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Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

STATE V. KING

Cite as 316 Neb. 991

State of Nebraska, appellee, v.

Nolan M. King, appellant.

___ N.W.3d ___

Filed June 28, 2024. No. S-23-814.

1. Trial: Witnesses: Indictments and Informations. Whether to permit 

the names of additional witnesses to be endorsed upon an information after the information has been filed is within the discretion of the 

trial court.

2. Trial: Witnesses: Proof. In order to predicate error upon a ruling of 

the court refusing to permit a witness to testify, or to answer a specific 

question, the record must show an offer to prove the facts sought to 

be elicited.

3. Trial: Evidence: Juries. A motion in limine is only a procedural step to 

prevent prejudicial evidence from reaching the jury. It is not the office 

of such motion to obtain a final ruling upon the ultimate admissibility of 

the evidence.

4. Trial: Evidence: Proof: Appeal and Error. Because a ruling on a 

motion in limine is not a final ruling on the admissibility of evidence 

and does not present a question for appellate review, a question concerning the admissibility of evidence which is the subject of a motion 

in limine is raised and preserved for appellate review by an appropriate 

objection or offer of proof during trial.

5. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence, and such 

matters are for the finder of fact. The relevant question for an appellate 

court is whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Nebraska Supreme Court Online Library

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

07/10/2024 06:07 PM CDT
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6. 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.

Appeal from the District Court for Douglas County, J 

Russell Derr, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, 

Alexander D. Sycher, and Tamara T. Mosby for appellant.

Michael T. Hilgers, Attorney General, and Nathan A. Liss 

for appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

Nolan M. King appeals his convictions and sentences for 

manslaughter and use of a deadly weapon other than a firearm to commit a felony. At King’s jury trial, the State offered 

evidence that King caused fatal head injuries to Rodney Pettit 

II during an altercation at a bar. On appeal, King argues that 

the district court erred by allowing the testimony of witnesses 

the State endorsed 2 weeks prior to trial, by prohibiting King 

from questioning the State’s witnesses about the victim’s 

toxicology report, and by imposing improper and excessive 

sentences. King also argues that the evidence was insufficient 

to support his conviction for use of a deadly weapon other 

than a firearm to commit a felony. We find no merit to King’s 

arguments and therefore affirm.

I. BACKGROUND

The State presented evidence at trial that on an evening in 

February 2022, King and a group of friends went to a bar in 

downtown Omaha, Nebraska. Pettit was also at the bar. At 

one point during the evening, Pettit walked past King’s thengirlfriend, Wynter Knight, and made contact with her as he 

passed by. According to trial testimony, King became angry 
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once he learned of the interaction between Pettit and Knight. 

Sometime later that evening, King encountered Pettit in the 

bar, knocked him to the ground, and then continued to attack 

him. Pettit was transported to a hospital and died from his 

injuries the following day.

The State charged King with second degree murder and use 

of a deadly weapon other than a firearm to commit a felony. 

Following trial, a jury found King guilty of manslaughter 

and use of a deadly weapon other than a firearm to commit a 

felony. The district court sentenced King to imprisonment for 

19 years 364 days to 20 years on the manslaughter conviction 

and for 19 to 20 years on the use of a deadly weapon conviction. The district court ordered the sentences to run consecutively. King filed a timely appeal.

Additional procedural history and evidence, when relevant, 

will be discussed in the analysis section below.

II. ASSIGNMENTS OF ERROR

King assigns (1) that the district court erred in permitting 

testimony of two witness who were endorsed by the State less 

than 30 days before trial; (2) that the district court abused its 

discretion by sustaining a motion in limine filed by the State, 

which prohibited King from questioning the State’s witnesses 

regarding the victim’s toxicology results; (3) that the evidence 

was insufficient to support his conviction of use of a deadly 

weapon other than a firearm to commit a felony; and (4) that 

the sentences imposed by the district court failed to comply 

with Neb. Rev. Stat. § 83-1,110(1)(c) (Supp. 2023) and were 

otherwise excessive.

III. ANALYSIS

1. Endorsement of Witnesses

(a) Additional Background

Fourteen days before King’s trial was scheduled to begin, 

the State filed a motion for leave to endorse additional witnesses it had not endorsed when the information was filed. At 
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a hearing on the State’s motion, King objected to the endorsement of the additional witnesses. King argued that because the 

additional witnesses were not endorsed when the information 

was filed and were not endorsed within 30 days of trial, the 

witnesses should not be permitted to testify at trial. The district court overruled King’s objection and sustained the State’s 

motion to endorse. King did not ask for a continuance.

Later at trial, when the State called two of the additional 

witnesses to testify, King renewed his objections. The district 

court again overruled King’s objections as to both witnesses 

and permitted their testimony. The witnesses testified to their 

observations of the altercation between King and Pettit. King 

cross-examined the witnesses but again did not move for 

a continuance.

(b) Standard of Review

[1] Whether to permit the names of additional witnesses 

to be endorsed upon an information after the information has 

been filed is within the discretion of the trial court. State v. 

Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). 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. 

State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

(c) Analysis

The endorsement of witnesses in criminal trials is governed by Neb. Rev. Stat. § 29-1602 (Cum. Supp. 2022), which 

provides:

All informations shall be filed in the court having 

jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant. The 

prosecuting attorney shall subscribe his or her name 

thereto and endorse thereon the names of the witnesses 

known to him or her at the time of filing. After the 

information has been filed, the prosecuting attorney shall 
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endorse on the information the names of such other witnesses as shall then be known to him or her as the court 

in its discretion may prescribe, except that if a notice of 

aggravation is contained in the information as provided 

in section 29-1603, the prosecuting attorney may endorse 

additional witnesses at any time up to and including the 

thirtieth day prior to the trial of guilt.

King argues that the district court erred in permitting the 

trial testimony of the two additional witnesses because both 

witnesses “were endorsed by the State less than thirty days 

before trial.” Brief for appellant at 18. Language in some of 

our cases suggests that 30 days prior to trial is a significant 

milestone in the analysis of whether additional witnesses may 

be endorsed. In State v. Smith, 292 Neb. 434, 467-68, 873 

N.W.2d 169, 197 (2016), for example, we said that § 29-1602

“generally requires the prosecution to endorse the names of 

all known witnesses in the information at the time it is filed, 

but permits the endorsement of additional witnesses up to and 

including 30 days prior to trial.” Other language from our 

case law, however, seems to say that the trial court continues 

to have discretion to allow for the endorsement of additional 

witnesses through the pendency of trial. In the same Smith 

case quoted above, we said that a trial court has discretion 

to permit additional witnesses to be endorsed “even after 

the trial has begun, providing doing so does not prejudice 

the rights of the defendant.” 292 Neb. at 468, 873 N.W.2d at 

198. See, also, State v. Weathers, 304 Neb. 402, 935 N.W.2d 

185 (2019).

Section 29-1602 includes a reference to 30 days prior to 

trial, but that language only applies to cases in which “a notice 

of aggravation is contained in the information.” The information in this case contained no such notice. In cases like this 

one, we see nothing in the statutory language that creates a 

deadline 30 days prior to trial or, indeed, ascribes any particular significance to that period of time. Instead, we read 

the statute to provide a trial court with continuing discretion 
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to permit the endorsement of additional witnesses. Whether to 

permit the endorsement of the additional witnesses in this case 

was thus committed to the district court’s discretion.

We find that the district court did not abuse its discretion 

here. We have said that the purpose of § 29-1602 is to notify 

the defendant as to witnesses who may testify and provide an 

opportunity to investigate them. See State v. Cebuhar, 252 

Neb. 796, 567 N.W.2d 129 (1997). We have also said that 

in order to obtain a reversal on the grounds of an additional 

endorsement of witnesses, the defendant must have requested 

a continuance at trial and must demonstrate prejudice. See id.

See, also, State v. Brandon, 240 Neb. 232, 481 N.W.2d 207 

(1992). In this case, King asserts that his counsel did not have 

adequate time to prepare to cross-examine these witnesses. 

But King’s counsel did cross-examine these witnesses, and 

King offers no explanation as to what his counsel could or 

would have done differently with more time to prepare. And, 

in any event, King did not ask that the case be continued so 

that he could have more time to investigate the witnesses. We 

thus find no grounds on which to reverse the district court’s 

order permitting the endorsement of additional witnesses.

2. Motion in Limine

(a) Additional Background

Prior to trial, the State filed a motion in limine that sought 

to preclude King from discussing or adducing evidence of 

a toxicology report regarding Pettit. The toxicology report 

showed that on the night Pettit was attacked, he had an 

elevated blood alcohol concentration and tested positive for 

amphetamines and opioid analgesics. The State argued the 

toxicology report was irrelevant, unfairly prejudicial, and 

amounted to hearsay. The district court, in a written order, 

sustained the State’s motion in limine, stating, in part, that 

“[a]s to the cause of death, there is no evidence that the substances found in . . . Pettit’s system at the time of his death 

contributed, in any manner, to his death. . . . The autopsy 
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report states the death of . . . Pettit was caused by ‘blunt force 

head injuries.’”

At trial, King did not attempt to question any witnesses 

regarding the toxicology report.

(b) Analysis

As noted above, King assigns as error that the district court 

abused its discretion by “granting the State’s motion in limine 

prohibiting King from questioning the State’s witnesses regarding Pettit’s toxicology report at trial.”

The Nebraska Evidence Rules provide:

(1) Error may not be predicated upon a ruling which 

admits or excludes evidence unless a substantial right of 

the party is affected, and:

. . . .

(b) In case the ruling is one excluding evidence, the 

substance of the evidence was made known to the judge 

by offer or was apparent from the context within which 

questions were asked.

Neb. Rev. Stat. § 27-103 (Reissue 2016).

[2-4] Interpreting § 27-103(1)(b), we have said that in 

order to predicate error upon a ruling of the court refusing to 

permit a witness to testify, or to answer a specific question, 

the record must show an offer to prove the facts sought to be 

elicited. See State v. Schreiner, 276 Neb. 393, 754 N.W.2d 

742 (2008). Such an offer of proof must be made at trial. See 

id. A motion in limine is only a procedural step to prevent 

prejudicial evidence from reaching the jury. Id. It is not the 

office of such motion to obtain a final ruling upon the ultimate admissibility of the evidence. Id. Because a ruling on a 

motion in limine is not a final ruling on the admissibility of 

evidence and does not present a question for appellate review, 

a question concerning the admissibility of evidence which is 

the subject of a motion in limine is raised and preserved for 

appellate review by an appropriate objection or offer of proof 

during trial. See id.
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Cite as 316 Neb. 991

Because King made no attempt at trial to question witnesses regarding Pettit’s toxicology report, he cannot now 

complain that he was prohibited from doing so. This issue was 

not preserved for appellate review, so we do not address it.

3. Sufficiency of Evidence

King’s sufficiency of the evidence challenge is narrow. He 

does not contend that the evidence was insufficient to support 

his conviction for manslaughter. He argues only that the evidence was insufficient to support his conviction for use of a 

deadly weapon to commit a felony. The State’s theory for that 

charge was that King struck Pettit with a bottle. King does not 

dispute that a bottle can qualify as a deadly weapon. Instead, 

he argues only that there was insufficient evidence that he 

actually struck Pettit with a bottle.

(a) Additional Background

At trial, the State offered evidence that after King learned 

of the interaction between Pettit and Knight, King grabbed 

a pool cue and began to pace. Surveillance footage showed 

that King eventually returned the pool cue and then obtained 

two beer bottles. King gave one of the bottles to a member 

of his group and kept a bottle for himself. King stayed with 

members of his group for a short time, then walked away 

carrying the bottle. Shortly thereafter, King encountered and 

attacked Pettit.

Knight testified at trial. She testified that Pettit “brushed 

past” her and put his arm around her waist and that King 

learned of the interaction. She did not see King attack Pettit, 

but emerged from the bathroom to discover a man on the floor. 

Knight was rushed outside by her friends and did not learn 

details regarding the confrontation that night. Knight testified 

that she woke up the next day to text messages from one of 

her friends who was at the bar. The friend had seen pictures 

on a social media site connecting King’s group to the attack 

on Pettit.
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Cite as 316 Neb. 991

Knight testified that upon receiving the messages, she talked 

to King. According to Knight, King told her that one of 

Knight’s friends had identified Pettit to him and that King 

found Pettit and “hit him over the head with his beer bottle and 

then punched him.”

Four other witnesses testified that they saw King attack 

Pettit with a bottle. King’s counsel attempted to impeach or 

otherwise undermine this testimony. A witness who testified 

on direct examination that he was walking behind Pettit just 

prior to the altercation admitted, after viewing surveillance 

footage, that he was actually in front of Pettit. Another witness testified on cross-examination that she turned toward 

the incident after Pettit had already hit the floor. King also 

elicited testimony from a police officer that one of the witnesses who testified to seeing King hit Pettit with a bottle 

stated in an interview following the incident that she did not 

see King use a bottle. Another witness testified that she saw 

King hit Pettit with a bottle in the back of his head despite 

video surveillance evidence indicating that King and Pettit 

met face-to-face.

A security guard who was nearby King and Pettit during 

the incident testified that he did not see King use a bottle. In 

addition, the video surveillance evidence is inconclusive as to 

whether King struck Pettit with a bottle.

Evidence at trial indicated that the bar remained open for 

some time after the altercation between King and Pettit. Before 

police secured the scene, bar staff cleaned some of the area 

where Pettit was attacked. Pieces of a broken beer bottle were 

later located on the floor near where Pettit was attacked and in 

a dustpan in the bar storage room. King’s fingerprints were not 

recovered from the evidence collected at the scene.

After Pettit died, an autopsy was performed to determine 

the cause of death. The forensic pathologist who performed 

the autopsy testified at trial. The autopsy revealed that Pettit 

had several blunt force injuries to his head and face. The 

forensic pathologist testified that Pettit sustained “several” 
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nonsurvivable injuries and that the cause of death was blunt 

force head injuries. The forensic pathologist testified that all 

of Pettit’s external injuries were consistent with getting struck 

by a fist or an object like a bottle.

(b) Standard of Review

[5] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence, 

and such matters are for the finder of fact. State v. Lorello, 

314 Neb. 385, 991 N.W.2d 11 (2023). 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.

(c) Analysis

King argues there was insufficient evidence he struck Pettit 

with a bottle. King points out that the security guard testified that he did not see King use a bottle and that there was 

no DNA or fingerprint evidence suggesting he used a bottle. 

Additionally, King argues that the testimony of the witnesses 

who claimed to see a bottle was inconsistent or contradicted 

by other evidence. As we will explain, King’s argument is 

without merit.

King’s reliance on the security guard’s testimony and the 

absence of DNA or fingerprint evidence is unavailing. We 

recently rejected the notion that a defendant can establish that 

evidence to support a conviction was insufficient by pointing to the absence of certain types of evidence. See id. As we 

explained, our standard of review directs us to evaluate the 

evidence that was actually before the fact finder rather than 

ponder “potentially incriminating facts that were lacking.” Id.

at 401, 991 N.W.2d at 22.
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As for the evidence that was actually presented, we find 

that it, viewed in the light most favorable to the prosecution, would allow a rational jury to conclude that King struck 

Pettit with a bottle. As we have discussed, the record included 

evidence that King was holding a bottle moments before his 

encounter with Pettit and that Pettit’s injuries were consistent 

with being struck in the head with a bottle. On top of these 

facts, Knight testified that King admitted to striking Pettit 

with a bottle. Although other evidence might have also supported the State’s theory that King struck Pettit with a bottle, 

we find that these facts alone would allow a rational jury to 

conclude that King struck Pettit with a bottle. King’s argument that we cannot consider the testimony of the witnesses 

who claimed to see King strike Pettit with a bottle appears to 

invite us to reweigh evidence and pass on witness credibility 

contrary to our standard of review. See Lorello, supra. Given 

our conclusion that the conviction was amply supported by 

other evidence, however, we need not make further comment 

on that argument.

4. Sentencing

(a) Additional Background

At King’s sentencing hearing, the district court stated that 

it had received and read the presentence investigation report 

and victim impact letters. King’s counsel read aloud a note 

from King and offered arguments concerning various mitigating factors for the court to consider in its sentencing. The 

district court ultimately sentenced King to imprisonment for 

consecutive terms of 19 years 364 days to 20 years and of 19 

to 20 years.

(b) Standard of Review

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

appellate court will not disturb a sentence imposed within the 

statutory limits. State v. Johnson, 308 Neb. 331, 953 N.W.2d 

772 (2021).
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Cite as 316 Neb. 991

(c) Analysis

King challenges his sentences in two ways. He first argues 

that his sentences do not comply with recent amendments to 

§ 83-1,110. He also argues that his sentences were otherwise 

excessive.

(i) § 83-1,110

King argues that recent amendments to § 83-1,110 required 

the district court to sentence King “to an indeterminate sentence in which King would become parole eligible after King 

served 80 percent of the time until King’s mandatory discharge 

date.” Brief for appellant at 29.

In State v. Evans, ante p. 943, ___ N.W.3d ___ (2024), we 

rejected an identical argument. In Evans, we explained that the 

recent amendments to § 83-1,110 affect a defendant’s parole 

eligibility calculations but do not alter the permissible sentencing range. For the same reasons, we also reject King’s argument that his sentences were inconsistent with § 83-1,110.

(ii) Excessive Sentences

Lastly, King argues that the district court abused its discretion by imposing excessive sentences. King does not dispute 

that he was sentenced within the statutory limits set forth in 

Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). He instead argues 

the district court failed to adequately consider certain mitigating factors when sentencing him.

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. Stack, 307 Neb. 773, 950 N.W.2d 611 

(2020). 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, 
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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.

King argues that the district court failed to adequately consider the relevant sentencing factors enumerated above and 

based its sentences primarily on the nature of the offenses. In 

so arguing, King highlights certain mitigating factors in the 

presentence investigation report, including his documented 

mental health issues, lack of criminal history, participation in 

rehabilitative programs with the Department of Correctional 

Services, assessments that show he is at a low risk to reoffend, and his acceptance of responsibility for Pettit’s death. 

Based on the record, we find no abuse of discretion by the 

district court.

There is nothing in the record to suggest that the district 

court did not consider the mitigating factors King identifies. 

King asserts that if the district court had considered the mitigating information he identifies, it would have imposed substantially shorter sentences. In so arguing, however, King is 

essentially urging that the district court should have weighed 

the relevant sentencing information differently. We recall, 

however, that it is not this court’s function to conduct a de 

novo review of the record to determine what sentence we 

would impose, see State v. Horne, 315 Neb. 766, 1 N.W.3d 

457 (2024), and that the district court was also obligated to 

consider the nature of King’s crimes. With those considerations in mind, we cannot say that the district court abused its 

discretion in sentencing King.

IV. CONCLUSION

We find no merit to King’s arguments and therefore affirm 

his convictions and sentences.

Affirmed.