to confirm that there were two occupants in 

the pickup, gunshots came from the pickup, and the pickup ran 

the red light after the shooting. Additionally, this video showed 

movement of the passenger in the pickup as the shots were 

being fired.

The Department released still images from the videos displaying the pickup to the media for the public’s help in its 

identification. On September 19, 2017, a Department detective 

received a telephone call from a special agent who relayed that 

one of his informants had seen the images of the pickup on the 

news and believed it belonged to Benson and was parked in 

a parking lot at 46th and Cass Streets in Omaha. Pursuant to 

this information, officers, including that detective, went to the 

parking lot and found a pickup matching the description.

The search and processing of the pickup on the morning 

of September 20, 2017, revealed a Hy-Vee receipt for flowers 
- 960 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

from the store on 96th and Q Streets on September 18 at 

1:06 p.m., two spent casings of the same caliber as the one 

found at the scene, gunshot residue from various parts of the 

passenger area, and a receipt from an automobile dealership 

and the pickup’s registration indicating Benson and Jefferson 

were its owners. Following up on the Hy-Vee receipt, Mois 

obtained video from the Hy-Vee store which showed Benson 

entering and leaving the store, by himself. The video also 

showed Benson returning to the pickup around 1 p.m. on 

September 18.

Later on September 20, 2017, another detective went to the 

dealership named on the receipt, where he obtained records 

for the sale of the pickup, including Benson’s cell phone number. The dealership had a lien on the pickup and had access 

to a tracking device on it, data from which the dealership 

provided law enforcement. This tracking device did not constantly record. Instead, it recorded locations during periodic 

“health check[s]” and whenever the pickup was turned on or 

off, which the device determined when it detected movement 

above a certain threshold or stopped moving for a certain 

period of time. The tracking device recorded that during data 

entries on September 17 at around 12:43 a.m., 6:44 a.m., 

and 7:49 p.m., the pickup was parked in the same location. 

Additionally, the tracking data recorded that the pickup was 

at the Hy-Vee parking lot on 96th and Q Streets on September 

18 at 1 p.m.

Benson’s cell phone records provided data which law 

enforcement was able to use to estimate the locations of his 

cell phone around the time of Womack’s homicide. These 

records included a 4:30 p.m. call which put the cell phone 

around the intersection at 60th and L Streets.

At Benson’s direction, Jefferson called law enforcement on 

September 20, 2017, to report that the pickup had been stolen 

on September 17. Benson had previously told Jefferson that 

the pickup was stolen but did not tell her to report it until 

September 20. Negrete went to their apartment to follow up on 
- 961 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

the report, and Benson alleged that the pickup was stolen on 

September 17.

During the execution of a search warrant of Benson’s apartment on September 22, 2017, officers discovered clothing 

that matched what Benson was wearing in the Hy-Vee video. 

Testing of samples taken from this clothing revealed the presence of gunshot residue.

On September 23, 2017, Benson went to Department headquarters and was interviewed by Davis concerning the alleged 

theft of his truck. After an initial discussion where Davis asked 

about Benson’s allegations, Davis confronted Benson about the 

evidence which contradicted his timeline. Benson maintained 

he was not involved in Womack’s homicide, and at the end of 

the interview, Benson was arrested.

Jefferson testified that she and Benson were in an intimate relationship and that they had children together. Benson, 

Jefferson, and the children lived together in the apartment, but 

Benson did not always stay there. Jefferson identified the suspect pickup as Benson’s, explained that Benson had asked her 

to report it as stolen, and testified that Benson did not stay at 

the apartment the night of the shooting.

Guitron worked with and was also in an intimate relationship with Benson. Guitron testified that Benson bought her 

flowers on the afternoon of September 18, 2017, and confirmed 

text messages he sent her, including two from around the time 

of the shooting that said “just got in2 sum shitt” and that he 

could not text anything else about it.

Law enforcement recorded telephone calls from Benson to 

Jefferson and Guitron while Benson was in jail. During these 

calls, Benson told Jefferson and Guitron at different times not 

to cooperate with the authorities.

Marvin Stockdale, who was in jail at the same time as 

Benson, testified that he and Benson had a conversation while 

in a holding cell. Stockdale explained that Benson talked 

with him about his case and said, among other things, that he 

“‘got rid of the gun after [he] smoked the dude’” and that he 
- 962 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

was worried about the forensics on the hooded sweatshirt and 

whether investigators would find gunpowder on it. Additionally, 

Stormy Figueroa, a friend and coworker of Benson’s, said that 

she talked with him about the shooting and that Benson said, 

“‘Well, yeah, I mean, if somebody like that came in my property, then, yeah, I’d shoot him, too.’”

Following the presentation of evidence and arguments from 

the parties, Benson was found guilty and sentenced to 40 to 50 

years’ imprisonment for second degree murder, 20 to 25 years’ 

imprisonment for use of a deadly weapon to commit a felony, 

5 to 10 years’ imprisonment for possession of a deadly weapon 

by a prohibited person, and 1 to 2 years’ imprisonment on each 

count of tampering with a witness.

ASSIGNMENTS OF ERROR

Benson assigns, restated, that the district court erred by 

(1) failing to suppress Benson’s statements to Negrete on 

September 20, 2017; (2) failing to suppress Benson’s statements to Davis on September 23; (3) failing to suppress 

Benson’s cell phone data acquired pursuant to a search warrant 

issued on September 20; and (4) overruling Benson’s motion 

to sever the two tampering counts from the initial charges. 

Benson also assigns there was insufficient evidence to support 

his convictions.

STANDARD OF REVIEW

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

an appellate court applies a two-part standard of review. 1

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of 

law that an appellate court reviews independently of the trial 

court’s determination. 2

1 State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).

2 Id.
- 963 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

[2] A trial court’s denial of a motion to sever will not be 

disturbed on appeal absent an abuse of discretion. 3

[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. 4 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. 5

ANALYSIS

Benson’s September 20, 2017, Statements

Benson claims his statements to Negrete on September 20, 

2017, should have been suppressed because he was subjected 

to custodial interrogation and was not advised of his Miranda

rights. Benson argues he was detained by Negrete during the 

encounter as evidenced by his attempt to return to his apartment and Negrete’s continued questioning.

[4-6] Miranda v. Arizona 6 prohibits the use of statements 

derived during custodial interrogation unless the prosecution 

demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination. Miranda

requires law enforcement to give a particular set of warnings 

to a person in custody before interrogation, including that he or 

she has the right to remain silent, that any statement he or she 

makes may be used as evidence against him or her, and that he 

3 See State v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015).

4 State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017); State v. 

Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).

5 Mendez-Osorio, supra note 4; Jedlicka, supra note 4.

6 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966). See, also, State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).
- 964 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

or she has the right to an attorney. 7 These warnings are considered prerequisites to the admissibility of any statement made 

by a defendant during custodial interrogation. 8

[7-10] Miranda warnings are required only when a suspect 

interrogated by the police is in custody. 9 The ultimate inquiry 

for determining whether a person is in custody is whether 

there is a formal arrest or restraint on freedom of movement of 

degree associated with a formal arrest. 10 Custody is to be determined based on how a reasonable person in the suspect’s situation would perceive his or her circumstances. 11 Stated another 

way, a seizure under the Fourth Amendment occurs only if, 

in view of all the circumstances surrounding the incident, a 

reasonable person would have believed that he or she was not 

free to leave. 12

[11] In considering whether a suspect is in custody for 

Miranda purposes, relevant considerations include, but are not 

limited to the location of the interaction, who initiated the interaction, the duration of the interaction, the type and approach 

of questioning, the freedom of movement of the suspect, the 

duration of the interaction, and whether the suspect was placed 

under arrest at the termination of the interaction. 13

Here, Benson was not in custody during his interaction 

with Negrete on September 20, 2017. Benson initiated the 

interaction by asking Jefferson to call and report the pickup as 

stolen. Negrete was assigned the task of taking the stolen vehicle report and arrived at Benson’s apartment complex, where 

he made contact with Benson. Throughout the conversation, 

7 Miranda, supra note 6. See, also, Juranek, supra note 6.

8 State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019).

9 Id.

10 Id.

11 Id.

12 See State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).

13 See Montoya, supra note 8. See, also, U.S. v. Axsom, 289 F.3d 496 (8th 

Cir. 2002); State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
- 965 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

the parties’ discussion was centered on the alleged theft of 

Benson’s pickup, which he requested to have documented in 

the report. The majority of the conversation occurred outside 

in the apartment’s parking lot. Benson’s movement was not 

substantially restricted, and at one point, the parties separated 

with Negrete returning to his vehicle and Benson going to his 

apartment to get proof of identification. The interaction was 

not uncommonly long, and at the conclusion, Benson was not 

placed under arrest.

Benson argues that his movement was restricted when, 

after Negrete asked for identification, Benson turned to get 

his identification from his apartment but Negrete continued to 

question him in the parking lot instead. Contrary to Benson’s 

argument, this exchange is insufficient to show Benson was 

restricted in his movement or ability to leave and terminate 

the conversation. This exchange occurred shortly after the 

conversation began with Negrete’s getting Benson’s name and 

asking whether he had any identification on him. Benson did 

not have his identification with him, and Negrete asked him 

whether his identification was in the apartment. At that point, 

Benson turned to go back to apartment, but before he left, 

Negrete shifted the conversation by asking questions about the 

theft Benson sought to report. In context, Benson was not turning to leave and terminate the conversation but was, instead, 

seeking to continue the interaction by getting the documentation he thought Negrete wanted. This exchange, on its own, 

does not demonstrate that Benson was in custody requiring 

Miranda warnings.

Benson also points to Ratliff’s participation in assigning 

Negrete to take the report. Benson argues that this fact, coupled 

with Negrete’s previous knowledge of Womack’s homicide and 

the use of his body camera to record the interaction, establishes that Negrete’s taking of Benson’s report was “plainly to 

gain a statement from a homicide suspect in a manner that the 

suspect would not at all anticipate or contemplate.” 14

14 Brief for appellant at 30.
- 966 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

[12] Regardless of Ratliff’s or Negrete’s intent, the test 

for determining custody is an objective inquiry that does not 

depend on the subjective views harbored by either the interrogating officer or person being interrogated. 15 Instead, the 

question is determined based on how a reasonable person in the 

suspect’s situation would perceive the circumstances. 16

As the district court found, under the totality of the circumstances, a reasonable person would not have believed he or she 

was unable to leave or terminate the interaction. Benson initiated the interaction, which occurred in an open, neutral space; 

the subject of the interaction was limited to Benson’s report on 

his allegedly stolen pickup; Benson was not restricted in his 

movements; and the interaction was a relatively short one after 

which Benson was not arrested. Benson was not in custody, 

and Negrete was not required to provide Miranda warnings. 

Accordingly, the district court did not err in declining to suppress Benson’s September 20, 2017, statements.

Benson’s September 23, 2017, Statements

Benson assigns the district court should have suppressed his 

statements to Davis on September 23, 2017, because he did not 

knowingly and voluntarily waive his Miranda rights.

[13,14] To be a valid waiver of Miranda rights, a waiver 

must be knowingly and voluntarily made. 17 A waiver is knowing if it is made with a full awareness of both the nature of the 

right being abandoned and the consequences of the decision to 

abandon it. 18 A waiver is voluntary if it is the product of a free 

and deliberate choice rather than through intimidation, coercion, or deception. 19 Whether a knowing and voluntary waiver 

15 Montoya, supra note 8.

16 Id.

17 See, State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018); State v. 

Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

18 Id.

19 Id.
- 967 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

has been made is determined by looking to the totality of the 

circumstances. 20

There is no dispute that the September 23, 2017, interview 

occurred after Benson was fully advised of his Miranda rights 

and that Benson issued a waiver of those rights and agreed to 

speak with Davis. There is also no dispute that Benson had 

reason to believe the interview would concern the report of his 

allegedly stolen pickup, which report Benson indicated to Mois 

he wished to make because he was worried about reports it was 

involved in a homicide.

Benson, instead, argues this Miranda waiver was insufficient because he did not know that he was a suspect in 

Womack’s homicide and that Davis had evidence contradicting 

his report. Benson also claims Davis misled him during the 

interview by using Benson’s lack of knowledge presumably 

to gain a “tactical edge” in the interview and get Benson to 

incriminate himself. 21

[15] While waiver must be knowingly made, law enforcement is not required to inform a suspect of all aspects of the 

investigation prior to the waiver of the suspect’s Miranda

rights. In Colorado v. Spring,

 22 the U.S. Supreme Court stated, 

“‘[W]e have never read the Constitution to require that the 

police supply a suspect with a flow of information to help him 

calibrate his self-interest in deciding whether to speak or stand 

by his rights.’” The Court explained:

This Court’s holding in Miranda specifically required 

that the police inform a criminal suspect that he has 

the right to remain silent and that anything he says 

may be used against him. There is no qualification of 

this broad and explicit warning. The warning, as formulated in Miranda, conveys to a suspect the nature of his 

20 Id.

21 Brief for appellant at 34.

22 Colorado v. Spring, 479 U.S. 564, 576-77, 107 S. Ct. 851, 93 L. Ed. 2d 

954 (1987).
- 968 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

constitutional privilege and the consequences of abandoning it. Accordingly, we hold that a suspect’s awareness 

of all the possible subjects of questioning in advance of 

interrogation is not relevant to determining whether the 

suspect voluntarily, knowingly, and intelligently waived 

his Fifth Amendment privilege. 23

Davis was not required to disclose his strategy for the 

interview or his knowledge of contradictory evidence prior 

to Benson’s waiver. Davis was not required to explain to 

Benson the interrogation strategy Davis planned to use or to 

disclose to Benson the evidence Davis possessed contradicting Benson’s stolen vehicle report. Davis was merely required 

to advise Benson of his Miranda rights. Davis read Benson 

a sufficient explanation of these rights, and Benson chose to 

waive them.

Benson cites several instances where he claims Davis made 

misleading statements that indicated he was concerned only 

about the return of Benson’s allegedly stolen pickup, and, as 

such, Benson argues such representation prohibited a knowing 

and voluntary waiver because it caused Benson to be unaware 

of the actual topic of discussion. It is unclear how Benson is 

claiming these statements led to an invalid waiver, because 

they were made after Benson was read and waived his Miranda

rights. Regardless, and contrary to Benson’s argument, he was 

informed of the nature of the interview. As explained above, 

Benson had called Mois seeking to report his pickup as stolen 

due to concerns it may have been involved in Womack’s shooting. He then provided a report to Negrete alleging someone 

had stolen the pickup the day before Womack was killed. It 

is unchallenged that all parties understood the September 23, 

2017, interview as followup to this report.

[16] Benson also takes issue with Davis’ shift in questioning from asking questions to clarify Benson’s report to 

confronting Benson on evidence contradicting his report. As 

23 Id., 479 U.S. at 577.
- 969 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

explained above, Davis was not required to reveal his interrogation strategy prior to Benson’s waiver. Additionally, to the 

extent Benson’s argument could be claiming that the difference in interview strategy would necessitate a further waiver, 

we have previously stated that law enforcement officers “‘are 

not required to rewarn suspects from time to time.’” 24 The 

Miranda rule and its requirements are met if a suspect receives 

adequate Miranda warnings, understands them, and has an 

opportunity to invoke the rights before giving any answers or 

admissions. 25

In consideration of all of the above, Benson’s waiver of his 

Miranda rights before the interview with Davis was knowingly 

and voluntarily given and the district court did not err in declining to suppress Benson’s September 23, 2017, statements.

Search Warrant For Benson’s 

Cell Phone Data

Benson’s assignment that the district court erred in failing to 

suppress his cell phone data centers on his argument that the 

search warrant granting access to this data was invalidly deficient due to misstatements of the warrant and the application’s 

drafting and approval date.

The Fourth Amendment to the U.S. Constitution provides 

that warrants may not be granted “but upon probable cause, 

supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to 

be seized.” The Nebraska Constitution, under article I, § 7, 

similarly provides that “no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly 

describing the place to be searched, and the person or thing to 

be seized.”

[17-20] In reviewing the strength of an affidavit submitted 

as a basis for finding probable cause to issue a search warrant, 

24 Burries, supra note 17, 297 Neb. at 389, 900 N.W.2d at 504.

25 Id.
- 970 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

an appellate court applies a totality of the circumstances test. 26

The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had 

a substantial basis for finding that the affidavit established 

probable cause. 27 Probable cause sufficient to justify issuance 

of a search warrant means a fair probability that contraband 

or evidence of a crime will be found. 28 In evaluating the sufficiency of an affidavit used to obtain a search warrant, an 

appellate court is restricted to consideration of the information and circumstances contained within the four corners of 

the affidavit, and evidence which emerges after the warrant 

is issued has no bearing on whether the warrant was validly issued. 29

Benson argues that the application and search warrant fail 

to provide an “accurate timeline for the events” and make no 

“chronological sense” due to their use of an incorrect drafting 

and approval date. 30 As such, Benson claims, they fail to provide sufficient probable cause.

We disagree with Benson’s description that the application and warrant fail to provide an accurate timeline of the 

events to establish probable cause. The incorrect dates used 

in the application and warrant were limited to descriptions of 

when the application and warrant were drafted and approved. 

These dates are not part of the factual basis the State alleged 

established probable cause. Instead, the narrative portion of 

the application, where Davis provided a factual basis for the 

search, lists correct dates in the timeline of the offense and 

investigation. Misstating the date the application and warrant 

were drafted and approved is irrelevant to establishing the 

timeline of events to determine probable cause.

26 State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).

27 Id.

28 Id.

29 Id.

30 Brief for appellant at 37.
- 971 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

[21,22] A search warrant and application’s indicating incorrect dates of their drafting and signing is not per se fatal to the 

validity of a warrant. 31 Misstatements within an application and 

warrant may still produce a valid warrant if the rest of the warrant and attached application cures any defect resulting from 

the scrivener’s error when read together. 32 For instance, in the 

context of warrants and applications misstating addresses of a 

place to be searched, we have held that even if the numerical 

address is wrong, a warrant may still be valid if the description is adequate to direct the officer to the correct place for 

the search. 33

In this case, the totality of the warrant and its attachments 

establishes that the date misidentified as the date of drafting 

and approval was a typographical error and sufficiently identifies September 20, 2017, as the correct date of drafting and 

approval. As noted above, the narrative section of the warrant 

correctly lists dates in the timeline of the offense and investigation. This section describes events occurring subsequently to 

September 18, including reference to the execution of a different search warrant on September 20. Additionally, an order to 

seal was attached to the search warrant which was signed by 

the court at the time of the search warrant’s approval and was 

dated September 20, 2017.

We conclude the warrant and application’s identification of 

September 18, 2017, as the drafting and approval date was a 

scrivener’s error corrected when the warrant and its attachments are read together. Moreover, the misuse of these dates 

does not affect the description of the timeline of the offense 

and investigation which the State offered as the basis for probable cause. As such, the error did not invalidate the warrant and 

the district court did not err in declining to suppress Benson’s 

cell phone data.

31 See State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).

32 Id.

33 See, State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991); State v. 

Walters, 230 Neb. 539, 432 N.W.2d 528 (1988).
- 972 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

Motion to Sever

Benson assigns the district court erred in failing to sever 

the tampering charges. Benson argues the charges are not 

sufficiently similar to allow for joinder in that the tampering counts have no elemental similarities, were not a 

common scheme or plan, and concern acts which occurred 

nearly 17 months after Womack’s killing, which precipitated 

the other counts. Benson asserts he was prejudiced by this 

joinder because the State offered evidence to establish the 

tampering clauses that improperly bolstered Jefferson’s and 

Guitron’s testimony and “mudd[ied] the evidentiary waters” 

for the jury. 34

[23-25] There is no constitutional right to a separate trial. 35

Instead, the joinder or separation of charges for trial is governed by § 29-2002, which states, in relevant part:

(1) Two or more offenses may be charged in the 

same indictment, information, or complaint in a separate 

count for each offense if the offenses charged, whether 

felonies or misdemeanors, or both, are of the same or 

similar character or are based on the same act or transaction or on two or more acts or transactions connected 

together or constituting parts of a common scheme or 

plan.

. . . .

(3) If it appears that a defendant or the state would 

be prejudiced by a joinder of offenses in an indictment, 

information, or complaint . . . the court may order an 

election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, 

or provide whatever other relief justice requires.

Summarized, whether offenses were properly joined involves 

a two-stage analysis: (1) whether the offenses were sufficiently related to be joinable and (2) whether the joinder was 

34 Brief for appellant at 41.

35 See State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
- 973 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

prejudicial to the defendant. 36 There is a strong presumption 

against severing properly joined counts. 37

[26,27] While § 29-2002 presents two separate questions, 

there is no error under either subsection (1) or (3) if joinder 

was not prejudicial, and a denial of a motion to sever will be 

reversed only if clear prejudice and an abuse of discretion are 

shown. 38 An appellate court will find such an abuse only where 

the denial caused the defendant substantial prejudice amounting to a miscarriage of justice. 39

A defendant appealing the denial of a motion to sever has 

the burden to show compelling, specific, and actual prejudice. 40 Severe prejudice occurs when a defendant is deprived 

of an appreciable chance for an acquittal, a chance that the 

defendant would have had in a severed trial. 41

In the instant case, we need not consider whether the tampering counts were sufficiently related to be properly joined 

under § 29-2002(1), because Benson has failed to show prejudice from the joinder. Essentially, Benson argues that the 

evidence of the tampering counts, which indicated he did 

not want Jefferson or Guitron to provide the State damaging 

testimony, influenced the jury’s verdicts because it made him 

look guilty and added unwarranted emphasis to Jefferson’s and 

Guitron’s testimony.

[28,29] Prejudice from joinder cannot be shown if evidence 

of one charge would have been admissible in a separate trial 

of another charge. 42 Benson does not explain why evidence 

36 See id. See, also, State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), 

disapproved on other grounds, State v. Avina-Murillo, 301 Neb. 185, 917 

N.W.2d 865 (2018).

37 Cotton, supra note 36. See, also, Briggs, supra note 35.

38 See Briggs, supra note 35.

39 See id.

40 See id.

41 Id.

42 State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). See, also, Cotton, 

supra note 36.
- 974 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

of Benson’s telephone calls with Jefferson and Guitron would 

be inadmissible in a separate trial on the other three charges. 

Evidence of a defendant’s attempted intimidation or intimidation of a State’s witness is relevant evidence of a defendant’s “‘conscious guilt’” that a crime has been committed. 43

Accordingly, Benson’s calls with Jefferson and Guitron could 

be admissible as relevant to Benson’s consciousness of guilt in 

a separate trial.

[30] Additionally, joined charges do not usually result in 

prejudice if the evidence is sufficiently simple and distinct 

for the jury to easily separate evidence of the charges during 

deliberations. 44 The jury in this case would have been able to 

easily separate the evidence of the charges during deliberations 

in that the evidence that Benson tampered with witnesses was 

distinct. While the telephone calls may have been relevant to 

the other charges and a consciousness of guilt, it was clear they 

were offered to show Benson was attempting to get Jefferson 

and Guitron not to participate in his prosecution.

Because Benson failed to establish prejudice from the joinder of the charges, the district court did not abuse its discretion 

in overruling Benson’s motion to sever.

Sufficiency of Evidence

On his sufficiency of the evidence assignment of error, 

Benson first argues that the State presented insufficient evidence on the second degree murder, use of a deadly weapon, 

and possession of a deadly weapon charges. Benson argues 

the State failed to meet its burden to show that he was in the 

pickup at the time of the shooting and that he fired the gun.

As Benson acknowledges, the State did present evidence 

as to these elements. Evidence was received that Benson 

owned the pickup that was identified by witnesses and video 

as being the pickup from which the shots were fired that 

hit Womack and resulted in his death. Gunshot residue was 

43 State v. Thorpe, 280 Neb. 11, 24, 783 N.W.2d 749, 761 (2010).

44 Briggs, supra note 35.
- 975 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

discovered inside the pickup along with a casing that matched 

the same weapon as the casing found at the scene. Benson’s 

cell phone location put him in the area around the time of the 

shooting, and the Hy-Vee video showed Benson driving the 

truck 3 hours before the shooting. Gunshot residue was found 

on clothes matching the clothes Benson was wearing in the 

Hy-Vee video.

Witnesses testified as to statements Benson made indicating his participation. Guitron testified that Benson texted her 

around the time of the incident that he had “just got in2 sum 

shitt” but could not text anything about it. Figueroa testified 

that she talked with Benson about the shooting and that he 

said, “‘Well, yeah, I mean, if somebody like that came in my 

property, then, yeah, I’d shoot him, too.’” Finally, Stockdale 

testified that in talking with Benson about his case, Benson 

said that he “‘got rid of the gun after [he] smoked the dude’” 

and that he was worried about the forensics on the hooded 

sweatshirt and whether investigators would find gunpowder 

on it.

The court also received evidence of Benson’s consciousness 

of guilt in his lying to law enforcement about the pickup’s 

being stolen the night before the homicide and contacting witnesses to encourage their noncooperation with the prosecution 

of his case.

Benson seeks to overcome this evidence by contesting the 

credibility of Stockdale and Figueroa and the weight of the evidence of gunshot residue and the cell phone location. However, 

an appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh evidence when 

determining the sufficiency of the evidence. 45 The jury, as the 

finder of fact, heard Stockdale’s and Figueroa’s testimony, 

weighed the evidence of the gunshot residue and cell phone 

location evidence, and determined Benson was in the pickup 

and was the shooter. We conclude, viewing the evidence in the 

45 See Mendez-Osorio, supra note 4; Jedlicka, supra note 4.
- 976 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

light most favorable to the State, that there was sufficient evidence to support the jury’s finding of these essential elements 

beyond a reasonable doubt.

As to the two counts of tampering with a witness, Benson 

claims the State failed to meet its burden to prove he intended 

to tamper with or obstruct Jefferson and Guitron from testifying or cooperating with law enforcement. Benson argues 

that the State did not offer any evidence to directly establish 

intent and that it was “just as plausible” that he wanted the 

two women, with whom he was in romantic relationships, “not 

[to] cross paths as they likely would if both participated in 

the investigation.” 46

When viewed in the light most favorable to the State, there 

was again sufficient evidence for the jury to find the essential 

elements of the tampering charges. Benson was charged under 

Neb. Rev. Stat. § 28-919(1) (Reissue 2016), which provides, in 

relevant part:

(1) A person commits the offense of tampering with 

a witness . . . if, believing that an official proceeding or 

investigation of a criminal . . . matter is pending . . . , he 

or she attempts to induce or otherwise cause a witness or 

informant to:

(a) Testify or inform falsely;

(b) Withhold any testimony, information, document, or 

thing;

(c) Elude legal process summoning him or her to testify or supply evidence; or

(d) Absent himself or herself from any proceeding 

or investigation to which he or she has been legally 

summoned.

The State’s evidence of Jefferson’s and Guitron’s telephone 

calls with Benson provided sufficient basis for finding the 

required elements that Benson knew of his pending criminal 

case and that he acted to induce or cause Jefferson and Guitron 

46 Brief for appellant at 48.
- 977 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. BENSON

Cite as 305 Neb. 949

to refuse to comply with several subpoenas in the prosecution 

of that case. The recordings of these calls include Benson’s 

statement to Jefferson regarding her subpoena from the county 

attorney’s office, “‘You are not going to go down there.’” Also 

included is Benson’s statement to Guitron, “‘You don’t have 

to come and you don’t have to testify against me.’” Even if 

Benson were correct that the only reason for his telephone 

calls was to prevent Jefferson and Guitron from crossing paths, 

there was still evidence that he attempted to induce them not to 

testify or cooperate with law enforcement. Under § 28-919, a 

defendant’s reasons for attempting to induce a witness to commit any of the acts enumerated in it are not relevant.

We find that the State did present sufficient evidence for 

the jury to find the existence of the essential elements under 

§ 28-919(1).

CONCLUSION

We conclude that Benson was not under custody for Miranda

purposes in his September 20, 2017, interview with Negrete, 

that Benson knowingly and voluntarily waived his rights and 

agreed to speak with Davis in his September 23 interview, and 

that the search warrant for Benson’s cell phone data was not 

invalidated by the mistaken use of incorrect dates on the warrant and application. Further, Benson did not establish adequate 

prejudice from the joinder of his charges and the district court 

did not abuse its discretion in overruling his motion to sever. 

Finally, there was sufficient evidence to support the verdicts. 

Benson’s convictions are affirmed.

Affirmed.