- 865 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

State of Nebraska, appellee, v. 

Raymond T. Davis, appellant.

___ N.W.2d ___

Filed February 4, 2022. No. S-21-224.

1. Indictments and Informations. Whether an information is fatally 

defective is a question of law.

2. Judgments: Appeal and Error. Appellate courts independently review 

questions of law decided by a lower court.

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

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

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

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

on the credibility of witnesses, or reweigh the evidence; such matters are 

for the finder of fact. The relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a 

reasonable doubt.

4. Indictments and Informations: Appeal and Error. An information 

first questioned on appeal must be held sufficient unless it is so defective that by no construction can it be said to charge the offense for 

which the accused was convicted.

5. Indictments and Informations. A complaint or information is fatally 

defective only if its allegations can be true and still not charge a crime.

6. ____. An information must allege each statutorily essential element of 

the crime charged, expressed in the words of the statute which prohibits 

the conduct charged as a crime or in language equivalent to the statutory 

terms defining the crime charged.

7. Witnesses: Impeachment. Generally, the credibility of a witness may 

be attacked by any party, including the party who called the witness.

8. Trial: Verdicts: Appeal and Error. Harmless error review looks to the 

basis on which the trier of fact actually rested its verdict; the inquiry 

is not whether in a trial that occurred without the error a guilty verdict 

Nebraska Supreme Court Online Library

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

04/15/2022 12:09 AM CDT
- 866 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

would surely have been rendered, but, rather, whether the actual guilty 

verdict rendered in the questioned trial was surely unattributable to 

the error.

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Affirmed.

Kelly S. Breen, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

Following a robbery that resulted in the victim’s death, 

Raymond T. Davis was convicted of three felonies: first degree 

murder, conspiracy to commit robbery, and use of a deadly 

weapon other than a firearm to commit a felony. On direct 

appeal, Davis challenges the sufficiency of the information’s 

charge of conspiracy, the sufficiency of the evidence to convict 

him, and the State’s alleged impeachment of its own witness. 

Discerning no basis for reversal, we affirm.

BACKGROUND

Information.

In 2018, Brent Quigley was found dead, apparently from 

stab wounds sustained during a home robbery. Following an 

investigation, Davis was among multiple people charged in the 

district court for Sarpy County in connection with Quigley’s 

death.

Davis was charged by information with the following fel

onies: first degree murder, in violation of Neb. Rev. Stat. 

§ 28-303 (Cum. Supp. 2020); robbery, in violation of Neb. 

Rev. Stat. § 28-324(1) (Reissue 2016); conspiracy to commit 

robbery, in violation of Neb. Rev. Stat. § 28-202 (Cum. Supp 

2020); and use of a deadly weapon other than a firearm to 
- 867 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a) 

(Reissue 2016).

Relevant here, the conspiracy charge stated:

COUNT 3: CONSPIRACY TO COMMIT ROBBERY

On or about the 24th day of June, 2018, . . . Davis, 

with the intent to promote or facilitate the commission of 

a felony, did agree with one or more persons that they or 

one or more of them would engage in or solicit the conduct or cause or solicit the result specified by the definition of the offense of Robbery, and he or another person 

with whom he conspired did commit an overt act, to-wit: 

Robbery in pursuance of the conspiracy, in violation of 

Section 28-202 . . . (CLASS II FELONY)[.]

Before trial, the district court dismissed the robbery charge on 

the State’s motion.

Evidence of Charged Crimes.

At Davis’ jury trial, the State presented evidence that Quigley 

was discovered on June 26, 2018, dead in his home amid signs 

of a struggle. An autopsy later determined that he had sustained 

numerous stab wounds, resulting in his death about 3 days 

before his body was found.

The investigation led to the arrests of Christopher Reagan 

and Alisia Cooke. Based on interviews with Reagan and Cooke, 

investigators identified Davis as an additional suspect. Davis 

was subsequently arrested in another state.

At Davis’ trial, Cooke testified for the State. She testified that a week before Quigley’s murder, she and Reagan 

were “trying to come up with ways to come up with money.” 

After discussing various options, they settled on robbery. 

Cooke testified that at some point, Davis joined the discussion. According to Cooke, she talked to Reagan and Davis 

about her starting a social media account to obtain invitations 

to men’s homes to exchange sex for money. Cooke testified 

that the three of them also discussed, as part of their plan, that 

once she gained access to a would-be victim’s residence, she 
- 868 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

would use text messaging to inform Reagan and Davis about 

the layout, any valuables, and whether there were other people 

or animals inside.

Cooke testified that on June 24, 2018, Quigley contacted 

her via the social media account Cooke set up to carry out 

the robbery plans. Quigley asked Cooke to have sex and get 

high with him in exchange for money. Cooke testified that she 

told Reagan and Davis that she was going to Quigley’s house 

and that, based on her knowledge of Quigley, “if they wanted 

to rob somebody, that this is going to be the person.” Cooke 

testified that both Reagan and Davis agreed to go with her to 

Quigley’s house to rob him.

Cooke testified that she, Reagan, and Davis rode in the 

same vehicle to Quigley’s neighborhood. While parked down 

the street from Quigley’s residence, together, they finalized 

their plans. According to Cooke, they all willingly agreed that 

she would enter Quigley’s house, text message Reagan and 

Davis to let them know she was inside, and make sure the 

door remained unlocked so that Reagan and Davis could knock 

Quigley unconscious and restrain him. While Cooke was still 

in the vehicle, Reagan and Davis looked for objects to use “to 

help knock [Quigley] out,” and a blue “Mag-Lite” flashlight 

was placed in a backpack.

Cooke testified that after Quigley let her in, they began 

to use drugs. According to records received in evidence and 

Cooke’s testimony, Cooke exchanged social media messages 

with Davis shortly before 9 a.m on June 24, 2018. In the messages, Davis told Cooke to let him and Reagan know when 

she was inside, confirmed the location of Quigley’s dog, and 

instructed Cooke to “[t]ake him to the bedroom.” Cooke testified that she took Quigley to the bedroom and that Reagan and 

Davis entered through the unlocked door, as planned. Reagan 

then attacked Quigley in the bedroom. Cooke testified that 

at one point, she saw Davis holding “a kitchen knife — or a 

butcher block.” Cooke went to another area of the house to use 

drugs; from there, she heard sounds of a struggle, including 
- 869 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

someone yelling, “‘Ow,’” and someone saying, “‘Get him. 

Hold him.’”

Cooke testified that after a “little while,” Reagan and Davis 

checked on Cooke, and the three remained in the house for a 

time, using drugs, while Quigley was lying on the floor. Cooke 

testified that Reagan and Davis stole several items from the 

house, including drugs and electronics, which the three divided 

and used or sold. In subsequent social media messages to 

Cooke, Davis expressed interest in keeping a video projector 

and a knife.

Cooke was arrested soon after. At trial, she acknowledged 

that she initially “lied to” investigators about “[p]retty much 

everything,” but testified that she eventually told them “what 

really happened.” Cooke also admitted to lying in an earlier 

deposition about her history of prostitution and acknowledged 

her criminal history involving dishonesty. She also testified that 

she used methamphetamine daily prior to her arrest. Cooke’s 

testimony at Davis’ trial was part of her plea agreement for 

charges related to Quigley’s death.

In addition to the social media messages Davis exchanged 

with Cooke while she was inside Quigley’s residence, the 

State presented text messages that corroborated Cooke’s version of events, including text messages between Cooke and 

Reagan referring to Davis’ involvement in the plan. The State 

also presented evidence that there was activity from Davis’, 

Cooke’s, and Reagan’s cell phones on cell towers in the vicinity of Quigley’s house on June 24, 2018, between 10:30 and 

11:02 a.m.

DNA testing could not exclude Reagan, Davis, Cooke, or 

Quigley as contributors to the DNA profiles obtained from 

swabs of a knife found under Quigley’s leg. (Investigators 

determined this knife was not the murder weapon; their investigation showed that Reagan and Cooke gave the knife used to 

kill Quigley to an acquaintance for disposal.) Quigley could 

not be excluded as a DNA contributor to bloodstains found 

on jeans discovered in the vehicle Davis was using at the time 
- 870 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

of his arrest; the jeans were in a backpack along with paperwork belonging to Davis. Quigley could not be excluded as a 

DNA contributor to suspected blood evidence on a blue “MagLite” flashlight found at the crime scene.

State’s Impeachment of Own Witness.

The State called Julie Skalberg to testify at trial. Skalberg 

identified herself as a friend of Davis’ mother. She testified that 

on June 26, 2018, Davis and a female companion called her, 

and later, they arrived at her residence in Des Moines, Iowa. 

Davis communicated to Skalberg that he wanted to take her up 

on her previous offer to help him “get a fresh start of things.” 

It is apparent from the record that, with respect to several subjects, Skalberg did not testify as the State anticipated.

On direct examination, the prosecutor asked Skalberg if 

Davis told her where he was coming from, and Skalberg 

answered, “He did not.” The prosecutor then produced a copy 

of Skalberg’s handwritten statement to law enforcement and 

asked her to review its contents. Skalberg reviewed the statement, which was not offered or received in evidence, and then 

stated, “I thought that [Davis] had told me that he had c[o]me 

from Council Bluffs, [Iowa,] but I cannot 100 percent say that’s 

what — where he told [me] he came from. I just had assumed 

that. They never really gave me a direct point of where they 

were coming from.”

After this statement, the prosecutor was about to continue 

questioning Skalberg by quoting from her statement to police, 

when defense counsel objected on the grounds that the statement to police was hearsay. The prosecutor said, “I’m actually 

impeaching her now, because I just showed her a document 

that she said was her statement.” Defense counsel responded 

that the State had not “shown a need” to impeach its own witness and that “there has been nothing inculpatory said by her, 

nothing exculpatory said by her.” The district court overruled 

Davis’ objection.
- 871 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

The prosecutor continued questioning Skalberg, “Isn’t it true 

that, in your statement, you wrote that [Davis and his companion] both said that they had — that things were getting crazy 

in Council Bluffs?” Skalberg agreed that was what she said and 

clarified that Davis and his companion “really didn’t” tell her 

where they had come from, “[t]hey just said that things were 

getting crazy over there . . . [i]n Council Bluffs.”

The prosecutor continued direct examination, and Skalberg 

testified that while Davis was at her residence, she gave him 

a backpack. When the prosecutor asked whether Skalberg 

remembered previously saying that she never gave Davis 

a backpack, the district court sustained defense counsel’s 

objection based on improper impeachment, observing that the 

prosecutor had not used the statement to refresh Skalberg’s 

recollection.

Skalberg further recalled on direct examination that she saw 

Davis break down and cry a couple of times during his 2-day 

stay at her residence. Skalberg testified that Davis told her he 

was crying because “things were getting scary and crazy, and 

he was fearful.” Over defense counsel’s objections based on 

improper impeachment, Skalberg testified that she did not tell 

the police the information she testified to about the backpack 

and Davis’ crying.

Verdicts and Sentencing.

The jury found Davis guilty of first degree murder, conspiracy to commit robbery, and use of a deadly weapon other 

than a firearm to commit a felony. The district court accepted 

the verdicts and sentenced Davis accordingly.

Davis now appeals.

ASSIGNMENTS OF ERROR

On appeal, Davis assigns three errors. He contends that 

the information’s charge of conspiracy failed to adequately 

allege that Davis committed an overt act in furtherance of the 

conspiracy and that the evidence was insufficient to support 
- 872 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

his convictions. He also claims that the district court erred by 

allowing the State to impeach Skalberg with her prior hearsay 

statement.

STANDARD OF REVIEW

[1,2] Whether an information is fatally defective is a question of law. See State v. Craig, 181 Neb. 8, 146 N.W.2d 744 

(1966). Appellate courts independently review questions of law 

decided by a lower court. State v. Harris, 307 Neb. 237, 948 

N.W.2d 736 (2020).

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

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

appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such 

matters are for the finder of fact. State v. Williams, 306 Neb. 

261, 945 N.W.2d 124 (2020). The relevant question 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.

ANALYSIS

Was Information Fatally Defective?

We begin with Davis’ claim that the count of the information charging him with conspiracy to commit robbery was 

fatally defective. We have held that objections to the form 

or content of an information should be raised by a motion to 

quash. State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006). 

Although our record in this case provides no indication that 

Davis challenged the information by filing a motion to quash 

in the district court, we have held that generally, defects or 

omissions in an indictment or information “which are of such 

a fundamental character as to make the indictment wholly 

invalid are not subject to waiver” and thus may be challenged 

for the first time on appeal. State v. Coleman, 209 Neb. 823, 

825-26, 311 N.W.2d 911, 912 (1981). As we will explain 
- 873 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

below, however, only a limited category of defects or omissions meet this standard.

[4-6] An information first questioned on appeal must be held 

sufficient unless it is so defective that by no construction can 

it be said to charge the offense for which the accused was convicted. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020). 

A complaint or information is fatally defective only if its allegations can be true and still not charge a crime. Id. An information must allege each statutorily essential element of the crime 

charged, expressed in the words of the statute which prohibits 

the conduct charged as a crime or in language equivalent to the 

statutory terms defining the crime charged. Id.

Section 28-202(1) provides that a person is guilty of the 

crime of criminal conspiracy if, with intent to promote or 

facilitate the commission of a felony:

(a) He [or she] agrees with one or more persons that 

they or one or more of them shall engage in or solicit the 

conduct or shall cause or solicit the result specified by the 

definition of the offense; and

(b) He [or she] or another person with whom he [or 

she] conspired commits an overt act in pursuance of the 

conspiracy.

Given this statutory definition, an information charging the 

crime of criminal conspiracy must expressly allege one or more 

overt acts. See State v. Marco, 230 Neb. 355, 432 N.W.2d 1 

(1988). See, also, Neb. Rev. Stat. § 29-2014 (Reissue 2016). 

In this case, Davis contends that the information failed to do 

so. Although he acknowledges that the information identified 

an overt act—“Robbery[,] in pursuance of the conspiracy, in 

violation of [§] 28-202”—he takes the position that the State 

may not, as it did here, allege that robbery was both the object 

of the conspiracy and an overt act committed in pursuance 

thereof. We disagree.

In support of his argument, Davis relies on State v. McKay, 

No. A-92-057, 1993 WL 13458 (Neb. App. Jan. 26, 1993) (not 

approved for permanent publication). In that case, the criminal 
- 874 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

conspiracy charge asserted that the defendant agreed with one 

or more other people that they would “‘harvest more than one 

pound of marijuana’” and that the defendant or one or more 

of the other alleged conspirators committed “‘an overt act 

in pursuance of the conspiracy, to-wit: Defendant along with 

[another person] conspired together to harvest and possess 

more than one pound of marijuana.’” Id. at *1. The Nebraska 

Court of Appeals found that the information was fatally defective. It explained that the information impermissibly identified 

the alleged conspirators’ act of “conspir[ing] together” as the 

overt act. Id. at *2.

This case is distinguishable from McKay. While McKay

found that a criminal conspiracy charge may not allege that 

a defendant agreed with others to commit a criminal offense 

and then identify that agreement as the overt act in furtherance 

of the conspiracy, the information at issue here did not do so. 

Rather, it alleged that Davis agreed with others to commit robbery and then identified robbery as an overt act in furtherance 

of that agreement.

Davis does not direct us to any cases in which a court has 

held that an information cannot allege that the same crime was 

both the object of the conspiracy and an overt act committed in pursuance thereof. And in fact, our recent decision in 

State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020), runs 

to the contrary. In Theisen, the defendant faced conspiracy 

charges for the underlying offenses of delivery or distribution 

of hydrocodone and tramadol. The overt act alleged was “‘buying and/or selling [hydrocodone and tramadol].’” Id. at 601, 

946 N.W.2d at 685. The defendant argued that to satisfy the 

overt act requirement, the State was required to allege an overt 

act other than the crime the parties conspired to commit. We 

rejected the defendant’s argument and found the information’s 

allegations that the defendant was “‘buying and/or selling 

[hydrocodone and tramadol]’” were sufficient. Id.

To the extent our decision in Thiesen left any room for 

Davis to argue that the conspiracy charge in this case was 
- 875 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

fatally defective, we would still disagree. One purpose of 

an overt act requirement is to ensure that criminal liability 

attaches only when an agreement to commit a crime has 

advanced beyond “mere talk.” U.S. v. Gigante, 982 F. Supp. 

140, 169 (E.D.N.Y. 1997). We have also recognized that an 

overt act “tends to show a preexisting conspiracy and manifests 

an intent or design toward accomplishment of a crime.” State 

v. Heitman, 262 Neb. 185, 198, 629 N.W.2d 542, 553 (2001). 

When one or more conspirators have actually committed the 

offense that is the object of the conspiracy, the agreement has 

certainly advanced beyond the discussion stage and there has 

been an unmistakable manifestation of an intent to accomplish 

the crime.

Given the foregoing, it is not surprising that consensus 

appears to exist among courts and commentators that prosecutors may prove that a defendant committed an overt act in 

furtherance of a conspiracy by demonstrating the commission 

of the substantive offense that was the object of the conspiracy. 

See, Word v. United States, 589 F. Supp. 806, 807 (S.D.N.Y. 

1984) (“the government is free to enumerate and prove, as 

overt acts to a conspiracy count, completed substantive crimes 

which were the object of the conspiracy”); State v. Less, 170 

W. Va. 259, 265, 294 S.E.2d 62, 67 (1981) (“substantive crime 

which is the object of the conspiracy can be proven as the 

overt act”); People v. Glubo, 5 N.Y.2d 461, 477, 158 N.E.2d 

699, 709, 186 N.Y.S.2d 26, 40 (1959) (“[w]hile the overt act 

need not be of itself a criminal act and need not constitute the 

very crime that is the object of the conspiracy . . . nevertheless 

it may well be, and frequently is” (internal quotation marks 

omitted) (emphasis omitted)); 2 Wayne R. LaFave, Substantive 

Criminal Law § 12.2(b) at 375 (3d ed. 2018) (“the overt act 

may be the substantive offense which was the object of the 

conspiracy”). We thus see no reason why the State may not, 

as it did here, satisfy the overt act requirement by alleging the 

substantive offense which was the object of the conspiracy as 

the overt act.
- 876 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

Sufficiency of Evidence.

We turn now to Davis’ contention that the evidence was not 

sufficient to support his convictions. When such a challenge 

is made, our inquiry 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. State v. Williams, 306 Neb. 261, 

945 N.W.2d 124 (2020). Davis makes no assertion that the 

State failed to present evidence of the essential elements of the 

charged offenses. Instead, Davis argues that we cannot base 

our assessment of the sufficiency of the evidence on Cooke’s 

testimony because of her past history of dishonesty regarding facts material to Davis’ criminal proceeding. And without alleging prosecutorial misconduct, Davis submits that the 

State’s reliance on Cooke’s testimony deprived him of a fair 

trial and due process.

Davis insists that he is not asking this court to reweigh the 

evidence, but we cannot escape the conclusion that this is 

precisely what Davis wants us to do. And “that is not the role 

of an appellate court.” State v. Jones, 296 Neb. 494, 499, 894 

N.W.2d 303, 307 (2017). The credibility and weight of witness 

testimony are for the jury to determine, and witness credibility 

is not to be reassessed on appellate review. State v. Wheeler, 

308 Neb. 708, 956 N.W.2d 708 (2021). Cooke’s testimony, with 

all its credibility issues, was presented to the jury for consideration, and we cannot ignore it. When we evaluate this testimony along with the other evidence at trial as our standard of 

review requires, without determining its weight or credibility, 

the basis for Davis’ assigned error on this point crumbles.

The jury was tasked with deciding whether to convict Davis 

of first degree murder, criminal conspiracy to commit robbery, and use of a deadly weapon other than a firearm to 

commit a felony. See, § 28-303; §§ 28-202 and 28-324(1); 

§ 28-1205(1)(a). The crime of first degree murder can entail 

felony murder, that is, killing another person in the perpetration or attempt to perpetrate a robbery or other specified 
- 877 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

crimes. See, § 28-303(2); State v. Bjorklund, 258 Neb. 432, 604 

N.W.2d 169 (2000), abrogated on other grounds, State v. Mata, 

275 Neb. 1, 745 N.W.2d 229 (2008). Viewing the evidence in 

the light most favorable to the State and considering the statutory elements of the crimes charged, we conclude there was 

sufficient evidence for a rational trier of fact to convict Davis 

on all counts.

The jury heard Cooke’s testimony that Davis participated 

with Cooke and Reagan in a plan to go to Quigley’s home and 

use force to take Quigley’s property. Davis helped gather objects 

to use to beat Quigley. Once Cooke was inside Quigley’s residence, Davis used social media messages with Cooke to ensure 

the scheme went according to plan. While Cooke interacted 

with Quigley, Davis entered Quigley’s residence with Reagan. 

At some point, Cooke observed Davis holding “a kitchen knife 

— or a butcher block,” and after going to another area of the 

house, she heard sounds of a struggle. The next time she saw 

Quigley, he was lying on the floor. As planned, Cooke, Reagan, 

and Davis took items from Quigley’s house. In social media 

messages to Cooke, Davis expressed interest in keeping particular items that they had taken.

Quigley was later found dead from stab wounds. Cooke’s 

version of the events that preceded and followed Quigley’s 

death was corroborated by social media messages, text messages, DNA evidence, and other circumstantial evidence. Cell 

towers near Quigley’s house detected activity from Davis’, 

Cooke’s, and Reagan’s cell phones around the time other 

evidence showed they were there. The State presented the 

social media messages that Davis and Cooke exchanged just 

before Davis and Reagan entered Quigley’s residence and 

afterward. DNA evidence showed signs of Quigley’s DNA on 

a blue “Mag-Lite” flashlight found at his house, the same type 

of flashlight Davis helped gather in anticipation of beating 

and robbing Quigley. DNA testing could not exclude Reagan, 

Davis, Cooke, or Quigley as contributors to the DNA profiles 

obtained from swabs of a knife found underneath Quigley. 
- 878 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

Nor could Quigley be excluded as a DNA contributor to bloodstains found on Davis’ jeans.

Abiding by our standard of review, we conclude that the 

evidence was sufficient to support Davis’ convictions and find 

no merit to this assignment of error.

Impeachment of Own Witness.

[7] Finally, Davis assigns that the prosecution improperly 

impeached its own witness, Skalberg, with her prior statement 

to police that Davis and his companion told her things were 

“getting crazy” in Council Bluffs, Iowa. Generally, the credibility of a witness may be attacked by any party, including 

the party who called the witness. State v. Dominguez, 290 Neb. 

477, 860 N.W.2d 732 (2015). One means of attacking the credibility of a witness is by showing inconsistency between his or 

her testimony at trial and what he or she said on previous occasions, but a party cannot impeach his or her own witness without limitation. See id. Impeachment of a party’s own witness 

by means of a prior statement may not be employed as a “mere 

subterfuge” or for the “primary purpose of placing before the 

jury substantive evidence which is not otherwise admissible” 

when the party is aware prior to calling the witness that the 

witness will not testify consistent with the witness’ prior statement. Id. at 491-92, 860 N.W.2d at 746 (internal quotation 

marks omitted) (emphasis omitted). This rule “focuses upon 

the content of the witness’ testimony as a whole” so that “if the 

witness’ testimony is important in establishing any fact of consequence significant in the context of the litigation, the witness 

may be impeached as to any other matter testified to by means 

of a prior inconsistent statement.” Id. at 492, 860 N.W.2d at 

746 (internal quotation marks omitted).

Davis asserts that the State should not have been allowed 

to impeach Skalberg with prior statements to police about 

Council Bluffs, because her testimony as a whole was “trivial.” 

Brief for appellant at 12. However, we question whether the 

State actually impeached Skalberg on this issue with a prior 
- 879 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. DAVIS

Cite as 310 Neb. 865

inconsistent statement. Here, Skalberg readily affirmed what 

she had told police and then provided further explanation. 

Skalberg initially testified that Davis did not tell her where he 

had come from. After reviewing her prior statement to police, 

Skalberg testified that she believed Davis had told her that he 

had come from Council Bluffs, but she was not certain, and 

that it was possible she only assumed he was coming from 

there. She then stated that Davis and his companion never gave 

her “a direct point of where they were coming from.” Over 

Davis’ objection alleging improper impeachment, the State 

was permitted to continue, “Isn’t it true that, in your statement 

[to police], you wrote that [Davis and his companion] both 

said that they had — that things were getting crazy in Council 

Bluffs?” Skalberg affirmed that she had made that statement 

to police, but clarified that Davis and his companion “really 

didn’t” tell her where they had come from; “[t]hey just said 

that things were getting crazy . . . [i]n Council Bluffs.”

[8] Even assuming without deciding that the foregoing 

exchange was improper impeachment by the State, we conclude that any such error was harmless and not grounds for 

reversal. Harmless error review looks to the basis on which 

the trier of fact actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the 

actual guilty verdict rendered in the questioned trial was surely 

unattributable to the error. State v. Figures, 308 Neb. 801, 

957 N.W.2d 161 (2021). Davis claims that the jury should not 

have heard Skalberg’s statement to police that Davis and his 

companion said things were “getting crazy” in Council Bluffs. 

But we cannot discern how this statement had any bearing on 

the jury’s verdicts. We therefore conclude that the jury’s guilty 

verdicts were surely unattributable to any impeachment of 

Skalberg with her prior statement.

CONCLUSION

Finding no merit to the errors alleged by Davis, we affirm.

Affirmed.