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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. WHEELER

Cite as 308 Neb. 708

State of Nebraska, appellee, v. 

Marcus R. Wheeler, appellant.

___ N.W.2d ___

Filed March 26, 2021. No. S-19-781.

1. Trial: Expert Witnesses: Appeal and Error. An appellate court 

reviews for abuse of discretion a trial court’s decision whether to admit 

or exclude an expert’s testimony.

2. 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.

3. Sentences: Appeal and Error. Absent an abuse of discretion by the trial 

court, an appellate court will not disturb a sentence imposed within the 

statutory limits.

4. 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.

5. Trial: Expert Witnesses. Whether a witness is qualified as an expert is 

a preliminary question for the trial court.

6. Expert Witnesses. When faced with a proffer of expert scientific testimony, a trial judge must determine at the outset whether the expert is 

proposing to testify to (1) scientific knowledge that (2) will assist the 

trier of fact to understand or determine a fact in issue. The trial court 

should focus on the principles and methodology utilized by expert witnesses, and not on the conclusions that they generate.

Nebraska Supreme Court Online Library

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

04/02/2021 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets

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STATE v. WHEELER

Cite as 308 Neb. 708

7. Trial: Expert Witnesses. Before admitting expert opinion testimony, 

the trial court must determine, inter alia, whether the expert’s knowledge, skill, experience, training, and education qualify the witness as an 

expert. A court must also determine whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or 

methodology can be properly applied to the facts in issue.

8. ____: ____. There is no exact standard for fixing the qualifications of 

an expert witness, and a trial court is allowed discretion in determining 

whether a witness is qualified to testify as an expert.

9. ____: ____. Experts or skilled witnesses will be considered qualified 

if they possess special skill or knowledge respecting the subject matter involved superior to that of persons in general, so as to make the 

expert’s formation of a judgment a fact of probative value.

10. ____: ____. A witness may qualify as an expert by virtue of either formal training or actual practical experience in the field.

11. Criminal Law: Evidence: Appeal and Error. When a criminal defend

ant challenges the sufficiency of the evidence upon which a conviction 

is based, 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.

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

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

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

principles in determining the sentence to be imposed.

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

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

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

amount of violence involved in the commission of the crime.

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

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

15. ____. A sentence should fit the offender and not merely the crime.

Appeal from the District Court for Douglas County: Horacio 

J. Wheelock, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, Jessica 

C. West, and Douglas A. Johnson for appellant.
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STATE v. WHEELER

Cite as 308 Neb. 708

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Marcus R. Wheeler appeals his convictions and sentences in 

the district court for Douglas County for second degree murder and use of a firearm to commit a felony. Wheeler claims 

on appeal that the district court erred when it overruled his 

motion in limine to exclude the testimony of a firearm and 

toolmark examiner and when it later overruled his renewed 

objection at trial. He also claims that there was not sufficient evidence to support his convictions and that the court 

imposed excessive sentences. We affirm Wheeler’s convictions 

and sentences.

STATEMENT OF FACTS

On May 22, 2018, the State charged Wheeler with first 

degree murder and use of a firearm to commit a felony in 

connection with the shooting death of Kayviaun Nelson. The 

charges against Wheeler arose from an incident that occurred 

on April 18, when a group that included Wheeler was involved 

in a confrontation with a group that included Nelson.

Wheeler’s trial began with opening statements and witnesses on April 17, 2019. On April 18, the second day of trial, 

Wheeler filed a motion in limine to exclude expert testimony 

by Angela Harder, a senior forensic technician with the Omaha 

Police Department and a witness the State expected to call in 

the second week of the trial. Wheeler alleged in the motion that 

Harder did not qualify as an expert in forensic toolmark analysis and that there was no support for her anticipated testimony 

that several shell casings found at the scene of the shooting 

were fired from the same gun. Wheeler asserted to the court 

that he had first been provided a copy of Harder’s curriculum 

vitae on the evening of April 17 and that exchange was his 
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STATE v. WHEELER

Cite as 308 Neb. 708

first notice the State intended to present Harder as an expert in 

forensic toolmark analysis.

Prior to Harder’s testimony at trial, the court held a hearing 

outside the jury’s presence to consider Wheeler’s motion in 

limine and foundational issues with regard to Harder’s testimony. Wheeler called Harder as a witness, and she testified 

regarding her position and experience with the Omaha Police 

Department, including having worked as a firearm and toolmark examiner since 2008.

As part of Harder’s testimony, Wheeler offered into evidence a report prepared by the President’s Council of Advisors 

on Science and Technology (the PCAST report). The PCAST 

report was dated September 2016 and was titled “Forensic 

Science in the Criminal Courts: Ensuring Scientific Validity of 

Feature-Comparison Methods?” Without objection by the State, 

the court received the PCAST report into evidence solely for 

purposes of the hearing. Upon questioning by Wheeler, Harder 

testified that although she had not read the PCAST report in 

its entirety, because it dealt with multiple disciplines, she was 

familiar with the portions applicable to firearms and toolmarks. 

In response to questioning by Wheeler, Harder acknowledged 

that the PCAST report had criticized the methodology of toolmark identification that had been set forth by the Association 

of Firearm and Tool Mark Examiners (AFTE), a professional 

organization of which Harder was a member. Harder acknowledged the criticism contained in the PCAST report, but she 

testified that she adhered to the AFTE method and its position 

that all toolmarks are unique.

Wheeler also questioned Harder regarding her procedures 

for conducting toolmark comparisons of shell casings. She 

generally testified that she used a comparison microscope 

which allowed her to compare two items side by side. She first 

broadly examined general characteristics to determine that they 

were consistent, and if so, she then moved on to an examination of “individual characteristics that are caused by that 

cartridge case coming in contact with working parts of a firearm.” In a circumstance such as the present case that involved 
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STATE v. WHEELER

Cite as 308 Neb. 708

examination of several shell casings, Harder selected the shell 

casing that “marked the best,” which she defined as that which 

“displayed the best markings that were the clearest,” and compared the others to that shell casing. Harder conceded that there 

was “some subjectivity” involved in selecting the best shell 

case and in making comparisons.

Wheeler also questioned Harder regarding aspects of her 

education, training, and experience. Harder conceded that she 

had not completed coursework in firearm and toolmark analysis as part of either her undergraduate or her master’s level 

college education. Harder further conceded that after she had 

completed training in toolmark analysis in 2008, she had not 

received further training until 2015. She testified that after 

she had “completed the academy” in 2008, there was “not a 

whole lot of further training available,” and that the training 

she underwent in 2015 was “the next one that [she] had not 

already experienced.” Harder also testified that while AFTE 

offered a certification in toolmark examination, she had not 

“gone through that process,” and that instead, she and her lab

oratory took part in “the yearly proficiency test to demonstrate 

proficiency in the area.” Harder further testified regarding peer 

review of her work. She testified that the examiner conducting 

a peer review received a copy of her report and therefore knew 

the results of her examination.

The State also questioned Harder at the hearing. During the 

State’s questioning, Harder generally testified that AFTE had 

responded to the PCAST report and had taken issue with some 

of its conclusions and recommendations regarding toolmark 

analysis. Among AFTE’s criticisms of the PCAST report was 

that it relied on a single laboratory study and had not considered other research conducted by multiple organizations. 

Harder agreed with this and AFTE’s other criticisms of the 

PCAST report. During the State’s questioning, Harder testified in more detail about training in toolmark analysis she had 

received from 2007 to 2008 in a program sponsored by the 

Bureau of Alcohol, Tobacco, Firearms and Explosives. She 

also testified regarding the ongoing proficiency testing and 
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STATE v. WHEELER

Cite as 308 Neb. 708

peer reviews to which her skills and work were subjected, as 

well as the extent of her experience conducting toolmark analysis and presenting results in trials.

During questioning by both Wheeler and the State, Harder 

testified regarding the procedures she used in examining the 

shell casings in this case and the results of such examination. 

She generally testified that the results of her examination were 

that the seven shell casings that were found at the scene of the 

shooting were all fired from the same gun. As discussed below, 

Harder’s testimony was used by the State in support of its onegun theory of the case. Harder testified that she had completed 

two examinations of the shell casings; that each examination 

was peer reviewed, with the first being reviewed by one examiner and the second being reviewed by a different examiner; 

and that the peer reviewers agreed with her conclusions.

After the hearing, the district court filed an order in which it 

ruled on Wheeler’s motion in limine and other issues involved 

in the hearing. The court began by finding that the State had 

complied with discovery requirements when it had disclosed 

to Wheeler the report by Harder of her firearms examination and when it had endorsed Harder as a witness prior to 

trial. The court noted that Wheeler had withdrawn part of his 

initial challenge to Harder’s testimony. The court stated that 

based on the operative motion in limine, Wheeler was not 

challenging the scientific theory or methodology underlying 

Harder’s testimony and instead was “challenging the foundation as to how . . . Harder arrived at her conclusions.” The 

court therefore concluded that it was within its discretion to 

have an evidentiary hearing “to determine if proper foundation 

exists for . . . Harder’s conclusion regarding [the shell casings found at the scene of the shooting] being fired from the 

same firearm.”

Considering the testimony and evidence presented at the 

hearing, the court concluded that proper foundation was provided based on Harder’s training and experience and the testimony she provided at the hearing. After reviewing relevant 
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STATE v. WHEELER

Cite as 308 Neb. 708

statutes and case law, the court noted Harder’s testimony 

regarding the procedures she followed to examine the shell casings in this case, the results of her examination, and the peer 

review of her results.

The court noted that Wheeler’s challenge to Harder’s testimony relied strongly on the PCAST report. The court acknowledged the criticisms set forth in the PCAST report, but the 

court also noted the conclusion in the PCAST report that 

whether firearm analysis should be deemed admissible based 

on current evidence was a decision that belonged to the courts. 

The court further noted the recommendation in the PCAST 

report that in order to allow firearms analysis in court, it should 

be shown that the expert has undergone rigorous proficiency 

training; that the expert should disclose the results of such proficiency testing; and that the expert should disclose whether, 

when performing the examination, he or she was aware of 

any other facts of the case that might have influenced the 

expert’s conclusions.

Applying these and other considerations, the court stated 

that the type of ballistic and firearm testimony Harder presented in this case was not novel and was fairly routine in 

cases involving firearms and that such testimony was commonly admitted in courts in Nebraska. The court found that 

there was sufficient evidence to qualify Harder as an expert in 

the area of ballistics and toolmark analysis, including evidence 

that she had undergone yearly rigorous proficiency testing and 

that the results of such proficiency had been disclosed to her 

superiors in her laboratory. The court also noted Harder’s testimony that she had very little knowledge regarding the history 

of the shell casings in this case. The court found that Harder’s 

testimony would assist the trier of fact and that “her opinions 

are reliable and relevant based on her personal knowledge and 

experience in toolmark analysis.” The court noted that the 

weight to be given to Harder’s opinion was a matter for the 

trier of fact to determine and that the weight given to her testimony was a credibility determination that could be explored 
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STATE v. WHEELER

Cite as 308 Neb. 708

on cross-examination. The court concluded that Harder was 

qualified to present her opinions and that her opinions would 

provide relevant and reliable information that would assist the 

trier of fact. The court therefore overruled Wheeler’s motion in 

limine to exclude Harder’s testimony.

Wheeler renewed his objections when Harder testified at 

trial. The court overruled Wheeler’s objections based on its reasoning following the initial hearing. Harder thereafter testified 

regarding her examination of the shell casings and her opinion 

that the shell casings were all fired from the same gun.

Other evidence presented by the State at trial consisted in 

large part of testimony by witnesses to the events that resulted 

in the shooting death of Nelson. As noted earlier, the evidence 

was generally that the shooting occurred as part of an altercation between a group that included Wheeler and another group 

that included Nelson. Witnesses at trial included members of 

both groups, as well as bystanders. As Wheeler asserts in his 

brief on appeal, the testimony of individual witnesses varied 

and at points conflicted on issues such as the number of shots 

that were fired and whether Wheeler had a gun. Specific testimony and evidence will be discussed further in our analysis 

below, particularly, our analysis of sufficiency of the evidence. 

However, the testimony at trial set forth the following general narrative.

On April 18, 2018, a group that included Wheeler and a 

group that included Nelson found themselves in the parking 

lot of a Dollar General store at the same time. Wheeler and 

Nelson had dated in the past, but both were in new relationships. Nelson’s group included her boyfriend, Andrell Goynes 

(Andrell), and his mother, Shawtina Wynn (Shawtina). Nelson 

had driven them to the Dollar General store so that Shawtina 

could make some purchases; Nelson’s two young children 

were also in the vehicle that she was driving. Shawtina went 

into the store while Nelson, Andrell, and the children waited 

in the parking lot. While waiting there, Andrell noticed that a 

car occupied by Wheeler and his group was also in the parking lot.
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Nebraska Supreme Court Advance Sheets

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STATE v. WHEELER

Cite as 308 Neb. 708

Wheeler’s group included his girlfriend, Tyanna Laushman; 

Tyanna’s two sisters, Tashian Hickman and Yasmen Laushman; 

and Yasmen’s boyfriend, Daion Williams. Wheeler’s group was 

in a car driven by Hickman. Hickman parked the car in the 

parking lot of the Dollar General store and walked toward the 

store. Wheeler also got out of the car, but he started to walk 

toward Nelson’s vehicle. One of the occupants of Hickman’s 

car testified that Wheeler had indicated that he had seen someone he wanted to fight and that Wheeler was making gestures 

toward Andrell. Hickman told Wheeler to come into the store 

with her, and he did, as did Williams and Tyanna.

After seeing Wheeler, Nelson drove her vehicle to a different spot in the parking lot, and Andrell called Shawtina to 

see whether she was done with her shopping. Wheeler and his 

companions, and later Shawtina, eventually came out of the 

Dollar General store. Shawtina testified that when she came 

out of the store, she saw two men and two women arguing 

with Nelson and Andrell, who were seated in Nelson’s vehicle. 

Shawtina got into Nelson’s vehicle, and Nelson drove out of 

the parking lot.

The occupants of Nelson’s vehicle noticed that Hickman’s 

car was following them. Hickman testified that she followed 

Nelson’s vehicle because Wheeler, Tyanna, and Yasmen asked 

her to. Shawtina contacted two of her other sons, Adren 

Goynes-Wynn and Andre Goynes-Wynn, to tell them that 

Nelson’s vehicle was being followed. Adren and Andre 

instructed Shawtina to have Nelson pull her vehicle into the 

parking lot of a nearby Walmart store. Adren and Andre were 

at an apartment near the Walmart, and after speaking with 

Shawtina, they went to the store. They came out of the store 

when they saw Nelson’s vehicle pull into the parking lot. 

Nelson parked her vehicle, and Andrell got out of the vehicle. Adren and Andre were walking toward Andrell when 

Hickman’s car pulled into the Walmart parking lot.

Hickman parked her car a few stalls away from Nelson’s 

vehicle. Williams testified that when Hickman pulled into the 

Walmart lot, he saw that Wheeler had a gun; Williams took 
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STATE v. WHEELER

Cite as 308 Neb. 708

the gun from Wheeler and told him he did not need it. Wheeler 

got out of Hickman’s car, followed by the other occupants 

of the car. Adren walked toward Hickman’s car; Adren and 

Wheeler met up near Hickman’s car, and an altercation ensued 

between Adren and Wheeler. During that altercation, Andrell 

approached Williams. Williams was holding the gun but did 

not point it at Andrell.

Williams testified that Wheeler came over to him and took 

the gun from him against his will. Adren testified that he saw 

Wheeler take the gun from Williams. Adren warned the others that Wheeler had a gun, and Adren then took off running. 

Andrell also testified that he saw Wheeler take the gun from 

Williams and that he then told Nelson to drive off. Andrell saw 

Wheeler pointing the gun at him, and he ran to the back of 

Nelson’s vehicle. Andrell testified that at that point, Wheeler 

started shooting and Andrell ran around the vehicle and toward 

the Walmart store.

Williams testified that after Wheeler took the gun from him, 

he saw Wheeler fire shots toward Adren, Andrell, and Shawtina. 

Williams testified that Wheeler walked toward Adren, who 

was located near Nelson’s vehicle. Williams observed that 

Nelson was attempting to drive her vehicle away; she bumped 

Wheeler with her vehicle, but he did not lose his balance. 

Williams heard more gun shots when Wheeler was located at 

the driver’s side of Nelson’s vehicle. Williams testified that 

Wheeler got back into Hickman’s car, and Williams saw that 

Wheeler had the gun. Hickman then drove her car out of the 

parking lot.

Andrell testified that after having run from Wheeler and 

toward the Walmart store, he saw Nelson’s vehicle moving 

within the parking lot. He ran toward her vehicle but lost track 

of it, and so he returned to the location where the altercation 

had occurred. When he reached that spot, he saw Shawtina 

and Andre there, but Wheeler and the car in which Wheeler’s 

group were riding was no longer there. Andrell continued to 

look for Nelson’s vehicle, and he saw a police vehicle moving through the parking lot. Andrell and Andre started jogging 
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STATE v. WHEELER

Cite as 308 Neb. 708

in the direction of the police vehicle, and Andrell then saw 

Nelson’s vehicle. Before Andrell could reach Nelson’s vehicle, 

he was stopped by a police officer. Andrell saw another police 

officer pull Nelson out of the vehicle. More police vehicles 

and officers arrived, and the police put Andrell, Andre, and 

Shawtina into police vehicles for questioning.

Brent Kendall, an Omaha Police Department officer, arrived 

at the Walmart parking lot and saw Nelson’s vehicle, which 

appeared to have struck another vehicle in the parking lot 

and was not moving. Kendall approached the vehicle and saw 

Nelson inside it. The window of the driver’s side door was 

open, and Kendall saw that Nelson’s head was back and her 

eyes were open, but she seemed to have no expression on her 

face. Kendall could not get Nelson to respond, but he felt a 

faint pulse in her neck, so he removed her from the vehicle. 

He and another officer observed what appeared to be a bullet 

wound in her chest.

Paramedics thereafter took over care of Nelson and transported her to a hospital, where she died. An autopsy revealed 

that Nelson had two gunshot wounds with entrance in her left 

chest and exit in her right upper back. The doctor who performed the autopsy opined that the gunshot wounds were the 

cause of Nelson’s death.

After the shooting, but prior to the penultimate events in 

the parking lot described above, Wheeler and the rest of his 

group had left the Walmart parking lot in Hickman’s car. 

Hickman dropped Wheeler, Williams, Tyanna, and Yasmen off 

at Tyanna’s mother’s house. The four later left that house and 

walked to another location, where they stayed after learning 

that Nelson had died. The next day, Tyanna and Yasmen went 

to police headquarters to speak with officers.

Warrants were issued for Williams and Wheeler. Williams 

was located and taken into custody on April 19, 2018. Wheeler 

was not located until April 24. When an officer first approached 

Wheeler and told him to get on the ground, Wheeler took off 

running. The officer pursued in his vehicle and caught up to 

Wheeler and took him into custody.
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STATE v. WHEELER

Cite as 308 Neb. 708

Physical evidence presented by the State included seven 

shell casings that were recovered from the Walmart parking lot. 

As noted above, Harder testified regarding her examination of 

the shell casings and her determination that all seven shell casings were fired from the same gun. Bullets were not recovered 

from either Nelson’s body or her vehicle, and the gun that was 

used to fire the shots was not found or put into evidence.

The State presented testimony by Laura Casey, a senior 

forensic technician with the Omaha Police Department who 

processed Nelson’s vehicle after the shooting in April 2018. 

Casey testified, inter alia, that the driver’s side window was 

rolled almost all the way down and that the other windows 

were rolled up. She also testified that there was an apparent 

bullet hole in the extreme right edge of the front driver’s seat 

and that there was a defect in the handle of the right rear passenger door. Casey testified that a probe was used to determine 

a possible bullet path between the driver’s seat and the rear 

passenger door handle; she testified that the probing indicated 

that the “areas of defect did line up.” Copper jacketing was 

found on the rear floorboard; Casey testified that copper jacketing that covers a bullet or projectile will separate from the 

rest of the projectile when it strikes or goes through an object. 

Casey testified that no projectiles or fragments were recovered 

from a search of the right rear passenger door.

In his defense, Wheeler presented testimony of two witnesses who were in the Walmart parking lot at the time of 

the shooting. One of the witnesses testified that she was in 

the parking lot and saw an altercation in which a vehicle was 

surrounded by a number of people. She saw the vehicle lurch 

forward and a man who had been standing in front of the 

vehicle jump out of the way. As he jumped, he raised his hands 

and she saw that he had nothing in his hands. She saw another 

man who had been on the driver’s side of the vehicle, and she 

observed that he had what appeared to be a gun in his hands. 

The witness identified Wheeler as being the man in front of the 

vehicle who jumped and who had nothing in his hands.
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STATE v. WHEELER

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Instructions given to the jury included a step instruction 

regarding the charge of first degree murder and the lesserincluded offenses of second degree murder and manslaughter. 

The court also gave a self-defense instruction. The jury acquitted Wheeler of first degree murder, but it found him guilty 

of the lesser-included offense of second degree murder. The 

jury also found Wheeler guilty of use of a firearm to commit 

a felony.

The court thereafter held a sentencing hearing at which it 

considered the presentence investigation report, arguments by 

Wheeler and the State, and a live statement by Nelson’s father. 

The court sentenced Wheeler to imprisonment for 70 to 100 

years for second degree murder and for 7 to 15 years for use 

of a firearm. The court ordered the sentences to be served consecutive to one another.

Wheeler appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Wheeler claims that the district court erred when it overruled his motion in limine and later overruled his objection to 

Harder’s testimony regarding the results of her forensic toolmark examination. Wheeler also claims that there was not sufficient evidence to support his convictions and that the district 

court imposed excessive sentences.

STANDARDS OF REVIEW

[1] An appellate court reviews for abuse of discretion a trial 

court’s decision whether to admit or exclude an expert’s testimony. Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 

916 (2019). See, also, State v. Grant, 293 Neb. 163, 876 

N.W.2d 639 (2016).

[2] 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, 
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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. State v. Price, 306 

Neb. 38, 944 N.W.2d 279 (2020).

[3,4] Absent an abuse of discretion by the trial court, an 

appellate court will not disturb a sentence imposed within 

the statutory limits. See State v. Senteney, 307 Neb. 702, 950 

N.W.2d 585 (2020). An abuse of discretion occurs when a trial 

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

unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

ANALYSIS

District Court Did Not Abuse Its Discretion When 

It Overruled Wheeler’s Motion in Limine and 

Admitted Harder’s Testimony Regarding 

Ballistics and Toolmark Testing.

Wheeler first claims that the district court erred when it 

overruled his motion in limine and when it later overruled his 

renewed objections to Harder’s testimony regarding her ballistics and toolmark analysis. He argues that Harder’s testimony 

should not have been admitted because (1) she did not qualify 

as an expert under Neb. Rev. Stat. § 27-702 (Reissue 2016) and 

(2) her testimony was unfairly prejudicial under Neb. Rev. Stat. 

§ 27-403 (Reissue 2016). We conclude that the district court 

did not err when it overruled Wheeler’s motion in limine and 

allowed Harder’s testimony.

[5,6] Wheeler first contends that Harder was not qualified as 

an expert under § 27-702, which provides:

If scientific, technical, or other specialized knowledge 

will assist the trier of fact to understand the evidence or 

to determine a fact in issue, a witness qualified as an 

expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or 

otherwise.
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Whether a witness is qualified as an expert is a preliminary 

question for the trial court. Reiber v. County of Gage, 303 Neb. 

325, 928 N.W.2d 916 (2019). When faced with a proffer of 

expert scientific testimony, a trial judge must determine at the 

outset whether the expert is proposing to testify to (1) scientific 

knowledge that (2) will assist the trier of fact to understand or 

determine a fact in issue. Id. The trial court should focus on the 

principles and methodology utilized by expert witnesses, and 

not on the conclusions that they generate. Id.

[7] Under § 27-702 and our case law, before admitting 

expert opinion testimony, the trial court must determine, inter 

alia, whether the expert’s knowledge, skill, experience, training, and education qualify the witness as an expert. See State 

v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016). A court 

must also determine whether the reasoning or methodology 

underlying the testimony is valid and whether that reasoning 

or methodology can be properly applied to the facts in issue. 

See id. In connection with the just recited proposition, we note, 

as did the district court, that in this case, Wheeler dropped 

his challenge to the methodology Harder used to perform her 

toolmark analysis. Instead, Wheeler’s argument at trial and on 

appeal focuses on what he alleges to be gaps or deficiencies in 

Harder’s training and qualifications, and we therefore focus on 

the district court’s analysis regarding Harder’s qualification as 

an expert in toolmark analysis.

[8-10] There is no exact standard for fixing the qualifications of an expert witness, and a trial court is allowed discretion in determining whether a witness is qualified to testify as 

an expert. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009). 

Experts or skilled witnesses will be considered qualified if 

they possess special skill or knowledge respecting the subject 

matter involved superior to that of persons in general, so as 

to make the expert’s formation of a judgment a fact of probative value. Id. A witness may qualify as an expert by virtue 

of either formal training or actual practical experience in the 

field. Id.
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In this case, the district court found that there was sufficient 

evidence to qualify Harder as an expert in the area of ballistics 

and toolmark analysis. And it did so even in the face of the 

competing PCAST hypothesis. The court relied on evidence 

of Harder’s training and her personal knowledge and experience, as well as the fact that she had been subjected to ongoing 

proficiency testing. Wheeler cross-examined Harder with what 

he asserted were shortcomings in her education and training. Harder conceded that she had not completed coursework 

in firearm and toolmark analysis as part of her undergrad

uate or master’s level college education and that she had not 

gone through the AFTE certification. However, Harder testified 

regarding training specific to toolmark analysis that she had 

undergone subsequent to her formal college education, and she 

testified that while she had not gone through the certification 

process, the laboratory with which she was associated chose 

instead to go through yearly proficiency testing in order to 

ensure continued competence.

Given the evidence of Harder’s training and proficiency 

testing, as well as evidence of her experience in the field of 

ballistics and toolmark analysis, we determine that the district court did not abuse its discretion when it concluded that 

Harder was qualified as an expert in the area of ballistic and 

toolmark analysis.

Wheeler also argues that Harder’s testimony should have 

been excluded under § 27-403, which provides that relevant 

evidence may be excluded if, inter alia, its probative value is 

substantially outweighed by the danger of unfair prejudice. 

Wheeler argues that Harder’s testimony was unfairly prejudicial for two reasons: first, because the State presented her as 

an expert when she was not qualified, and second, because the 

State used her expert opinion as the basis for its theory that 

only one gun was fired at the scene of the shooting.

With respect to the first argument, Wheeler was not prejudiced by the presentation of a nonexpert, because Harder 

was in fact an expert. With respect to the second argument, 
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Harder’s testimony in support of the State’s one-gun theory 

was unfavorable, but not unfairly prejudicial.

Regarding the one-gun theory, Wheeler claims unfair prejudice because the State’s one-gun theory foreclosed his defense 

theory that the shots that struck Nelson were not fired by him 

but by some other person at the scene who also had a gun. As 

he asserts with regard to his claim of insufficient evidence, 

which we consider below, Wheeler contends that other than 

Harder’s testimony, there was no credible evidence to support 

the State’s one-gun theory, and that he presented evidence 

which showed that there was at least one other gun and that 

another person fired the shots that struck Nelson.

Harder’s testimony was probative of an issue in this case. 

The State and Wheeler presented differing theories as to 

whether more than one gun was fired during the altercation. 

Seven shell casings were found at the scene, and Harder’s 

opinion was that all seven were fired from the same gun. 

Therefore, Harder’s testimony provided some evidence to support the State’s theory of one gun and to refute Wheeler’s 

theory of multiple guns being fired. Harder’s testimony was 

not unfairly prejudicial because her opinion was limited to the 

specific shell casings that were tested, and she did not opine 

on whether other guns may have been present or fired at the 

scene. Her testimony was limited to the specific shell casings 

that she tested.

Wheeler’s argument of unfair prejudice therefore is not 

aimed so much at Harder’s testimony per se but at the State’s 

use of her testimony to argue that it had proved the State’s 

one-gun theory. To the extent Wheeler had evidence to refute 

the State’s theory, Wheeler was able to present that evidence 

and argue his competing theory to the jury. To the extent 

Wheeler’s complaint was that the State overstated or misstated 

Harder’s testimony and claimed that such testimony alone conclusively proved that there was only one gun at the scene, the 

proper response would have been for Wheeler to object to any 

closing arguments that he believed misstated the evidence. We 

note in this respect that Harder’s testimony was not the only 
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evidence the State relied on to present its theory; the State also 

relied on witnesses who testified that they saw Wheeler in possession of a gun but did not see any other guns. In any event, 

Wheeler’s argument does not establish that Harder’s testimony 

was in itself unfairly prejudicial or that it should have been 

excluded pursuant to § 27-403.

We conclude that the district court did not abuse its discretion when it determined that Harder qualified as an expert and 

that the probative value of her testimony was not outweighed 

by unfair prejudice. The district court therefore did not err 

when it overruled Wheeler’s motion in limine and allowed 

Harder to testify. We reject this assignment of error.

There Was Sufficient Evidence to 

Support Wheeler’s Convictions.

Wheeler next claims that there was not sufficient evidence 

to support his convictions. He argues that the evidence was not 

sufficient in two general respects: (1) There was no evidence 

that showed that shots fired by Wheeler were the shots that 

killed Nelson, and (2) there was insufficient evidence to rebut 

his claim of self-defense. We conclude that there was sufficient 

evidence to support the jury’s verdicts.

[11] 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. State v. Price, 306 Neb. 38, 944 

N.W.2d 279 (2020). When a criminal defendant challenges the 

sufficiency of the evidence upon which a conviction is based, 

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. Id.

Wheeler first contends that there was not sufficient evidence to show that he fired the shots that struck Nelson. He 
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acknowledges that there was testimony that he was in possession of a gun at the time witnesses heard shots, but he notes a 

conflict in the testimony because his defense witness testified 

that she saw Wheeler in front of the vehicle without a gun in 

his hands and that she saw a different man with a gun on the 

driver’s side of the vehicle.

Wheeler emphasizes that his argument is not merely there 

was a conflict in the evidence and that his argument cannot 

be dismissed as a credibility determination or weighing of 

evidence to be resolved by the jury. Instead, Wheeler argues 

that there was no evidence from which a rational trier of fact 

could find that any shots he might have fired while in front 

of Nelson’s vehicle could have been the shots that struck and 

killed Nelson. He asserts there was no specific evidence indicating that he fired shots through the driver’s side window of 

Nelson’s vehicle and that instead, the only evidence was that 

he fired shots when he was in front of the vehicle. He argues 

that this is significant, because the testimony of Casey, the 

forensic technician who processed Nelson’s vehicle, indicated 

that the bullets that struck Nelson were fired through the open 

driver’s side window. He argues that shots fired from in front 

of the vehicle could not have entered through the driver’s side 

window; instead, such shots could only enter through the front 

windshield and there was no evidence of bullets’ entering 

through that trajectory.

The State notes, however, that there was testimony from 

which the jury could find that Wheeler fired shots when he was 

located on the driver’s side of Nelson’s vehicle. Edie Derry, 

a bystander who was not part of either Wheeler’s group or 

Nelson’s group, testified that she saw a man who pulled a gun 

and aimed it “towards the two boys first and then spun around 

towards the woman,” that the woman “had gotten into her 

vehicle and was starting to pull away,” and that the man “fired 

two shots into the driver’s side open window of the vehicle.” 

Derry also testified that “[t]he shooter had curly hair or dreadlocks”; other evidence indicated that Wheeler had dreadlocks 

on the day of the shooting.
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Hickman testified that she saw Wheeler aiming a gun at 

Andrell and that she put her head down and heard shots. 

Hickman testified that she saw Wheeler in front of Nelson’s 

vehicle and that then she saw Nelson’s vehicle “hitting” 

Wheeler. Hickman testified that she heard more shots after 

Nelson’s vehicle hit Wheeler. Yasmen also testified that she 

saw Nelson’s vehicle moving forward and that the vehicle 

“bumped” Wheeler. Yasmen testified that after Wheeler was 

bumped, he “stumbles off and catches his balance and then 

goes to the side and starts shooting towards the car.” Yasmen 

clarified that although she could not see Wheeler firing the 

gun, she saw that he was on the driver’s side of the vehicle 

after being bumped and at that time she heard shots. Williams 

similarly testified that he saw Nelson bump Wheeler with her 

vehicle and that Wheeler ended up on the driver’s side of the 

vehicle after he was bumped; Williams testified that he heard 

additional shots when Wheeler was on the driver’s side of 

the vehicle.

Therefore, there was evidence from which the jury could 

find that shots were fired at a time when Wheeler was on the 

driver’s side of the vehicle. The jury could infer that the shots 

were fired by Wheeler and that the shots went through the open 

driver’s side window and struck Nelson.

Because it was the jury’s province to determine credibility, 

resolve conflicts, and weigh the evidence, we as an appellate 

court consider only whether there was sufficient evidence to 

support the finding of the jury as fact finder. There was evidence from which the jury could have found that Wheeler fired 

shots while he was on the driver’s side of Nelson’s vehicle. 

To the extent that such evidence was not stronger or that there 

was conflicting testimony, it was the jury’s duty to resolve 

inconsistencies, to weigh the evidence, and to determine which 

witnesses they found to be credible. We do not pass on the 

credibility of witnesses on appeal, State v. Price, 306 Neb. 

38, 944 N.W.2d 279 (2020), and because there was evidence from which the jury could rationally find that Wheeler 
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fired the shots that struck and killed Nelson, the evidence 

was sufficient.

Wheeler also argues that the State did not present sufficient evidence to rebut his claim of self-defense. In particular, 

Wheeler notes there were some conflicts in the evidence on the 

issue of self-defense. As urged by Wheeler, the district court 

found evidence from which a jury could find that Wheeler was 

defending himself against a threat imposed by Andrell, Adren, 

and Andre and therefore instructed on self-defense. There was 

testimony, however, particularly that of Andrell and Adren, that 

they were running away from Wheeler when he fired shots. 

Furthermore, there was evidence indicating that the shots that 

hit Nelson were fired after the shots that were aimed at Andrell 

and others. As such, the jury could have found that Wheeler 

was not acting in self-defense when he fired the shots that 

killed Nelson.

Again, the credibility and weight of witness testimony are 

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

reassessed on appellate review. See State v. Price, supra. Any 

conflicts in the evidence or questions concerning the credibility 

of witnesses are for the finder of fact to resolve. Id. Because 

the jury found Wheeler guilty of second degree murder and 

use of a deadly weapon to commit a felony, it apparently 

disbelieved the evidence presented by Wheeler asserting that 

he acted in self-defense. To the contrary, there was sufficient 

evidence presented to support a finding that Wheeler did not 

act in self-defense, and we will not reassess the jury’s finding 

on appeal.

Wheeler also argues that at best, the evidence supported a 

conviction for sudden quarrel manslaughter. However, there 

was evidence that the altercation continued from one parking lot to another, that Wheeler directed Hickman to follow 

Nelson’s vehicle, and that Wheeler approached Nelson’s vehicle and wanted to fight Andrell. Although there was evidence 

in support of the version of events as urged by Wheeler, the 

State presented evidence which contradicted his version of 

events and from which the jury could have found that Wheeler 
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fired the shots with the required intent for second degree 

murder and that the shooting of Nelson did not result from a 

sudden quarrel and, as previously noted, was not justified as 

self-defense.

Viewing the evidence in the light most favorable to the 

State, we conclude that the evidence was sufficient to support 

Wheeler’s convictions for second degree murder and use of a 

firearm to commit a felony. We therefore reject this assignment 

of error.

District Court Did Not Abuse Its Discretion 

When Imposing Sentences.

Wheeler finally claims that the district court imposed excessive sentences. He contends that the court did not adequately 

consider relevant mitigating factors, including his age. We find 

no abuse of discretion in the sentencing.

Wheeler was convicted of second degree murder, a Class IB 

felony under Neb. Rev. Stat. § 28-304(2) (Reissue 2016), and 

use of a firearm to commit a felony, a Class IC felony under 

Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016). The sentencing 

range for a Class IB felony is imprisonment for a minimum of 

20 years and a maximum of life, and the sentencing range for a 

Class IC felony is imprisonment for a mandatory minimum of 

5 years and a maximum of 50 years. Neb. Rev. Stat. § 28-105 

(Reissue 2016). The district court sentenced Wheeler to imprisonment for 70 to 100 years for the second degree murder conviction and for 7 to 15 years for the weapon conviction, and 

the court ordered the sentence for the weapon conviction to be 

served consecutive to the sentence for the murder conviction, 

as required by § 28-1205(3). The sentences imposed by the 

court were therefore within statutory limits.

[12] Where a sentence imposed within the statutory limits 

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

determine whether a sentencing court abused its discretion 

in considering and applying the relevant factors as well as 

any applicable legal principles in determining the sentence 

to be imposed. State v. Price, 306 Neb. 38, 944 N.W.2d 279 
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(2020). We therefore consider whether the court abused its discretion when it imposed those sentences.

[13,14] Wheeler argues that the district court abused its 

discretion when it sentenced him because it did not adequately 

consider relevant mitigating factors. In determining a sentence 

to be imposed, relevant factors customarily considered and 

applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) 

past criminal record or record of law abiding conduct, and 

(6) motivation for the offense, as well as (7) the nature of the 

offense and (8) the amount of violence involved in the commission of the crime. Id. The appropriateness of a sentence is 

necessarily a subjective judgment and includes the sentencing 

judge’s observation of the defendant’s demeanor and attitude 

and all the facts and circumstances surrounding the defendant’s 

life. Id.

[15] Wheeler argues that the court failed to give adequate 

weight to mitigating factors, most notably his age but also 

his mentality, social and cultural background, lack of criminal 

record, and motivation. He argues that instead of giving due 

consideration to these mitigating factors, the court placed too 

much weight on the circumstances of the offense, particularly 

the location of the shooting. Wheeler notes that we have said 

that a sentence should fit the offender and not merely the crime. 

See State v. Gray, 307 Neb. 418, 949 N.W.2d 320 (2020). He 

argues that by emphasizing the circumstances of the offense 

over the mitigating factors, the court abused its discretion by 

tailoring the sentences to the crime rather than to him.

In arguing that the court did not adequately consider his 

age, Wheeler cites Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 

2455, 183 L. Ed. 2d 407 (2012), in which the U.S. Supreme 

Court held that a sentence of mandatory life imprisonment 

without parole for a juvenile violated the Eighth Amendment’s 

prohibition on cruel and unusual punishment. Wheeler cites 

Miller v. Alabama for its reasoning regarding the culpability 

of adolescents. However, Wheeler was not sentenced to life 
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imprisonment without parole, and the presentence investigation report indicates that Wheeler was born in June 1998. He 

was 19 years old at the time of the offense and therefore was 

neither a juvenile nor an adolescent.

Nevertheless, Wheeler’s relatively young age is a relevant 

factor to be considered in sentencing. In this regard, we note 

that the presentence investigation report and the argument 

of Wheeler’s counsel at sentencing provided the court with 

information regarding Wheeler’s age and the other relevant 

factors urged by Wheeler as mitigating in favor of a lesser 

sentence. At the sentencing hearing, the court stated that it had 

considered all the relevant factors urged by Wheeler, including “Wheeler’s age, mentality, education, experience, social 

and cultural background, past criminal record, [and] motivation for the offense.” The court gave particular consideration 

to Wheeler’s age, stating that it had given Wheeler “all of 

the benefit of the doubt that [it] possibly [could] regarding 

his youthful age,” that it had considered Wheeler’s age “an 

extreme mitigating factor in his case,” and that it had given the 

age factor “the utmost consideration.”

But the court also considered relevant factors such as the 

“nature of the offense and the violence involved in the commission of the offense.” The court characterized the offense as “a 

senseless killing that should have never happened” and noted 

evidence that “[a]t least seven shots were fired . . . .” Wheeler 

characterizes the court as placing too much emphasis on the 

location of the shooting. In this regard, the court noted at the 

sentencing that the shooting “happened at a crowded Walmart 

parking lot where many innocent bystanders were just parking 

their cars and walking in and out of the parking lot trying to go 

into Walmart like we all do.” The court further “underscore[d] 

that this happened at a crowded Walmart where people were 

coming and going,” and the court noted that “Nelson was not 

the intended victim in this case, she was completely innocent 

and she suffered the consequences of a bullet that was meant 

for somebody else.”
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Wheeler characterizes the court’s statements as being an 

indication that the court was emphasizing “protection of the 

public” as a justification to impose a long term of imprisonment, and he argues that consideration for protection of the 

public should focus on future protection and should consider 

prospects for rehabilitation. Brief for appellant at 43. We read 

the comment of the court regarding the public safety as a relevant fact in connection with “the nature of the offense” and 

“the amount of violence involved in the commission of the 

crime.” See State v. Price, 306 Neb. 38, 61, 944 N.W.2d 279, 

296 (2020). The court properly considered that by shooting 

at persons involved in the altercation while in a busy parking lot, Wheeler endangered not only his intended targets but 

also Nelson and other unintended targets, as well as innocent bystanders.

The court appropriately weighed these considerations 

regarding the nature of the offense and the amount of violence 

involved against Wheeler’s age and the other mitigating factors he advanced. We do not think the court ignored relevant 

mitigating factors, considered inappropriate factors, or placed 

undue emphasis on irrelevant circumstances. We find no abuse 

of discretion.

We conclude that the sentences imposed by the court were 

not an abuse of discretion, and we therefore reject Wheeler’s 

claim that the district court imposed excessive sentences.

CONCLUSION

We conclude that the district court did not err when it 

overruled Wheeler’s motion in limine and later overruled his 

objection to Harder’s testimony regarding ballistics testing 

and toolmark analysis. We further conclude that there was sufficient evidence to support Wheeler’s convictions and that the 

court did not abuse its discretion in sentencing Wheeler. We 

therefore affirm Wheeler’s convictions and sentences.

Affirmed.