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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. PRIOR

Cite as 30 Neb. App. 821

State of Nebraska, appellee, v. 

Stephen R. Prior, appellant.

___ N.W.2d ___

Filed April 12, 2022. No. A-20-888.

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

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

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

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

error, but whether those facts trigger or violate Fourth Amendment 

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

2. Property: Appeal and Error. A trial court’s finding that an item of personal property has been abandoned, and thus not subject to a reasonable 

expectation of privacy, is reviewed for clear error.

3. Rules of Evidence: Other Acts: Appeal and Error. An appellate court 

reviews the admission of evidence of other acts under Neb. Rev. Stat. 

§ 27-404(2) (Supp. 2019) by considering (1) whether the evidence was 

relevant, (2) whether the evidence had a proper purpose, (3) whether 

the probative value of the evidence outweighed its potential for unfair 

prejudice, and (4) whether the trial court, if requested, instructed 

the jury to consider the evidence only for the purpose for which it 

was admitted.

4. 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.

Nebraska Supreme Court Online Library

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

04/19/2022 08:07 AM CDT
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. PRIOR

Cite as 30 Neb. App. 821

5. Evidence: Appeal and Error. The relevant question for an appellate 

court on review of the sufficiency of evidence 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.

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

by the trial court.

7. ____: ____. In reviewing a sentence imposed within the statutory limits, 

an appellate court considers whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any 

legal principles in determining the sentence to be imposed.

8. Sentences. Generally, it is within a trial court’s discretion to direct that 

sentences imposed for separate crimes be served either concurrently 

or consecutively.

9. Constitutional Law: Search and Seizure. The Fourth Amendment to 

the U.S. Constitution and article I, § 7, of the Nebraska Constitution 

protect individuals against unreasonable searches and seizures by 

the government.

10. Search and Seizure. When individuals voluntarily abandon property, 

they forfeit any expectation of privacy in the property that they might 

otherwise have had.

11. Constitutional Law: Search and Seizure. Because the Fourth 

Amendment does not protect voluntarily abandoned property, a warrantless search or seizure of abandoned property does not violate the 

Fourth Amendment.

12. ____: ____. A search for Fourth Amendment purposes occurs when the 

government violates a subjective expectation of privacy that society 

recognizes as reasonable.

13. Constitutional Law: Property: Search and Seizure. Once a defendant abandons an item of personal property and makes it available to 

the police or the public, he or she does not retain a reasonable expectation of privacy in the property for purposes of Fourth Amendment 

protection.

14. Constitutional Law: Property: Search and Seizure: Police Officers 

and Sheriffs: Proof: Intent. To show abandonment of personal property for purposes of the Fourth Amendment, the State must establish by 

a preponderance of the evidence that the defendant’s voluntary words or 

conduct would lead a reasonable officer to believe the defendant relinquished his or her property interests in the item. This is an objective 

test based on the information available to the officer, and the defendant’s 

subjective intent to later reclaim the item is irrelevant.
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. PRIOR

Cite as 30 Neb. App. 821

15. Property: Search and Seizure. When determining whether property 

has been abandoned, courts consider the totality of the circumstances, 

and pay particular attention to the nature and location of any physical 

relinquishment of the property and any explicit denials of ownership.

16. Trial: Evidence: Appeal and Error. An objection must be specifically 

stated, and on appeal, a defendant may not assert a different ground for 

his or her objection to the admission of evidence than was offered to the 

trier of fact.

17. Identification Procedures: Police Officers and Sheriffs: Motions 

to Suppress. Suppression of identification evidence on the basis of 

undue suggestion is appropriate only where the witness’ ability to make 

an accurate identification is outweighed by the corrupting effect of 

improper police conduct.

18. Trial: Identification Procedures. When no improper law enforcement 

activity is involved, it suffices to test the reliability of identification testimony at trial, through the rights and opportunities generally designed 

for that purpose, such as the rights to counsel, compulsory process, and 

confrontation and cross-examination of witnesses.

19. Convictions: Appeal and Error. Appellate courts will not reverse a 

criminal conviction in the absence of prejudice to the defendant.

20. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

21. Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of 

that discretion.

22. Trial: Evidence: Other Acts. It is within the discretion of the trial court 

to determine relevancy and admissibility of evidence of other wrongs or 

acts, and the trial court’s decision will not be reversed absent an abuse 

of that discretion.

23. Evidence: Other Acts: Appeal and Error. An appellate court reviews 

the admission of evidence of other acts by considering whether the evidence was relevant, whether the evidence had a proper purpose, whether 

the probative value of the evidence outweighed its potential for unfair 

prejudice, and whether the trial court, if requested, instructed the jury to 

consider the evidence only for the purpose for which it was admitted.

24. Trial: Witnesses: Service of Process. Process to secure attendance of 

witnesses from another state may not be issued unless the testimony 

proposed to be elicited from such witnesses is relevant to the issues to 

be tried.
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STATE v. PRIOR

Cite as 30 Neb. App. 821

25. Trial: Pleadings: Evidence. It is proper to sustain a motion in limine to 

prevent reference to or the offer of evidence concerning matters which 

are entirely extraneous or irrelevant to the issues of the case.

26. Criminal Law: Directed Verdict. In a criminal case, a court can direct 

a verdict only when there is a complete failure of evidence to establish 

an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based 

on such evidence cannot be sustained. If there is any evidence which 

will sustain a finding for the party against whom a motion for directed 

verdict is made, the case may not be decided as a matter of law, and a 

verdict may not be directed.

27. Sentences. When imposing a sentence, a sentencing judge should customarily consider 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. However, the sentencing court is not limited to any mathematically applied set of factors.

28. ____. 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.

Appeal from the District Court for Sarpy County: George 

A. Thompson, Judge. Affirmed.

Thomas P. Strigenz, Sarpy County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Moore, Arterburn, and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Stephen R. Prior appeals seven felony convictions and two 

misdemeanor convictions related to a home invasion robbery and sexual assault and the sentences imposed thereon. 

Specifically, he contends that the district court erred in finding 

he did not have an expectation of privacy in an abandoned 
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STATE v. PRIOR

Cite as 30 Neb. App. 821

bag found outside of an apartment complex, overruling his 

motion to suppress the victim’s in-court voice identification of 

him, allowing the State to adduce evidence of Prior’s physical characteristics, admitting witness testimony of prior bad 

acts, denying his request to secure attendance of out-of-state 

witnesses, denying his motion for directed verdict, and imposing excessive sentences. For the reasons set forth herein, 

we affirm.

II. STATEMENT OF FACTS

1. Facts Giving Rise to Prior’s Arrest

At 9 p.m. on October 18, 2017, W.R., who lived alone, 

returned to her home from work. After parking her vehicle in 

her garage, W.R. retrieved her mail and placed her garbage can 

and recycling at the curb. After performing these routine activities, W.R. entered her home and closed her garage door. She 

then cooked dinner, took a shower, and went to sleep. The normality of the evening ended at approximately 11:30 p.m., when 

a stranger, who wore a black mask extending from his nose to 

his neck while brandishing a black semiautomatic handgun, 

woke W.R. by shining a light in her eyes. The perpetrator told 

W.R. that he “just want[ed her] money” and forced W.R. into 

the kitchen where her purse was located. When the perpetrator 

told W.R. to throw the money on the table, W.R. noticed that 

the perpetrator was wearing black gloves.

The perpetrator then forced the victim to an exercise room 

near the garage, where he told the victim to face the wall with 

her hands up. Although the perpetrator left, he returned shortly 

thereafter, telling the victim that “we’re going to go upstairs, 

and I’m going to be here for a while.” The perpetrator forced 

the victim upstairs to her bedroom and directed W.R. not to 

look at him. The perpetrator directed W.R. to “[p]ut her face in 

the pillow,” after which he removed W.R.’s clothing and used 

rope to bind W.R.’s wrists and ankles. Although the perpetrator blindfolded the victim with her pillowcase, it was not tied 

tightly and W.R. was able to see around it.
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STATE v. PRIOR

Cite as 30 Neb. App. 821

After W.R. was blindfolded, the perpetrator removed his 

mask and gloves and proceeded to kiss, touch, and digitally 

penetrate W.R. without her consent. The perpetrator also forced 

W.R. to perform oral sex on him, after which he retrieved a 

condom and then vaginally penetrated W.R. without her consent. At some point throughout the encounter, the individual 

pulled out the knife in his front pocket and cut the ropes binding W.R.

Following the assault, the perpetrator forced W.R. to take a 

shower, telling her that “you’re going to wash your mouth out 

with water at least two times” and that “you’re going to stay 

in there at least five minutes, and then I’m going to be gone.” 

After a few minutes, the perpetrator returned to the bathroom 

stating, “I’m still here.” W.R. complied with the perpetrator’s 

demands, staying in the shower for about 10 minutes until 

she could no longer hear him, after which she immediately 

dressed and drove to a friend’s home. En route, W.R. called 

her friend and explained what had happened. During the call, 

W.R. expressed fear about reporting the assault due to the perpetrator’s threats to kill her. However, W.R.’s friend reported 

the assault, and by the time W.R. arrived at her friend’s home, 

paramedics and the police were present.

W.R. was able to provide law enforcement with specific 

details regarding the assault and the perpetrator because the 

blindfold had not been tied tightly and did not completely block 

W.R.’s vision during the assault. W.R., who at the time was a 

medical resident, described the perpetrator as a white male 

who had disheveled “grayish brown” hair; was approximately 

50 to 60 years old; smelled of cigarette smoke; did not have 

pubic hair; was circumcised; had approximately a 1-centimeter 

horizontal scar on his abdomen, which W.R. believed to be a 

laparoscopic scar; had a tight and distended abdomen; and had 

what appeared to be another scar running down his chest and 

“around the left side of his belly button.” W.R. provided the 

same identifying characteristics to a sketch artist in order to 

help identify her assailant.
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STATE v. PRIOR

Cite as 30 Neb. App. 821

W.R. also informed law enforcement that she had observed 

a knife in the right front pocket of the perpetrator’s black jeans 

and that the rope used to bind her was white, about 1 centimeter in diameter, and made from an unknown soft material that 

she knew was not twine. The perpetrator wore a black T-shirt, 

a black sweatshirt, and a pair of glasses with either no frames 

around the bottom or very thin frames. W.R. stated that she 

assumed that the perpetrator obtained the condom from a darkcolored bag, about the size of a backpack, that he had placed 

near her bed.

W.R. reported that although the perpetrator wore a mask part 

of the time, she could hear and understand him clearly when 

he spoke. W.R. reported to law enfocement that the perpetrator 

asked her, “[I]s this the first you’ve heard [of] me?” and then 

said, “You need to be more careful. Your garage door didn’t 

close all the way.” She testified he also said that “if [she] ever 

told anybody that he would come and find [her] and kill [her].” 

W.R. told law enforcement that she felt terrified throughout the 

encounter and believed she was going to die.

2. Investigation

While W.R. provided information to law enforcement, other 

officers went to the victim’s home which showed no signs 

of forced entry. Officers noted that the bedding in one of the 

bedrooms was disheveled and that there was water alongside 

the shower door. Law enforcement collected evidence from 

W.R.’s home, including a “bunched up” condom that was 

found in bedroom linens where the assault occurred. The condom appeared to contain a “moisture,” which officers could 

not identify without testing. Law enforcement also collected 

three strands of gray hair located on the bedroom floor and a 

half empty bottle of water. Law enforcement also located eight 

stains in the bedroom, none of which presumptively tested 

positive for semen. During this period of time, another officer 

serving as “stand by” noticed a suspicious white, “four-door 

sedan with LED lights” outside of W.R.’s residence. As the 
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STATE v. PRIOR

Cite as 30 Neb. App. 821

officer approached the vehicle, it sped out of the area. Attempts 

to locate the vehicle were unsuccessful.

During a canvass of W.R.’s neighborhood, law enforcement 

received information regarding a suspicious white vehicle that 

sped away from W.R.’s home on the day of the assault. A 

neighbor told officers that Prior had previously lived in the 

area. The neighbor stated that Prior drove a white Lexus sport 

utility vehicle with a damaged front quarter panel, that Prior 

would drive through the neighborhood at least two to three 

times per week, and that he had last seen Prior’s vehicle at 

about 6 a.m. on October 18, 2017. The neighbor also provided 

law enforcement with two videos from his home surveillance 

camera: a video from October 17 at 6:15 a.m. and a second 

video from October 18 at 6:20 a.m. After determining that 

Prior was the registered owner of a white 2009 Lexus sport 

utility vehicle with Nebraska license plates, officers conducted 

an independent search into Prior and reviewed “field care 

interviews.” One of those interviews led law enforcement to 

Jacquilyn B., who lived in W.R.’s neighborhood and had previously reported to law enforcement an interaction that she had 

had with Prior.

Based on W.R.’s description and Prior’s resemblance to that 

description, officers presented W.R. with a photographic lineup 

containing six photographs, including one photograph of Prior. 

W.R. immediately eliminated three of the photographs, but 

was otherwise unable to affirmatively identify her assailant 

from the three remaining photographs. The three remaining 

photographs included the photograph of Prior. Following the 

photographic lineup, Prior was identified as a person of interest 

and law enforcement was instructed to be on the lookout for 

Prior and/or his white Lexus.

3. Vehicle Surveillance

On October 19, 2017, a deputy located Prior’s Lexus in 

the parking lot of an apartment complex that was a short distance from W.R.’s home. Upon approaching the unoccupied 

Lexus, the deputy observed various items inside the vehicle, 
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STATE v. PRIOR

Cite as 30 Neb. App. 821

including boltcutters, a brown wallet, binoculars, duct tape, a 

pair of women’s underwear, leather work gloves, a “messenger 

type bag,” white rope, water jugs, and a sleeping bag. While 

a search warrant of Prior’s Lexus was obtained, Sgt. Greg 

Monico, along with another officer, conducted surveillance 

of the vehicle. During their surveillance, they heard branches 

snapping in the tree line behind them. The pair exited their 

vehicle, identified themselves as law enforcement, and ordered 

the individual to exit the tree line. Although the individual fled 

instead of complying with the officers’ demands, the officers 

observed that the individual was wearing a “blue windbreaker 

style jacket,” a head covering, dark-colored pants, and a knife 

sheath on his or her right side. After losing sight of the individual, officers called for backup, and during an approximately 

10-minute time period, Prior’s vehicle was not under surveillance. Despite having established a perimeter around the apartment complex, a “K-9” search of the area, and the search of 

a nearby creekbed, the individual was not located. After the 

search, the bottom of Monico’s pants and his boots were soaked 

and muddy and cockleburs were stuck to his shoelaces.

After obtaining the warrant to search Prior’s Lexus, law 

enforcement impounded the vehicle, searched it, and seized 

several pieces of white rope, condoms, two folding knives, 

blue nitrile gloves, metal handcuffs, a flashlight, a purse, a 

wallet, two pairs of black gloves, six pairs of glasses, binoculars, and a stethoscope. Law enforcement also took swabs of 

the steering wheel and gearshift and lifted a fingerprint from 

inside the vehicle.

4. Arrest

On October 20, 2017, Prior was arrested pursuant to a warrant at the home of his friend, Donovan Skow. Officers spoke 

to Skow and Kathy Higgins, who was also present. Skow told 

law enforcement that Prior stated that he was in trouble or 

that the police were after him due to the police’s belief that 

Prior was stalking someone. Higgins reported that she was 

Prior’s friend and that, during certain periods of time over 
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STATE v. PRIOR

Cite as 30 Neb. App. 821

the previous month, he had been living with her. Higgins indicated that on October 20, she received a call from Prior asking 

for a ride because his vehicle had broken down. When she 

arrived, Higgins observed that Prior was wearing a black cap, 

had a knife sheath or holder, and looked “rugged, . . . tired, 

dirty, [and] muddy.” She drove Prior to her home, and then 

she left to go to an appointment. When Higgins returned, she 

noticed that her apartment blinds were closed and that Prior 

had been watching the news about law enforcement’s search 

for a suspect. Higgins also informed officers that some of 

Prior’s personal property remained at her home even though 

he had not been living there for the previous week. She further 

stated that Prior had been using her red Chevrolet Aveo since 

October 20. During a search of the Aveo conducted pursuant to 

Higgin’s consent, officers seized a pair of eyeglasses, a knife 

inside a black knife sheath, and wet and muddy dark-colored 

jeans that were consistent with the officers’ description of the 

individual fleeing from the apartment complex on October 19. 

Officers also seized a black gaiter mask, which covers only 

the lower half of one’s face, which was covered in cockleburs 

similar to those found on Monico’s shoelaces after he searched 

the creekbed for the fleeing individual. During a search of 

Higgins’ home to locate Prior’s property, conducted pursuant to 

a warrant, officers seized a pair of gloves, 9-mm ammunition, 

several knives, and various jackets.

After Prior’s arrest, he was booked into jail and strip 

searched. The deputy performing that search noted that Prior’s 

“genitals [sic] region, testicles, shaft, and above the penis were 

all cleanly shaven. [Prior’s] penis was circumcised and [he] 

had a small scar, approximately half an inch on the left hip.”

5. Bag Located at Apartment Complex

On October 21, 2017, a resident of the same apartment 

complex where surveillance of Prior’s Lexus had occurred 

noticed a bag by the garages of the complex and observed that 

no one had approached the bag during a 5-hour timeframe. 

The bag was located directly east of where the surveillance of 
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STATE v. PRIOR

Cite as 30 Neb. App. 821

Prior’s Lexus had occurred. The following day, after noticing 

the bag remained in the same place, the apartment complex 

resident grabbed the bottom of the bag and dumped out the 

contents. The contents of the bag included cigarettes, a black 

pouch, a flashlight, zip ties, white rope, a bandage wrap, “KY 

Jelly” lubricant, a 9-mm semiautomatic handgun loaded with 

ammunition, and Prior’s driver’s license and Social Security 

card. The apartment complex resident recognized Prior from 

news coverage regarding the commission of a crime and notified his father, who contacted law enforcement. At the time 

law enforcement responded to the call, Prior had already been 

taken into custody. The bag and its contents were collected as 

evidence and were tested for DNA.

6. Postarrest Interviews With Prior

Following Prior’s October 20, 2017, arrest, police interviewed him two times. During the first interview, which 

occurred on October 20, Prior denied involvement and stated 

that on October 19, he was walking to stretch out his legs 

before going to sleep. Prior stated that he slept in his vehicle 

and that on the evening of October 19, someone approached 

his vehicle with a bag and took items from his vehicle, but 

fled when confronted by Prior. Prior told officers that he had 

noticed a large police presence in the area and decided not to 

go back to his vehicle that day.

During the second interview on October 22, 2017, which 

was conducted at Prior’s request, Prior again denied involvement, but he stated that he had been distributing marijuana 

and stealing food from open garages. Prior confirmed that he 

previously resided in W.R.’s neighborhood and admitted to 

being in the area to drive by his mother’s house. Prior repeated 

that he had noticed a large police presence on October 19, 

but added that he walked to a gas station where he called 

Higgins to request a ride. Prior acknowledged that he owned a 

white Lexus and that he returned to the apartment complex on 

October 20, but he denied having a bag or being in the woods 

near the apartment complex. During the second interview, after 
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STATE v. PRIOR

Cite as 30 Neb. App. 821

granting Prior’s request for a “smoke break,” officers collected 

Prior’s used cigarette butt to test it for DNA.

7. Search Warrant for Prior’s 

Identifying Characteristics

In late October 2017, law enforcement sought a court order 

to obtain Prior’s physical characteristics. In support of an ex 

parte court order allowing law enforcement to obtain identifying personal characteristics from Prior, including hair samples, 

digital voice recordings, and DNA evidence, the law enforcement officer’s affidavit set forth the following facts: that Prior 

matched W.R.’s description of her assailant, that video surveillance and witness testimony had placed Prior in the area on the 

day of the assault, that items found inside the bag located at 

the apartment complex near W.R.’s residence included Prior’s 

driver’s license, and that evidence had been located containing Prior’s DNA. The affidavit further set forth that W.R. 

had provided information regarding her assailant’s identifying 

marks and characteristics and that, when Prior was arrested 

and booked into jail, officers noticed identifying characteristics 

similar to those described by W.R. The affidavit also stated that 

the officer believed that Prior would not willingly comply with 

a request to obtain evidence from his person because Prior had 

invoked his Miranda rights. After the court granted the request 

to obtain Prior’s physical characteristics, law enforcement collected hair samples, buccal swabs, photographs, and other identifying characteristics from Prior.

8. Information and Pretrial Motions

In November 2017, the State charged Prior with 12 offenses 

related to the home invasion and sexual assault: count 1, first 

degree sexual assault; count 2, burglary; count 3, robbery; 

count 4, as amended, use of a firearm to commit a felony; count 

5, first degree false imprisonment; count 6, possession of a 

firearm by a prohibited person; count 7, possession of a stolen 

firearm; count 8, terroristic threats; count 9, theft by receiving 
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stolen property; count 10, first degree trespass; count 11, theft 

by unlawful taking; and count 12, habitual criminal. Prior to 

the trial, the State dismissed count 7, possession of a stolen 

firearm, and count 9, theft by receiving stolen property.

(a) Motions to Suppress

Before trial, Prior moved to suppress evidence, including the 

search of his bag, evidence obtained during the strip search of 

his person during the jail booking procedure, evidence obtained 

pursuant to the court’s ex parte order requiring him to provide physical characteristics, and W.R.’s voice identification of 

Prior as her assailant. The parties entered into a limited stipulation as it related to Prior’s motion to suppress W.R.’s voice 

identification of Prior. The stipulation indicated that W.R. 

attended pretrial hearings, during which she identified Prior as 

her assailant. The parties agreed that although the State was 

aware of W.R.’s presence at the pretrial hearing, neither the 

State nor law enforcement had requested W.R.’s attendance for 

the purpose of making an identification. Further, the State did 

not provide notice to Prior or defense counsel that W.R. would 

be attending the pretrial hearing.

The district court denied each of Prior’s motions, including 

finding that Prior lacked standing to challenge the search of 

the bag because Prior had abandoned the bag and therefore did 

not have a reasonable expectation of privacy in the bag or its 

contents; that the strip search performed during the booking 

process was conducted pursuant to the Sarpy County sheriff’s 

office’s standard operating procedures (SOP), which procedures were reasonable to maintain the safety and security of 

those entering the facility and were closely tailored to prevent 

contraband from entering the facility; that the affidavit in support of the ex parte order established probable cause for the 

search warrant for Prior’s person; that Prior was given a copy 

of the court order; and that any objection to the search was 

waived by Prior’s consent. Regarding W.R.’s voice identification of Prior, the district court stated:
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The manner and means of identification were not suggestive, and there is indicia of the reliability prior to in court 

identification, W.R. had ample opportunity to hear [Prior] 

speak. She was adequately able to describe the same to 

law enforcement as to the tone, inflection, and narrative 

of her assailant’s voice. It occurred over a lengthy period 

of time. She has the requisite degree of attention and 

degree of certainty in the matter.

(b) State’s Motions in Limine

Prior to trial, the State filed motions in limine requesting a 

hearing to determine the admissibility of evidence concerning 

Prior’s September 23, 2016, contact with Jacquilyn and his 

actions on October 13, 2017, related to Angelique C. The State 

alleged that Prior’s contact with Jacquilyn and his October 

13 actions

may be considered admissible evidence under [Neb. Rev. 

Stat. §] 27-404 [(Supp. 2019)] and therefore a hearing is 

necessary for the State to provide proof of [Prior’s] acts to 

demonstrate that said acts show proof of Prior’s motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, and are therefore 

admissible under [Neb. Rev. Stat. §] 27-401 [(Reissue 

2016)] and/or 27-404.

Following a hearing, the court sustained the State’s motions 

in limine, finding the evidence of Prior’s previous conduct 

was admissible.

(c) Motion to Secure Out-of-State Witnesses

In August 2020, Prior filed a motion to secure the attendance of three law enforcement officers from Kansas, alleging 

that they were material witnesses to Prior’s defense. The affidavit by Prior’s counsel suggested that each of the witnesses 

could testify regarding the similarities of the instant case to 

that of cases involving a serial rapist in Kansas and that this 

evidence would support Prior’s claim that he was not the 
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perpetrator of the charged offenses. After reviewing the affidavit, the court overruled Prior’s motion to secure the attendance 

of the requested witnesses.

9. Trial

The trial was held in September 2020. The State called 23 

witnesses whose testimony was consistent with the facts laid 

out above. The State’s witnesses included W.R., Jacquilyn, 

Angelique, and Monico. We describe short summaries of portions of the testimony of those individuals and the DNA evidence adduced by the State as it relates to specific assignments 

of error raised by Prior.

(a) W.R.

W.R. testified consistent with the facts above and provided 

an in-court voice identification of Prior. On December 31, 

2018, and July 1, 2020, W.R. attended two pretrial hearings 

open to the public related to the charges against Prior. Prior 

was not notified that W.R. was present at the hearings, but 

W.R. attended in order to prepare for the possibility of testifying at trial. During the December 2018 hearing, Prior, although 

represented by counsel, spoke. During the July 2020 hearing, 

Prior represented himself, but was assisted by standby counsel. 

W.R. testified that after hearing Prior speak during the pretrial 

hearings, she immediately recognized his voice as being the 

same voice she heard on the night of her assault. W.R. testified 

that she was “positive it’s the same person” and that she would 

“never forget his voice.”

(b) Jacquilyn

Prior to Jacquilyn’s testimony regarding her previous 

encounter with Prior, the court gave a limiting instruction 

that Jacquilyn’s testimony was “not to prove the character of 

a person in order to show they acted in conformity with, but 

[the jury] may consider this for other purposes such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, 
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identity, or absence of mistake, or accident in this.” Jacquilyn 

testified that she lived in the same area as W.R. When describing the September 23, 2016, encounter, Jacquilyn testified that 

as she returned home and pulled her vehicle into her garage, a 

white four-door Lexus pulled up behind her in her driveway. 

Jacquilyn testified that she exited her vehicle and met the 

individual in her driveway. The individual identified himself 

as Prior and provided her with a business card. During the 

conversation, Prior asked Jacquilyn several “uncomfortable 

personal questions” and told her that she needed to be more 

careful, notifying her and demonstrating to her that a side window to her home was unlocked. He offered to fix her broken 

doorbell and asked her how she protects herself. The encounter 

ended with Jacquilyn’s calling the 911 emergency dispatch 

service. The State offered a recording of Jacquilyn’s 911 call, 

which was received over Prior’s objection.

(c) Angelique and Monico

Like Jacquilyn’s testimony, Angelique’s testimony was 

accompanied by a limiting instruction from the court. Angelique 

testified that on October 13, 2017, an unknown individual 

approached the back door of her home. Angelique had a doorbell security system, which is motion sensor activated and 

records when it senses movement. Angelique contacted law 

enforcement and provided them with the video taken from her 

doorbell security system. In the video, which was received 

and played over Prior’s objection, an individual unsuccessfully 

attempted to open the back door of Angelique’s home while 

wearing a mask around his neck. Monico identified Prior as 

the man depicted in the doorbell security video who attempted 

to open Angelique’s door. Monico further testified that he recognized the bag that Prior had on his person in the doorbell 

security video as being the same bag as the one found at the 

apartment complex. Monico also identified the mask that Prior 

was wearing around his neck as being consistent with the gaiter 

mask located in Higgins’ vehicle.
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(d) DNA Evidence

During the trial, evidence was adduced regarding the results 

of DNA evidence obtained during the course of this case, 

including DNA obtained from the condom found at W.R.’s 

bedroom, rope found in Prior’s vehicle, the gaiter mask found 

in Higgins’ vehicle, and items found within the abandoned bag, 

including rope and black zip ties.

Regarding the DNA found on the condom, W.R. was not 

excluded as the major contributor and Prior was not excluded 

as a partial profile contributor. The State adduced evidence 

that the probability of an unrelated individual matching the 

profile consistent with W.R.’s profile was 1 in 187 octillion 

and that the probability of an unrelated individual matching 

the profile that is consistent with Prior’s DNA profile was 1 

in 251,000.

Regarding DNA found on the rope seized from Prior’s vehicle, Prior was not excluded as the major contributor and W.R. 

was not excluded as a partial contributor. The State adduced 

evidence that the probability of an unrelated individual matching Prior’s DNA profile was 1 in 239 septillion and that the 

probability of an unrelated individual matching W.R.’s profile 

was 1 in 2.33 billion.

Regarding DNA found on the gaiter mask, Prior was not 

excluded as a major contributor and W.R. was not excluded 

as a partial contributor. The probability of another individual 

matching Prior’s profile was 1 in 761 octillion, and the probability of another individual matching W.R.’s profile was 1 in 

504 million.

Regarding DNA found on items in the abandoned bag, neither Prior nor W.R. could be excluded as contributors of that 

DNA. The probability of another individual matching Prior’s 

DNA profile was 1 in 761 octillion. Additionally, regarding 

the DNA found on the rope located inside the abandoned bag, 

W.R. was not excluded as a full profile contributor and the 

probability of another individual matching that same profile 

was 1 in 16.9 million. Regarding the DNA located on black 
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zip ties found in the abandoned bag, the probability that an 

unrelated individual would match Prior’s DNA profile was 1 

in 6.60 septillion and the probability that another individual 

would match W.R.’s profile was 1 in 1.75 trillion.

Finally, regarding DNA located on the 9-mm semiautomatic 

handgun, Prior and W.R. were not excluded as contributors. 

The probability of another individual matching the same DNA 

profile of Prior was 1 in 11.2 sextillion, and the probability of 

another individual matching the DNA profile of W.R. was 1 

in 5.69 quadrillion. Prior’s DNA was also obtained from the 

interior of the handgun, with a probability of another individual 

matching the same DNA profile being 1 in 761 octillion.

In sum, W.R. and Prior were included as possible contributors on the DNA collected from the condom located inside 

W.R.’s home on her bed; the white rope located on the floorboard of Prior’s white Lexus; the black gaiter mask found in 

Higgins’ vehicle; and the additional rope, black zip ties, and 

a 9-mm semiautomatic handgun located in the abandoned bag 

found at the apartment complex where Prior’s vehicle was 

located. Additional items were tested and found to contain 

DNA consistent with Prior’s DNA profile, including several 

items found inside that same bag and Prior’s Lexus.

10. Jury Verdicts and Sentencing

Following the trial, the jury found Prior guilty of all nine 

charged offenses. Thereafter, the court determined that Prior 

was a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 

(Reissue 2016) and proceeded to sentencing. The court reviewed 

the presentence investigation report for which Prior refused to 

provide any information. The district court considered the 

nature and circumstances underlying the crimes; the history, 

character and condition of Prior; the presentence investigation 

report, which included the victim impact statements; and the 

parties’ arguments. The district court determined that a term of 

imprisonment was necessary for the protection of the public. 

The court imposed the following terms of imprisonment:
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 Sentence of

Count Offense Imprisonment

1 First Degree Sexual Assault 45 to 50 years

2 Burglary 15 to 20 years

3 Robbery 20 to 30 years

4 Use of Firearm to Commit Felony 45 to 50 years

5 First Degree False Imprisonment 10 to 20 years

6 Possession of Firearm by Prohibited Person 20 to 30 years

8 Terroristic Threats 10 to 20 years

10 First Degree Trespass 1 year

11 Theft by Unlawful Taking ($500 or less) 6 months

The court stated that each felony conviction “has been found 

to be enhanceable to the habitual criminal, which is [a] mandatory minimum of ten years that runs on the sentence. The 

sentence therefore is a period of 165 years to 220 years.” The 

sentences on all counts were ordered to be served consecutively, Prior was granted 1,163 days’ credit for time served, 

and he was ordered to comply with the Nebraska Sex Offender 

Registration Act. Prior has timely appealed to this court and is 

represented by the same counsel that represented him during 

his trial and sentencing.

III. ASSIGNMENTS OF ERROR

Prior assigns, restated, that the district court erred in (1) 

finding that Prior lacked standing to challenge the search of 

his bag, because he had abandoned it; (2) overruling Prior’s 

motion to suppress/motion in limine regarding voice identification; (3) allowing the State to adduce evidence of Prior’s 

physical characteristics; (4) allowing Neb. Rev. Stat. § 27-404 

(Supp. 2019) testimony of Jacquilyn and Angelique; (5) denying Prior’s motion to secure out-of-state witnesses; (6) denying 

Prior’s motion for directed verdict due to insufficiency of the 

evidence; and (7) imposing excessive sentences.

IV. STANDARD OF REVIEW

[1] When reviewing a trial court’s ruling on a motion 

to suppress based on a claimed violation of the Fourth 
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Amendment, an appellate court applies a two-part standard of 

review. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019). 

Regarding historical facts, an appellate court reviews the trial 

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

law that an appellate court reviews independently of the trial 

court’s determination. State v. Garcia, supra.

[2] A trial court’s finding that an item of personal property 

has been abandoned, and thus not subject to a reasonable 

expectation of privacy, is reviewed for clear error. See State v. 

Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020).

[3] An appellate court reviews the admission of evidence of 

other acts under § 27-404(2) by considering (1) whether the 

evidence was relevant, (2) whether the evidence had a proper 

purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the 

trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. 

Newman, 4 Neb. App. 265, 541 N.W.2d 662 (1996).

[4,5] 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. State v. Hassan, 

309 Neb. 644, 962 N.W.2d 210 (2021). The relevant question 

for an appellate court on review of the sufficiency of evidence 

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. See State v. Garcia, supra.
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[6,7] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court. Id. In reviewing a sentence imposed within the 

statutory limits, an appellate court considers whether the sentencing court abused its discretion in considering and applying 

the relevant factors as well as any legal principles in determining the sentence to be imposed. State v. Rogers, 297 Neb. 265, 

899 N.W.2d 626 (2017).

[8] Generally, it is within a trial court’s discretion to direct 

that sentences imposed for separate crimes be served either 

concurrently or consecutively. State v. Brown, 302 Neb. 53, 

921 N.W.2d 804 (2019).

V. ANALYSIS

1. Standing to Challenge 

Search of Bag

Prior’s first assigned error is that the district court erred in 

finding that he lacked standing to challenge the search of the 

bag found outside of the apartment complex, because the bag 

had been abandoned. He contends:

The evidence is clear that [Prior] was arrested prior to 

the witnesses seeing the bag. The bag was full of [Prior’s] 

personal items and in a place and location that he was 

going to return to in order to retrieve it. He clearly had 

a legitimate expectation of privacy in the invaded place 

with the only issue being whether or not he voluntarily 

abandoned it.

Brief for appellant at 16-17.

The State asserts that although defense counsel had discussions with the court at trial about continuing objections made 

in connection with his motion to suppress, Prior failed to make 

specific objections at appropriate times during the trial when 

certain contents of the bag were discussed by different witnesses. Assuming, without deciding, that Prior preserved his 

objection to the warrantless search of the bag at the time of 

trial, we address Prior’s specific assignments that he retained 
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a legitimate expectation of privacy in the bag discovered which 

required a warrant to search the bag.

[9-11] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution protect individuals 

against unreasonable searches and seizures by the government. 

State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014). However, 

when individuals voluntarily abandon property, they forfeit 

any expectation of privacy in the property that they might 

otherwise have had. State v. Vasquez-Arenivar, 18 Neb. App. 

265, 779 N.W.2d 117 (2010). Because the Fourth Amendment 

does not protect voluntarily abandoned property, a warrantless 

search or seizure of abandoned property does not violate the 

Fourth Amendment. State v. Vasquez-Arenivar, supra. See, also, 

State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020) (once 

defendant abandons item of personal property making it available to police or public, defendant does not retain reasonable 

expectation of privacy in that property for purposes of Fourth 

Amendment protection).

[12-15] In adopting a framework for determining when 

property has been abandoned, the Nebraska Supreme Court 

reasoned and held as follows:

Both the Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution guarantee 

against unreasonable searches and seizures. A search for 

Fourth Amendment purposes occurs when the government 

violates a subjective expectation of privacy that society 

recognizes as reasonable. But it is well-settled that once 

a defendant abandons an item of personal property and 

makes it available to the police or the public, he or she 

does not retain a reasonable expectation of privacy in the 

property for purposes of Fourth Amendment protection.

In [U.S. v.] Basinski, [226 F.3d 829 (7th Cir. 2000),] 

the Seventh Circuit held: “To demonstrate abandonment, 

the government must establish by a preponderance of the 

evidence that the defendant’s voluntary words or conduct would lead a reasonable person in the searching 
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officer’s position to believe that the defendant relinquished his property interests in the item searched or 

seized. . . . Because this is an objective test, it does 

not matter whether the defendant harbors a desire to 

later reclaim an item; we look solely to the external 

manifestations of his intent as judged by a reasonable 

person possessing the same knowledge available to the 

government agents. . . . We look at the totality of the 

circumstances, but pay particular attention to explicit 

denials of ownership and to any physical relinquishment 

of the property.”

Basinski also explained: “There are three general types 

of abandonment cases, which are based on these two 

indicia of abandonment. The first type is characterized 

by the presence of a fleeing defendant who relinquishes 

an object to make his flight easier or because discarding 

the item might make it easier for him to later claim that 

he never possessed it. . . . Because he has disposed of the 

property in a location that affords easy access to the public, a reasonable person would believe that the defendant’s possessory interest in the property is so eroded that 

anyone has a right to retrieve it. The second type of case 

is closely related to the first, for in so-called ‘garbage 

cases’ the defendant places material in or near a refuse 

receptacle that is readily accessible to the public, and in 

which he usually places other discarded materials. . . . 

By this conduct and the location of the receptacle, the 

defendant leads reasonable people to believe that he no 

longer cares what becomes of his trash, or articles mistaken for trash. In the third type of case, the defendant 

is usually caught red-handed with or near a container 

of contraband, whereupon he denies that the container 

or its contents are his. . . . Taken at face value, this denial 

makes it reasonable to conclude that the defendant claims 

no possessory interest in the items.”
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Similarly, the Eighth Circuit explained in [U.S. v.] 

Nowak[, 825 F.3d 946 (8th Cir. 2016),] how courts are 

to determine when personal property is abandoned: 

“Whether property has been abandoned ‘is determined 

on the basis of the objective facts available to the investigating officers, not on the basis of the owner’s subjective intent.’ . . . We consider the dual factors of whether 

the defendant physically relinquished his property and 

whether he denied ownership of it. . . . However, a verbal denial of ownership is not necessary for a finding of 

abandonment, and we reach our ultimate conclusion based 

on the totality of the circumstances.” Nowak further held 

that “[w]hether property is discarded in a public, private, 

or semi-private place is a factor in considering whether 

the property has been abandoned . . . .”

We agree with the reasoning of Basinski and Nowak, 

and we adopt a similar test for determining abandonment. 

We now hold that to show abandonment of personal 

property for purposes of the Fourth Amendment, the State 

must establish by a preponderance of the evidence that 

the defendant’s voluntary words or conduct would lead a 

reasonable officer to believe the defendant relinquished 

his or her property interests in the item. This is an objective test based on the information available to the officer, 

and the defendant’s subjective intent to later reclaim the 

item is irrelevant. When determining whether property 

has been abandoned, courts consider the totality of the 

circumstances, and pay particular attention to the nature 

and location of any physical relinquishment of the property and any explicit denials of ownership. We note this 

test is, in substance, the test applied by the district court 

in this case.

State v. Dixon, 306 Neb. 853, 861-64, 947 N.W.2d 563, 571-73 

(2020). See, also, U.S. v. Sanders, 130 F.3d 1316 (8th Cir. 

1997) (holding that defendant’s statements to officers that he 

did not own bag found on bus on which he was traveling constituted abandonment for purposes of Fourth Amendment).
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After reviewing the record, we find that the circumstances 

attendant with the bag discovered by the apartment complex 

resident and reported to police meet the characteristics of two 

of the three general types of abandonment cases described by 

the Seventh Circuit and adopted by the Nebraska Supreme 

Court. First, the bag was located by the apartment complex 

resident, who was a member of the public, and the bag was in 

plain view, near the garages of an apartment complex. Having 

noticed the bag the previous day, the apartment complex resident then approached the bag and dumped out its contents in 

order to determine whether he could identify the owner. He 

noticed that the bag included Prior’s driver’s license and Social 

Security card and recognized Prior from news coverage regarding the commission of a crime. He notified his father, who 

contacted law enforcement. The location of the bag was near 

the area where police previously discovered Prior’s vehicle and 

where they searched the woods after hearing someone in the 

woods who then fled from police. Under these circumstances, 

we find it reasonable for the police to conclude that the person 

who fled from them was Prior, who had relinquished the bag 

to make flight easier or because discarding the bag might make 

it easier for him to later claim that he never possessed it or its 

contents. Second, during one of Prior’s postarrest interviews, 

he denied ownership of the bag police claimed was found near 

the area in which they had performed surveillance and located 

Prior’s Lexus, making it reasonable to conclude that Prior 

claimed no possessory interest in the bag or its contents. Under 

these circumstances, we find the court did not clearly err in 

finding that the State provided, by a preponderance of the evidence, that Prior had abandoned the bag and in denying Prior’s 

motion to suppress. This assignment of error fails.

2. Motion to Suppress Voice Identification

Prior next asserts that the district court erred in overruling his motion to suppress W.R.’s pretrial voice identification 

of him as her assailant, which identification occurred during 
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a pretrial hearing. In his motion to suppress, Prior asserted 

that W.R.’s voice identification of him was improper and 

violated his right to due process and his Sixth Amendment 

right to counsel. The district court overruled his objection and 

allowed W.R. to testify to having recognized Prior’s voice as 

the voice of her assailant when she heard him speak at the 

pretrial hearings.

[16] On appeal, Prior assigned error to this ruling, but 

he also now asserts that the identification violated his Fifth 

Amendment right against self-incrimination. As we have long 

held, an objection must be specifically stated, and on appeal, 

a defendant may not assert a different ground for his or her 

objection to the admission of evidence than was offered to 

the trier of fact. State v. Childs, 309 Neb. 427, 960 N.W.2d 

585 (2021). Accordingly, we decline to address Prior’s claim 

regarding a violation of his Fifth Amendment right against 

self-incrimination.

In asserting his due process and Sixth Amendment claim, 

Prior focuses on United States v. Wade, 388 U.S. 218, 87 S. Ct. 

1926, 18 L. Ed. 2d 1149 (1967), which held that postindictment 

identification procedures arranged by law enforcement—conducted without notice to, and in the absence of, defense counsel—were violative of the Sixth Amendment right to counsel. 

Prior presents no argument that W.R.’s identification of his 

voice involved an unnecessarily suggestive procedure or that 

it lacked reliability. As such, we narrowly examine Prior’s specific claim that the pretrial voice identification process violated 

Prior’s Sixth Amendment right to counsel.

In United States v. Wade, supra, the U.S. Supreme Court 

addressed the question of whether courtroom identifications at 

trial should be excluded when the accused was exhibited to the 

witness before trial at a postindictment lineup conducted for 

identification purposes without notice to, and in the absence of, 

the accused’s appointed counsel. In analyzing the dangers associated with postindictment lineups conducted for identification 

purposes without counsel, the U.S. Supreme Court stated:
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Williams & Hammelmann, in one of the most comprehensive studies of such forms of identification, said, “[T]he 

fact that the police themselves have, in a given case, little 

or no doubt that the man put up for identification has 

committed the offense, and that their chief pre-occupation 

is with the problem of getting sufficient proof, because he 

has not ‘come clean,’ involves a danger that this persuasion may communicate itself even in a doubtful case to 

the witness in some way . . . .” Identification Parades, 

Part I, [1963] Crim. L. Rev. 479, 483.

United States v. Wade, 388 U.S. at 235. In so finding, the U.S. 

Supreme Court ultimately held:

Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may 

not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure 

a meaningful confrontation at trial, there can be little 

doubt that for [the defendant] the postindictment lineup 

was a critical stage of the prosecution at which he was “as 

much entitled to such aid [of counsel] . . . as at the trial 

itself.” Powell v. Alabama, 287 U. S. 45, 57.

United States v. Wade, 388 U.S. at 236-37.

Prior suggests that the U.S. Supreme Court’s holding in 

Wade should apply to W.R.’s voice identification of him, which 

did not involve a state or police organized lineup or voice 

identification procedure. We disagree that such an extension is 

warranted on the facts of this record.

[17,18] The U.S. Supreme Court’s holding in Wade was 

premised upon the concern of undue suggestion associated 

with the conduct of a state or police in connection with such 

organized practices. But as the Nebraska Supreme Court 

held in State v. Nolan, 283 Neb. 50, 63, 807 N.W.2d 520, 

535 (2012):

Suppression of identification evidence on the basis of 

undue suggestion is appropriate only where the witness’ 

ability to make an accurate identification is outweighed 
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by the corrupting effect of improper police conduct. 

When no improper law enforcement activity is involved, 

it suffices to test the reliability of identification testimony 

at trial, through the rights and opportunities generally 

designed for that purpose, such as the rights to counsel, compulsory process, and confrontation and crossexamination of witnesses.

Here, W.R.’s voice identification of Prior was not the result 

of an identification procedure arranged by law enforcement. 

W.R. attended a public pretrial hearing of her own volition. 

Under these circumstances, the dangers suggested by the U.S. 

Supreme Court in Wade, which entitled the defendant the right 

to have counsel present, were not at issue here. Because no 

improper law enforcement activity was involved, it was sufficient to test the reliability of W.R.’s identification testimony 

at trial. We further note that Prior’s counsel, acting as either 

counsel or standby counsel, was in attendance at both of these 

hearings. Prior’s claim that the court erred in failing to suppress W.R.’s voice identification testimony procured through 

her voluntary attendance at a pretrial hearing not arranged by 

law enforcement fails.

3. Denial of Motion to Suppress 

Physical Characteristics

Next, Prior alleges that the district court erred in overruling his motion to suppress evidence of his personal characteristics which were obtained (1) during a strip search of his 

person when he was booked into the Sarpy County jail (Prior 

claims that police did not follow the SOP) and (2) pursuant 

to a second search conducted in connection with the district 

court’s October 24, 2017, ex parte order (Prior claims other 

abnormalities). We note that Prior’s assignment of error relates 

only to law enforcement’s obtaining his physical characteristics, not samples of his hair or DNA. The State again argues 

that this assigned error was not preserved notwithstanding the 

general discussion about preserving objections made in Prior’s 
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motions to suppress. Assuming, without deciding, that this 

error was properly preserved, we consider it.

Prior first simply argues that

the Court erred in allowing the physical characteristics 

taken pursuant to the strip search of [Prior] when he was 

booked into the Sarpy County Jail. In [its] Order, the 

Court found that the policies and procedures allowed said 

identifying characteristics to be taken. However, this was 

in contravention of the actual policy.

Brief for appellant at 28. We disagree. A copy of the SOP was 

admitted into evidence. The SOP explicitly states that if an 

inmate “is charged with a crime of violence, escape, burglary, 

or use of a weapon,” it provides reasonable suspicion for strip 

searches at admission to the jail. Prior was arrested and charged 

with multiple crimes, including first degree sexual assault, burglary, and use of a weapon to commit a felony. These charges 

provided reasonable suspicion for law enforcement to strip 

search Prior upon booking him into jail. Section IV(D)(6)(f) of 

the SOP provides that during a strip search,

[t]he employee shall visually inspect the inmate for contraband and/or any identifying scars, marks or tattoos, 

and/or any evidence of contagious disease. Areas to be 

inspected shall include:

(1) Hair, ears, mouth, and nose

(2) Arms, armpits, and hands

(3) Abdomen, breasts, back, legs, and feet

(4) Outer genital and anal areas.

The deputy that conducted the strip search of Prior in connection with Prior’s booking noted the key physical characteristics on Prior’s stomach and groin area that were described 

by W.R. as being present on her assailant. Because the SOP 

explicitly authorized the deputy conducting the strip search 

to identify such personal characteristics, Prior’s argument that 

they were identified in contravention of this policy fails.

Prior next argues that the court should have suppressed 

his physical characteristics obtained pursuant to the separate 
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search conducted in connection with the court’s ex parte order 

for abnormalities associated with procurement of that order. 

Neb. Rev. Stat. § 29-3302 (Reissue 2016) provides:

Judges and magistrates may issue orders authorizing 

identification procedures for the purpose of obtaining 

identifying physical characteristics in accordance with 

the procedures specified in sections 29-3301 to 29-3307. 

An order may be issued by any judge of the district 

court, Court of Appeals, or Supreme Court for service 

and execution anywhere within the State of Nebraska. 

An order may also be issued by any judge of the county 

court or other magistrate for service within the county 

of issuance.

However, Neb. Rev. Stat. § 29-3304 (Reissue 2016) provides:

No order shall be required or necessary where the 

individual has been lawfully arrested, nor under any 

circumstances where peace officers may otherwise lawfully require or request the individual to provide evidence of identifying physical characteristics, and no order 

shall be required in the course of trials or other judicial proceedings.

Prior argues that in procuring the order under § 29-3302, 

the State failed to show that Prior would have failed to provide 

the desired evidence and that there was no evidence indicating a copy of the order was given to him at the time it was 

executed. But Prior’s argument fails for two reasons. First, 

the physical evidence was lawfully obtained from the strip 

search associated with Prior’s booking, making it unnecessary 

to further obtain this authority under § 29-3302. That concept 

is captured by § 29-3304, which explicitly provides that no 

order is required or necessary where the individual has been 

lawfully arrested or under circumstances where peace officers 

otherwise lawfully require or request the individual to provide 

evidence of such characteristics. Because Prior was arrested 

and the SOP lawfully allowed the strip search in which Prior’s 

physical characteristics could be, and were, identified, the 
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separate ex parte order was unnecessary and the abnormalities 

suggested by Prior were of no consequence.

[19] Second, Prior’s claim of abnormality in not requesting permission to review his physical characteristics before 

seeking an order or serving him with a copy of the order are 

without consequence. Assuming, without deciding, that Prior 

would have consented to the search without the order or that a 

copy of the order was not presented to him upon execution, we 

determine that neither circumstance would have resulted in the 

State’s failing to procure the physical attributes complained of. 

We fail to see how Prior’s argument that he would have consented to the search without an order would somehow bar evidence procured with an order or which was otherwise validly 

obtained through the strip search conducted before. Appellate 

courts will not reverse a criminal conviction in the absence of 

prejudice to the defendant. State v. Kirby, 198 Neb. 646, 254 

N.W.2d 424 (1977). This argument fails.

4. Testimony of Jacquilyn and Angelique

Prior next assigns that the district court erred in allowing the 

testimony of Jacquilyn and Angelique, which was a violation 

of § 27-404.

[20] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).

[21,22] A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations 

will not be disturbed on appeal unless they constitute an abuse 

of that discretion. State v. Jennings, 305 Neb. 809, 942 N.W.2d 

753 (2020). Additionally, it is within the discretion of the trial 

court to determine relevancy and admissibility of evidence of 

other wrongs or acts, and the trial court’s decision will not be 

reversed absent an abuse of that discretion. State v. Newman, 

4 Neb. App. 265, 541 N.W.2d 662 (1996) (abuse of judicial 
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discretion means that reasons or rulings of trial court are 

clearly untenable, unfairly depriving litigant of substantial right 

and denying just result in matters submitted for disposition).

[23] An appellate court reviews the admission of evidence 

of other acts by considering whether the evidence was relevant, 

whether the evidence had a proper purpose, whether the probative value of the evidence outweighed its potential for unfair 

prejudice, and whether the trial court, if requested, instructed 

the jury to consider the evidence only for the purpose for 

which it was admitted. Id.

Section 27-404 provides, in pertinent part:

(1) Evidence of a person’s character or a trait of his or 

her character is not admissible for the purpose of proving 

that he or she acted in conformity therewith on a particular occasion, except:

(a) Evidence of a pertinent trait of his or her character offered by an accused, or by the prosecution to rebut 

the same;

(b) Evidence of a pertinent trait of character of the 

victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait 

of peacefulness of the victim offered by the prosecution 

in a homicide case to rebut evidence that the victim was 

the first aggressor. In a sexual assault case, reputation, 

opinion, or other evidence of past sexual behavior of the 

victim is governed by section 27-412; or

(c) Evidence of the character of a witness as provided 

in sections 27-607 to 27-609.

(2) Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to 

show that he or she acted in conformity therewith. It may, 

however, be admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(3) When such evidence is admissible pursuant to 

this section, in criminal cases evidence of other crimes, 
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wrongs, or acts of the accused may be offered in evidence 

by the prosecution if the prosecution proves to the court 

by clear and convincing evidence that the accused committed the crime, wrong, or act. Such proof shall first be 

made outside the presence of any jury.

Here, the State filed a motion in limine to determine the 

admissibility of the testimony of Jacquilyn and Angelique 

under § 27-404. In connection with the motion, the State argued 

that the events described by Jacquilyn and Angelique should be 

admissible because they provided evidence of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence 

of mistake or accident as allowed under § 27-404(2). The court 

found that the testimony as to Jacquilyn was admissible as relevant to show motive, opportunity, and/or intent, preparation, or 

plan. Further, the court found that the probative value of the 

evidence outweighed any prejudicial effect. Likewise, the court 

found that the testimony of Angelique was admissible given 

the location of the events which occurred and the nature of 

the circumstances to show proof of motive, opportunity, intent, 

preparation, plan, and identity, and that the value of the testimony was not outweighed by the prejudicial effect.

At trial, Jacquilyn and Angelique testified about encounters they had experienced with Prior. Jacquilyn testified that 

as she drove her vehicle into her garage, Prior pulled up his 

Lexus behind her in her driveway and began asking her questions that made her feel uncomfortable. Jacquilyn testified to 

Prior’s indicating that her back doorbell was broken and that 

her window was unlocked. He asked her how she protects 

herself. Jacquilyn then called 911 to report the encounter. 

Angelique testified that an individual, later identified by police 

as Prior, attempted to open her back door 6 days prior to the 

home invasion robbery and sexual assault of W.R. Angelique’s 

doorbell security camera captured the attempt on video, and 

the police were contacted. The officers were able to identify 

Prior and noticed a bag similar to the one described by W.R. 

The State offered this evidence for a limited purpose, and the 
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court accompanied the testimony with limiting instructions that 

it was not to be used to show propensity character evidence. 

Prior argues that under § 27-404(2), “[e]vidence of other 

crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show that he or she acted in conformity 

therewith.” Although Prior acknowledges the remainder of 

§ 27-404(2) provides that “[i]t may, however, be admissible for 

other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake 

or accident,” he argues that the testimony amounted to propensity evidence and was not admissible for another purpose.

Section 27-404 is a rule of inclusion, as opposed to exclusion, and permits the use of other relevant acts for purposes 

other than to prove that the person acted in conformity with 

their prior acts. See State v. Newman, 250 Neb. 226, 548 

N.W.2d 739 (1996). This court has held:

In the case at hand, the trial court instructed the jury 

that [testimony by two individuals] was to be received 

for the limited purpose of placing [the defendant] in the 

area described on the date and time described, and for no 

other purpose. We find that not only could the evidence 

be admitted for that limited purpose, but it could also be 

introduced for purposes of establishing identity and planning. [The defendant’s] only defense was that the victim 

identified the wrong man as her assailant. Placing [the 

defendant] within blocks of the crime, within hours of the 

crime, seemingly stalking one woman to her apartment 

building and approaching another woman near another 

apartment building, is relevant to the sexual assault of the 

victim, and therefore there was no abuse of discretion by 

the trial court in admitting the evidence.

State v. Newman, 4 Neb. App. 265, 281, 541 N.W.2d 662, 

674 (1996).

Similar to the evidence in Newman, the evidence of the 

prior actions described by Jacquilyn and Angelique were 
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relevant and admissible because they placed Prior in the same 

neighborhood as W.R. within a relevant timeframe, performing similar acts of unauthorized attempted entry into the 

homes of females in the area, in opposition to Prior’s stated 

defense of misidentification. This testimony provides evidence 

of identity and planning, thereby rendering it relevant to this 

specific charge. Nor do we find that this relevant evidence 

was unfairly prejudicial to Prior. The district court did not 

abuse its discretion in admitting testimony from both Jacquilyn 

and Angelique.

5. Denial of Request to Secure 

Out-of-State Witnesses

In his next assignment of error, Prior contends that the 

district court erred in overruling his motion to secure three 

out-of-state witnesses for his defense.

Neb. Rev. Stat. § 29-1908 (Reissue 2016), which governs 

the court’s ability to secure out-of-state witnesses, provides 

in part:

If a person in any state, which by its laws has made 

provision for commanding persons within its borders to 

attend and testify in criminal prosecutions, or grand jury 

investigations commenced or about to commence, in this 

state, is a material witness in a prosecution pending in a 

court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a 

judge of such court may issue a certificate under the seal 

of the court stating these facts and specifying the number 

of days the witness will be required.

[24,25] Process to secure attendance of witnesses from 

another state may not be issued unless the testimony proposed 

to be elicited from such witnesses is relevant to the issues to be 

tried. State v. Casados, 201 Neb. 726, 271 N.W.2d 849 (1978). 

It is proper to sustain a motion in limine to prevent reference to 

or the offer of evidence concerning matters which are entirely 

extraneous or irrelevant to the issues of the case. Id.
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Here, Prior filed a motion to secure the attendance of three 

law enforcement officers from Kansas. In the motion, Prior 

contended that the witnesses were material and requested that 

the court order them to attend and testify at trial. At the hearing on the motion, Prior explained that the witnesses would 

be able to testify regarding a series of rapes that had occurred 

in Kansas. The court requested that Prior submit an affidavit 

regarding how the witnesses were material. After receiving the 

affidavit, the court overruled the motion.

After reviewing the affidavit provided by Prior’s counsel 

to the court in support of his motion to secure the attendance 

of the three Kansas law enforcement officers, we agree with 

the district court that Prior failed to demonstrate the officers 

would provide relevant testimony of matters which were not 

extraneous to the case. In reaching that conclusion, we note 

that within the affidavit, Prior’s counsel failed to provide any 

evidence that the alleged Kansas serial rapist had ever been 

found to act outside of that state, that there was no testimony 

the alleged Kansas rapist had any physical characteristics similar to those described by W.R., and that the affiant was lacking 

in any specific evidence that could be considered exculpatory 

of Prior.

In addition, in State v. Cain, 223 Neb. 796, 393 N.W.2d 727 

(1986), the Nebraska Supreme Court stated that a denial of 

defendant’s request for subpoenas to compel attendance of witnesses expected to testify to a police informant’s alleged prior 

use of drugs was harmless beyond a reasonable doubt, where 

tape recordings provided overwhelming evidence of defendant’s violations of controlled substance laws. Likewise, even if 

the testimony sought by Prior by his motion could have been 

found to be somehow relevant to Prior’s defense, overruling 

the motion to secure the witnesses’ attendance was harmless 

error due to the overwhelming amount of evidence of Prior’s 

guilt, including, but not limited to, the DNA evidence linking 

Prior to the assault, testimony that Prior was seen in the area 

on both days the assault took place, video surveillance which 
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captured Prior’s vehicle in the area, a voice identification of 

Prior by W.R., evidence of Prior’s physical characteristics 

consistent with W.R.’s description of her assailant, evidence 

that Prior had been involved in at least two reported prior 

interactions in the area over the last year, evidence that W.R.’s 

assailant smelled of cigarette smoke accompanied by evidence 

that Prior smoked cigarettes, and the physical evidence collected from Prior’s vehicle, Higgins’ home and vehicle, and 

Prior’s abandoned bag. Even if we found that the district court 

erred in failing to grant Prior’s motion for out-of-state witnesses, such error was harmless. This assigned error fails.

6. Denial of Motion for Directed Verdict

Prior alleges that the district court erred when it denied his 

motion for a directed verdict based on the insufficiency of the 

evidence. He contends that the State’s case was based upon 

circumstantial evidence, the State’s DNA evidence was weak, 

and the court “was swayed by emotion and sympathy and not 

enough hard evidence to find [Prior] guilty beyond a reasonable doubt.” Brief for appellant at 38.

[26] In a criminal case, a court can direct a verdict only 

when there is a complete failure of evidence to establish an 

essential element of the crime charged or the evidence is so 

doubtful in character, lacking probative value, that a finding 

of guilt based on such evidence cannot be sustained. State v. 

Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016). If there is 

any evidence which will sustain a finding for the party against 

whom a motion for directed verdict is made, the case may 

not be decided as a matter of law, and a verdict may not be 

directed. Id.

Here, the State presented evidence from W.R. regarding the 

offenses and the description of the perpetrator. W.R. identified Prior’s voice as the voice of her assailant, stating she 

was “positive” that it was the same individual and that she 

“would never forget that voice.” Video evidence and witness 

testimony placed Prior near the area on the day that W.R. 
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was assaulted, and the abandoned bag included items matching the description of items used during the assault of W.R. 

Additionally, Prior could not be excluded as a contributor of 

DNA evidence collected at the crime scene, located in the 

abandoned bag, and located in both Prior’s vehicle and the 

vehicle he had borrowed from Higgins in the days preceding 

his arrest. Further, W.R.’s DNA was found on items located 

in Prior’s bag. Viewing this evidence presented in the light 

most favorable to the State, a reasonable trier of fact could 

have found the State proved the elements of the charged 

offenses beyond a reasonable doubt. Since there was evidence 

to sustain a finding for the State, the district court properly 

denied Prior’s motion for a directed verdict. This assignment of 

error fails.

7. Excessive Sentences

Prior’s final assignment of error is that the sentences 

imposed were excessive. Specifically, he contends that the 

district court abused its discretion (a) by failing to give proper 

weight and consideration to sentencing factors and (b) in 

imposing consecutive sentences because his offenses, although 

each having unique requirements, all stemmed from the same 

set of facts.

(a) Consideration of Sentencing Factors

Before addressing Prior’s claim that the district court abused 

its discretion by failing to give proper weight and consideration to sentencing factors, we review Prior’s convictions 

and sentences imposed. Prior was convicted of seven felonies 

and two misdemeanors. The court determined that Prior was 

a habitual criminal and sentenced him on his felony convictions pursuant to § 29-2221, which requires a mandatory 

minimum of 10 years’ imprisonment and a maximum of 60 

years’ imprisonment.

Prior was convicted of seven felonies and sentenced as 

follows: 45 to 50 years’ imprisonment for first degree sexual 

assault, 15 to 20 years’ imprisonment for burglary, 20 to 30 
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years’ imprisonment for robbery, 45 to 50 years’ imprisonment for use of a firearm to commit a felony, 10 to 20 years’ 

imprisonment for first degree false imprisonment, 20 to 30 

years’ imprisonment for possession of a firearm by a prohibited person, and 10 to 20 years’ imprisonment for terroristic 

threats. See, Neb. Rev. Stat. § 28-319 (Reissue 2016) (first 

degree sexual assault); Neb. Rev. Stat. § 28-507 (Reissue 2016) 

(burglary); Neb. Rev. Stat. § 28-324 (Reissue 2016) (robbery); 

Neb. Rev. Stat. § 28-1205 (Reissue 2016) (use of firearm to 

commit felony); Neb. Rev. Stat. § 28-314 (Reissue 2016) (first 

degree false imprisonment); Neb. Rev. Stat. § 28-1206 (Supp. 

2017) (possession of firearm by prohibited person); Neb. Rev. 

Stat. § 28-311.01 (Reissue 2016) (terroristic threats). Each of 

these sentences is within the enhanced sentencing range set 

by the habitual criminal statute of a mandatory minimum of 

10 years’ imprisonment to a maximum of 60 years’ imprisonment. See § 29-2221(1). We note that pursuant to § 29-2221, 

each of these sentences has a mandatory minimum of 10 

years’ imprisonment.

Regarding Prior’s misdemeanor convictions, the court sentenced Prior to 1 year’s imprisonment for his conviction of first 

degree trespass, which is within the statutory sentencing range 

for Class I misdemeanors that are punishable by a minimum 

of no imprisonment to a maximum of 1 year’s imprisonment, 

a $1,000 fine, or both. See Neb. Rev. Stat. § 28-106 (Reissue 

2016); Neb. Rev. Stat. § 28-520 (Reissue 2016) (first degree 

trespass). The court sentenced Prior to 6 months’ imprisonment for his conviction of theft by unlawful taking ($500 or 

less), which is within the statutory sentencing range for Class 

II misdemeanors of a minimum of no imprisonment and a 

maximum of 6 months’ imprisonment, a $1,000 fine, or both. 

See, § 28-106; Neb. Rev. Stat. § 28-511 (Reissue 2016) (theft 

by unlawful taking or disposition); Neb. Rev. Stat. § 28-518(4) 

(Reissue 2016) (grading of theft offenses).

[27,28] Because the sentences imposed were within statutory limits, we review the sentences imposed for an abuse of 
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discretion. See State v. Russell, 292 Neb. 501, 874 N.W.2d 8 

(2016). When imposing a sentence, a sentencing judge should 

customarily consider 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. State v. Mora, 298 Neb. 185, 903 N.W.2d 

244 (2017). However, the sentencing court is not limited to any 

mathematically applied set of factors. 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.

Here, the district court considered the serious nature and 

circumstances of the offenses; Prior’s history, character, and 

condition; the information contained in the presentence investigation report; and statements received by the court, including 

the victim impact statement. The court noted that Prior was 56 

years old, was “separated,” had obtained a diploma through 

the GED program, and was unemployed due to his incarceration. Prior’s criminal history includes convictions of three 

counts of burglary, two counts of robbery, and one count of 

second degree forgery. The court did not have any “LS/CMI” 

scorings because Prior failed to complete his paperwork for 

the presentence investigation. The district court determined 

that a term of imprisonment was necessary for the protection 

of the public. An appellate court will not disturb a sentence 

imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Garcia, 302 Neb. 406, 923 

N.W.2d 725 (2019).

In sum, we determine the district court did not abuse its discretion in imposing the sentences. This determination is based 

upon the following factors: the district court’s imposition of 

sentences that were within the appropriate statutory sentencing ranges as enhanced under the habitual criminal statute; 
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the district court’s consideration of appropriate factors; Prior’s 

criminal history; Prior’s failure to take responsibility for the 

offenses; the seriousness of the offenses; and the physical, 

mental, and emotional injuries sustained by the victim.

(b) Imposition of Consecutive Sentences

Prior also contends that the district court erred in imposing consecutive, rather than concurrent, sentences and that by 

doing so, the district court was “overly punitive” in ordering 

all the sentences to be served consecutively. Brief for appellant 

at 41. Prior claims that his convictions, although each having 

“their own unique requirements . . . are all part of the overall 

crime. At some point, the [district court] is just piling on time 

when it runs [the sentences] all consecutively.” Id. at 40.

Generally, it is within a trial court’s discretion to direct that 

sentences imposed for separate crimes be served either concurrently or consecutively. State v. Brown, 302 Neb. 53, 921 

N.W.2d 804 (2019). As Prior acknowledges in his brief, each 

of the offenses for which he stands convicted have “their own 

unique requirements,” or stated another way, Prior’s convictions involve separate elements even though they were part 

of the same series of events. The district court therefore had 

the discretion to impose consecutive sentences, and it did not 

abuse its discretion in doing so. Prior’s claim that his sentences 

were excessive fails.

VI. CONCLUSION

For the reasons stated above, we affirm Prior’s convictions 

and sentences.

Affirmed.