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Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

STATE v. WYNNE

Cite as 24 Neb. App. 377

State of Nebraska, appellee, v.

Mitchell Q. Wynne, appell

___ N.W.2d ___

Filed November 22, 2016. No. A-15-840.

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

apply, the admissibility of evidence is controlled by the Nebraska 

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

discretion a factor in determining admissibility.

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. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

4. Motions for Mistrial: Appeal and Error. The decision whether to 

grant a motion for mistrial is within the discretion of the trial court, and 

an appellate court will not disturb the ruling on appeal in the absence of 

an abuse of discretion.

5. Evidence: Appeal and Error. In reviewing 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.

6. ____: ____. The relevant question when an appellate court reviews a 

sufficiency of the evidence claim 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.

7. Rules of Evidence: Telecommunications. Generally, the foundation for 

the admissibility of text messages has two components: (1) whether the 

Nebraska Supreme Court Online Library

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

11/22/2016 09:09 AM CST
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text messages were accurately transcribed and (2) who actually sent the 

text messages.

8. Rules of Evidence. Authentication or identification of evidence is a 

condition precedent to its admission and is satisfied by evidence sufficient to prove that the evidence is what the proponent claims.

9. Rules of Evidence: Identification Procedures. Neb. Rev. Stat. 

§ 27-901(1) (Reissue 2008) does not impose a high hurdle for authentication or identification.

10. Rules of Evidence: Proof. A proponent of evidence is not required to 

conclusively prove the genuineness of the evidence or to rule out all 

possibilities inconsistent with authenticity.

11. Rules of Evidence. If the proponent’s showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of Neb. Rev. Stat. § 27-901(1) 

(Reissue 2008).

12. Hearsay. A statement is not hearsay if the proponent offers it to show 

its impact on the listener and the listener’s knowledge, belief, response, 

or state of mind after hearing the statement is relevant to an issue in 

the case.

13. Trial: Prosecuting Attorneys: Appeal and Error. When considering 

a claim of prosecutorial misconduct, an appellate court first considers 

whether the prosecutor’s acts constitute misconduct.

14. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does 

not mislead and unduly influence the jury is not misconduct.

15. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court 

concludes that a prosecutor’s acts were misconduct, the court next 

considers whether the misconduct prejudiced the defendant’s right to a 

fair trial.

16. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct 

prejudices a defendant’s right to a fair trial when the misconduct so 

infected the trial that the resulting conviction violates due process.

17. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is 

prejudicial depends largely on the context of the trial as a whole.

18. Trial: Prosecuting Attorneys: Evidence. A prosecutor must base his or 

her argument on the evidence introduced at trial rather than on matters 

not in evidence.

19. Trial: Evidence. A fact finder can rely only on evidence actually 

offered and admitted at trial and is not permitted to rely on matters not 

in evidence.

20. Juries: Jury Instructions. The purpose of jury instructions is to 

ensure decisions that are consistent with the evidence and the law, to 
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inform the jury clearly and succinctly of the role it is to play and the 

decisions it must make, and to assist and guide the jury in understanding the case and considering testimony.

21. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence 

to the contrary, it is presumed that a jury followed the instructions given 

in arriving at its verdict.

22. Trial: Prosecuting Attorneys: Appeal and Error. In determining 

whether a prosecutor’s improper conduct prejudiced the defendant’s 

right to a fair trial, an appellate court considers the following factors: 

(1) the degree to which the prosecutor’s conduct or remarks tended to 

mislead or unduly influence the jury; (2) whether the conduct or remarks 

were extensive or isolated; (3) whether defense counsel invited the 

remarks; (4) whether the court provided a curative instruction; and (5) 

the strength of the evidence supporting the conviction.

Appeal from the District Court for Douglas County: Leig

Ann Retelsdorf, Judge. Affir

Thomas C. Riley, Douglas County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Moore, Chief Judge, and Pirtle, Judge, and McCorma

Retired Justice.

Moore, Chief Judge.

I. INTRODUCTION

Mitchell Q. Wynne appeals from his convictions in the 

district court for Douglas County following a jury trial for 

first degree murder and use of a deadly weapon (firearm) to 

commit a felony. On appeal, Wynne challenges the admission 

of a series of text messages into evidence, the denial of his 

motion for mistrial based on the prosecutor’s comments during closing argument, and the sufficiency of the evidence to 

sustain the murder conviction. For the reasons set forth herein, 

we affirm.
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STATE v. WYNNE

Cite as 24 Neb. App. 377

II. BACKGROUND

1. Charges

On January 29, 2014, the State filed an information in the 

district court, charging Wynne with one count of first degree 

murder, in violation of Neb. Rev. Stat. § 28-303(1) or (2) 

(Reissue 2008), a Class IA felony, and one count of use of a 

deadly weapon (firearm) to commit a felony, in violation of 

Neb. Rev. Stat. § 28-1205(1) (Cum. Supp. 2014), a Class IC 

felony. Specifically, the State alleged that on July 14, 2013, 

Wynne killed Darnell Haynes either purposely and with deliberate and premeditated malice or during the perpetration of or 

attempt to perpetrate a robbery, and that Wynne used a firearm 

to commit a felony.

2. Jury Tria

A jury trial was held on March 30 through April 3 and April 

6 through 9, 2015. The record on appeal consists of over 2,000 

pages of transcribed testimony and argument (1,360 pages of 

which contain the transcribed testimony of the State’s 34 trial 

witnesses) and nearly 200 exhibits. We have reviewed this 

extensive record in its entirety and summarize those portions 

relevant to Wynne’s arguments on appeal.

(a) Evidence About Wynne

At the time of the offense, Wynne was 17 years old and 

had just finished his junior year of high school. He resided in 

Omaha, Nebraska, with his parents and younger siblings; he 

also had an older brother. Wynne’s mother testified that Wynne 

sometimes wore his hair in “single braids” and that it was 

“possible” he was wearing his hair that way during the summer 

of 2013. Wynne also had a girlfriend at that time.

Wynne’s mother testified that on the morning of Sunday, 

July 14, 2013, she went to church with Wynne and his younger 

siblings. They left church around 12:15 or 12:20 p.m. and 

drove straight home. Wynne’s mother testified that Wynne 

usually went to his girlfriend’s house after lunch and that she 
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thought she drove him there on July 14 sometime between 

1 and 2:30 p.m. When asked about the distance between 

Wynne’s residence and the location of the murder, she testified 

that it was “maybe a six- or seven-minute drive” but might 

take an hour to walk. Wynne’s girlfriend lived three blocks 

from Wynne’s residence. When Wynne’s mother dropped him 

off, Wynne’s girlfriend was not home, but his mother testified 

that he went into the house to wait for her. Wynne’s mother 

was uncertain when exactly she saw Wynne next, but she testified that he usually came home for dinner, which they eat 

sometime between 5 and 7 p.m. She did recall watching the 

news with him “later on,” probably at 10 p.m., and seeing a 

news story about Haynes’ death that evening, which was the 

first time she “knew anything about that happening.” She also 

thought Wynne’s girlfriend came back to the house with him 

and watched the news with them. Wynne’s mother testified 

that she did not know Haynes or Haynes’ mother, and she was 

not aware that Wynne ever had an acquaintance with or anything to do with Haynes. While watching the news story, she 

recalled that she and Wynne had seen Haynes and his vehicle 

(depicted in the news story) at a stoplight earlier in the day on 

their way home from church.

Wynne’s girlfriend also provided a timeline for events 

occurring on July 14, 2013. That summer, she was working at 

a fast-food restaurant, and she testified that one of her parents 

picked her up from work around 3:20 or 3:30 p.m. on the day 

in question. They drove straight home, and on the way, they 

drove by a crime scene. She observed a red Jeep with “the 

passenger’s side door open with white sheets hanging up” at 

the scene, but she did not recognize the vehicle. When she 

arrived at her house, her cousin and Wynne were there. When 

asked about the distance between her house and the location 

of the murder, Wynne’s girlfriend testified that it was about a 

10- or 15-minute drive and would be a “long walk.” According 

to Wynne’s girlfriend, after she returned home from work, 

she “sat around and watched movies” with Wynne and her 
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cousin and ate dinner around 5:30 or 6 p.m. She testified that 

her mother took her and Wynne to his house around 8 p.m. 

She recalled watching the 10 p.m. news with Wynne and his 

mother before her mother picked her up again around midnight. Wynne’s girlfriend did not know Haynes and testified 

that she never knew Wynne to “hang out” with Haynes.

(b) Evidence About Haynes

In July 2013, Haynes was 29 years old, and he lived in 

Omaha with his mother, his mother’s husband, his brother, and 

two other children. Haynes, who was unemployed and receiving disability payments for epilepsy, supplemented his income 

by selling marijuana. That summer, Haynes regularly drove a 

red Jeep Cherokee (Jeep) owned by his mother. His mother 

testified that he washed the Jeep regularly and had probably 

washed it within the week prior to his murder. Haynes’ mother 

did not know Wynne and had never seen Wynne at her residence or in the Jeep.

Haynes’ mother provided testimony about his whereabouts 

in the hours preceding his murder. Haynes spent the night 

of July 13, 2013, away from home. He returned briefly the 

next day around 11 a.m. before leaving again. When Haynes 

returned again around 2 p.m. on July 14, his son and his son’s 

mother were there for a visit. About 30 to 40 minutes later, 

Haynes told his mother that he was going to “make a run” 

and that he would “be right back” before he left in the Jeep. A 

“little after” 3 p.m., Haynes’ brother told Haynes’ mother that 

he had received a telephone call indicating that Haynes’ vehicle 

had been located and that Haynes may have been shot.

(c) Murder

At approximately 3:10 p.m. on July 14, 2013, Haynes 

was shot and killed in his Jeep, which was parked outside 

of a beauty supply store located at a particular intersection 

in Omaha. The beauty supply store was surrounded by several other business spaces, including a vacant one physically 
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connected to the east side of the beauty supply store, a fastfood restaurant located across the street west of the beauty 

supply store, and an automotive repair business and used car 

lot across the street north and east of the beauty supply store. 

There is a large parking lot on the north side of the beauty 

supply store and the vacant business space. The automotive 

business across the street was equipped with four exterior surveillance cameras, one of which was pointed in the direction 

of the beauty supply store parking lot. We have set forth an 

account of the murder, compiled primarily from surveillance 

video from the automotive repair business (taking into consideration testimony indicating that the time reflected on the 

video is 4 minutes 17 seconds ahead of “atomic time”) and 

the testimony of a witness who was in the drive-through at the 

fast-food restaurant when the murder occurred. The witness in 

the drive-through was not able to discern facial features; nor 

is it possible to discern facial features from the surveillance 

video footage.

Shortly after 3 p.m., Haynes parked the Jeep in front of the 

beauty supply store, leaving the engine running. At approximately 3:08 p.m., two black men approached from the east, 

crossed the street curving along the northeast corner of the 

parking lot, and entered the parking lot near the vacant business space. The first man was wearing a white T-shirt and 

tan cargo shorts and had “cornrows or braids” in his hair. As 

the first man began walking across the parking lot toward 

the beauty supply store, the second man, trailing several feet 

behind, approached the garages attached to the vacant business space. The first man stopped briefly and looked back at 

the second man before continuing across the parking lot to the 

beauty supply store. The second man began walking slowly 

along the garages toward the beauty supply store.

At approximately 3:09 p.m., the first man walked around 

the back end of the Jeep and approached the front passengerside door. Within a minute, he fired two shots, one of which 

struck Haynes in the forehead. The witness in the fast-food 
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drive-through heard the gunshots and immediately looked 

to her left toward the beauty supply store parking lot. She 

observed Haynes fall toward the open passenger-side door. 

She further observed the first man, who was standing outside 

the door, reach into the Jeep and then take off running. He 

fell to the ground behind the Jeep, but he rose quickly and 

continued running east toward the garages. The second man 

began running, and the two men ran around the corner by the 

eastern edge of the vacant business space and disappeared 

from view.

(d) Evidence at Scene

Emergency personnel arrived on the scene on July 14, 2013, 

at approximately 3:22 p.m., followed by law enforcement at 

3:23 p.m. They found Haynes lying face down across the front 

seat of the Jeep with his feet by the driver’s-side door and his 

upper body slumped over the outer edge of the passenger’s 

seat. There was a large amount of blood on the ground below 

his head, and small clumps of marijuana were found on the 

back of his T-shirt just below his neck and near his left armpit. 

His wallet was on the driver’s seat and his cell phone was in 

the center console. Haynes did not have a pulse and was pronounced dead at the scene.

A search of the area surrounding the Jeep revealed (1) two 

.380-caliber shell casings (later determined to have been fired 

from the same gun) on the ground outside the passenger-side 

door, (2) several small clumps of marijuana on the ground 

outside the Jeep (both on the passenger’s side and behind the 

Jeep), and (3) two small clumps of marijuana on the ground in 

front of the vacant business space (one clump near the beauty 

supply store and the other clump farther east, near the garages). 

No additional evidence was collected at the scene.

(e) Autopsy and DNA Evidence

On July 15, 2013, Dr. Robert Bowen performed an autopsy 

on Haynes’ body. Bowen observed a single gunshot wound on 
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the right side of Haynes’ forehead. The condition of the wound 

indicated to Bowen that Haynes had been shot at very close 

range. Bowen retrieved a bullet from “just beneath [Haynes’] 

left ear” and concluded that Haynes died from the gunshot 

wound to the head.

At the time of the autopsy, a crime laboratory technician 

collected Haynes’ personal effects. Thirty-five dollars in cash 

was recovered from Haynes’ clothing. The technician also collected DNA swabs taken from Haynes’ fingernails. Subsequent 

tests performed on the DNA swabs disclosed a mixture of DNA 

belonging to two or more people. Wynne could not be excluded 

as a contributor to the DNA mixture on either swab. However, 

the DNA profiles generated from the swabs were fairly common. For Wynne, the probability that a random individual’s 

DNA profile matched the DNA profile in question from the 

left-hand swab was 1 in 848 for Caucasians, 1 in 1,540 for 

African-Americans, and 1 in 791 for American Hispanics. And, 

the probability that Wynne expressed the same DNA profile as 

the profile in question from the right-hand swab was 1 in 36 

for Caucasians, 1 in 61 for African-Americans, and 1 in 71 for 

American Hispanics.

(f) Additional Evidence and 

Fingerprints From Jeep

The Jeep was towed to the police impound lot for further 

processing. Two baggies of marijuana and a white pill containing cocaine HCL were found lying on the center console next 

to the gearshift. Crime laboratory technicians lifted fingerprints 

from the exterior of the Jeep and kept 11 prints they determined were “identifiable.” Eight of those prints belonged to 

five of Haynes’ friends, four of whom had recently been inside 

the Jeep. Of the remaining three prints, two were not identified, 

while the third print, found on the rear passenger-side door, 

matched Wynne’s left palm.

Considerable time was spent at trial exploring the methods 

by which fingerprint evidence is collected and analyzed, the 
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qualifications of the individuals who collected and analyzed 

the prints in this case, and the mishandling of fingerprint evidence (unassociated with the evidence in this case) in 2012 

by Omaha Police Department crime laboratory employees. 

We have thoroughly reviewed this evidence, but for the sake 

of brevity, we note only the following: In September 2012, 

an Omaha Police Department crime laboratory employee misidentified a fingerprint. Two other employees who reviewed 

the work in 2012 verified her identification of the print at 

that time. The print was not removed from a database used 

by the laboratory as it should have been. In March 2014, 

another crime laboratory employee ran a “reverse search,” 

which revealed the misidentification, which misidentification 

was verified by several other crime laboratory employees. 

The employees involved in the 2012 misidentification were 

suspended from casework for about 6 months after the discovery of the misidentification, took additional formal training 

in fingerprint identification, and were subject to additional 

monitoring after returning to identification work. The crime 

laboratory manager also initiated an audit of other fingerprint identifications performed by the individuals involved 

in the misidentification, which audit did not reveal any other 

misidentifications. The crime laboratory is not accredited by 

the American Society of Crime Lab Directors, an entity that 

accredits laboratories “overall” and in “varying concentration 

areas,” but the entire police department, including the laboratory, is accredited by the Commission on Accreditation for 

Law Enforcement Agencies, although that accreditation is not 

specific to “specialties in the crime lab.” The International 

Association for Identification is an accrediting body that certifies individuals in various aspects of forensic science including the area of fingerprint comparison. One crime laboratory 

employee was certified by that association in the area of 

fingerprint comparison at the time the misidentification was 

discovered, but no crime laboratory employees were certified 

in that area in 2012.
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The fingerprint identifications resulting from the evaluations performed by the Omaha Police Department crime laboratory employees of the 11 prints at issue in this case were 

each verified by another technician in the Omaha laboratory. 

The identification of Wynne’s print was also verified by a 

Lincoln Police Department employee who is a certified latent 

print examiner. We note that the Omaha crime laboratory 

employee who verified the identification of Wynne’s print 

was one of the individuals involved in the 2012 misidentification. She is the only certified print examiner in the Omaha 

laboratory and became certified after the 2012 misidentification but prior to both its discovery and her verification of 

Wynne’s print. After the 2012 misidentification was discovered, the employee notified the International Association for 

Identification, but the 2012 misidentification did not affect her 

certification status.

(g) Admission of Telephone Records

Certain exhibits were admitted into evidence at trial which 

showed details of contacts between the cell phone with the 

telephone number attributed at trial to Wynne and Haynes’ 

cell phone found in his Jeep after his murder. Some of these 

exhibits also reflect contacts between Wynne’s cell phone 

and the telephones being used by some of his family members and his girlfriend during July 2013. Given the focus 

of Wynne’s assignments of error on appeal, we discuss the 

admission into evidence of only two of those exhibits: exhibit 

178, a table containing incoming, outgoing, and missed calls 

exchanged by Haynes’ cell phone and Wynne’s cell phone 

and by Haynes’ cell phone and a third telephone between 

July 10 and 14; and exhibit 179, a table containing incoming and outgoing text messages (including the actual content 

of the text messages) exchanged by Haynes’ cell phone and 

Wynne’s cell phone on July 14 between 12:35 and 12:43 p.m. 

Exhibit 179 reflects a series of text messages in which the 

user of Wynne’s cell phone agreed to purchase marijuana from 
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Haynes. Exhibit 178 shows, among other things, that several 

calls were exchanged by Wynne’s cell phone and Haynes’ cell 

phone between 2:48 and 3:09 p.m. on July 14, shortly before 

Haynes was murdered.

When the State first offered exhibits 178 and 179, Wynne 

objected to both exhibits on authentication and hearsay 

grounds. The district court overruled Wynne’s objections as 

to exhibit 178 and received that exhibit into evidence, but the 

court sustained Wynne’s hearsay objection as to exhibit 179. 

Wynne also argued that there was not sufficient evidence to 

indicate that he was the author of the text messages contained 

within exhibit 179. With respect to exhibit 179, the court 

noted that nothing in the content of the text messages identified Wynne specifically or anyone else as “the maker of those 

text messages” and noted further that the fact that text messages were sent from Wynne’s cell phone was not sufficient to 

show Wynne actually authored the messages. The court ruled 

that the fact that text messages were sent from the cell phone 

previously identified as belonging to Wynne to the cell phone 

belonging to Haynes was admissible, but that based on the evidence at that point in the trial, the content of the text messages 

was not admissible.

Subsequently, the State offered testimony from a police 

officer which showed that in the days and hours before 

Haynes was murdered, Wynne’s cell phone was in contact 

with the telephones of several of his family members and 

his girlfriend, as well as the telephone of a person unidentified at trial who also called Haynes shortly before he was 

murdered. The State again offered exhibit 179 with the text 

message content into evidence, and Wynne renewed his prior 

objections. The district court sustained Wynne’s objections, 

but it agreed to hear additional argument from the parties. 

After the jury was released for the day, the court heard further 

argument with respect to the admissibility of the text message content.

Finally, the district court ruled as follows:
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I never like — these close calls that are significant are 

difficult, but I re-looked at a number of cases, and, really 

— although authentication and — really, all that they 

have to authenticate is that this — the authentication 

goes to whether or not it’s actually the [d]efendant that 

made — that sent the text messages or whether there is a 

likelihood that it wasn’t the [d]efendant.

The case law is pretty clear across the board, and I 

looked at the federal cases that have established this, 

that the government only needs to make a prima facie 

showing of authenticity by a — and it’s merely by a 

preponderance of the evidence, and there [are] cases that 

indicate that it can be proved by circumstantial evidence 

involving the timing of the receipt and the transmission 

of the text messages. I think that because of the burden 

that the government has, that [it] merely only need[s] 

to make a prima facie showing, because of the fact that 

subsequent to this morning, when all we had, I think, 

was [Wynne’s] association with that number, I think now 

there is enough evidence for the government to meet [its] 

preponderance of the evidence and prima facie showing 

of authenticity based on the facts and circumstances surrounding the timing of the transmission and receipt of 

the text messages, and so I’m going to allow Exhibit 179 

into evidence.

(h) Details of Telephone Records

Wynne’s father had an account with a cell phone service 

provider, and Wynne’s mother testified that in July 2013, 

Wynne was using a cell phone with a phone number assigned 

to that account; we have referred to that cell phone in this 

opinion as “Wynne’s cell phone.” She also identified the cell 

phone numbers being used by herself, Wynne’s father, and 

Wynne’s older brother. Wynne’s girlfriend identified her home 

telephone number on the record and testified that she sometimes called Wynne from that number. Several of the telephone 
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record exhibits admitted into evidence were highlighted with 

different colors used to represent contacts between Wynne’s 

cell phone and the telephones used by other individuals as well 

as contacts between Haynes’ cell phone and the telephones 

used by other individuals. On those exhibits, a telephone number is highlighted in gray, and we will refer to it in this opinion 

as “the gray number.” The user or owner of the telephone associated with the gray number was not identified in the evidence 

presented to the jury at trial.

Police extracted data from Haynes’ cell phone, which disclosed several contacts between Wynne’s and Haynes’ cell 

phones on July 14, 2013. At 12:33 p.m., a call was made from 

Wynne’s cell phone to Haynes. At 12:35 p.m., Haynes sent a 

text message to Wynne’s cell phone stating, “I got Dro.” The 

reply from Wynne’s cell phone at 12:37 p.m. stated, “Ight 

koo.. Im bouta run ta da bank den im get some of both.. U 

gon look out.?” At 12:39 p.m., Haynes sent a text to Wynne’s 

cell phone stating, “call me,” and the reply from Wynne’s cell 

phone at 12:42 p.m. stated, “Ight.” We note testimony in the 

record indicating that “dro” is a slang term for “hydroponic 

marijuana.” Calls from Wynne’s cell phone were logged by 

Haynes’ cell phone at 2:48 p.m. as “[m]issed” and at 2:49 p.m. 

as “[i]ncoming.” Additional calls were exchanged by the two 

cell phones between 3:02 and 3:05 p.m. Between 3:06 and 3:08 

p.m., Haynes’ cell phone logged two incoming calls from the 

gray number. Haynes’ cell phone logged an outgoing call to 

Wynne’s cell phone at 3:08 p.m. As noted above, Haynes was 

murdered at approximately 3:10 p.m.

A review of the subpoenaed records for Wynne’s cell phone 

confirms the text and call contacts between Wynne’s cell 

phone and Haynes on July 14, 2013, although there are some 

discrepancies in the various telephone record exhibits as to 

the exact contact times and number of contacts made depending on which “target number” was used to generate the exhibits. The police officer who testified about these exhibits was 

unable to explain these discrepancies, as he was “not a data 
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person or records keeper for [the cell phone provider used 

by Wynne and Haynes].” In addition to the contacts between 

the two cell phones on July 14, the records for Wynne’s 

cell phone showed that calls were placed from Wynne’s cell 

phone to Haynes on July 10 and 13. Wynne’s cell phone had 

several contacts with the gray number on July 14, including 

texts before and calls both before and after the initial contact 

with Haynes. Wynne’s cell phone also received calls from the 

gray number on June 1 and 29 and sent a text message to it 

on July 13. Finally, although several calls and text messages 

were sent from Wynne’s cell phone to various people on July 

14, including Wynne’s girlfriend, father, and older brother, 

all outgoing communications from Wynne’s cell phone had 

ceased by 3:04 p.m. Wynne’s mother testified that Wynne’s 

cell phone was reported “lost,” but she did not specify when 

this occurred. Wynne’s girlfriend recalled learning at some 

point that Wynne had lost his cell phone, but she did not 

recall the date. Wynne’s cell phone number was “deactivated” 

on July 31.

(i) Search Warrant and Arrest

On November 11, 2013, a search warrant for Wynne’s residence was executed by law enforcement looking for firearms 

and cell phones. As of the date of trial, neither Wynne’s cell 

phone nor the gun used to shoot Haynes had been found. 

Wynne was arrested on December 20.

(j) Motion for Mistrial

During the State’s initial closing argument, the prosecutor stated:

And why was it the officers felt they needed to talk to 

this . . . number later determined to be the phone number 

of . . . Wynne . . . ? Because you can see — we will go in 

reverse chronological order — the 14th day of July, 2013, 

at 3:08:29 p.m., . . . Haynes’ phone placed a call to the 

. . . Wynne number.
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If we think about that, 3:08:29, if the murder occurred 

just immediately before 3:10 p.m., this outgoing phone 

call placed by [Haynes] to [Wynne’s] number was placed 

within a minute, minute and a half of . . . Haynes’ murder. But that’s not the only call.

As we continue, you will see that there are — prior to 

that . . . Haynes had received two other incoming phone 

calls from a number we don’t have a name to associate 

it with, [the gray number]. There was never an outgoing 

call from . . . Haynes’ phone to that number. Just two 

incoming calls. And in terms of that number, the [gray 

number], you’ll see in the later records that that’s the 

number highlighted in gray.

The State discussed the sequence of the contacts between 

the various telephone numbers, including the gray number, at 

length during its initial closing argument and made two more 

references to the gray number. First, the prosecutor stated: “Of 

significance here is now, once again, we start seeing that gray 

number. What’s the gray number again? That’s the number we 

don’t know, that’s the number that contacted [Haynes], and, 

once again, that’s the number that’s also contacting and being 

contacted by [Wynne] from his phone.” Later, the prosecutor 

stated: “This is one of those cases where you don’t have an 

eyewitness saying, ‘This is the person who did it,’ you don’t 

have a co-[d]efendant because we have never been able to 

identify that person in the gray number in terms of the evidence you heard throughout this trial.”

Wynne did not object to the prosecutor’s comments at the 

time they were made, but following the State’s closing argument and prior to his own closing argument, Wynne made an 

oral motion for mistrial based on prosecutorial misconduct. 

Wynne argued that the State’s assertion that it was unable 

to identify the user of the gray number was false because 

the police had previously identified an individual as the user 

of that number, a fact recently confirmed by that individual 

during a police interview. The district court received into 
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evidence two exhibits offered by Wynne in support of his 

motion: (1) e-mail correspondence regarding a police interview of the individual on April 3, 2015, and (2) a supplemental police report showing police awareness of the individual’s 

association with the gray number. The State argued that its 

assertions with respect to the gray number were not false 

because the prosecutor had specified that the user of the gray 

number was unknown “based upon the evidence in this case.” 

The State argued further that “to the extent that there is a 

concern,” the prosecutor’s cocounsel would “clear that up 

in rebuttal.”

The district court overruled Wynne’s motion, but it agreed 

to revisit the issue after transcription of the closing arguments. 

The court provided a limiting instruction to the jury prior to 

Wynne’s closing argument, stating:

Ladies and Gentlemen, I do want to instruct you. 

Arguments of counsel are not evidence. Comments of 

counsel regarding what evidence may or may not exist 

is not evidence. Reference[s] to evidence the State may 

or may not possess that was not put before you are to be 

disregarded completely.

During Wynne’s closing argument, his attorney made the 

following reference to the prosecutor’s statements about the 

gray number:

So because their scientific evidence is so lacking, 

we are left with the prosecutors putting together a story 

about what these known [telephone] contacts mean, what 

the content of them is, even though [the prosecutor] has, 

other than these several texts, absolutely no evidence, 

zero, to support his statements. He paints this picture 

about here’s what happened. You know, [Wynne and the 

other individual shown in the surveillance video] said 

they were going to do a robbery with this phone number 

that there is no evidence to support who it is.

Finally, during the State’s rebuttal closing argument, the 

prosecutor’s cocounsel stated:
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I want to clarify something that [the prosecutor] 

might have misstated in his closing argument about 

whether there was evidence as to who that gray . . . 

number was [attributable to]. I just want to clarify that 

in this trial you heard no evidence about whose number 

that was.

But the point of all of those phone numbers — and 

I’m not going to spend a great deal of time talking 

about the phone numbers because I think [the prosecutor] went through it enough. The point is that that was 

. . . Wynne’s phone. He was talking and texting to all of 

these people who are close to him, all of these people 

who are close to him and . . . Haynes at the time of 

[Haynes’] death.

3. Convicti

On April 9, 2015, the jury found Wynne guilty on both 

counts of the information. The district court accepted the 

jury’s verdicts and entered judgment accordingly.

4. Motion for New Tr

Wynne filed a motion for new trial, alleging, among 

other things, that the district court erred by denying his 

motion for mistrial based on the prosecutor’s prejudicial 

misconduct during closing arguments and by overruling his 

objections to the admission into evidence of the content of 

the text messages extracted from Haynes’ cell phone. On 

June 23, 2013, the district court entered an order overruling 

Wynne’s motion.

5. Sente

On August 27, 2015, the district court entered an order 

sentencing Wynne to 40 to 100 years’ imprisonment for first 

degree murder and to a consecutive sentence of 10 to 20 

years’ imprisonment for use of a deadly weapon (firearm) to 

commit a felony. The court gave Wynne 544 days’ credit for 

time served.
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III. ASSIGNMENTS OF ERROR

Wynne asserts that the district court erred in admitting the 

text messages into evidence and in denying his motion for 

mistrial based on prosecutorial misconduct during the State’s 

closing argument. Wynne also asserts that the evidence was 

insufficient to sustain his conviction for first degree murder on 

either of the State’s alternate theories.

IV. STANDARD OF REVIEW

[1-3] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016). 

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. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 

630 (2016). A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition. State v. Edwards, 

294 Neb. 1, 880 N.W.2d 642 (2016).

[4] The decision whether to grant a motion for mistrial is 

within the discretion of the trial court, and an appellate court 

will not disturb the ruling on appeal in the absence of an abuse 

of discretion. See State v. Goynes, 278 Neb. 230, 768 N.W.2d 

458 (2009).

[5,6] In reviewing 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. Jenkins, 294 Neb. 475, 883 N.W.2d 351 

(2016). The relevant question when an appellate court reviews 

a sufficiency of the evidence claim is whether, after viewing 
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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.

V. ANALYSIS

1. Admission of Text Mess

Wynne asserts that the district court erred in admitting 

exhibit 179, a series of text messages, into evidence over 

his objections. We first address whether there was sufficient 

foundation for the admissibility of the text messages and then 

whether they were inadmissible hearsay.

(a) Foundation

[7] Generally, the foundation for the admissibility of text 

messages has two components: (1) whether the text messages were accurately transcribed and (2) who actually sent 

the text messages. State v. Henry, 292 Neb. 834, 875 N.W.2d 

374 (2016).

[8-11] Authentication or identification of evidence is a condition precedent to its admission and is satisfied by evidence 

sufficient to prove that the evidence is what the proponent 

claims. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016). 

Neb. Rev. Stat. § 27-901(1) (Reissue 2008) does not impose 

a high hurdle for authentication or identification. State v. 

Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014). A proponent 

of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent 

with authenticity. Id. If the proponent’s showing is sufficient 

to support a finding that the evidence is what it purports to 

be, the proponent has satisfied the requirement of § 27-901(1). 

State v. Elseman, supra.

Wynne does not argue that the text messages detailed in 

exhibit 179 were not accurately transcribed from Haynes’ 

cell phone. In our review, we find the testimony of the police 

officer who extracted this data from Haynes’ cell phone sufficient to authenticate the messages as set forth in exhibit 
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179 as accurate transcriptions of the messages from Haynes’ 

cell phone.

At trial and on appeal, Wynne’s primary argument is that 

there was not sufficient foundation to show that he was the 

person who sent the text messages attributed to him. He argues 

that there was no direct evidence presented to show who actually authored the messages attributed to him or who was in 

possession of the cell phones at the time the messages were 

sent and received. He notes that while the cell phone from 

which the messages were extracted was found in the Jeep next 

to Haynes following his death, the cell phone attributed to 

Wynne was never recovered, and thus, no data was extracted 

from it. He also notes that the number of the cell phone attributed to him was assigned to his father’s cell phone service 

provider account and argues that there is no evidence to show 

that he was the sole user of the cell phone. Finally, he argues 

that there is nothing in the content of the text messages that 

identifies him as the author.

The Nebraska Supreme Court recently addressed the foundation for admissibility of text messages in State v. Henry, 

supra. In that case, the defendant argued that there was insufficient foundation that he authored the text messages attributed 

to him, noting the lack of evidence that he was the record 

owner of the cell phone in question and the presence of evidence that the cell phone was found in the post office box 

of another individual who claimed ownership. He also noted 

that through “‘text spoofing,’” a text message can be made to 

appear to have been sent from a telephone number other than 

the number from which it was actually sent. Id. at 868, 875 

N.W.2d at 399. In addressing these arguments, the Supreme 

Court stated:

In similar cases, testimony concerning context or 

familiarity with the manner of communication of the 

purported sender is sufficient foundation for the identity of the sender of the message. Such testimony is 

typically in combination with testimony that the cell 
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phone number belonged to or was regularly utilized by 

the alleged sender. The proponent of the text messages 

is not required to conclusively prove who authored the 

messages. The possibility of an alteration or misuse by 

another generally goes to weight, not admissibility.

Id. at 868, 875 N.W.2d at 400. In finding sufficient foundation 

for the admission of the text messages, the Supreme Court in 

State v. Henry noted testimony establishing the defendant as 

a regular user of the cell phone, testimony that the defendant 

answered the cell phone at the number in question when a witness called it, and testimony connecting the defendant with the 

messages based on the witness’ familiarity with their context 

and the way the defendant spoke.

In this case, the evidence showed that Wynne used his cell 

phone, with the number assigned to an account belonging to 

Wynne’s father, during July 2013. There was also evidence 

to show that in the days and hours prior to Haynes’ murder, 

there was contact between the cell phone attributed to Wynne 

and the telephone numbers of various family members and 

also Wynne’s girlfriend. And, there is no evidence in the 

record to suggest that anyone other than Wynne was using 

the cell phone in question at the time of Haynes’ murder. The 

content of the text messages, which arranged a drug transaction, and the sequence of subsequent call contacts between 

the cell phone attributed to Wynne and Haynes’ cell phone are 

also consistent with the timeline established for the murder. 

All outgoing contacts by the cell phone attributed to Wynne 

ceased just shortly before the murder occurred. The district 

court did not abuse its discretion in overruling Wynne’s 

objections with respect to his authorship of the text messages 

attributed to him.

(b) Hearsay

[12] Wynne also objected to exhibit 179 on the basis of 

hearsay, although he does not separately argue this claim 

in his brief on appeal, and as noted above, the focus of his 
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arguments at trial was that the evidence was insufficient to 

show he was the person who sent the text messages. In arguing his objections to the district court, Wynne’s trial counsel 

conceded that if there were sufficient evidence to indicate that 

Wynne was the author of the messages attributed to him, they 

would not be hearsay. We agree. As discussed above, there 

was sufficient evidence to establish that Wynne authored the 

text messages attributed to him. Because those text messages 

were his own statements, they were not hearsay. See, Neb. 

Rev. Stat. § 27-801(4)(b)(i) (Reissue 2008); State v. Henry, 

292 Neb. 834, 875 N.W.2d 374 (2016) (finding that defendant’s text messages offered against him were statements of 

party opponent and not hearsay). Nor were text messages 

attributed to Haynes hearsay. Those messages were offered 

to show their effect on Wynne, i.e., how he responded to 

the proposed drug transaction. A statement is not hearsay 

if the proponent offers it to show its impact on the listener 

and the listener’s knowledge, belief, response, or state of 

mind after hearing the statement is relevant to an issue in the 

case. State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015). To 

the extent that Wynne claims the district court improperly 

overruled his hearsay objection to exhibit 179, that claim is 

without merit.

2. Motion for Mistria

Wynne asserts that the district court erred in denying his 

motion for mistrial based on prosecutorial misconduct during 

the State’s closing argument. He argues that the prosecutor’s 

comments about not knowing whom the gray number belonged 

to were false and misleading. Wynne further argues that the 

State’s rebuttal argument did not clear up the error and was 

further misleading in that the State misstated the gray number and went on to speak about Wynne’s cell phone without 

clarifying that the “phone [the prosecutor] was referencing 

was not the ‘unknown’ phone . . . .” Brief for appellant at 24. 

Wynne argues that this statement led to the inference that the 
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unknown telephone was connected to him or was otherwise 

unimportant to the investigation.

[13-17] When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor’s acts constitute misconduct. State v. McSwine, 292 Neb. 

565, 873 N.W.2d 405 (2016). A prosecutor’s conduct that does 

not mislead and unduly influence the jury is not misconduct. 

Id. If an appellate court concludes that a prosecutor’s acts were 

misconduct, the court next considers whether the misconduct 

prejudiced the defendant’s right to a fair trial. Id. Prosecutorial 

misconduct prejudices a defendant’s right to a fair trial when 

the misconduct so infected the trial that the resulting conviction violates due process. Id. Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial 

as a whole. Id.

In State v. McSwine, supra, the Nebraska Supreme Court 

reversed a decision by this court, finding that the prosecutor’s comments during closing and rebuttal argument did not 

constitute prosecutorial misconduct and that the defendant 

was not prejudiced by the prosecutor’s comments. In that 

case, the comments at issue related to the defense at trial that 

certain text messages did not refer to the crimes charged but 

related to an earlier incident of trespassing by the defendant. Specifically, the prosecutor observed that there was no 

evidence “‘at all,’” other than the defendant’s testimony, 

about the earlier incident. Id. at 575, 873 N.W.2d at 413. The 

defendant did not object to the comments at the time. During 

deliberations, the jury inquired about the prosecutor’s comments, was instructed that it had all of the evidence it would 

receive, and was directed to the jury instruction stating that 

statements, arguments, and questions of the lawyers were not 

evidence. The defendant did not challenge the prosecutor’s 

comments as misleading until his motion for new trial, at 

which time he offered police reports about the trespass incident into evidence. On appeal, this court concluded that the 

comments were misleading, reasoning that the prosecutor did 
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not limit the term “evidence” in his comments to the evidence 

presented at trial and that the comments suggested that there 

was no evidence at all to support the defendant’s testimony 

about the trespass incident. See State v. McSwine, 22 Neb. 

App. 791, 860 N.W.2d 776 (2015), reversed 292 Neb. 565, 

873 N.W.2d 405 (2016). On further review, the Nebraska 

Supreme Court disagreed.

[18,19] First, the Nebraska Supreme Court observed that 

while there were police reports about the trespass incident 

and the State was aware of these reports, the reports were not 

offered at trial. The Supreme Court concluded that the jury was 

not misled or unduly influenced by the prosecutor’s comments, 

because the jury was “well instructed as to what ‘evidence’ 

was within the context of th[e] trial” and it was undisputed that 

no evidence was presented at trial to corroborate the defendant’s testimony about the trespass incident. State v. McSwine, 

292 Neb. at 576, 873 N.W.2d at 414. The Supreme Court 

observed that a prosecutor must base his or her argument on 

the evidence introduced at trial rather than on matters not in 

evidence. Id. Further, a fact finder can rely only on evidence 

actually offered and admitted at trial and is not permitted to 

rely on matters not in evidence. Id. Accordingly, the Supreme 

Court concluded that the comments were not misconduct, but 

went on to conclude that even if the statements were prejudicial, they were not so prejudicial as to violate the defendant’s 

due process rights.

(a) Statements Were Not Misconduct

In this case, unlike in State v. McSwine, 292 Neb. 565, 

873 N.W.2d 405 (2016), the prosecutor did qualify his statements about the gray number. Although he initially stated 

that the gray number was “the number we don’t know,” he 

went on to state, “[W]e have never been able to identify that 

person in the gray number in terms of the evidence you heard 

throughout this trial.” During rebuttal argument, the prosecutor’s cocounsel clarified that the jury heard no evidence “in 
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this trial” about “whose number [the gray number] was.” 

Although Wynne presented evidence to the district court during argument on his motion for mistrial, indicating that the 

gray number was associated with a known individual and 

that the State was aware of this connection, it is undisputed 

that no evidence of the connection was presented to the jury 

at trial.

During the rebuttal argument by the prosecutor’s cocounsel, she misstated one digit in the prefix of the gray number, 

an error easy enough to make given the plethora of telephone 

numbers discussed at trial, but not one unduly misleading, 

given that she correctly stated the final four digits of the gray 

number. After commenting that there was no evidence at trial 

as to the user of the gray number, the cocounsel continued her 

rebuttal argument and went on to discuss Wynne’s cell phone 

without explicitly stating that she was changing topics and 

was now discussing a different cell phone, the one with the 

telephone number attributed to Wynne at trial. We do not read 

this lack of transition as “an adroit attempt to confuse the jury 

by lumping all the last calls to [Haynes’] phone as coming 

from [Wynne’s] phone.” See brief for appellant at 24. When 

the cocounsel’s remarks are read as a whole, it is clear that she 

was no longer discussing the gray number. And in the context 

of the entire trial, in which all of the various telephone numbers were addressed at length, we do not believe the jury was 

misled or unduly influenced by the cocounsel’s lack of a segue 

between one portion of her rebuttal and the next. We also note 

that Wynne did not object to these particular remarks or renew 

his motion for mistrial. Further, most of Wynne’s argument at 

the hearing on his motion for new trial was addressed to the 

district court’s admission of the content of the text messages. 

His brief argument about the prosecutorial misconduct issue 

focused on the statements made by the prosecutor during the 

State’s initial closing argument.

Like the jury in State v. McSwine, 292 Neb. at 576, 577, 873 

N.W.2d at 414, the jury in this case was “well instructed” as 
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to what was evidence in the context of the trial and was specifically instructed that “‘[s]tatements, arguments and questions’” of the lawyers are not evidence. After the State’s initial closing argument and prior to Wynne’s closing argument, 

the district court instructed the jury that arguments of counsel 

are not evidence and that comments of counsel regarding what 

evidence may or may not exist are not evidence. And, during 

formal jury instructions, the jury was informed of its duty to 

decide the facts and informed that in doing so, it must “rely 

solely upon the evidence in this trial and that general knowledge that everyone has.” The jury was further instructed that 

the evidence from which it was to find the facts consisted 

of the testimony of the witnesses, the exhibits received in 

evidence, any stipulated facts, and any facts that “[the judge] 

say[s the jurors] may accept but are not required to accept.” 

The jury was again informed that statements, arguments, 

and questions of the lawyers for the State and Wynne were 

not evidence.

[20,21] The purpose of jury instructions is to ensure decisions that are consistent with the evidence and the law, to 

inform the jury clearly and succinctly of the role it is to play 

and the decisions it must make, and to assist and guide the jury 

in understanding the case and considering testimony. See State 

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

evidence to the contrary, it is presumed that a jury followed 

the instructions given in arriving at its verdict. Id.

Unlike the prosecutor in State v. McSwine, supra, both 

the prosecutor and his cocounsel in this case qualified their 

references to “evidence” to indicate they were referring to 

evidence presented at trial. We conclude that the jury was 

not misled or unduly influenced by the comments about there 

having been no evidence presented at trial as to the user of 

the gray number. These statements were not misconduct. 

Nor do we find the cocounsel’s further comments in rebuttal to be misconduct. Nonetheless, as set forth below, even if 

any of these statements, those of either the prosecutor or his 
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cocounsel, were misconduct, they were not so prejudicial as to 

violate Wynne’s due process rights.

(b) Statements Were Not Prejudicial

[22] In determining whether a prosecutor’s improper conduct prejudiced the defendant’s right to a fair trial, an appellate court considers the following factors: (1) the degree to 

which the prosecutor’s conduct or remarks tended to mislead or 

unduly influence the jury; (2) whether the conduct or remarks 

were extensive or isolated; (3) whether defense counsel invited 

the remarks; (4) whether the court provided a curative instruction; and (5) the strength of the evidence supporting the conviction. State v. McSwine, supra.

The statements of the prosecutor and his cocounsel did not 

mislead or unduly influence the jury to a significant degree. 

Their remarks about the gray number were qualified as being 

about the evidence presented at trial. And, the jury in this 

case was well instructed on what it was to consider in its 

deliberations. It was instructed to consider only evidence presented at trial and instructed that counsel’s statements, arguments, and questions were not evidence. The first factor weighs 

against prejudice.

Next, the comments in question were not extensive in the 

context of the lengthy initial closing and rebuttal arguments. 

Nor do we see any indication that defense counsel invited the 

remarks, except to the extent that the possibility of clarifying 

rebuttal remarks by the prosecutor’s cocounsel was discussed 

during the arguments on Wynne’s motion for mistrial. The second and third factors weigh against prejudice.

With regard to the fourth factor, the district court did 

give a curative instruction following the State’s initial closing argument. And, as noted above, the possibility of clarifying remarks by the prosecutor’s cocounsel was discussed in 

connection with Wynne’s motion for mistrial. Wynne did not 

object to the additional comments by the prosecutor’s cocounsel of which he complains. Nor did he make a further motion 
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for mistrial or explicitly address these additional comments in 

arguing his motion for new trial to the district court. Again, 

however, the jury was instructed on what it was to consider in 

its deliberations. This factor is neutral.

Finally, as addressed more explicitly below in connection 

with our analysis of Wynne’s third assignment of error, there 

is sufficient evidence to support Wynne’s convictions. The fact 

that there were two individuals involved in the commission of 

these crimes was clearly known throughout the trial, and the 

failure of the State to identify the potential user of the gray 

number did not preclude the possibility that Wynne was one of 

the individuals involved in the crimes.

Thus, even assuming that the statements by the prosecutor 

and his cocounsel were misconduct, they were not prejudicial.

3. Sufficiency of E

Wynne asserts that the evidence was insufficient to sustain his conviction for first degree murder on either of the 

State’s alternate theories: felony murder in the commission 

of or attempt to commit a robbery or intentional killing with 

premeditation and deliberation. Wynne argues that there was 

no witness to place him at the scene and challenges the credibility of the fingerprint evidence and the weight to be given 

to that and the relatively inconclusive DNA evidence. He also 

relies on the timelines established through the testimony of his 

mother and his girlfriend. He argues that there is no evidence 

to support a finding of premeditation or deliberation by him 

and insufficient evidence to support the felony murder theory 

of robbery or attempted robbery.

Because Wynne does not challenge the sufficiency of the 

evidence to support his conviction for use of a deadly weapon 

to commit a felony, either in his third assignment of error or 

in his arguments, we address the sufficiency of the evidence to 

support only his conviction for first degree murder. Pursuant to 

§ 28-303, a person commits murder in the first degree if he or 

she “kills another person (1) purposely and with deliberate and 
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premeditated malice, or (2) in the perpetration of or attempt to 

perpetrate . . . robbery.”

Wynne essentially urges us to reweigh the evidence and 

pass on the credibility of witnesses, something an appellate 

court does not do, as those matters are for the finder of fact. 

See State v. Jenkins, 294 Neb. 475, 883 N.W.2d 351 (2016). 

When viewed in the light most favorable to the State, the 

evidence was sufficient to support Wynne’s conviction for 

first degree murder. The evidence showed that Wynne agreed 

via text message to purchase marijuana from Haynes and 

that after exchanging several cell phone calls with Haynes, 

Wynne arrived with another individual at the parking lot of 

the beauty supply store, where Haynes was murdered. The 

evidence also shows that the second individual held back 

while Wynne proceeded to interact with Haynes outside the 

open front passenger door of the Jeep, leaving a palmprint in 

the process, and that Wynne shot Haynes, taking some of his 

marijuana, which was scattered outside of and behind the Jeep 

and in the direction of his travel as Wynne and his companion 

fled the parking lot. In short, the evidence at trial could have 

led a rational juror to find the essential elements of the crime 

beyond a reasonable doubt. Wynne’s third assignment of error 

is without merit.

VI. CONCLUSION

The district court did not err in admitting the content of the 

text messages into evidence or abuse its discretion in denying 

Wynne’s motion for mistrial. The evidence was sufficient to 

support Wynne’s murder conviction.

Affirme