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Nebraska Court of Appeals Advance S

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STATE v. SCHRAMM

Cite as 27 Neb. App. 450

State of Nebraska, appellee, v.

Michael T. Schramm, app

___ N.W.2d ___

Filed July 30, 2019. No. A-18-738.

1. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the 

discretion of the trial court and will not be disturbed on appeal absent 

an abuse of discretion.

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

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

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

3. Motions for Continuance: Appeal and Error. The failure to comply 

with the provisions of Neb. Rev. Stat. § 25-1148 (Reissue 2016) is but 

a factor to be considered in determining whether a trial court abused its 

discretion in denying a continuance.

4. Motions for Continuance. A continuance must be granted to allow 

defense counsel adequate time to prepare a defense.

5. Constitutional Law: Criminal Law: Pretrial Procedure: Evidence.

A criminal defendant has constitutional and statutory rights which mandate the timely disclosure of the State’s evidence in a criminal case.

6. Pretrial Procedure: Evidence. Neb. Rev. Stat. § 29-1912(2) (Reissue 

2016) requires the State, upon request, to disclose evidence that is material to the preparation of a defense.

7. Motions for Continuance: Appeal and Error. There is no abuse of 

discretion by a court in denying a continuance unless it clearly appears 

that the defendant suffered prejudice as a result thereof.

8. Double Jeopardy: Evidence: New Trial: Appeal and Error. The 

Double Jeopardy Clause does not forbid a retrial so long as the sum of 

all the evidence admitted by a trial court, whether erroneously or not, 

would have been sufficient to sustain a guilty verdict.

Nebraska Supreme Court Online Library

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

08/06/2019 09:07 AM CDT
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9. Expert Witnesses: Appeal and Error. The standard for reviewing the 

admissibility of expert testimony is abuse of discretion.

10. Trial: Expert Witnesses. Under the principles set forth in Daubert v. 

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 

L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 

631 N.W.2d 862 (2001), the trial court acts as a gatekeeper to ensure the 

evidentiary relevance and reliability of an expert’s opinion.

11. Pretrial Procedure: Expert Witnesses. A challenge to the admissibility 

of evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 

U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman 

v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), should take 

the form of a concise pretrial motion. It should identify, in terms of 

the Daubert/Schafersman factors, what is believed to be lacking with 

respect to the validity and reliability of the evidence and any challenge 

to the relevance of the evidence to the issues of the case.

12. Jury Instructions: Judgments: Appeal and Error. Whether jury 

instructions given by a trial court are correct is a question of law. When 

dispositive issues on appeal present questions of law, an appellate court 

has an obligation to reach an independent conclusion irrespective of the 

decision of the court below.

13. Jury Instructions: Appeal and Error. In an appeal based on a claim 

of an erroneous jury instruction, the appellant has the burden to show 

that the questioned instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant.

14. ____: ____. All the jury instructions must be read together, and if, 

taken as a whole, they correctly state the law, are not misleading, and 

adequately cover the issues supported by the pleadings and the evidence, 

there is no prejudicial error necessitating reversal.

15. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

16. Jury Instructions. Whenever an applicable instruction may be taken 

from the Nebraska Jury Instructions, that instruction is the one which 

should usually be given to the jury in a criminal case.

Appeal from the District Court for Lancaster County: Darl

S. Ideus, Judge. Reversed and remanded for a new tria

Matthew K. Kosmicki for appellant.
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STATE v. SCHRAMM

Cite as 27 Neb. App. 450

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Riedmann, Arterburn, and Welch, 

Arterburn, Judg

I. INTRODUCTION

Pursuant to a jury verdict, Michael T. Schramm was convicted in the district court for Lancaster County of strangulation and sentenced to 2 years’ imprisonment followed by 12 

months’ postrelease supervision. Schramm appeals from his 

conviction and sentence. On appeal, he alleges that the district court erred in denying his motion to continue the trial so 

that he could obtain his own expert witness, in permitting the 

State’s expert witness to testify over his objections, in instructing the jury, and in imposing an excessive sentence. For the 

reasons set forth herein, we find that the district court abused 

its discretion in denying Schramm’s motion to continue the 

trial. Schramm should have been provided with additional time 

to attempt to find his own expert witness. As a result of our 

finding, we must reverse Schramm’s conviction and remand 

the cause for a new trial.

II. BACKGROUND

On November 1, 2017, the State filed an information charging Schramm with strangulation, in violation of Neb. Rev. Stat. 

§ 28-310.01 (Reissue 2016), a Class IIIA felony. The charge 

against Schramm stemmed from an incident between Schramm 

and his then girlfriend, J.K., which occurred in the early morning hours of August 28, 2017.

J.K. is a citizen of the Czech Republic. Beginning in 2014, 

she began spending time in Lincoln, Nebraska, after obtaining a student visa. She completed a semester of classes at the 

University of Nebraska-Lincoln and had an internship. When 

her student visa expired, she went home to the Czech Republic, 

but later obtained a tourist visa and returned to Lincoln. While 

J.K. was in Lincoln, she met Schramm through mutual friends. 
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Cite as 27 Neb. App. 450

The two began a romantic relationship in February or March 

2016. Schramm testified that “immediately we fell in love 

and she moved in with me.” During their relationship, J.K. 

went back and forth between Lincoln and the Czech Republic. 

When she was in the Czech Republic, Schramm would come 

to visit her there.

By August 2017, J.K. was back in Lincoln and was living with Schramm at his home. J.K. was not employed, but 

Schramm had his own business buying and selling video games 

online. On the afternoon of August 27, 2018, Schramm surprised J.K. by taking her on a day trip to Omaha, Nebraska, to 

visit a zoo. On their way to Omaha, they stopped at a shopping 

center where Schramm bought J.K. a new purse. They then 

traveled the rest of the way to the zoo where they stayed until 

it closed. After leaving the zoo, J.K. and Schramm went to a 

bar in Omaha where they each had at least one alcoholic beverage. J.K. then drove them back to Lincoln. Schramm testified 

that on the drive back to Lincoln, they were “[m]adly in love.” 

They arrived home around 10 or 11 p.m., consumed more alcohol, and then decided to go to a local bar. At the bar, both J.K. 

and Schramm continued to drink alcohol. They left the bar at 

2 a.m. and returned to Schramm’s house.

When they returned to Schramm’s house, J.K. and Schramm 

engaged in a verbal argument regarding Schramm’s business 

and his ability to earn an income. J.K. testified at trial that 

during the verbal argument, Schramm indicated that he wanted 

to buy a new house and that he believed he could quickly 

obtain enough money to do so by selling all of his video 

game inventory. She indicated that he also began to insult and 

disparage her regarding her financial situation, including making comments that she did not have a job and that she still 

received financial support from her parents. Schramm then 

went upstairs to play video games. J.K. explained that she 

was upset with Schramm and did not like his exaggerations 

about the success of his business. So, out of anger, she yelled 

up the stairs to Schramm, telling him that he did not earn 
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enough money to be able to buy a new house and that she did 

not believe what he had said about his ability to earn so much 

money so quickly. J.K. admitted that she knew these comments 

would make Schramm mad.

J.K. indicated that Schramm, in fact, became very upset by 

her comments. She heard him yell that “this is enough, I am 

going to kill you.” She then heard him start to run toward the 

stairs, so she started to run downstairs to the basement to hide 

from him. When she got to the landing of the basement steps, 

she became worried that Schramm would laugh at her for 

being scared, so she pretended to get food for their dogs on a 

shelf above the landing. While her back was turned, J.K. heard 

Schramm open the basement door. She felt him push her in the 

back, and she fell the rest of the way down the basement stairs, 

landing against a mattress that was propped up against the wall 

of the basement. She started to cry and attempted to stand up. 

Schramm ran down the stairs after her, grabbed her neck with 

his left hand, pulled her to a standing position, and pushed her 

head against the wall. Schramm told her, “this is enough” and 

“I am going to kill you this time.” J.K. described Schramm as 

looking her straight in the face, with eyes that “were violent,” 

while “[g]rinding” his teeth.

J.K. testified that while Schramm had his hand around her 

neck, she felt pressure. She tried to tell Schramm that he was 

hurting her, but she was unable to talk and unable to breathe. 

J.K. described that as the pressure around her neck continued, 

she started to panic and realized she needed to fight back. She 

testified that she was very scared and knew that she might die. 

She pulled Schramm’s hair so that his head was very close to 

her face and bit his ear as hard as she could. J.K. was then 

able to get free from Schramm’s grasp. She ran up the stairs 

and out the main door of the house, without stopping to grab 

her purse or her cellular telephone. She ran to a neighbor’s 

house and banged on the door until someone answered. The 

neighbor called police. J.K. testified that she chose this neighbor to run to, even though she knew he had “issues” with 
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police, because her other neighbor was friends with Schramm 

and she believed he might not help her.

When police arrived, they spoke with J.K. about what had 

occurred. One of the first officers on the scene, Officer Jesse 

Orsi, contacted J.K. first. He described J.K. as crying and 

being unable to speak. She had her hands up by her neck, 

“doing a gesture as if she was choking herself,” and was also 

pointing at Schramm’s house. Eventually, J.K. spoke in a voice 

that Orsi described as not being “normal” and sounding “soft 

[and] broken.” All she was able to say was, “my boyfriend.” 

Orsi understood J.K. to be trying to explain that “her boyfriend 

choked her.”

Officer Robert Hallowell spoke with J.K. next. He indicated that upon his arrival, J.K. was “frantic” and was crying. She had leaves in her hair and was speaking very fast. 

J.K. told Hallowell that she had been pushed down the stairs 

and strangled during a fight with her boyfriend. J.K. also 

told him that the fight was her fault, because she had made 

comments which she knew would upset Schramm. Hallowell 

observed various injuries on J.K., including “extremely bloodshot eyes,” which, in his opinion, were caused by more than 

just her consumption of alcohol; some redness to both sides of 

her neck around the area of her clavicle bones; a small bump 

on the back of her head; and abrasions on her elbow and on 

her knee. His photographs of these injuries were offered into 

evidence by the State. J.K. declined any medical treatment for 

her injuries.

Hallowell also photographed the area in the basement where 

J.K. described the assault as occurring. These photographs 

depict a “steep” staircase with a mattress propped up at the 

bottom of the staircase. Close up pictures of the wall of the 

basement near the staircase appear to show long blond hairs to 

be stuck “within [the] rough texture on the [basement] wall.” 

According to Hallowell, these hairs “were consistent with coming from [J.K.’s] head.” The photographs also depict leaves 
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on the basement floor which appear to be consistent with the 

leaves seen in J.K.’s hair.

At trial, Schramm testified in his own defense and described 

a much different series of events after he and J.K. returned 

from the bar in the early morning hours of August 28, 2017. 

Schramm testified that he and J.K. actually began arguing in 

the car on the way home from the bar. He explained that he 

was upset with J.K. because she had been talking to “an old 

interest” while they were at the bar. He told her that he was 

not happy with her and was jealous because of her behavior. When they got home, Schramm explained that J.K. “got 

aggressive.” He went on to testify, “She was bored with the 

house and she did not like or think my job was a real thing. 

And she brings it up. So she brought it up about that I need 

to stop doing something besides sitting in the house and selling video games all day.” Schramm indicated that he did not 

engage in the argument with J.K. Instead, he asked her why 

she “always [was] so mean” to him. She responded by telling 

him, “[Y]ou have no idea how many times I have cheated on 

you.” She then ran down the basement stairs, stopping on the 

second to the last step.

Schramm followed J.K. down the basement stairs, asking her to repeat what she had just told him. When she 

turned around to address him, she lost her footing and leaned 

back into the mattress at the bottom of the staircase. As he 

approached her, she hit him three times on the head with a 

closed fist, without saying anything to him. She then pulled 

his hair and pressed her fingers into his face. He pushed her 

away from him, placing his hands at her clavicle bones. As she 

moved away from him, she continued to hold on to his hair, 

and she pulled some hair out of his head. Schramm testified 

that he never squeezed J.K.’s throat and that J.K. did not bite 

his ear. She did run upstairs and outside, however. Schramm 

explained that he did not immediately follow her, because he 

was trying to give her some “space” so that she could calm 

down. Schramm watched as J.K. ran to a neighbor’s house. 
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He testified they did not get along with that neighbor and 

were “terrified” of him.

Schramm offered into evidence a picture of himself, which 

he explained was taken close in time to J.K.’s assault of him. 

The pictures do not depict any obvious injury to his ear.

After Schramm was arrested and transported to jail, he called 

J.K.’s cellular telephone. A recording of this call was offered 

into evidence. During the conversation, Schramm told J.K. 

that he could call only one telephone number and that because 

he called her, he could not call anyone else. He repeatedly 

begged her to call his father and instructed her to write down 

his father’s telephone number. J.K. refused. She told Schramm 

that he “almost killed [her].” Schramm did not deny this, but 

said that he is “going to be in jail for a very long time.” He 

also told J.K. that “all [she] ha[d] to do [was] show up at court 

at 12:00.” He instructed her to “say that I didn’t,” but then his 

voice trailed off.

During Schramm’s trial testimony, he admitted that contrary to his statements to J.K. during the telephone call, he 

made calls to people other than J.K., including his mother, 

while he was in jail. In addition, Hallowell testified that in the 

“book-in area” at the jail, there are two telephones available 

for the prisoners’ use. Prisoners are permitted to make as many 

telephone calls as they want to as many telephone numbers as 

they want, all free of charge. Schramm further explained that 

he called J.K. because he loved her and that he asked her to 

call his father because he could not remember his father’s telephone number. Schramm was unable to explain how he could 

provide J.K. with his father’s telephone number if he did not 

remember it.

During the trial, the State offered the testimony of Susan 

Michalski as an expert witness on domestic violence and 

strangulation. Schramm objected to Michalski’s testimony on 

various grounds, which we will address more thoroughly in 

our analysis below, but the district court overruled all of 

Schramm’s objections and permitted Michalski to testify.
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Cite as 27 Neb. App. 450

At trial, Michalski testified regarding her extensive experience with domestic violence. Michalski is a licensed registered nurse who is self-employed in “training, education, 

nursing activities and consulting in criminal justice cases,” 

including cases involving domestic assault, strangulation, custody, and sexual assault. For the 12 years prior to her starting 

her own business, Michalski served as the training and education director for a domestic violence coordinating council 

in Omaha. She has received specialized training related to 

conflict management, strangulation, and domestic violence. 

As an educator, Michalski has given training sessions and 

symposiums regarding domestic violence, and specifically 

strangulation. Michalski also testified that she provides training for law enforcement, members of the criminal justice 

system, medical students, hospital personnel, and members of 

the community in the Omaha and surrounding areas. Through 

her work, Michalski has had articles published twice and has 

come into contact with several thousand victims of domestic violence.

Michalski explained that domestic violence involves the 

power and control that one partner exerts over another in an 

intimate relationship. It can include “a variety of different 

tactics of abuse [that] can range from emotional, psychological to physical and sexual kinds of abuse and violence.” 

Additionally, domestic violence can involve one partner isolating the other partner.

Michalski further explained that there were particular characteristics that define victims of domestic violence, including minimization of the abuse, denial of being in such a 

relationship, and feelings of isolation. Victims often blame 

themselves for the abuse, believing that if they had handled 

a situation differently, the partner would not have gotten so 

upset. And while victims often want the abuse to end, they 

may not want the relationship to end. As such, they are willing to forgive and do not want their partner to go to jail or get 

into trouble.
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There are often characteristics of offenders, as well, such 

as getting involved romantically and seriously very early on 

in the relationship, exhibiting controlling behaviors which are 

initially masked as a sense of concern, and minimizing and 

denying accountability for behaviors. Offenders often blame 

the victims, making them feel bad or guilty about what has 

happened. In fact, Michalski explained that if an offender is 

arrested and taken to jail, they will often call their victim, asking the victim to accept responsibility for the situation and to 

“fix” the problem. Michalski also testified that offenders often 

act differently in public than they do in private so that it is very 

hard to identify them as someone who is abusive or violent in 

their relationships.

Michalski further testified about strangulation and how the 

act of strangulation is generally carried out. She explained 

how little pressure is necessary to start affecting the blood 

and oxygen flow to and from the brain. Michalski testified 

that the medical signs and symptoms of strangulation can 

vary; however, most of the time there are few, if any, obvious bodily injuries. There can be bruising, scratches, or redness on the neck, coughing or wheezing, confusion, pain in 

the neck area, difficulty swallowing, or the occurrence of 

urination. Other possible signs of strangulation are “petechial hemorrhage” and “linear vascular congestion.” Michalski 

defined the term “petechial hemorrhage” as “small flat red 

areas or dots that are caused from pressure when the neck is 

squeezed.” She indicated that, often, “the best place to see 

petechiae . . . is in the whites of the eyes or anywhere above 

the level of where the compression has occurred.” She defined 

the term “linear vascular congestion” as the breaking of blood 

vessels due to pressure being exerted on the neck, which 

would be most noticeable in the eyes. Michalski emphasized 

that strangulation is potentially lethal. Despite the seriousness of strangulation, many victims will not report having 

been strangled because they feel better very quickly after the 

pressure is released from their neck and because, due to the 
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lack of oxygen, victims can sometimes suffer from a loss 

of memory.

Michalski testified that she had neither met with nor 

interviewed J.K. or Schramm. She had also not read any 

police reports about the August 28, 2017, incident. However, 

Michalski had viewed four photographs taken of J.K.’s eyes 

shortly after the incident, although Michalski testified that 

she did not know that the photographs were of J.K.’s eyes. 

Michalski explained that in the photographs, she observed 

linear vascular congestion, which can be consistent with strangulation. However, Michalski explained that things other than 

strangulation can cause linear vascular congestion, including 

sneezing, coughing very hard, or “anything that creates a pressure.” In order to determine with precision the exact cause of 

linear vascular congestion, a medical professional would have 

to know a person’s medical history and have an understanding 

of a person’s current circumstances. During cross-examination, 

Michalski admitted that an exact cause of linear vascular congestion could not be determined by merely looking at a few 

photographs. In addition, she explained that she is not qualified to determine an exact cause of linear vascular congestion 

because she is not a diagnosing physician.

After hearing all of the evidence, the jury found Schramm 

guilty of strangulation. The district court ordered a presentence 

report to be completed and subsequently sentenced Schramm 

to 2 years’ imprisonment followed by 12 months’ postrelease 

supervision.

Schramm appeals his conviction and sentence here.

III. ASSIGNMENTS OF ERROR

On appeal, Schramm assigns four errors. He alleges that the 

district court erred in denying his motion to continue the trial 

so that he could obtain his own expert witness, in permitting 

Michalski to testify as an expert on domestic violence and 

strangulation over his objections, in instructing the jury, and in 

imposing an excessive sentence.
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IV. ANALYSIS

1. Schramm’s Motion to Contin

(a) Additional Background

On March 19, 2018, approximately 3 weeks before trial was 

to begin, the State filed a motion to endorse Michalski as an 

additional witness. At a hearing on the State’s motion, which 

was held approximately 10 days after the motion was filed, the 

State indicated that it had given Schramm’s counsel notice that 

“[it] was thinking about calling [Michalski] as a witness on 

March 1st and then . . . maybe a few days later or a week later 

. . . did inform [counsel] that [it] was in fact intending on calling her as a witness.” Schramm’s counsel did not dispute the 

State’s explanation of the timeline; however, counsel did argue 

that initially, the State had indicated that Michalski was not 

going to offer any opinions specific to this case. However, the 

day before the hearing, which was less than 2 weeks prior to 

the scheduled trial, the State informed counsel that Michalski 

had looked at photographs of J.K.’s eyes and was going to 

opine that redness in the eyes could be consistent with strangulation. Counsel stated:

[T]his is kind of the eleventh hour before trial. We are 

getting - first she wasn’t going to offer any opinions and 

wasn’t going to look at any reports. Now, I find out as of 

yesterday morning that she has looked at reports and now 

offer a medical opinion.

So, that is kind of the eleventh hour for me to find out 

about that. Now I got to find - if you are going to allow 

her to testify, I have got to scramble to find someone to 

look at these reports and I got phone calls into doctors 

trying to find - in case you allow her to testify.

Ultimately, the district court sustained the State’s motion to 

endorse Michalski as a witness.

At a separate hearing held on April 5, 2018, which was 4 

days before the trial was to begin, Schramm’s counsel made 

an oral motion to continue the trial. Counsel indicated that 

he was “running into problems finding expert witnesses” who 
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could dispute the opinion provided by Michalski regarding the 

condition of J.K.’s eyes. Specifically, counsel explained:

I tried to find somebody locally. I went to [one forensic 

institute located in Nebraska]. I took reports and the same 

thing . . . Michalski looked at, the videos. [The forensic 

expert] contacted me yesterday. He has an opinion but he 

cannot help me. It’s a scheduling thing. I don’t know. He 

just can’t come and he is sorry.

So now, I have Thursday and Friday and the trial on 

Monday to find someone else and doctors are busy. It is 

hard to find experts.

. . . .

I did make a call today. I would ask to continue this 

so I can locate a witness and I did make a call today to 

another witness in Kansas City and got her voicemail. I 

don’t know if I got a call when I get back, don’t know 

her availability, I don’t know anything. But I am pretty 

sure this short amount of notice, this doctor is not going 

to be available.

The State opposed Schramm’s motion to continue the trial. 

The State indicated that it had informed defense counsel about 

Michalski “about a month ago”; however, the State did not dispute that it had not informed counsel about Michalski’s testifying as to her medical opinion regarding the condition of J.K.’s 

eyes until about March 27, 2018. The State asserted that it had 

spent a significant amount of money in arranging for J.K. to 

fly from the Czech Republic, where she was then living, to 

Lincoln so that she could testify. The State asserted that J.K. 

was already on the plane and en route to Nebraska in anticipation of the trial which was to begin in 4 days.

The court denied Schramm’s motion to continue the trial. 

The court stated, “We will proceed with trial[;] you still have 

four or five days to locate an expert if that is what you choose 

to do.”

Prior to Michalski’s testimony at trial, Schramm again 

brought up his motion to continue the trial. Defense counsel 
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indicated that he had not had an acceptable amount of time to 

secure his own expert witness, even though he had “diligently 

tried to find people.” The district court overruled Schramm’s 

objections to Michalski’s testifying.

On appeal, Schramm argues that the district court abused 

its discretion in denying his motion to continue the trial so 

that he could obtain his own expert medical witness to refute 

Michalski’s testimony about the condition of J.K.’s eyes. Upon 

our review, we conclude that Schramm’s assertion has merit.

(b) Standard of Review

[1,2] A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not 

be disturbed on appeal absent an abuse of discretion. State v. 

Ash, 286 Neb. 681, 838 N.W.2d 273 (2013). A judicial abuse 

of discretion exists only when the reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

substantial right and denying a just result in matters submitted 

for disposition. Id.

(c) Analysis

Although not mentioned by either party, it must be noted 

that Neb. Rev. Stat. § 25-1148 (Reissue 2016) provides, in 

pertinent part:

Whenever application for continuance or adjournment 

is made by a party or parties to any cause or proceeding 

pending in the district court of any county, such application shall be by written motion entitled in the cause or 

proceeding and setting forth the grounds upon which the 

application is made, which motion shall be supported by 

the affidavit or affidavits of person or persons competent 

to testify as witnesses under the laws of this state, in 

proof of and setting forth the facts upon which such continuance or adjournment is asked.

Not only was the application for continuance in this case made 

by oral motion, the motion was not supported by affidavits.
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[3] However, the failure to comply with the provisions 

of § 25-1148 is but a factor to be considered in determining whether a trial court abused its discretion in denying a 

continuance. State v. Santos, 238 Neb. 25, 468 N.W.2d 613 

(1991). Here, the motion for continuance was made at a hearing held approximately 1 week after the district court had 

granted the State’s motion to endorse Michalski as a witness. 

According to both defense counsel and the State, the motion 

to continue was made only 1 week after defense counsel had 

learned that Michalski would be providing a medical opinion 

regarding the condition of J.K.’s eyes based upon photographs 

taken on August 28, 2017. As such, the motion was made at 

a time when, after 1 week of searching, Schramm had been 

unable to secure his own expert witness to testify. Given that 

Schramm made the oral motion to continue at his next appearance before the district court and given the close proximity 

in time to the start of the trial, we cannot say that the oral 

nature of the motion is, in and of itself, a sufficient basis upon 

which to declare that the district court did not abuse its discretion in denying the continuance. Moreover, while supporting 

affidavits may have been useful to confirm Schramm’s efforts 

at finding an expert witness, we recognize that Schramm was 

under strict time constraints and, as such, do not find that the 

failure to include the affidavits is, under these circumstances, 

fatal to his motion.

[4] We thus move on to a consideration of the merits of 

the continuance request. The general rule, which has been 

articulated by the Nebraska Supreme Court, is that a continuance must be granted to allow defense counsel adequate time 

to prepare a defense. See Dolen v. State, 148 Neb. 317, 27 

N.W.2d 264 (1947). See, also, State v. Santos, supra. Our 

analysis of whether the district court abused its discretion 

in denying Schramm’s motion to continue the trial centers 

on whether he was provided with sufficient notice regarding 

Michalski’s testimony such that he had adequate time to prepare his defense. Ultimately, we conclude that Schramm did 
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not receive sufficient notice of Michalski’s testimony and that 

he should have been granted a continuance of trial in order to 

prepare his defense.

[5,6] A criminal defendant has constitutional and statutory rights which mandate the timely disclosure of the State’s 

evidence in a criminal case. State v. Ash, 286 Neb. 681, 838 

N.W.2d 273 (2013). In fact, Neb. Rev. Stat. § 29-1912(2) 

(Reissue 2016) requires the State, upon request, to disclose evidence that is material to the preparation of a defense. See State 

v. Ash, supra. In State v. Kula, 252 Neb. 471, 486, 562 N.W.2d 

717, 727 (1997), the Nebraska Supreme Court held:

[W]hether a prosecutor’s failure to disclose evidence 

results in prejudice depends on whether the information 

sought is material to the preparation of the defense, meaning that there is a strong indication that such information 

will play an important role in uncovering admissible 

evidence, aiding preparation of witnesses, corroborating 

testimony, or assisting impeachment or rebuttal.

In this case, while it is true that the State did, eventually, 

endorse Michalski as a witness and, then later, did inform 

Schramm that Michalski would be offering her expert medical opinion regarding the condition of J.K.’s eyes after the 

August 28, 2017, incident, it is also true that the State made 

these disclosures very close in time to the scheduled trial date. 

Although the State contends that it mentioned the possibility 

of Michalski’s testifying to defense counsel on March 1, 2018, 

approximately 5 weeks prior to trial, the State did not file 

its motion to endorse Michalski as a witness until March 19, 

which was approximately 3 weeks prior to trial. Moreover, as 

Schramm asserts, and the State does not dispute, the State did 

not inform Schramm until March 27, or approximately 10 days 

prior to trial, that Michalski would be offering opinion testimony regarding the specific facts of this case. We find that 

such opinion testimony is clearly material to the preparation of 

Schramm’s defense, particularly when the bulk of the remaining evidence offered at trial amounted to only J.K’s version 
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of events and Schramm’s version of events, with Michalski’s 

testimony clearly corroborating J.K.’s version.

Given the State’s late disclosure that Michalski would be 

testifying, and its even later disclosure about what Michalski 

would be testifying about, Schramm was left with approximately 10 days to locate a person with expertise in the area 

of strangulation and linear vascular congestion, to provide 

that person with the materials sufficient for an opinion to 

be rendered, to determine whether that person may dispute 

Michalski’s opinion, and to secure that person’s attendance 

at trial. We do not disagree with Schramm’s contention that 

it would be very difficult, if not impossible, to secure such a 

medical opinion in such a limited timeframe.

[7] In its brief on appeal, the State argues that Schramm 

has failed to demonstrate that he was in any way prejudiced 

by the district court’s denial of his motion to continue the 

trial. Specifically, the State asserts that Schramm has failed to 

explain “what another expert would have countered with” and 

how such testimony would have been helpful to his defense. 

Brief for appellee at 21. We recognize that the Nebraska 

Supreme Court has previously held that there is no abuse 

of discretion by a court in denying a continuance unless it 

clearly appears that the defendant suffered prejudice as a 

result thereof. See State v. Bradley, 236 Neb. 371, 461 N.W.2d 

524 (1990). See, also, State v. Bruna, 12 Neb. App. 798, 686 

N.W.2d 590 (2004). However, we must disagree with the 

State’s contention that Schramm’s argument must fail because 

he did not demonstrate any specific prejudice in his trial strategy. Under the circumstances of this case, Schramm did not 

even have enough time to determine whether an expert could 

assist in his defense because he did not have adequate time to 

find an expert, to have that expert evaluate the evidence, and 

to provide Schramm with any opinion. As such, it is impossible 

to know whether Schramm suffered any prejudice in his trial 

strategy because we do not know what a potential expert might 

have testified to. The fact that Schramm did not have enough 
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time to consult with an expert and to then move forward with 

his trial strategy caused him prejudice.

Moreover, although Schramm was able to cross-examine 

Michalski regarding her medical opinion and was able to flesh 

out both that Michalski was not qualified to diagnose a specific condition and that there were other possible causes of 

the linear vascular congestion present in J.K.’s eyes besides 

strangulation, Michalski was still able to testify that in her 

expert medical opinion, the appearance of J.K.’s eyes in the 

photographs was consistent with being strangled. Schramm 

should have had an opportunity not only to soften the impact 

of this testimony during cross-examination, but also to attempt 

to hire an expert of his own who could potentially either refute 

or diminish the impact of Michalski’s testimony.

The State also argues on appeal, as it did in the district 

court, that it had expended a great deal of money in reliance on the scheduled trial date and that Schramm was 

aware of this expenditure. We recognize that the State did 

spend a not insignificant amount of money in paying for the 

travel expenses of J.K. We also recognize that by the time 

Schramm made his oral motion to continue, J.K. was, apparently, already on a plane en route to Nebraska from the Czech 

Republic. However, we do not find that the State’s monetary 

investment outweighs Schramm’s right to be able to present 

a defense to the State’s case against him. We also note that it 

was the State which added Michalski to its witness list close 

in time to the trial and which did not disclose the full extent 

of her testimony until approximately 10 days before the trial. 

The State knew of the investment it had made in securing 

J.K.’s presence presumably before it made these changes to 

its trial strategy. And, moreover, the State should have known 

that these material changes would affect the trial strategy of 

the defense.

Upon our review of the totality of the circumstances, we 

must conclude that Schramm was not provided with adequate 

time to prepare his defense. Specifically, he was not provided 
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with adequate time to adjust his trial strategy to address 

Michalski’s expert medical testimony given the limited time 

available to him prior to the trial. We find that the district court 

abused its discretion in denying Schramm’s motion to continue 

the trial.

[8] Having concluded that the denial of the motion to continue was reversible error, we must determine whether the 

totality of the evidence admitted by the district court was sufficient to sustain Schramm’s conviction; if it was not, then 

double jeopardy forbids a remand for a new trial. See State v. 

Ash, 286 Neb. 681, 838 N.W.2d 273 (2013). But the Double 

Jeopardy Clause does not forbid a retrial so long as the sum of 

all the evidence admitted by a trial court, whether erroneously 

or not, would have been sufficient to sustain a guilty verdict. 

State v. Ash, supra.

After reviewing the record, we conclude that the evidence 

presented at trial was sufficient to support the verdict against 

Schramm. As such, we conclude that double jeopardy does not 

preclude a remand for a new trial, and we therefore reverse, 

and remand for a new trial.

2. Schramm’s Other Assigne

Our determination that the district court committed reversible error by failing to grant Schramm a continuance in order to 

attempt to secure his own expert witness resolves this appeal. 

While we are not required to consider Schramm’s additional 

assignments of error, see White v. Board of Regents, 260 Neb. 

26, 614 N.W.2d 330 (2000), and In re Interest of Battiato, 

259 Neb. 829, 613 N.W.2d 12 (2000) (appellate court is not 

obligated to engage in analysis not needed to adjudicate case 

and controversy before it), we may, at our discretion, discuss 

issues unnecessary to the disposition of an appeal where those 

issues are likely to recur during further proceedings, see State 

v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013). We will 

therefore address Schramm’s assertions regarding the admissibility of Michalski’s testimony and whether the district court 
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correctly instructed the jury, as those issues are likely to recur 

on remand.

3. Admissibility of Michalski’s Tes

(a) Additional Background

Once Schramm learned that the State was indeed planning 

on calling Michalski as a witness at trial, he filed a motion 

asking the court to hold a Daubert/Schafersman hearing in 

order to determine whether Michalski qualified as an expert 

witness. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and 

Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 

(2001). In the motion, Schramm generally asserted that the 

“[e]xpert opinions regarding domestic violence and strangulation testimony, specifically the testimony of Susan Michalski 

RN, MS SANE/FNE, . . . does not meet the standard for 

admissibility required . . . .” Schramm also filed a motion 

which asserted that Michalski’s testimony should not be 

admitted because it was not relevant and because any probative value was substantially outweighed by the danger of 

unfair prejudice.

A hearing was held on Schramm’s motions prior to trial. 

At the hearing, Michalski testified to substantially the same 

information as she testified to during the trial, which we 

detailed in the background section above. She did explain 

during her testimony at the hearing that she has previously 

qualified to testify as an expert on domestic violence and/or 

strangulation on 11 previous occasions. After Michalski testified, Schramm argued that she is not an expert on domestic 

violence or strangulation. He asserted that she is only a registered nurse and not a diagnosing physician, that she “has not 

had enough continuing education to stay up on this topic,” and 

that she has been merely a “trainer” for the past few years. 

He also asserted that Michalski should not be permitted to 

testify that J.K. was telling the truth, which he believed was 

“all . . . Michalski is going to do.” Schramm asserted that 
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the jurors would understand what strangulation is without 

Michalski’s explaining it to them.

After the hearing, the district court entered an order finding that “Michalski is qualified as an expert in the areas of 

domestic violence and strangulation by her knowledge, skill, 

experience, training, and education.” The court further found 

that Michalski’s “specialized knowledge in these areas . . . 

will assist a trier of fact in understanding the evidence and/or 

determining a fact in issue.” The court noted that it did “not 

believe that characteristics of a perpetrator and/or victim of 

domestic violence are common knowledge. Nor does the court 

expect that a lay person knows the physical effects of strangulation and/or the signs and symptoms typically associated 

with strangulation.”

Prior to Michalski’s testimony at trial, Schramm renewed 

his objection to her testimony. The district court overruled his 

objection and permitted Michalski to testify as an expert. On 

appeal, Schramm challenges the district court’s finding that 

Michalski was qualified to testify as an expert.

(b) Standard of Review

[9] 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. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014). The 

standard for reviewing the admissibility of expert testimony 

is abuse of discretion. Id. We review the record de novo to 

determine whether a trial court has abdicated its gatekeeping 

function when admitting expert testimony. Id.

(c) Analysis

In his brief on appeal, Schramm asserts that the district court 

erred in permitting Michalski to testify as an expert witness. 

Specifically, Schramm argues that Michalski’s “testimony was 

not scientific, technical or specialized in that it would have 

assisted the trier of fact to understand the evidence. Neither 
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did she have the knowledge, skill, experience, training or 

education required to qualify her as an expert witness on the 

evidence that was . . . admitted in this trial.” Brief for appellant at 13. Upon our review, we find that the district court did 

not err in permitting Michalski to testify as an expert on the 

subject of strangulation.

The Nebraska Evidence Rules provide: “If scientific, technical, or other specialized knowledge will assist the trier of 

fact to understand the evidence or to determine a fact in issue, 

a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of 

an opinion or otherwise.” Neb. Evid. R. 702, Neb. Rev. Stat. 

§ 27-702 (Reissue 2016). In Schafersman v. Agland Coop, 

262 Neb. 215, 631 N.W.2d 862 (2001), the Nebraska Supreme 

Court adopted the standards which the U.S. Supreme Court 

set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), 

to determine whether expert testimony is admissible under 

§ 27-702.

[10] Under the principles set forth in Daubert/Schafersman, 

the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion. State v. Herrera, 

supra. If the opinion involves scientific or specialized knowledge, trial courts must also determine whether the reasoning or 

methodology underlying the expert’s opinion is scientifically 

valid. State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010). 

Several nonexclusive factors are considered in making this 

determination: (1) whether a theory or technique can be (and 

has been) tested; (2) whether it has been subjected to peer 

review and publication; (3) whether, in respect to a particular 

technique, there is a high known or potential rate of error; (4) 

whether there are standards controlling the technique’s operation; and (5) whether the theory or technique enjoys general 

acceptance within a relevant scientific community. State v. 

Herrera, supra. In order to properly conduct appellate review, 

it is the duty of the trial court to adequately demonstrate by 
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specific findings on the record that it has performed its gatekeeping functions. State v. Casillas, supra.

[11] A challenge to the admissibility of evidence under 

Daubert/Schafersman should take the form of a concise pretrial motion. State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 

(2014). It should identify, in terms of the Daubert/Schafersman

factors, what is believed to be lacking with respect to the 

validity and reliability of the evidence and any challenge to 

the relevance of the evidence to the issues of the case. Id. In 

order to preserve judicial economy and resources, the motion 

should include or incorporate all other bases for challenging 

the admissibility, including any challenge to the qualifications 

of the expert. Id.

Schramm’s motion requesting that the district court hold 

an evidentiary hearing to determine the admissibility of 

Michalski’s testimony pursuant to the Daubert/Schafersman

factors did not reference any specific factor which he believed 

was lacking with respect to Michalski’s testimony. Rather, 

the motion very generally asserted that Michalski’s testimony 

“does not meet the standard for admissibility.” In its order, 

the district court noted the deficiency in the motion, indicating that Schramm had “failed to sufficiently call into question 

the reliability or validity of any aspect of . . . Michalski’s 

anticipated testimony. He has not called into question the 

factual basis, data, principles, or methods underlying . . . 

Michalski’s anticipated testimony.” Despite the shortcomings 

with Schramm’s motion, the district court went on to analyze 

whether Michalski’s testimony was admissible pursuant to the 

entire Daubert/Schafersman framework.

On appeal, Schramm argues that Michalski’s testimony did 

not meet the requirements of § 27-702, and even if it did, 

it was inadmissible under Daubert/Schafersman. Our review 

of these arguments is complicated by the fact that Schramm 

has not identified the specific testimony that he claims was 

erroneously admitted. He refers only to testimony regarding “strangulation,” brief for appellant at 13, and complains 
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that Michalski “was allowed to testify and offer an opinion 

to issues that were central to this case,” id. at 14. He does 

not, however, identify what that opinion was. He has also not 

identified which prong of the Daubert/Schafersman analysis 

is lacking. We recognize that Schramm was hindered in his 

presentation of evidence at the Daubert/Schafersman hearing 

due to the untimely designation of Michalski and her proposed 

testimony; however, we are limited to the record before us in 

reviewing the district court’s decision. Based upon the evidence presented at the pretrial hearing, we find no error in the 

district court’s order allowing Michalski’s testimony.

4. Jury Instruct

(a) Additional Background

Schramm requested that the district court include an additional jury instruction related to analyzing the credibility of 

expert testimony. The language of the proposed instruction 

read as follows:

You have heard testimony from an expert witness. It 

is up to you to determine the validity and weight of the 

scientific testimony. Factors you should consider are:

(1) Whether the theory or technique can be, and has 

been, tested;

(2) Whether the theory or technique has been subjected 

to peer review and publication;

(3) The known or potential rate of technique has been 

subjected to peer review and publication;

(4) The general acceptance of the theory or technique 

in the scientific community.

The State objected to Schramm’s proposed jury instruction. It 

argued that jury instruction No. 9, as authored by the court, 

was sufficient to instruct the jury regarding evaluating the 

credibility of an expert witness. Jury instruction No. 9 read 

as follows:

A witness who has special knowledge, skill, experience, training, or education in a particular area may testify 
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as an expert in that area. You determine what weight, if 

any, to give to an expert’s testimony just as you do with 

the testimony of any other witness. You should consider 

the expert’s credibility as a witness, the expert’s qualifications as an expert, the sources of the expert’s information, and the reasons given for any opinions expressed by 

the expert.

Accord NJI2d Crim. 5.4. Ultimately, the district court rejected 

Schramm’s proposed jury instruction and did not include it in 

the instructions read to the jury. Schramm appeals from the 

district court’s decision.

(b) Standard of Review

[12] Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal 

present questions of law, an appellate court has an obligation 

to reach an independent conclusion irrespective of the decision 

of the court below. State v. McCurry, 296 Neb. 40, 891 N.W.2d 

663 (2017).

[13,14] In an appeal based on a claim of an erroneous jury 

instruction, the appellant has the burden to show that the 

questioned instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant. Id. All the jury 

instructions must be read together, and if, taken as a whole, 

they correctly state the law, are not misleading, and adequately 

cover the issues supported by the pleadings and the evidence, 

there is no prejudicial error necessitating reversal. Id.

(c) Analysis

On appeal, Schramm argues that the district court erred 

in rejecting his proposed jury instruction. He asserts that the 

proposed instruction provided the jury with a more detailed 

explanation than jury instruction No. 9 regarding how to 

evaluate expert witness testimony. He asserts that this instruction is a correct statement of the law and would have assisted 

the jury during its deliberations. Specifically, he states, “The 
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prejudice to [Schramm] is readily apparent. The impact of the 

jury being improperly instructed with respect to the credibility 

and weight to give expert testimony is fathomless.” Brief for 

appellant at 19. Upon our review, we conclude that the district 

court’s refusal to give the proposed jury instruction did not 

constitute reversible error.

[15] To establish reversible error from a court’s refusal to 

give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

refusal to give the tendered instruction. State v. Rothenberger, 

294 Neb. 810, 885 N.W.2d 23 (2016).

[16] Here, the district court used a pattern jury instruction 

regarding the jury’s evaluation of the credibility of an expert 

witness. See NJI2d Crim. 5.4. Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that 

instruction is the one which should usually be given to the 

jury in a criminal case. State v. Morgan, 286 Neb. 556, 837 

N.W.2d 543 (2013). Schramm requested that the district court 

depart from the pattern jury instruction and provide the jury 

with a more detailed explanation of how to evaluate the credibility of an expert witness. However, Schramm’s proposed 

jury instruction asked the jury to consider the underlying principles of Michalski’s testimony. In fact, Schramm’s proposed 

jury instruction asked the jury to consider the exact Daubert/

Schafersman factors that the trial court is to use in determining whether the reasoning or methodology underlying the 

expert’s opinion is scientifically valid and, thus, in determining whether an expert can testify before a jury. In this case, 

as we discussed more thoroughly above, the district court had 

performed its proper gatekeeping function and had determined 

that Michalski’s testimony was admissible pursuant to the 

Daubert/Schafersman factors. It was not the province of the 

jury to review the district court’s decision. Rather, the jury 

was to evaluate the credibility of the expert witness and to 
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determine what weight to give the expert’s testimony, just as it 

was to do with any other witness.

The district court did not err in utilizing the pattern jury 

instruction to instruct the jury on how to evaluate the credibility of expert testimony. Such an instruction was a correct statement of the law and did not prejudice Schramm in any way.

V. CONCLUSION

Because the district court failed to grant Schramm’s motion 

to continue the trial and, thus, failed to provide Schramm 

with adequate time to prepare his defense, the judgment and 

sentence of the district court are reversed and the cause is 

remanded for a new trial.

Reversed and remanded for a new