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309 Nebraska Reports

STATE v. CHILDS

Cite as 309 Neb. 427

State of Nebraska, appellee, v. 

Jean Childs, appellant.

___ N.W.2d ___

Filed June 11, 2021. No. S-20-024.

1. Criminal Law: Directed Verdict: Appeal and Error. In an appellate 

court’s consideration of a criminal defendant’s motion for a directed 

verdict, the State is entitled to have all its relevant evidence accepted as 

true, every controverted fact resolved in its favor, and every beneficial 

inference reasonably deducible from the evidence.

2. Rules of Evidence: Appeal and Error. When the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

3. Appeal and Error. An appellate court may find plain error on appeal 

when an error unasserted or uncomplained of at trial, but plainly evident 

from the record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process.

4. ____. Generally, an appellate court will find plain error only when a 

miscarriage of justice would otherwise occur.

5. Criminal Law: Directed Verdict. In a criminal case, the court can 

direct a verdict only when (1) there is a complete failure of evidence 

to establish an essential element of the crime charged or (2) evidence is 

so doubtful in character and lacking in probative value that a finding of 

guilt based on such evidence cannot be sustained.

6. Directed Verdict: Evidence: Appeal and Error. When a motion for a 

directed verdict made at the close of all the evidence is overruled by the 

trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw 

but one conclusion from the evidence, and the issues should be decided 

as a matter of law.

Nebraska Supreme Court Online Library

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

06/18/2021 01:08 AM CDT
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7. Perjury: Proof. There are three elements necessary to prove perjury: 

(1) the defendant makes a false statement under oath, (2) the statement is material, and (3) the defendant did not believe the statement to 

be true.

8. ____: ____. Perjury must be proved by at least two witnesses or by a 

single witness, together with material and established corroborative facts 

sufficient to amount to the testimony of another witness.

9. Appeal and Error. Plain error is not a vehicle that should be routinely 

used to save an issue for appeal where a proper objection should have 

been, but was not, made at trial.

10. Trial: Prosecuting Attorneys: Appeal and Error. When assessing a 

claim of alleged prosecutorial misconduct, an appellate court first determines whether the prosecutor’s acts constituted misconduct.

11. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for 

various contexts because the conduct will or may undermine a defend

ant’s right to a fair trial.

12. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the 

duty to conduct criminal trials in such a manner that the accused may 

have a fair and impartial trial, and prosecutors are not to inflame the 

prejudices or excite the passions of the jury against the accused.

13. ____: ____: ____. A prosecutor’s conduct that does not mislead and 

unduly influence the jury does not constitute misconduct.

14. 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.

15. Records: Appeal and Error. An appellate court often declines to scour 

the record on appeal in search of facts that might support a claim if not 

cited by a party in its brief, even if the failure to do so may result in the 

appellate court’s overlooking a fact or otherwise treating a matter under 

review as if it does not exist.

Appeal from the District Court for Kimball County: Derek 

C. Weimer, Judge. Affirmed.

Jerald L. Ostdiek, of Douglas, Kelly, Ostdiek, Snyder, 

Ossian, Vogl & Lookabill, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.
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STATE v. CHILDS

Cite as 309 Neb. 427

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

Papik, and Freudenberg, JJ.

Per Curiam.

Jean Childs appeals her conviction for perjury based upon 

testimony she gave at her husband’s trial on a misdemeanor 

charge. On appeal, Jean argues the district court erred in 

receiving the transcript from her husband’s trial over her hearsay objections and erred in overruling her motion for a directed 

verdict. She also argues it was plain error for the trial court to 

allow the prosecutor to comment on her husband’s conviction 

and to allow the jury to consider the transcript of her husband’s 

trial without redacting a comment made by the judge. Finding 

neither error nor plain error, we affirm.

I. BACKGROUND

1. Kenneth’s Trial

On February 16, 2016, the village of Dix, Nebraska 

(Village), received a complaint that a trench had been dug 

across a street adjacent to the home of Jean and her husband, 

Kenneth Childs. Because the Childses’ vehicle was parked 

over the trench, the Village contacted Kimball County Deputy 

Sheriff Marla Knigge for assistance with moving the vehicle 

so the Village could fill the trench.

On February 18, 2016, Knigge met with Kenneth at the 

Childses’ home. Kenneth told Knigge that he dug the trench 

to drain the water away from their property. When Knigge 

informed Kenneth that the Village wanted to fill in the trench, 

Kenneth stated that if that happened, he would dig the trench 

again if he needed to drain water away from their property in 

the future.

Kimball County charged Kenneth with injury to a public 

road, in violation of Neb. Rev. Stat. § 39-301 (Reissue 2016), a 

Class V misdemeanor. In August 2016, the county court judge 

held a bench trial, where Kenneth chose to represent himself. 

At trial, the State called four witnesses.
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Mark Miller, the street commissioner for the Village, testified about receiving a complaint from the Childses’ neighbor 

that a trench had been dug across the public road adjacent to 

the Childses’ house.

Sharon McKinney, the village clerk, testified that she 

received a report about the trench and that on or about February 

16, 2016, she drove to the location and took a photograph. The 

photograph was received as exhibit 1. McKinney described 

the trench as “fairly large” and said it “made a racket” when 

she drove across it. She indicated that the trench went from the 

edge of the Childses’ property to the edge of the neighbor’s 

property across the road. McKinney testified that Kenneth did 

not have permission to dig the trench and that he had previously been asked not to do so.

Knigge testified about her February 18, 2016, visit with 

Kenneth. Knigge testified that she made contact with Kenneth 

on February 18 to ask him to move his vehicle so the Village 

could fill in the trench and that exhibit 1 depicted the trench as 

it appeared on February 18. She testified that Kenneth told her 

he dug the trench to drain water away from their property and 

that if the trench got filled in, he would dig it again.

Linda Williams, the office administrator for the Kimball 

County sheriff’s office, was also present during Knigge’s conversation with Kenneth, and she corroborated Knigge’s testimony. Williams further testified that when she and Knigge 

made contact with Kenneth in February 2016, he admitted to 

digging the trench because water would pool on their property 

and he wanted it to drain off.

Kenneth called Jean as the only defense witness. On direct 

examination, Kenneth showed Jean exhibit 1, the photograph 

of the trench taken by McKinney on February 16, 2016. When 

asked, under oath, whether Jean saw “any digging at all [in the 

photograph],” she testified, “No. I see a difference between the 

pavement and the dirt, and there’s always a difference between 

the pavement and the dirt no matter where you live at.” Then, 
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Cite as 309 Neb. 427

when Kenneth asked Jean whether the trench depicted in 

the photograph was the same trench that was at issue in the 

case, Jean stated that “[t]here’s no trench there.” Kenneth also 

asked Jean questions regarding Knigge and Williams’ visit on 

February 18, and the following exchange took place:

Q When [Knigge and Williams] were down there, was 

there a trench?

A No.

Q There was no trench? There was no ditch, right?

A Right.

Kenneth asked Jean whether they had ever dug a ditch or 

trench, to which Jean replied that they had never dug a trench.

The court ultimately found Kenneth guilty of injuring or 

obstructing a public road by plowing or digging a ditch or 

other opening thereon, describing the evidence as “overwhelming.” The court then stated, on the record, “I am also going to 

direct the county attorney’s office to contact the Nebraska State 

Patrol, because I believe perjury was committed by the defense 

in this case today and, also, aiding and abetting perjury by you 

in your questioning and the statements that you’ve made.” The 

court then proceeded to sentencing and ordered Kenneth to pay 

a $100 fine.

2. Jean’s Perjury Trial

After the Nebraska State Patrol completed its investigation, 

a special prosecutor for Kimball County charged Jean with perjury in violation of Neb. Rev. Stat. § 28-915 (Reissue 2016), a 

Class III felony, based on her testimony during Kenneth’s trial. 

The day before Jean’s trial was scheduled to begin, she filed 

a motion in limine. As relevant to the issues on appeal, Jean 

moved to exclude “[t]he portions of the transcript of [Kenneth’s 

trial] containing the testimony of Deputy Marla Knigge, Mark 

Miller, Sharon McKinney, and Linda Williams.”

Jean’s motion in limine was taken up on the morning of her 

trial, outside the presence of the jury. Jean’s counsel acknowledged a prior stipulation that the transcript from Kenneth’s trial 
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could be admitted, but asked the court to redact, as inadmissible hearsay, the testimony of all witnesses other than Jean. 

Counsel also described the challenged testimony as “all the 

portions that are not [Jean’s] testimony.” The State objected 

and argued it would be impracticable to “parse out certain sections without having a full and complete understanding of the 

context of the statements that [Jean] makes.” The State also 

argued the testimony was admissible on the bases of in-court 

statements, residual hearsay, and the hearsay exception for 

coconspirators.

The court told the parties it “would have liked to have had a 

little more time to consider these things [but] I’ll make the best 

ruling that I can on the circumstances that I’m presented with.” 

The court overruled Jean’s motion in limine and indicated it 

would allow the transcript from Kenneth’s trial into evidence 

because it provided necessary context for the jury to evaluate 

Jean’s testimony and the circumstances that gave rise to the 

perjury charge. However, the court stated it would give a limiting instruction to the jury on the specific purpose for which the 

transcript could be considered.

It is undisputed that, in addition to the testimony of the 

various witnesses, the transcript of Kenneth’s trial included the 

county court’s comment that it believed perjury had been committed by the defense. The comment appeared on page 129 of 

the 131-page exhibit, and nothing in our record suggests that 

Jean ever complained of the judicial comment or otherwise 

brought it to the attention of the district court judge either 

before, during, or after her trial.

Jean’s jury trial began immediately after the hearing on 

the motion in limine. During opening statements, the special 

prosecutor provided the jury with background information 

on Kenneth’s trial and informed the jury that “[Kenneth] was 

found guilty in that proceeding, and [Jean] testified.” Jean 

did not object to the special prosecutor’s opening statement. 

Subsequently, counsel for Jean informed the jury in her opening statement:
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Over the course of today you’re going to hear evidence, as [the special prosecutor] stated, about [Kenneth] 

and the trial he had downstairs in Kimball County back 

on August 1 of 2016. And as [the special prosecutor] 

pointed out, it was a charge of injury to a public road. 

And I think you’ll hear testimony that there was what 

I would call a drain going across the road. And there 

was a trial and [Jean] testified on behalf of her husband, 

and he was convicted. He was found guilty of injuring a 

public road. And subsequent to that, [Jean] has now been 

charged with perjury.

Lt. Travis Wallace with the Nebraska State Patrol, who 

investigated Jean’s suspected perjury, testified on behalf of 

the State. According to Wallace, Jean stated in an interview 

that “[she and her husband] had made a line in the road to 

drain water” and that “the water made a small trench across 

the street.” Jean also informed Wallace that “[she and her husband] used a stick to make a small line in the road.” On crossexamination, Wallace testified that Jean told him she felt her 

testimony in Kenneth’s trial was honest.

The State’s second witness, Knigge, testified to the events 

involving the trench, explaining that when she first arrived 

at the Childses’ residence in February 2016, she observed 

a trench across the public road that “looked like it was dug 

with a spade.” Knigge further testified that she spoke with 

Jean while standing next to the trench and that Jean told her 

water accumulated at the edge of their property and “the only 

reason there [was] a little trench is because they [had] a big 

water puddle.”

The State then offered exhibit 4, the entire transcript of 

Kenneth’s trial, into evidence, and the district court judge 

remarked:

THE COURT: I will note the prior comments and 

objection made to Exhibit 4, and I assume you are renewing those at this time?

[Defense counsel:] Yes, your Honor.
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THE COURT: The Court will receive Exhibit 4 subject to its prior ruling on 4. And noting those objections 

and for purposes of today will overrule those objections.

The court also gave the following limiting instruction regarding exhibit 4:

The court specifically notes and directs your attention to Exhibit 4. This Exhibit is offered for the limited 

purpose of providing the context and content of [Jean’s] 

testimony in the matter of the State of Nebraska v. 

Kenneth Childs in the County Court of Kimball County, 

Nebraska[,] Case No. CR16-62. It may be used for no 

other purpose.

There was no objection to the limiting instruction.

David Wilson, the prosecuting county attorney from 

Kenneth’s trial, also testified on behalf of the State. Wilson 

testified that during Kenneth’s trial, both the street commissioner and the Village clerk were asked whether they had given 

the Childses permission to dig a trench on the public street, and 

that both denied giving any such permission. Wilson further 

testified that during Jean’s examination at Kenneth’s trial, Jean 

testified there was no trench or ditch in the road when Knigge 

came to investigate. Wilson read an excerpt of his crossexamination of Jean on that issue, in which Wilson asked Jean 

whether she recognized exhibit 1, which others had testified 

was a photograph of the trench. Wilson told the jury that Jean 

testified she did not recognize what was depicted in the photograph and said it “‘looks like dirt.’” Wilson told the jury that 

when being examined at trial, Jean expressly denied that the 

road looked as depicted in the photograph when Knigge came 

to investigate, adding, “‘We have a puddle of water — and my 

opinion is [the neighbor] hates us so much . . . that he probably 

dug it himself and then had the picture taken.”

The State also elicited testimony from Wilson about 

Kenneth’s conviction:

Q. And the judge found [Kenneth] guilty of injury to 

the public road.
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A. He did.

. . . .

Q. So, [Kenneth], when that case [w]as proven beyond 

a reasonable doubt, would have committed a law violation, specifically injuring or obstructing a public road 

by plowing or digging a ditch or other opening thereon, 

specifically Vine Street in Dix, Nebraska?

A. Yes.

At the close of the State’s case in chief, Jean moved for 

a directed verdict. In support, Jean’s counsel argued that to 

secure a conviction for perjury under § 28-915, the State must 

prove (1) the defendant made a false statement under oath, 

(2) the statement was material, and (3) the defendant did not 

believe the statement to be true. 1 Jean argued that her statements during Kenneth’s trial were not material and that she did 

not believe her statements to be untrue. The court overruled the 

motion, reasoning that the materiality of Jean’s statements, and 

what she believed when the statements were made, were issues 

of fact for the jury to decide. Jean did not present any evidence 

after her motion was overruled.

After deliberating for about an hour, the jury returned a verdict finding Jean guilty of perjury. The court entered judgment 

in accordance with the verdict, and no posttrial motions were 

filed. The court sentenced Jean to probation, after which she 

filed this timely appeal.

II. ASSIGNMENTS OF ERROR

Jean assigns, reordered and restated, that the district court 

erred in (1) overruling her hearsay objections to exhibit 4, (2) 

overruling her motion for a directed verdict, (3) allowing the 

prosecutor to comment on her husband’s conviction during 

opening statements and when questioning a witness, and (4) 

“allowing evidence that contained statements of the [county] 

court’s opinion as to the guilt of [Jean] to go to the jury for 

consideration.”

1 See State v. McCaslin, 240 Neb. 482, 482 N.W.2d 558 (1992).
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III. STANDARD OF REVIEW

[1] In an appellate court’s consideration of a criminal defend

ant’s motion for a directed verdict, the State is entitled to have 

all its relevant evidence accepted as true, every controverted 

fact resolved in its favor, and every beneficial inference reasonably deducible from the evidence. 2

[2] When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

an appellate court reviews the admissibility of evidence for 

an abuse of discretion. 3 Apart from rulings under the residual 

hearsay exception, an appellate court reviews for clear error 

the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to 

admit evidence over a hearsay objection or exclude evidence 

on hearsay grounds. 4

[3,4] An appellate court may find plain error on appeal when 

an error unasserted or uncomplained of at trial, but plainly 

evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to 

the integrity, reputation, and fairness of the judicial process. 5

Generally, we will find plain error only when a miscarriage of 

justice would otherwise occur. 6

IV. ANALYSIS

1. No Error in Overruling 

Hearsay Objection

Jean contends the district court erred in overruling her hearsay objections to that portion of the transcript from Kenneth’s 

trial containing the testimony of Knigge, Miller, McKinney, 

2 State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019).

3 AVG Partners I Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 

(2020).

4 Id.

5 State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).

6 Id.
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and Williams. Jean argues that although the State claimed the 

testimony was admissible under the residual hearsay exception, it failed to provide advance notice of its intent to use 

that exception as required by Neb. Rev. Stat. § 27-803(23) 

(Reissue 2016).

The State counters that the trial court’s ruling on the admissibility of the transcript, along with the limiting jury instruction 

regarding the proper use of the transcript, demonstrates that the 

transcript was not received into evidence under the residual 

hearsay exception and was not offered for the truth at all, but 

instead for necessary context. We agree.

Neb. Rev. Stat. § 27-801(3) (Reissue 2016) defines hearsay 

as a “statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove 

the truth of the matter asserted,” and Neb. Rev. Stat. § 27-802 

(Reissue 2016) prohibits the admission of hearsay except as 

provided under our rules of evidence. Although the State 

initially argued that the transcript was admissible under the 

residual hearsay exception, the court received the transcript 

into evidence reasoning it was admissible nonhearsay evidence. 

The court determined the transcript was not being offered for 

the truth of the matter asserted, but instead was offered “for 

the limited purpose of providing the context and content of 

[Jean’s] testimony” in Kenneth’s trial. The court gave the jury 

a limiting instruction consistent with that stated purpose, and 

it expressly told them the transcript “may be used for no other 

purpose.” Jean did not object to the limiting instruction and 

presents no argument that it was inadequate.

On this record, we see no error in the trial court’s decision 

to overrule Jean’s hearsay objection. This assignment of error 

has no merit.

2. No Error in Denying 

Directed Verdict

Jean moved for a directed verdict at the close of the State’s 

evidence, and she presented no evidence after the motion was 
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overruled. She therefore has preserved for appellate review the 

district court’s denial of her motion for a directed verdict.

[5,6] In a criminal case, the court can direct a verdict only 

when (1) there is a complete failure of evidence to establish 

an essential element of the crime charged or (2) evidence is 

so doubtful in character and lacking in probative value that a 

finding of guilt based on such evidence cannot be sustained. 7

Additionally, when a motion for a directed verdict made at the 

close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict 

is proper only where reasonable minds cannot differ and can 

draw but one conclusion from the evidence, and the issues 

should be decided as a matter of law. 8

[7,8] Section 28-915 sets forth three elements necessary to 

prove perjury: (1) the defendant makes a false statement under 

oath, (2) the statement is material, and (3) the defendant did 

not believe the statement to be true. 9 Additionally, no person 

can be convicted of perjury under this section when proof of 

falsity rests solely upon contradiction by testimony of a single 

person other than the defendant. 10 Furthermore, we have held 

that perjury must be proved by at least two witnesses or 

by a single witness, together with material and established 

corroborative facts sufficient to amount to the testimony of 

another witness. 11

During Kenneth’s trial, Jean repeatedly testified under oath 

that she and her husband did not dig a trench in the road, and 

she testified that the trench did not exist when Knigge and 

Williams visited the Childses’ property. During Jean’s perjury 

trial, the State offered testimony from three witnesses, and 

7 Stanko, supra note 2.

8 State v. Williams, 306 Neb. 261, 945 N.W.2d 124 (2020).

9 See McCaslin, supra note 1.

10 § 28-915(7).

11 McCaslin, supra note 1.
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a corroborating photograph, directly contradicting the truth 

of these statements. The statements were material to the misdemeanor charge on which Kenneth was being tried, and 

although Jean emphasizes that she told the Nebraska State 

Patrol investigator that she did not think her statements during 

Kenneth’s trial were untrue, the State presented evidence from 

which reasonable inferences could be drawn to the contrary. 

For instance, the State presented evidence that Jean alternated 

between denying the trench existed and admitting that the 

trench existed but claiming that the Childses had permission 

to dig the trench, that they used a stick to make a “line” in the 

road and drain water, that the trench developed when she used 

a broom to push standing water off their property, or that the 

street commissioner may have dug the trench.

During Jean’s trial, the State adduced evidence supporting 

each element of perjury. On a motion for a directed verdict, the 

State must be afforded the benefit of every inference reasonably deducible from that evidence. 12 We find no error in overruling Jean’s motion for a directed verdict and submitting the 

case to the jury. This assignment of error is meritless.

3. No Plain Error

Jean’s remaining two assignments of error involve complaints that were never presented to, or considered by, the 

district court. Because the failure to make a timely objection 

waives the right to assert prejudicial error on appeal, 13 Jean 

generally asks that we review both assignments under our plain 

error jurisprudence.

[9] We have long held that an appellate court may find plain 

error on appeal when an error unasserted or uncomplained 

of at trial, but plainly evident from the record, prejudicially 

12 See Stanko, supra note 2.

13 Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938 

N.W.2d 329 (2020).
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affects a litigant’s substantial right and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of 

the judicial process. 14 Plain error should be resorted to only in 

those rare instances where it is warranted, 15 and it is warranted 

only when a miscarriage of justice would otherwise occur. 16

Plain error is not a vehicle that should be routinely used to 

save an issue for appeal where a proper objection should have 

been, but was not, made at trial. 17 With this settled standard 

in mind, we review Jean’s final two assignments and find no 

plain error.

(a) Prosecutor’s Comments

Jean assigns that the district court erred by allowing the 

prosecutor to comment on Kenneth’s conviction during opening statements and while questioning a witness. She asserts 

that the prosecutor’s remarks were irrelevant, inadmissible, 

and undermined her right to a fair trial. However, Jean did not 

object to the prosecutor’s comments, nor did she move for a 

mistrial alleging prosecutorial misconduct. As such, our appellate review is confined to a search for plain error.

[10-13] When assessing a claim of alleged prosecutorial 

misconduct, an appellate court first determines whether the 

prosecutor’s acts constituted misconduct. 18 Prosecutorial misconduct encompasses conduct that violates legal or ethical 

standards for various contexts because the conduct will or 

may undermine a defendant’s right to a fair trial. 19 Prosecutors 

are charged with the duty to conduct criminal trials in such a 

14 Senteney, supra note 5.

15 State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).

16 Senteney, supra note 5.

17 McSwine, supra note 15.

18 See State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

19 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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manner that the accused may have a fair and impartial trial, 

and prosecutors are not to inflame the prejudices or excite the 

passions of the jury against the accused. 20 A prosecutor’s conduct that does not mislead and unduly influence the jury does 

not constitute misconduct. 21

During opening statements, the prosecutor informed the jury 

that Kenneth had been convicted of injury to a public road and 

that Jean testified in Kenneth’s defense at the trial. Notably, 

Jean’s counsel made similar remarks during her opening statement. The prosecutor also elicited testimony from Wilson, the 

prosecutor in Kenneth’s case, confirming that the county court 

found Kenneth guilty of injuring or obstructing a public road.

The prosecutor’s brief references to Kenneth’s conviction 

were accurate and provided context for Jean’s charge, were not 

misleading, and were not phrased or delivered in a way that 

suggests they were intended to inflame prejudice or excite the 

passions of the jury against Jean. We see no error, let alone 

plain error, in the court’s “allowing” these statements.

(b) Judicial Comment in Transcript

Lastly, Jean argues the district court erred in “allowing evidence that contained statements of the [county] court’s opinion 

as to the guilt of [Jean] to go to the jury for consideration.” 

The judicial statement about which Jean complains appeared 

near the end of the 131-page transcript from Kenneth’s trial, 

when the judge said to Kenneth: “I am also going to direct the 

county attorney’s office to contact the Nebraska State Patrol, 

because I believe perjury was committed by the defense in 

this case today and, also, aiding and abetting perjury by you in 

your questioning and the statements that you’ve made.” Jean 

argues that even though this comment was made by the judge 

in Kenneth’s case, it “spoke directly to the Judge’s opinion 

20 Id.

21 Id.
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of [her] guilt” 22 and “suggest[ed] to the jury what the judge of 

[Kenneth’s] case believed an appropriate verdict would be” in 

Jean’s case. 23

Jean did not, at any point, object to the transcript based 

on the inclusion of this judicial comment or ask to redact the 

comment. She does suggest, in her reply brief, that remarks 

by her lawyer while arguing the motion in limine were sufficient to preserve this alleged error, but we soundly reject that 

suggestion.

[14] 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. 24 In other words, an objection, based on a specific 

ground and properly overruled, does not preserve a question 

for appellate review on any other ground. 25

Jean’s motion in limine sought only to exclude, as inadmissible hearsay, the portions of the transcript that contained the 

trial testimony of Knigge, Miller, McKinney, and Williams. 

At the hearing on the motion, Jean reiterated this request and 

asked that “the testimony of the other parties from the transcript . . . be stricken” and that “all the portions that are not 

[Jean’s] testimony be redacted as they’re hearsay and will be 

prejudicial to her.” At all times, Jean’s hearsay objection was 

confined to the testimony of the witnesses and no mention was 

made, in passing or otherwise, to the findings or comments 

22 Reply brief for appellant at 7.

23 Id. at 6.

24 See, State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002); State 

v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). See, also, Rocek v. 

Department of Public Institutions, 225 Neb. 247, 404 N.W.2d 414 (1987); 

Gateway Bank v. Department of Banking, 192 Neb. 109, 219 N.W.2d 211 

(1974); Fries v. Goldsby, 163 Neb. 424, 80 N.W.2d 171 (1956).

25 Timmens, supra note 24; State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 

(2002).
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of the county court judge. Jean renewed the same objection 

at trial, and it was overruled. Because Jean never raised an 

objection to the judicial comments she now claims should have 

been redacted from the transcript, we review this assignment 

for plain error, and we necessarily confine our analysis to the 

alleged error as Jean has framed it.

Jean claims the district court erred by “allowing” the transcript to “go to the jury for consideration” when it contained 

the judicial comment about suspected perjury. In other words, 

she contends the district court erred by not sua sponte reviewing the transcript and redacting the judicial comment before 

allowing the jury to consider it. And since no party brought the 

judicial comment on page 129 to the court’s attention, Jean’s 

contention necessarily presumes that the district court had a 

duty to examine all 131 pages of the transcript before allowing 

it to go back to the jury.

We have been directed to no rule of law in Nebraska requiring a trial judge to review, sua sponte, each exhibit offered in a 

criminal trial to ensure that no statement or inference contained 

therein might be prejudicial to one of the parties. Indeed, the 

only authority we find on the question from other jurisdictions 

supports quite the opposite conclusion. 26

We recently considered, and rejected, a somewhat analogous 

claim: that the trial court was obligated to rule sua sponte 

on the admissibility of testimony during a criminal trial. 27 In 

26 See, U.S. v. Snype, 441 F.3d 119 (2d Cir. 2006) (finding no plain error 

in trial court’s failure to redact information from exhibit because no 

rule of law required trial judge to sua sponte review exhibit to ensure it 

contained nothing prejudicial); Havilah Real Property Services v. VLK, 

LLC, 108 A.3d 334 (D.C. App. 2015) (finding no plain error in trial 

court’s admission of exhibits containing hearsay, because documents were 

admitted for limited purpose and limiting instruction was given, and there 

was no support for argument that judge was required sua sponte to review 

each exhibit for potential evidentiary issues before admission).

27 See Senteney, supra note 5.
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State v. Senteney,

 28 the defendant failed to timely object to 

a witness’ testimony regarding indicators of deception that 

the defendant exhibited during an interview. But on appeal, 

the defendant argued it was plain error for the court to allow 

this testimony, as it amounted to one witness testifying to the 

credibility of another witness. 29 We ultimately found that any 

error in the presentation of the witness’ testimony did not rise 

to the level of plain error. 30 We acknowledged that without an 

objection, the trial court was not asked to rule on the admissibility of the witness’ testimony, and that therefore, it could 

not be said that the court made an erroneous evidentiary ruling. 31 We reasoned that during a trial, a court is not obligated 

to rule sua sponte on the admissibility of testimony, and that 

without an objection, we could not say the court committed 

plain error when it allowed specific testimony. 32 We ultimately 

concluded the witness’ testimony did not rise to the level of 

plain error because the testimony regarding the indicators of 

deception was a relatively small part of his testimony overall, and was not emphasized by the prosecutor during closing 

arguments. 33

[15] In connection with our appellate review, we often 

decline to scour the record on appeal in search of facts that 

might support a claim if not cited by a party in its brief, even 

if the failure to do so may result in our overlooking a fact or 

otherwise treating a matter under review as if that fact does 

not exist. 34 We see nothing on this record that compels us to 

28 Id.

29 Id. See, also, State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

30 See Senteney, supra note 5.

31 See id.

32 See id. (citing State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987)).

33 See Senteney, supra note 5.

34 See State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018). See, also, In re 

App. No. C-4973 of Skrdlant, 305 Neb. 635, 942 N.W.2d 196 (2020).
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hold trial courts to a different standard, and we decline Jean’s 

invitation to impose a new duty on trial courts to review all 

exhibits sua sponte for potentially prejudicial content not 

objected to by the parties. 35 As we recently explained in State 

v. Thomas,

 36 “‘It is not the judge’s responsibility to sever the 

bad parts [of an exhibit] if some are good. That is the opponent’s burden.’”

Here, the judge’s comment appeared on page 129 of a 

131-page exhibit. While the comment would have been plainly 

evident to anyone who reviewed the entire transcript, neither 

party brought the judicial comment to the district court’s attention, and we can find no error, let alone plain error, in the district court’s failure to sua sponte review the exhibit and redact 

the comment. Such is not the proper role of the trial court.

Moreover, even if we could find judicial error in not reviewing the exhibit sua sponte, and even if we assume that the 

jurors noticed the comment during deliberations and understood the judge was expressing an opinion that Jean had committed perjury while testifying for the defense, we could not 

find that the failure to redact the comment rises to the level 

of plain error. First, we would have to ignore the limiting 

35 Accord, U.S. v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008) (for admis

sion of evidence to constitute plain error, evidence must have been “‘so 

obviously inadmissible and prejudicial that, despite defense counsel’s 

failure to object, the district court, sua sponte, should have excluded the 

evidence’”). See, also, U.S. v. Browne, 953 F.3d 794, 800 (D.C. Cir. 2020) 

(“[r]are indeed would the case be in which we would find plain error in 

a judge’s failure to sua sponte exclude evidence”); Proenza v. State, 541 

S.W.3d 786 (Tex. Crim. App. 2017) (recognizing trial judge has no duty 

to enforce forfeitable rights unless requested to do so); United States 

v. Amador-Flores, 728 Fed. Appx. 839 (10th Cir. 2018) (for admission 

of testimony to be plain error, testimony must have been so obviously 

inadmissible and prejudicial that, despite opposing party’s failure to 

object, court sua sponte should have excluded testimony).

36 State v. Thomas, 303 Neb. 964, 981, 932 N.W.2d 713, 726 (2019) (quoting 

1 McCormick on Evidence § 52 (Kenneth S. Broun et al. eds., 7th ed. 

2013 & Supp. 2016)).
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instruction, which expressly told the jurors not to consider the 

transcript for any purpose other than “providing the context 

and content of [Jean’s] testimony” in Kenneth’s trial. The trial 

judge also gave the jury the standard instruction that the law 

does not permit the judge to comment on the evidence and that 

if it appeared the judge had commented on the evidence, the 

jury was to disregard such comment. Absent evidence to the 

contrary, it is presumed that a jury followed the instructions 

given in arriving at its verdict. 37

Here, the properly admitted evidence that Jean committed 

perjury during Kenneth’s trial was overwhelming; even if we 

assume the jury discovered the judicial comment during deliberations and understood it to express an opinion that Jean had 

committed perjury, failing to correct the error would not result 

in a miscarriage of justice or damage the integrity, reputation, 

and fairness of the judicial process. 38

V. CONCLUSION

For the foregoing reasons, we conclude the assigned errors 

are without merit, and we find no plain error. We therefore 

affirm the judgment of the district court.

Affirmed.

37 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

38 See Senteney, supra note 5.

Heavican, C.J., dissenting.

I respectfully dissent.

During Kenneth Childs’ misdemeanor trial for injury to a 

public road, Kenneth, unrepresented by an attorney, called his 

wife, Jean Childs, as his only defense witness. After Jean’s 

testimony, the county court judge commented, on the record, 

“I believe perjury was committed by the defense in this case 

today . . . .” Despite not naming her, the comment, when read 

in context, obviously implicated Jean. The judge also directed 

the county attorney’s office to contact the Nebraska State 

Patrol to pursue perjury charges against Jean.
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A transcript containing those comments was admitted to the 

jury in Jean’s subsequent felony trial for perjury. The transcript 

then accompanied the jurors to their deliberations room, where 

they adopted the same conclusion as the county court judge 

that Jean had committed perjury.

Despite Jean’s objection to “all the portions [of the transcript] that are not [Jean’s] testimony,” the majority believes 

she failed to adequately raise the county court judge’s prejudicial comments in the transcript as an issue for appellate review. 

A more generous reading of Jean’s objection would find it sufficient. However, for purposes of this dissent, I accept that the 

objection was not adequate and that our review is instead for 

plain error. Still, I would find such plain error and reverse.

Plain error exists when there is an error, plainly evident 

from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant. 1 To warrant reversal on appeal, a plain error at trial must be of such a nature that 

to leave it uncorrected would result in a miscarriage of justice 

or damage to the integrity, reputation, and fairness of the judicial process. 2

The majority characterizes the main issue as being whether 

a trial judge has a duty “to review, sua sponte, each exhibit 

offered in a criminal trial to ensure that no statement or inference contained therein might be prejudicial to one of the parties.” Throughout its analysis of that issue, the majority then 

emphasizes Jean’s failure to raise a specific objection at trial 

before it concludes that her failure to offer the court an opportunity to make a correct ruling results in no plain error.

But in my view, this framing misses the point. After determining initially that an error was not complained of at trial, an 

appellate court’s next step is not to reassess whether the error 

was complained of at trial. That step is done. Rather, the next 

step is to assess whether the error resulted in a miscarriage 

1 See State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).

2 See id.
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of justice or damage to the integrity, reputation, and fairness 

of the judicial process. 3 By permeating its second step of plain 

error review with a reassessment of whether Jean made a specific objection at trial, the majority conflates the initial procedural inquiry of whether there was an adequate objection with 

the later substantive assessment of whether the error resulted in 

such prejudice that it needs to be corrected.

In collapsing its analysis in this way, the majority would 

neuter our plain error review. Rather than reviewing errors that 

were unobjected to at trial for their threat of clear harm to the 

judicial process, the majority would simply find the errors not 

plain enough because they were unobjected to at trial. Such 

circular logic defies the purpose and effect of our plain error 

review, which, after all, only exists to consider errors that were 

unobjected to at trial.

Indeed, the majority’s approach is unsupported by the principal authority cited in its opinion. In State v. Senteney,

 4 the 

trial court had erroneously admitted a detective’s testimony 

that the defendant may have been deceptive during an interrogation. After finding the defendant had failed to object to 

the detective’s testimony at trial, we moved to the separate 

substantive assessment of whether the trial court’s erroneous 

admission of that evidence was plain error. We held it was 

not—not simply because the evidence had not been brought 

to the judge’s attention at trial, but because the evidence had 

been a relatively small part of the prosecution’s case and had 

not gone to the ultimate issue at trial of the defendant’s guilt of 

sexual assault of a child. In Senteney, the evidence’s relatively 

inconsequential role at trial lessened its apparent threat of harm 

to the judicial process.

In contrast, here, the comments were not isolated in the 

middle of other evidence, but positioned obviously on the 

penultimate page of the transcript, one of only three exhibits 

3 See id.

4 Id.
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offered by the State at Jean’s trial. Although the transcript was 

131 pages in length, the district court need not have scoured 

all of those pages to detect the county court judge’s prejudicial 

comments. After all, Jean did object on hearsay grounds to 

admitting the portion of the transcript that contained testimony 

from persons other than her. Even if that objection was not 

specific enough to preserve her appeal of that issue, I see no 

reason that it should not be relevant in our determination of 

whether the error was plain in the record.

And the evidence at issue was of immense consequence at 

trial. The county court judge’s comment—that “perjury [had 

been] committed by [Jean]”—went straight to the heart of the 

ultimate issue at Jean’s trial. The danger that lies in a judge’s 

comments being admitted as testimony at trial is that simply by 

virtue of the judge’s position, the jurors will give too much credence to his or her testimony. 5 A judge’s position and authority 

bestow him or her with an “‘imprimatur of character, credibility and reliability.’” 6 We have thus warned that “‘heightened 

scrutiny’” should be applied before a judge can be compelled 

to testify. 7 Because a judge retains his or her position and 

authority regardless of whether he or she is then presiding in 

the case, it is no less of a plain error for a judge’s testimony to 

be used in a case over which he or she is not presiding.

In State v. Smith,

 8 an appellate court in Ohio reversed 

a perjury conviction with similar facts. The trial court had 

allowed the judge presiding over the first trial to opine in 

the subsequent perjury trial that the defendant had committed 

perjury. Much like the instant case, the first judge in Smith

had “drafted a letter to both the administrative judge of the 

5 See, Cornett v. Johnson, 571 N.E.2d 572 (Ind. App. 1991); Merritt v. 

Reserve Ins. Co., 34 Cal. App. 3d 858, 110 Cal. Rptr. 511 (1973).

6 Rubens v. Mason, 387 F.3d 183, 190 (2d Cir. 2004). Accord Kennedy v. 

Great Atlantic & Pacific Tea Co., 551 F.2d 593 (5th Cir. 1977).

7 State v. Sims, 272 Neb. 811, 827, 725 N.W.2d 175, 189 (2006).

8 State v. Smith, 2015 Ohio 1736, 32 N.E.3d 517 (2015).
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court of common pleas and the Cuyahoga County Prosecuting 

Attorney requesting that [the defendant] be investigated for 

perjury.” 9 The decision reversing the perjury conviction noted 

that the judge, as witness, had used terms that have legal 

meaning and that such testimony is not helpful, because “‘the 

testimony attempts to answer, rather than aid the jury in 

answering, the ultimate question at issue.’” 10

The facts in this case are no less troubling in their measure 

of threat to the judicial process. The issue at the heart of Jean’s 

perjury trial was whether she had lied during Kenneth’s trial. 

By admitting the judge’s pronouncement that Jean had committed perjury, “the [district court] effectively removed the issue 

of [Jean’s] credibility from the jury.” 11 The comments were 

allowed to invade the province of the jury and thereby damage 

the integrity of Jean’s conviction. 12

As we have previously observed, “We are not inclined to 

readily find plain error in [evidence] to which the opposing 

party did not object.” 13 But where that error—even though it 

was unobjected to at trial—is plainly evident from the record 

and harmful to the fairness of the judicial process, we must 

reverse the judgment of the court below. 14 Because, in my 

view, it was plain error to allow the jury to see the county court 

judge’s comment that Jean had committed perjury, I would 

reverse the judgment of the district court.

Miller-Lerman, J., joins in this dissent.

9 Id. at ¶ 4, 32 N.E.3d at 520.

10 Id. at ¶ 16, 32 N.E.3d at 523.

11 State v. Privat, 251 Neb. 233, 242, 556 N.W.2d 29, 35 (1996).

12 See id.

13 Senteney, supra note 1, 307 Neb. at 711, 950 N.W.2d at 592.

14 See id.

Miller-Lerman, J., dissenting.

I respectfully dissent. As an appellate court, we serve as 

a safety net to protect the integrity of the judicial process 
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occasionally through the appellate procedure known as plain 

error review. We are not about finding fault with the rulings of 

the trial judges, overburdened though they may be. In this case, 

the remarks of the county judge to the effect that Jean Childs 

had committed perjury in an earlier trial were inadvertently, but 

prejudicially, placed before the jury in Jean’s perjury trial. The 

error is plainly evident from the record and to leave it uncorrected would result in damage to the integrity, reputation, and 

fairness of the judicial process.

Plain Error Review.

Our customary definition of plain error review is as follows: 

“Plain error may be found on appeal when an error unasserted 

or uncomplained of at trial, but plainly evident from the record, 

prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process.” State v. Mann, 302 Neb. 804, 

809, 925 N.W.2d 324, 329 (2019). Plain error review is an 

appellate process. Given this definition, there is no need for 

the majority to highlight Jean’s failure to complain about the 

admissibility of the county judge’s remarks; such exposition 

is superfluous in a plain error review. Failure to complain at 

trial is baked into the plain error exercise and such failure to 

object is of no legal consequence once the appellate court has 

embarked on a plain error review.

It’s Not Sua Sponte, It’s an 

Evidentiary Ruling.

The majority writes at length about there being no obligation by the trial court to rule sua sponte on the contents of the 

evidence consisting of the transcript of Kenneth’s trial, which 

included the offending remarks. This discussion tends to overlook the fact that the transcript was an exhibit upon which the 

court was required to rule and which it admitted into evidence. 

Compare State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 

(2020) (discussing live testimony). Under our rules, an alleged 
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error in ruling on a piece of evidence such as the transcript at 

issue is subject to appellate plain error review.

Neb. Rev. Stat. § 27-103(4) (Reissue 2016) provides: 

“Nothing in this rule [regarding admissibility of evidence] 

precludes taking notice of plain errors affecting substantial 

rights although they were not brought to the attention of the 

judge.” So the process which led to our current review is 

wholly anticipated by the evidentiary rules. We have long 

applied § 27-103(4) to appellate review involving admitted 

evidence. See, e.g., State v. Pointer, 224 Neb. 892, 402 N.W.2d 

268 (1987).

The Trial Judges Are Okay: 

Inadvertent Errors.

The majority opinion is laden with concern that the trial 

judges might be expected to scour exhibits and to rule sua 

sponte on things and might be offended if this court reverses 

a matter based on plain error. I am not indifferent to the risk 

of overburdening the very able trial judges of this State. But it 

is inappropriate to let such concern outweigh the object of the 

plain error review, i.e., to preserve the integrity, reputation, and 

fairness of the judicial process. The U.S. Supreme Court has 

observed: “The Court repeatedly has reversed judgments for 

plain error on the basis of inadvertent or unintentional errors 

of the court or the parties below.” Rosales-Mireles v. U.S., ___ 

U.S. ___, 138 S. Ct. 1897, 1906, 201 L. Ed. 2d 376 (2018).

That seems to be the circumstance here. Identification of an 

inadvertent error serves not to criticize the trial judge, but, 

rather, to strengthen the integrity of the judicial process.

The U.S. Supreme Court explained that the error under 

consideration in the plain error appellate review need not be 

obvious or clear to the trial judge. Henderson v. United States, 

568 U.S. 266, 135 S. Ct. 1780, 191 L. Ed. 2d 874 (2013). The 

Court stated, “[P]lain error review is not a grading system 

for trial judges.” Id., 568 U.S. at 278. I am confident the trial 

judges of this state understand this.
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The Error Was Plainly Evident From 

the Record and Requires Reversal.

Our definition of plain error is error unasserted or uncomplained of at trial, but is plainly evident from the record and 

of such a nature that to leave it uncorrected would result in 

damage to the integrity, reputation, or fairness of the judicial 

process. See Senteney, supra. Under our historical standard, I 

conclude that, regardless of sua sponte distractions, the challenged material is “obvious” to an appellate court and “plain” 

from the record and thus, because of the harm done, requires 

reversal. The district court perhaps inadvertently made an 

incorrect ruling; but the correct standard is whether the error 

is plainly evident from the record, not was it plainly evident to 

the trial judge.

On the last page of the trial exhibit—no scouring of the 

record required—the county judge states that “I believe perjury was committed by the defense in this case today” and 

that Kenneth, who did not testify, aided and abetted perjury by 

Jean. In the exhibit, the county judge also directed the county 

attorney’s office to contact the Nebraska State Patrol to pursue 

perjury charges against Jean. These remarks are plainly evident 

from the record.

The transcript containing these comments made by the 

county judge in Kenneth’s trial was ruled admissible pursuant to a requested ruling in Jean’s perjury trial. The county 

judge’s remarks, although verbal, were included in evidence, 

not testimony. The jury was instructed to consider the evidence. Contrary to the majority’s puzzling suggestion, the 

jury was not advised to ignore the county judge’s remarks 

enshrined in the exhibit transcript. The transcript accompanied the jury to the jury room where deliberations took place 

and provided the jury an opportunity to review and weigh the 

evidence, including the county judge’s remarks. I agree with 

the reasons recited in Chief Justice Heavican’s dissent to the 

effect that the county judge’s remarks that Jean lied under oath 

at Kenneth’s trial and were admitted in her trial for perjury 
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bore extraordinary weight and removed the penultimate issue 

of Jean’s credibility from the jury. I conclude that the county 

judge’s remark that Jean lied under oath was erroneously and 

prejudicially admitted in her perjury trial and resulted in damage to the integrity, reputation, and fairness of the judicial 

process and requires reversal.

In the end, contrary to the majority’s reasoning, our appellate analysis needs to be viewed in relation to the integrity of 

the process absent undue sympathies for the trial judge. It is 

not a good look for the Nebraska appellate authority vested in 

the Nebraska Supreme Court to permit a judge not under oath 

to advise the jury in a perjury trial that the defendant lied.