- 702 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

State of Nebraska, appellee, v. 

Matthew J. Stubbendieck, 

appellant.

___ N.W.2d ___

Filed March 29, 2019. No. S-18-600.

1. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

2. Criminal Law: Convictions: Evidence: Appeal and Error. When 

reviewing a criminal conviction for sufficiency of the evidence to 

sustain the conviction, 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.

3. 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.

4. Trial: Rules of Evidence. A trial court exercises its discretion in determining whether evidence is relevant and whether its prejudicial effect 

substantially outweighs its probative value.

5. 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.

Nebraska Supreme Court Online Library

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

05/10/2019 12:07 AM CDT
- 703 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

6. Rules of Evidence. An analysis under Neb. Rev. Stat. § 27-403 (Reissue 

2016) consists of a balancing test, which is in large part left to the sound 

discretion of the trial court, absent an abuse of discretion.

7. ____. The “relevancy-versus-unfairly-prejudicial-effect-balancing” test 

seeks to weigh the probative value of the proffered evidence against the 

nonprobative factors listed in Neb. Rev. Stat. § 27-403 (Reissue 2016).

8. Evidence: Words and Phrases. Probative value is a relative concept 

involving a measurement of the degree to which the evidence persuades 

the trier of fact that the particular fact exists and the distance of the 

particular fact from the ultimate issue of the case.

9. Rules of Evidence: Appeal and Error. Most, if not all, items which 

one party to an action offers in evidence are calculated to be prejudicial 

to the opposing party; therefore, it is only unfair prejudice with which 

an appellate court is concerned.

10. Rules of Evidence: Words and Phrases. “Unfair prejudice,” in the 

context of Neb. Rev. Stat. § 27-403 (Reissue 2016), means a tendency 

to suggest a decision on an improper basis.

11. Criminal Law: Evidence. A defendant cannot negate an exhibit’s probative value through a tactical decision to stipulate.

12. Aiding and Abetting: Proof. Aiding and abetting requires some participation in a criminal act which must be evidenced by word, act, or deed, 

and mere encouragement or assistance is sufficient to make one an aider 

or abettor. No particular acts are necessary, however, nor is it necessary 

that the defendant take physical part in the commission of the crime or 

that there was an express agreement to commit the crime.

13. ____: ____. Evidence of mere presence, acquiescence, or silence is not 

enough to sustain the State’s burden of proving guilt under an aiding and 

abetting theory.

14. Criminal Law. The corpus delicti may be proved by circumstantial 

evidence.

15. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is evidence which, without going directly to prove the existence 

of a fact, gives rise to a logical inference that such fact exists.

16. Criminal Law: Evidence: Confessions: Proof. An extrajudicial admission or a voluntary confession is, standing alone, insufficient to prove 

that a crime has been committed, but either or both are competent 

evidence of the fact and may, with corroborative evidence of facts and 

circumstances, establish the corpus delicti and guilty participation of 

the defendant.

Appeal from the District Court for Cass County: Michael A. 

Smith, Judge. Affirmed.
- 704 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

Julie E. Bear, Deputy Cass County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

Matthew J. Stubbendieck was convicted of the crime of 

assisting suicide,1 a Class IV felony, in regard to the death of 

Alicia Wilemon-Sullivan (Sullivan). Stubbendieck was sentenced to a term of probation. He appeals his conviction on 

various evidentiary grounds. We affirm.

II. BACKGROUND

On August 5, 2017, deputies from the Cass County Sheriff’s 

Department were dispatched to an address in Weeping Water, 

Cass County, Nebraska, in response to a report of a suicide.

Upon arrival, deputies spoke to Stubbendieck, who reported 

that his girlfriend, Sullivan, had killed herself days prior. After 

being interviewed for more than an hour, Stubbendieck led 

deputies to Sullivan’s body. The body was located in a densely 

wooded area of private land that once operated as a rock 

quarry.

Upon examination, it was determined that Sullivan’s body 

was in the early stages of decomposition. Despite the stage 

of decomposition to the body, deputies noted injuries to both 

of Sullivan’s wrists and further observed a knife located 

under Sullivan’s left hand. In the immediate area surrounding 

Sullivan’s body, deputies located two water bottles (one containing an unknown dark liquid), a potato chip can, a purse, a 

1 Neb. Rev. Stat. § 28-307 (Reissue 2016).
- 705 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

pair of sandals, and boxer briefs. The boxer briefs were later 

identified as belonging to Stubbendieck.

During the course of the investigation, Stubbendieck told 

investigators that he believed Sullivan was suffering from 

“Stage IV cancer.” Stubbendieck indicated that Sullivan 

“hated” hospitals, but had been convinced by friends to undergo 

radiation treatments in Jacksonville, Florida. According to 

Stubbendieck, Sullivan terminated radiation therapy after only 

5 weeks because her condition had not improved. 

Investigators employed “Cellebrite,” a technology used to 

conduct cell phone information extraction, and recovered from 

Stubbendieck’s cell phone numerous text messages between 

Sullivan and Stubbendieck in the weeks leading up to Sullivan’s 

death. In those text messages, Sullivan represents herself as 

being hospitalized, in pain, dying, and not able to live any 

longer.

Text messages from Sullivan’s cell phone show a persistent 

state of suicidal ideation, evidenced by Sullivan’s repeated 

threats of self-harm. Throughout the course of the lengthy text 

message transcript, it is clear that Stubbendieck and Sullivan 

developed a plan in which Sullivan would travel by plane 

from Florida to Nebraska in order to marry Stubbendieck, 

and then “go out in [Stubbendieck’s] arms as [his] wife,” a 

reference to a prearranged plan in which Sullivan would end 

her life.

Stubbendieck subsequently enlisted the assistance of his 

mother to purchase a one-way airline ticket to bring Sullivan 

to Nebraska. Prior to Sullivan’s arrival, Stubbendieck set 

out in search of narcotics in order to assist Sullivan in committing suicide. According to Christine Timbs, a romantic 

acquaintance of Stubbendieck’s, Stubbendieck asked Timbs 

if she could acquire heroin or morphine in order to make 

Sullivan more comfortable. A coworker of Stubbendieck testified that Stubbendieck had indicated that he had four doses 

of liquid morphine for Sullivan to take. Yet another coworker 

testified that Stubbendieck had told him that he planned to 
- 706 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

“[s]hoot her [Sullivan] up with morphine” in order to “put her 

to sleep.”

Sullivan arrived in Nebraska on July 31, 2017. The day following Sullivan’s arrival, Sullivan was reportedly observed 

taking an unknown quantity and type of pill two to three times 

throughout the morning. Stubbendieck indicated that he took 

Sullivan to a remote area of Weeping Water, locally referred 

to as “Acapulco Lake.” According to Stubbendieck, once at 

the lake, the two went swimming and had intercourse before 

Sullivan retrieved a knife and began cutting her wrists.

Stubbendieck indicated that the two remained in the remote 

area for approximately 8 hours. Stubbendieck admitted that 

during that time, on two occasions, he attempted to assist 

Sullivan by covering her nose and mouth in order to suffocate 

her. Stubbendieck told investigators that Sullivan was alive and 

conversing with him when he left her 71⁄2 hours after arriving 

at the location.

After Stubbendieck led deputies to Sullivan’s body, an investigation ensued that included the recovery of text messages, 

interviews with witnesses to whom Stubbendieck had confided, 

and an autopsy of Sullivan. Stubbendieck was arrested by Cass 

County Sheriff’s Department investigators and subsequently 

charged with assisting suicide.

At trial, the State presented evidence in the form of text 

messages between Sullivan and Stubbendieck, which indicated Sullivan’s desire to end her life and the ensuing plan to 

arrange for Sullivan’s travel to Nebraska. In addition to text 

message conversations between Sullivan and Stubbendieck, the 

State offered, over a motion in limine and a continuing objection of defense counsel at trial, text conversations between 

Stubbendieck and Timbs. These text messages were offered in 

order to show both Stubbendieck’s motive and plan. The State 

further provided testimony from Dr. Michelle Elieff, a forensic 

pathologist who performed Sullivan’s autopsy. That testimony 

was also contested by way of a motion in limine and a continuing objection of defense counsel at trial.
- 707 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

Elieff testified that Sullivan’s body was in a state of moderate decomposition, but that other than the cuts to Sullivan’s 

wrists, the examination did not reveal any signs of traumatic 

injury, natural disease, or illness. Elieff, however, testified that 

the toxicology report indicated Sullivan had morphine in her 

liver measuring 876 nanograms per gram of tissue, an amount 

that Elieff testified was within the range of some fatal cases. 

Elieff indicated further testing revealed that Sullivan also had 

Tylenol, Benadryl, and alcohol in her system. Elieff testified 

that the cause of death was “undetermined.” She stated that 

based on the circumstances surrounding Sullivan’s death, the 

investigative information, and the condition of the body, “there 

were certain things that could not be excluded as causing or 

contributing factors.”

Specifically, Elieff’s official report, accepted in evidence, 

indicated that “[b]ased on the autopsy findings and ancillary tests, contributing factors such as asphyxia (smothering), 

drugs, and the environment (hypothermia) cannot be entirely 

excluded.”

Following a jury trial, Stubbendieck was found guilty of 

assisting suicide and subsequently sentenced to a term of probation. Stubbendieck appeals.

III. ASSIGNMENTS OF ERROR

Stubbendieck assigns, consolidated and restated, that (1) 

the district court erred in admitting certain testimonial evidence and text messages that were irrelevant and unfairly 

prejudicial and (2) there was insufficient evidence to support 

the conviction.

IV. STANDARD OF REVIEW

[1] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of 

the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on 
- 708 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, 

in the absence of prejudicial error, if the evidence admitted at 

trial, viewed and construed most favorably to the State, is sufficient to support the conviction.2

[2] When reviewing a criminal conviction for sufficiency of 

the evidence to sustain the conviction, 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.3

[3-5] Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, we 

review the admissibility of evidence for an abuse of discretion.4

A trial court exercises its discretion in determining whether 

evidence is relevant and whether its prejudicial effect substantially outweighs its probative value.5

 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.6

V. ANALYSIS

1. Admissibility and Unfair Prejudice

(a) Testimony of Elieff

Stubbendieck assigns that the district court erred in allowing 

the testimony of Elieff, the forensic pathologist who performed 

Sullivan’s autopsy. Stubbendieck’s argument is grounded in his 

contention that Elieff was not able to opine as to the cause of 

Sullivan’s death, thus rendering Elieff’s testimony irrelevant 

2 State v. White, 272 Neb. 421, 722 N.W.2d 343 (2006).

3 State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).

4 State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).

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

6 See State v. Henderson, supra note 4.
- 709 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

and prejudicial. As such, Stubbendieck contends that under 

Neb. Rev. Stat. § 27-402 (Reissue 2016), Elieff’s testimony 

is inadmissible. While Stubbendieck does not explicitly point 

to Neb. Rev. Stat. § 27-403 (Reissue 2016), he does claim 

that Elieff’s testimony was “highly prejudicial,”7 and further 

indicates that he fears the testimony resulted in a “danger of 

unfair prejudice,”8 which leads us to review Stubbendieck’s 

claim of prejudice under a § 27-403 analysis in addition to our 

§ 27-402 analysis.

First, we turn to Stubbendieck’s claim that Elieff’s testimony was irrelevant. Under § 27-402:

All relevant evidence is admissible except as otherwise provided by the Constitution of the United States 

or the State of Nebraska, by Act of Congress or of the 

Legislature of the State of Nebraska, by these rules, 

or by other rules adopted by the Supreme Court of 

Nebraska which are not in conflict with laws governing such matters. Evidence which is not relevant is not 

admissible.

Here, the district court noted that the testimony regarding 

Sullivan’s autopsy was relevant. Specifically, the court stated 

that “the charge as described in statute includes aiding and 

abetting a suicide- a definition which includes affirmative 

acts allegedly done by a defendant that result in the death 

of another.” Having made the determination that Elieff’s testimony would likely provide information as to affirmative 

acts that brought about Sullivan’s death, the court overruled 

Stubbendieck’s objections.

In light of evidence presented at trial with regard to 

Stubbendieck’s attempts to procure morphine in order to aid 

Sullivan in committing suicide, the factual testimony of Elieff 

regarding the presence of morphine or other substances in 

Sullivan’s system cannot be said to be irrelevant. Nor can 

7 Brief for appellant at 17.

8 Id.
- 710 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

the testimony regarding the overall findings of the autopsy 

be seen as irrelevant, as the findings provide factual information regarding the state of the body and any evidence or lack 

of evidence. This information can be useful to the trier of 

fact in determining whether a suicide did in fact occur and 

to what extent the defendant aided the deceased party under 

the circumstances.

We next turn to Stubbendieck’s argument under § 27-403 

concerning the prejudicial effect of the court’s decision to 

admit Elieff’s testimony and autopsy findings. Under § 27-403, 

“[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or 

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

presentation of cumulative evidence.”

With regard to § 27-403, Stubbendieck contends that the 

relevancy of Elieff’s testimony and results of the autopsy are 

outweighed by the danger of unfair prejudice and the risk 

that the testimony misled the jury. Specifically, Stubbendieck 

argues that Elieff’s testimony left the jury to speculate as to 

the cause of Sullivan’s death: whether it was due to asphyxiation, the cuts to Sullivan’s wrists, the ingestion of a lethal 

dose of morphine, or hypothermia. Therefore, Stubbendieck 

appears to suggest that the jury was left with only the option 

to convict Stubbendieck of assisting suicide, supported by evidence suggesting a more nefarious act with which he had not 

been charged.

[6,7] An analysis under § 27-403 consists of a balancing 

test, which is in large part left to the sound discretion of the 

trial court, absent an abuse of discretion.9 The “relevancyversus-unfairly-prejudicial-effect-balancing” test seeks to 

weigh the probative value of the proffered evidence against 

the nonprobative factors listed in § 27-403.10

9 See R. Collin Mangrum, Mangrum on Nebraska Evidence 209 (2018).

10 See id. at 212.
- 711 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

[8] First, the court weighs the probative value of the proffered testimony, a relative concept involving a measurement of 

the degree to which the evidence persuades the trier of fact that 

the particular fact exists and the distance of the particular fact 

from the ultimate issue of the case.11 The next step requires 

that the court weigh the probative value against the unfairly 

prejudicial effects listed in § 27-403. Only if the probative 

value is substantially outweighed by the prejudicial effect may 

the court exclude the evidence.

In light of the balancing test described above, Stubbendieck’s 

argument discounts the fact that while the cause and manner of 

death were found to be undetermined by Elieff, the autopsy 

presented relevant probative evidence that was germane to 

the crime of assisting suicide with which Stubbendieck was 

charged. In his motion in limine, Stubbendieck sought to 

stipulate to the cause of Sullivan’s death by stating that he “is 

willing to stipulate that the cause of death for . . . Sullivan 

is suicide.”

Despite Stubbendieck’s tactical trial strategy to prevent the 

introduction of evidence, the factual evidence contained in the 

autopsy and testified to at trial was directly connected to the 

elements charged. As noted by Justice Souter in Old Chief v. 

United States12:

Evidence . . . has force beyond any linear scheme of 

reasoning, and as its pieces come together a narrative gains momentum, with power not only to support 

conclusions but to sustain the willingness of jurors to 

draw the inferences, whatever they may be, necessary 

to reach an honest verdict. This persuasive power of the 

concrete and particular is often essential to the capacity 

of jurors to satisfy the obligations that the law places 

on them.

11 State v. Bostwick, 222 Neb. 631, 385 N.W.2d 906 (1986).

12 Old Chief v. United States, 519 U.S. 172, 187, 117 S. Ct. 644, 136 L. Ed. 

2d 574 (1997).
- 712 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

The facts contained in the autopsy and Elieff’s testimony 

undoubtedly relate to the charge of assisting suicide, with 

which Stubbendieck was tried. Elieff’s testimony was relevant 

to the extent that it provided the trier of fact with evidence that 

the injuries sustained and drugs ingested were in furtherance 

of a successful attempt at suicide and not the result of natural causes. The fact that Sullivan’s body was found to have a 

lethal amount of morphine cannot be discounted, especially as 

it relates to the testimonial evidence regarding Stubbendieck’s 

attempts to acquire morphine in furtherance of Sullivan’s plan, 

an affirmative act which constitutes aiding or abetting under 

§ 28-307.

[9,10] Most, if not all, items which one party to an action 

offers in evidence are calculated to be prejudicial to the opposing party; therefore, it is only “unfair prejudice” with which 

we are concerned.13 In the context of § 27-403, such prejudice 

means a tendency to suggest a decision on an improper basis.14

[11] Additionally, we have previously articulated that if an 

exhibit is relevant and illustrates or makes clear some controverted issue in a case, a defendant cannot negate an exhibit’s 

probative value through a tactical decision to stipulate.15 The 

State is allowed to present a coherent picture of the facts of 

the crimes charged, and it may generally choose its evidence 

in so doing.16

On balance, we cannot say that the trial court abused its discretion in permitting Elieff’s testimony regarding the findings 

of the post mortem examination of Sullivan.

(b) Admission of Text Messages

Stubbendieck makes a similar argument with regard 

to the court’s admission of text messages shared between 

13 See State v. Yager, 236 Neb. 481, 461 N.W.2d 741 (1990).

14 See Benzel v. Keller Indus., 253 Neb. 20, 567 N.W.2d 552 (1997).

15 State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).

16 Id.
- 713 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

Stubbendieck and Timbs. Stubbendieck objected to the admission of text messages in a motion in limine and through his 

continuing objection at trial.

Stubbendieck argues that the text messages of a romantic nature between Timbs and him were used by the state to 

“impugn his love for . . . Sullivan, and place him in an unfavorable light to the jury.”17 While Stubbendieck admits that 

some text messages directly relate and “could be perceived to 

have importance,” he argues that text messages of a romantic 

nature “bear no relevance to the proof of any fact that is of 

consequence to the determination of whether . . . Stubbendieck 

assisted in the suicide of . . . Sullivan.”18

While Stubbendieck again fails to argue with specificity the 

basis on which he challenges the court’s determination regarding the admission of text messages and testimony involving 

Timbs, he does make reference to issues of relevance and 

unfair prejudice, rules which are discussed above.

Stubbendieck fails to point to any specific text message that 

demonstrates undue prejudice or is irrelevant standing alone. 

The trial court exercised its discretion in determining that the 

evidence was relevant and that its prejudicial effect did not 

substantially outweigh its probative value.19 We review the 

admissibility of evidence for an abuse of discretion.20

In reviewing the district court’s decision, we conduct a 

§ 27-403 analysis against the backdrop of our standard of 

review for abuse of discretion. In conducting our review for 

abuse of discretion, we first consider the court’s weighing of 

the probative value of the proffered evidence, then in the second step of the analysis, how the court weighed the probative 

value against the unfairly prejudicial effects listed in § 27-403.

17 Brief for appellant at 19.

18 Id.

19 State v. Bauldwin, supra note 5.

20 State v. Henderson, supra note 4.
- 714 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

With regard to the court’s admission of text messages 

between Stubbendieck and Timbs, the court found that the 

testimony and exhibits of “those communications are relevant 

as to a possible motive and to [Stubbendieck’s] planning to 

commit the crime, and may go to the weight and credibility 

of other testimony by . . . Timbs.” The text message conversations between Stubbendieck and Timbs give context to the 

relationship that Stubbendieck and Timbs shared in which he 

confided to Timbs details of Sullivan’s plan to die. Further, the 

text messages corroborate Timbs’ testimony at trial.

Of the several text message conversations that exist between 

Stubbendieck and Timbs, one particularly illuminating message reveals the level of trust Stubbendieck shared with Timbs, 

as demonstrated by Stubbendieck’s revealing certain aspects 

of the plan to end Sullivan’s life. This particular series of 

text messages sent from Stubbendieck to Timbs on July 31, 

2017, stated: “I will be honest and she flew in early. She will 

be passed by sunrise [W]ednesday morning. Please bare [sic] 

with me. I[’]m getting home from work and dinner with family 

and jumping in shower. She is with my parents. I miss you.” 

Approximately 7 minutes later, Stubbendieck sent a text message to Timbs, which stated: “Please answer me. I can’t have 

you mad. I enjoy our time so much and can’t wait to get back 

to it.”

At trial, Timbs testified to an oral conversation she shared 

with Stubbendieck in which he asked her if she could obtain 

heroin or morphine. Timbs further testified that following 

Sullivan’s death, Stubbendieck and Timbs exchanged text messages in which he sought to speak to her on the telephone. In 

her testimony regarding their oral conversation that followed, 

Timbs stated:

He was crying hysterically, telling me that they went out 

for a drive that day. She had gotten rid of all of her personal belongings and cell phone, then they were walking 

in the woods. . . . He walked off . . . . When he came 

back he didn’t find her anywhere. When he found her he 
- 715 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

said there was blood everywhere. . . . Then he said he laid 

there and held her for a while.

In this conversation, largely corroborated by text messages 

sent on August 1, 2017, between approximately 10:11 and 

10:50 p.m., Stubbendieck confided in Timbs the execution of 

Sullivan’s plan and his role in her death.

In addition to the corroborative effect of the text messages 

between Stubbendieck and Timbs, the messages signal a connection between Stubbendieck and “Lake Acapulco,” the location where Sullivan’s body was found. In those messages, this 

lake is referenced on three separate occasions as a place known 

to both individuals. Therefore, we cannot say that the court 

abused its discretion in finding that the text conversations had 

strong probative value.

The next step in the analysis required that the district 

court weigh the probative value against the unfairly prejudicial 

effects listed in § 27-403. Unfair prejudice means an undue 

tendency to suggest a decision based on an improper basis.21

It speaks to the capacity of some concededly relevant evidence 

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

from proof specific to the offense charged, commonly on an 

emotional basis.22

It cannot be said that the romantic undertones of 

Stubbendieck’s text messages rise to the level of unfair prejudice in light of the discussion above. This conclusion is 

grounded in the fact that the substantive information contained 

within the text messages provides the finder of fact with 

information that goes directly to Stubbendieck’s motive and 

plan. For that same reason, it cannot be said that the text messages lack relevance. The entire text message history between 

Stubbendieck and Timbs provides context to their relationship 

as it related to Sullivan and to Stubbendieck’s actions surrounding Sullivan’s death.

21 State v. Tucker, 301 Neb. 856, 920 N.W.2d 680 (2018).

22 Id.
- 716 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

We cannot say that the district court abused its discretion 

in admitting the text messages between Stubbendieck and 

Timbs.

2. Sufficiency of Evidence

Stubbendieck argues that the evidence adduced at trial was 

insufficient to sustain a conviction for assisting suicide. It is 

Stubbendieck’s contention that the evidence failed to demonstrate active participation in the planning or execution of 

Sullivan’s suicide.

(a) Aiding and Abetting

In Nebraska, aiding and abetting under Neb. Rev. Stat. 

§ 28-206 (Reissue 2016) is not a separate crime. Rather, it 

is another theory for holding one liable for the underlying 

crime.23 Suicide or attempted suicide has not been criminalized 

in Nebraska, thus one cannot be held criminally liable for aiding and abetting suicide, pursuant to § 28-206. However, the 

Nebraska Legislature established the separate crime of assisting suicide under § 28-307. The statute relies largely on the 

term “aids and abets,” which the Legislature left undefined in 

§§ 28-206 and 28-307.

[12,13] Specifically, the language of § 28-307 states: “A 

person commits assisting suicide when, with intent to assist 

another person in committing suicide, he aids and abets him in 

committing or attempting to commit suicide.” While §§ 28-206 

and 28-307 fail to define the term “aiding and abetting,” our 

longstanding jurisprudence indicates that aiding and abetting 

requires some participation in a criminal act which must be 

evidenced by word, act, or deed, and mere encouragement or 

assistance is sufficient to make one an aider or abettor.24 No 

particular acts are necessary, however, nor is it necessary that 

the defendant take physical part in the commission of the crime 

23 State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).

24 State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).
- 717 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

or that there was an express agreement to commit the crime.25

Yet, evidence of mere presence, acquiescence, or silence is not 

enough to sustain the State’s burden of proving guilt under an 

aiding and abetting theory.26

Here, Stubbendieck argues that he merely acquiesced to 

Sullivan’s planned suicide. Stubbendieck contends that his purchase of an airline ticket for Sullivan to travel to Nebraska as 

contemplated in her plan, his attempts to procure morphine on 

her behalf, and his mere presence as she engaged in the lifetaking act were insufficient to sustain his conviction.

However, viewed in the light most favorable to the State,

Stubbendieck did more than simply acquiesce to Sullivan’s acts. 

As demonstrated by the evidence contained in text messages 

between Stubbendieck and Sullivan, Stubbendieck encouraged 

Sullivan to come to Nebraska in order to end her life. In one 

of Sullivan’s many text message conversations to Stubbendieck 

regarding Sullivan’s taking her life, she wrote that “[t]his[]is 

the final end baby.” Stubbendieck replied, “When you get here. 

We both need this. I promise it will be what you want and what 

I need. Please.”

Further evidence in the form of witness testimony demonstrated that Stubbendieck actively sought out and ostensibly 

obtained liquid morphine in order to “put [Sullivan] to sleep.” 

Even if these acts alone were not enough, Stubbendieck, by his 

own admission, intentionally and voluntarily engaged in the 

act of attempting to asphyxiate Sullivan, first by covering her 

nose and mouth with his hand to prevent her from breathing, 

and later using a pair of boxer shorts to aid him in covering her 

nose and mouth in order to bring her life to an end.

As stated above, aiding and abetting requires some participation in a criminal act, which must be evidenced by word, act, or 

deed. Further, mere encouragement or assistance is sufficient. 

While we have said that no particular acts are necessary, nor is 

25 Id.

26 Id.
- 718 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

it necessary that the defendant take physical part in the act, the 

record, including Stubbendieck’s own admissions, demonstrate 

that viewed in a light most favorable to the State, Stubbendieck 

took more than a passive role in bringing about Sullivan’s ultimate demise, as evidenced by his above-referenced acts.

(b) Elieff’s Testimony

Next, Stubbendieck argues that the inability of Elieff, the 

pathologist, to render an opinion as to the cause or manner of 

Sullivan’s death required the court to make a “quantum leap” 

in the evidence to reach the conclusion that Stubbendieck 

assisted in a suicide.27

While the condition of Sullivan’s body did not enable Elieff 

to determine the probable cause or manner of death, Elieff 

concluded that Sullivan, with the exception of the cuts to both 

of her wrists, had not sustained a traumatic injury such as a 

gunshot wound or penetrating injury. However, the decomposition of the body prevented Elieff from determining whether 

Sullivan had died from contributing factors such as asphyxiation, hypothermia, or drug overdose.

[14,15] To sustain a conviction for a crime, the corpus 

delicti must be proved beyond a reasonable doubt.28 The corpus 

delicti is the body or substance of a crime, the fact that a crime 

has been committed without regard to the identity of the person 

committing it.29 The corpus delicti may be proved by circumstantial evidence.30 Circumstantial evidence is evidence which, 

without going directly to prove the existence of a fact, gives 

rise to a logical inference that such fact exists.31

[16] An extrajudicial admission or a voluntary confession 

is, standing alone, insufficient to prove that a crime has been 

27 Brief for appellant at 16.

28 Reyes v. State, 151 Neb. 636, 38 N.W.2d 539 (1949).

29 Id.

30 State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (1980).

31 State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
- 719 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. STUBBENDIECK

Cite as 302 Neb. 702

committed, but either or both are competent evidence of the 

fact and may, with corroborative evidence of facts and circumstances, establish the corpus delicti and guilty participation of 

the defendant.32

In this case, Stubbendieck had numerous conversations with 

Sullivan about her plan to end her life. In those conversations, 

the two discussed Sullivan’s taking her life and dying along the 

water’s edge and in Stubbendieck’s arms. The two forged and 

carried out a plan to transport Sullivan to Nebraska in order 

to conclude the contemplated act. In addition to his conversations with Sullivan, Stubbendieck sought to procure morphine 

from Timbs, and later told his coworkers that he had obtained 

morphine. Although Stubbendieck contends that the plan had 

changed and that morphine was no longer a part of the scheme, 

Sullivan’s autopsy revealed she had morphine in her liver 

measuring 876 nanograms per gram of tissue, an amount that 

Elieff testified was known to be within the lethal spectrum. 

Further, as demonstrated in the record, Stubbendieck’s insistence that Sullivan come to Nebraska to carry out her suicidal 

intentions because “[w]e both need this” cannot be characterized as anything but encouragement.

Having viewed the evidence in the light most favorable to 

the prosecution, we hold that any rational trier of fact could 

have found, beyond a reasonable doubt, that Stubbendieck did 

aid and abet Sullivan in committing suicide.

Stubbendieck’s assignment of error is without merit.

VI. CONCLUSION

We conclude that there was sufficient evidence to support 

Stubbendieck’s conviction. The district court did not err in 

admitting the testimonial evidence and text messages.

Affirmed.

32 Olney v. State, 169 Neb. 717, 100 N.W.2d 838 (1960).