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Nebraska Court of Appeals Advance Sheets

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STATE v. EDWARDS

Cite as 28 Neb. App. 893

State of Nebraska, appellee, v. Robert E. 

Edwards, Sr., appellant.

___ N.W.2d___

Filed September 29, 2020. No. A-19-383.

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

apply, the admissibility of evidence is controlled by such rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

2. Rules of Evidence: Appeal and Error. Where 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. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

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

court admitted evidence over a hearsay objection or excluded evidence 

on hearsay grounds.

5. Constitutional Law: Motions to Suppress: Confessions: Miranda 

Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law 

enforcement procured it by violating the safeguards established by the 

U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 

1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part 

standard of review. Regarding historical facts, an appellate court reviews 

the trial court’s findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate 

court reviews independently of the trial court’s determination.

Nebraska Supreme Court Online Library

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

10/06/2020 08:07 AM CDT
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6. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

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

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

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

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

are for the finder of fact.

7. Criminal Law: Evidence: Appeal and Error. When examining a sufficiency of the evidence claim, the relevant question for an appellate court 

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

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

8. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

9. Trial: Evidence: Appeal and Error. Because overruling a motion in 

limine is not a final ruling on admissibility of evidence and, therefore, 

does not present a question for appellate review, a question concerning 

admissibility of evidence which is the subject of a motion in limine is 

raised and preserved for appellate review by an appropriate objection to 

the evidence during trial.

10. Trial: Appeal and Error. On appeal, a defendant may not assert a different ground for his or her objection than was offered at trial.

11. Trial: Waiver: Appeal and Error. Failure to make a timely objection 

waives the right to assert prejudicial error on appeal.

12. Appeal and Error. An appellate court is not obligated to engage in 

analysis that is not necessary to adjudicate the case and controversy 

before it.

13. ____. It is not the function of an appellate court to scour the record 

looking for unidentified evidentiary errors.

14. Rules of Evidence: Hearsay. When an out-of-court statement relates 

the content of another out-of-court statement, there must be an independent hearsay exception for each statement.

15. ____: ____. Neb. Rev. Stat. § 27-803(3) (Reissue 2016) is based on 

the notion that a person seeking medical attention will give a truthful 

account of the history and current status of his or her condition in order 

to ensure proper treatment.

16. Rules of Evidence: Hearsay: Sexual Assault: Minors. Statements 

made by a child victim of sexual abuse to a forensic interviewer in 

the chain of medical care may be admissible under Neb. Rev. Stat. 

§ 27-803(3) (Reissue 2016) even though the interview has the partial 

purpose of assisting law enforcement’s investigation of the crimes.

17. Rules of Evidence: Hearsay: Police Officers and Sheriffs. The fundamental inquiry to determine whether statements, made by a declarant 
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Cite as 28 Neb. App. 893

who knew law enforcement was listening, had a medical purpose is 

if the challenged statement has some value in diagnosis or treatment, 

because the patient would still have the requisite motive for providing 

the type of sincere and reliable information that is important to that 

diagnosis and treatment.

18. Rules of Evidence: Hearsay: Proof. Statements having a dual medical and investigatory purpose are admissible under Neb. Rev. Stat. 

§ 27-803(3) (Reissue 2016) only if the proponent of the statements demonstrates that (1) the declarant’s purpose in making the statements was 

to assist in the provision of medical diagnosis or treatment and (2) the 

statements were of a nature reasonably pertinent to medical diagnosis or 

treatment by a medical professional.

19. Rules of Evidence: Hearsay: Intent. Under Neb. Rev. Stat. § 27-803(3) 

(Reissue 2016), the fundamental inquiry when considering a declarant’s 

intent is whether the statement was made in legitimate and reasonable 

contemplation of medical diagnosis or treatment.

20. ____: ____: ____. Under Neb. Rev. Stat. § 27-803(3) (Reissue 2016), 

the appropriate state of mind of the declarant may be reasonably 

inferred from the circumstances; such a determination is necessarily 

fact specific.

21. Rules of Evidence: Hearsay. For a statement to qualify as an excited 

utterance, the following criteria must be established: (1) There must 

have been a startling event, (2) the statement must relate to the event, 

and (3) the statement must have been made by the declarant under the 

stress of the event.

22. Rules of Evidence: Hearsay: Proof. The key requirement to the excited 

utterance exception is spontaneity, which requires a showing that the 

statements were made without time for conscious reflection.

23. Rules of Evidence: Hearsay. An excited utterance does not have to be 

contemporaneous with the exciting event. It may be subsequent to the 

event if there was not time for the exciting influence to lose its sway. 

The true test is not when the exclamation was made but whether, under 

all the circumstances, the declarant was still speaking under the stress of 

nervous excitement and shock caused by the event.

24. ____: ____. Facts relevant to whether a statement is an excited utterance 

include the declarant’s manifestation of stress, the declarant’s physical 

condition, and whether the declarant spoke in response to questioning.

25. Courts: Expert Witnesses. Under the 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), framework, the trial court acts as a gatekeeper to ensure the 

evidentiary relevance and reliability of an expert’s opinion.
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26. Trial: Expert Witnesses: Intent. The purpose of the gatekeeping 

function is to ensure that the courtroom door remains closed to “junk 

science” that might unduly influence the jury, while admitting reliable 

expert testimony that will assist the trier of fact.

27. Trial: Expert Witnesses. Before admitting expert opinion testimony, 

the trial court must (1) determine whether the expert’s knowledge, skill, 

experience, training, and education qualify the witness as an expert; 

(2) if an expert’s opinion involves scientific or specialized knowledge, 

determine whether the reasoning or methodology underlying the testimony is valid; (3) determine whether that reasoning or methodology 

can be properly applied to the facts in issue; and (4) determine whether 

the expert evidence and the opinions related thereto are more probative 

than prejudicial.

28. ____: ____. A trial court can consider several nonexclusive factors in 

determining the reliability of an expert’s opinion: (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.

29. ____: ____. A trial court, when faced with an objection 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), must adequately demonstrate by specific 

findings on the record that it has performed its duty as gatekeeper.

30. Trial: Expert Witnesses: Records: Appeal and Error. After an objection 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), has been made, the losing 

party is entitled to know that the trial court has engaged in the heavy 

cognitive burden of determining whether the challenged testimony was 

relevant and reliable, as well as a record that allows for meaningful 

appellate review.

31. Trial: Expert Witnesses: Appeal and Error. Without specific findings 

or discussion on the record, it is impossible to determine whether the 

trial court carefully and meticulously reviewed the proffered scientific 

evidence or simply made an off-the-cuff decision to admit expert testimony. The trial court must explain its choices so that the appellate court 

has an adequate basis to determine whether the analytical path taken by 

the trial court was within the range of reasonable methods for distinguishing reliable expert testimony from false expertise.
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32. Miranda Rights. The safeguards provided by Miranda v. Arizona, 384 

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play whenever a person in custody is subjected to either express questioning or its 

functional equivalent.

33. Constitutional Law: Miranda Rights. Miranda warnings are required 

only where there has been such a restriction on one’s freedom as to render one “in custody.”

34. Arrests: Words and Phrases. Being in custody does not require an 

arrest, but refers to situations where a reasonable person in the defend

ant’s situation would not have felt free to leave and, thus, would feel the 

restraint on freedom of movement of the degree associated with a formal 

arrest.

35. Miranda Rights: Evidence. Statements made in a conversation initiated 

by the accused or spontaneously volunteered by the accused are not the 

result of interrogation and are admissible.

36. ____: ____. Any statement given freely and voluntarily without compelling influences is admissible in evidence.

37. Criminal Law: Evidence: New Trial: Appeal and Error. Upon finding reversible error in a criminal trial, an appellate court must determine 

whether the total evidence admitted by the district court, erroneously or 

not, was sufficient to sustain a guilty verdict.

38. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evidence is not sufficient to sustain a verdict after an appellate court finds 

reversible error, then double jeopardy forbids a remand for a new trial.

39. Appeal and Error. An appellate court may, at its discretion, discuss 

issues unnecessary to the disposition of an appeal where those issues are 

likely to recur during further proceedings.

Appeal from the District Court for Custer County: Karin L. 

Noakes, Judge. Reversed and remanded for a new trial.

Brandon J. Dugan for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Moore, Chief Judge, and Riedmann and Welch, Judges.

Moore, Chief Judge.

I. INTRODUCTION

Robert E. Edwards, Sr., appeals from his conviction and 

sentence in the district court for Custer County for one count 
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of first degree sexual assault of a child. The court sentenced 

him to 25 to 30 years’ imprisonment. On appeal, Edwards 

assigns error to various evidentiary rulings by the court and 

its denial of his motion to suppress, challenges the sufficiency of the evidence to convict him, and asserts that the 

court imposed an excessive sentence. We find that the district court erred in fulfilling its gatekeeping function required 

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) (Daubert/Schafersman), with respect to the admission 

of evidence regarding grooming in child sexual assault cases. 

Therefore, we reverse the conviction and remand the cause for 

a new trial.

II. BACKGROUND

1. Incident and Charge

On June 24, 2017, Deputy Sheriff Rachel Davis met with 

J.E.’s parents regarding an alleged sexual assault of J.E. by 

her grandfather, Edwards, which took place on June 19. At 

the time of the alleged assault, J.E. was 4 years old and 

Edwards was 70 years old. After meeting with J.E.’s parents, 

Davis scheduled a forensic interview of J.E. for June 27 at 

the Family Advocacy Network (FAN) in Kearney, Nebraska. 

During that interview, J.E. said that while she was at the local 

public swimming pool with Edwards, he put his fingers in her 

“pee-pee,” which she identified as her vaginal area, and that it 

“very, very hurt.” The accompanying medical examination at 

the FAN revealed internal vaginal injuries consistent with digital penetration. On June 29, when Davis interviewed Edwards 

at his home, he denied doing anything to J.E. Edwards was 

subsequently arrested.

On September 19, 2017, the State filed an information in the 

district court, charging Edwards with first degree sexual assault 

of a child in violation of Neb. Rev. Stat. § 28-319.01 (Reissue 

2016), a Class IB felony. The State alleged that on or about 
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June 19, Edwards, a person 19 years of age or older, subjected 

J.E., a person less than 12 years of age, to sexual penetration.

2. Motion in Limine

On September 17, 2018, the State filed a motion pursuant 

to Neb. Rev. Stat. § 27-414 (Reissue 2016) to introduce evidence through the testimony of J.E.’s sister of Edwards’ prior 

bad acts.

On September 19, 2018, Edwards filed a motion in limine, 

seeking to exclude certain evidence at trial. As relevant to the 

present appeal, Edwards sought to exclude (1) evidence of 

“any of the prior bad acts alleged in the State’s Motion for 

414 evidence,” along with any other bad acts evidence pursuant to Neb. Rev. Stat. § 27-404 (Reissue 2016) or § 27-414; 

(2) hearsay testimony of any and all witnesses as to J.E.’s 

statements; (3) any testimony by Dr. Susan Greenwald, the 

doctor who conducted the medical examination of J.E. at the 

FAN, or any other witness as to the “‘grooming’ technique as 

disclosed in [Greenwald’s] deposition” for reasons including 

that it did not meet the standard of Daubert/Schafersman; and 

(4) “any expert testimony of any witness or reports thereof not 

specifically authorized by the Court prior to being offered” 

(specifically testimony of forensic interviewer Kori Peters as 

to any “‘grooming’ technique”).

At the hearings on Edwards’ motion in limine and the State’s 

motion regarding prior bad acts evidence, the district court 

heard testimony from witnesses, including J.E.’s mother and 

sister. The court also received evidence concerning statements 

made by J.E. and Greenwald’s anticipated testimony, including 

the depositions of J.E., her mother, Greenwald, and Peters and 

certain statements in the deposition of J.E.’s sister.

With respect to the alleged prior bad acts by Edwards, J.E.’s 

mother testified regarding two prior incidents, one involving Edwards and J.E.’s cousin and one involving Edwards 

and herself. The first incident described by J.E.’s mother 

occurred about 6 or 7 years before the hearing. According to 
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Cite as 28 Neb. App. 893

the mother, Edwards was watching her “playing around” with 

J.E.’s cousin, who was 17 or 18 years old. After the mother and 

cousin went into another room and sat on the couch, Edwards 

followed, said something, and grabbed the cousin’s breast. The 

mother stated that she said to Edwards, “what the hell are you 

doing,” but that he simply turned around and left the room. 

She acknowledged that while she and the cousin were “playing around,” the cousin had “grabbed [the mother’s] breast.” 

The mother indicated that the second incident occurred around 

2000 or 2001. She stated that she was on her hands and knees 

cleaning up a spill on the floor when Edwards came up from 

behind her, held her down on the floor, and would not let 

her get up.

J.E.’s sister was 23 years old at the time of her testimony about prior incidents involving Edwards, occurring when 

she lived in Maryland. The sister has various “developmental 

delays,” including being “[b]orderline handicapped,” and she 

has “hearing impairment, memory loss, and seizures.” The 

sister testified that when she was about 7 years old, Edwards 

would sit in a rocking chair, put her on his lap, and rock her 

“back and forth.” While doing this, he would “put his hand up 

[her] shirt and he would grab for the breast area, and then after 

that he would put his hand over down to [her] private area.” 

According to the sister, when she was about that same age, she 

would be with Edwards in his semi-truck and he would “try to 

unzip [her] pants.” According to the sister, these incidents happened on more than one occasion. The sister testified that during the same period, Edwards regularly and publicly referred 

to her as his “girlfriend” or “wife”; she indicated that Edwards 

has referred to J.E. by those terms as well.

According to Greenwald’s deposition testimony, she had 

previously testified as an expert witness in various civil, 

criminal, and juvenile court proceedings. According to her 

curriculum vitae, she has been a child forensic examiner since 

1986 and an independent contractor for the FAN since 2001. 

She also had a general pediatric practice from 1986 to 2015. 
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Greenwald has had formal training on the issue of grooming 

and has had experience conducting “hundreds” of examinations of molested children in seeing “how their molesters have 

gained access” to them. Greenwald has not published any 

works of her own or peer-reviewed articles on the concept of 

grooming, because she is a clinician and not a researcher.

Greenwald testified about her examination of J.E., which 

she described as being “abnormal” both due to the redness and 

swelling in J.E.’s vaginal area and because J.E. was “basically 

too cooperative.” Greenwald testified that 4-year-old children 

do not normally “just lay down and spread their legs for you,” 

which J.E. did. Greenwald indicated that J.E. “held perfectly 

still” for the examination, which was also unusual, and that 

she was “very cooperative, very docile.” Greenwald testified 

that this was significant because in her experience children 

who have been “coached or groomed” by a sexual molester are 

much more docile during an examination than children who 

have not.

Greenwald provided further testimony regarding grooming, 

which she described as a “clinical term,” involving gaining 

a child’s trust through things such as buying them gifts and 

doing fun activities like playing games with them. She said 

grooming will often include pornography. She testified that 

grooming might start by having the child sit on the person’s 

lap “and then just gradually working up to sexual activity.” 

Greenwald indicated that a perpetrator could use such normal 

activities as a way of “desensitizing the child” to progressively 

more sexual kinds of touching. She testified that while there 

are many ways to groom a child, they all involve gaining the 

child’s trust and “basically teaching them to be sexual creatures.” According to Greenwald, grooming is “very common” 

in child abuse cases and is usually done by someone the child 

trusts, such as a family member or someone close to the family. Greenwald has seen perpetrators who engage in grooming 

“switch victims.”
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Greenwald testified that in her experience, she felt that J.E. 

was exhibiting behaviors of someone who had been groomed. 

She was not asked and did not provide any testimony as 

to whether any particular actions by Edwards constituted 

grooming.

In Peters’ deposition, she testified about her forensic interview of J.E. at the FAN on June 27, 2017. She did not testify 

regarding grooming.

The district court subsequently entered orders ruling on the 

State’s motion to admit evidence of prior bad acts and Edwards’ 

motion in limine. With respect to the evidence of the alleged 

prior incidents involving J.E.’s cousin and sister, the court 

found clear and convincing evidence that Edwards committed 

sexual offenses against them and determined that the evidence 

was admissible under § 27-414. As to J.E.’s statements, the 

court assumed Edwards was objecting to statements made by 

J.E. to her parents regarding the alleged sexual assault. The 

court denied Edwards’ motion with respect to those statements, 

finding that the circumstances surrounding them satisfied the 

excited utterance exception to the hearsay rule. Finally, the 

court determined that the “combination of Dr. Greenwald’s 

education, experience, and training in the area of child sexual 

abuse was sufficient to admit her testimony regarding grooming patterns and behavior.” The court stated that such testimony “is useful for the jury to evaluate the credibility of the 

witness and is evidence of motive and intent.” The court denied 

Edwards’ motion with respect to Greenwald’s anticipated testimony about “grooming.” In contrast, the court determined 

that while Peters’ experience and training “may qualify her 

as an expert regarding grooming patterns and behaviors of 

child molesters,” the court had not been presented with any 

testimony in her deposition regarding “grooming behavior.” 

Accordingly, the court granted Edwards’ motion with respect 

to Peters and ordered that the State was not allowed to argue or 

offer evidence on any opinion Peters may have on “grooming 

patterns and techniques.”
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3. Motion to Suppress

On September 19, 2018, Edwards filed a motion to suppress 

his statements, alleging that they were taken in violation of his 

constitutional rights.

At the hearing on Edwards’ motion to suppress, the district court heard testimony from Davis about her contact with 

Edwards on June 24, 2017, first at his residence and later the 

same day at the residence of J.E.’s parents, and received into 

evidence a body camera recording of “what happened that 

day.” Davis did not advise Edwards of his Miranda rights or 

place him under arrest during either contact. In ruling on the 

suppression motion, the court found that the statements made 

by Edwards in the presence of Davis were not made during 

a custodial interrogation. Accordingly, the court denied his 

motion to suppress.

4. Trial

A jury trial was held on February 11 through 13, 2019. We 

have summarized the relevant evidence as follows:

On Monday, June 19, 2017, Edwards picked J.E. up from 

her parents’ house to take her to the swimming pool around 

12 p.m., arriving at the pool shortly before 1 p.m., and he 

brought her home a little after 4 p.m. The evidence reflects 

that Edwards watched J.E. from a poolside chair, and several 

witnesses who observed Edwards at the pool that day testified 

that he did not get in the water with J.E. There were four lifeguards on duty at the pool that afternoon, who rotated positions 

every 15 minutes between three outside observation chairs and 

the pool office, and there was a 15-minute break from swimming every hour. The only people allowed to swim in the main 

pool during the break periods were those over 18 years old; 

individuals 6 years and younger could be in the “baby pool” 

area during breaks if they were supervised. The lifeguards 

each testified to seeing Edwards and J.E. at the pool that day. 

Three of the lifeguards testified that they never observed any 

concerning interactions between Edwards and J.E. that day, 

although their testimony shows that it is not possible to see 
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the baby pool area from one of the three outside observation 

chairs or from inside the pool office. The fourth lifeguard testified that Edwards and J.E. were never out of her field of vision 

that day, clarifying that she had “the main swimming area” in 

her full view the entire time she was at the pool. She thought 

she had walked around “during break,” but she did not recall 

whether Edwards and J.E. were in the baby pool area. She was 

not asked if she observed any concerning interactions between 

them, and she acknowledged that from one of the lifeguard 

observation chairs, a person can see who enters and exits the 

baby pool area but not anything that happens in the baby pool 

area itself.

J.E.’s sister walked by the swimming pool that afternoon 

on her way home from work. She testified that she saw J.E. 

“run out of [the] women’s bathroom just bawling” and then 

saw Edwards “just cussing away.” The sister did not “go over 

there,” but she and Edwards waved at one another.

In the hours after Edwards brought J.E. home, her mother 

gave her a bath and prepared supper, and after supper, J.E.’s 

mother got J.E. ready for bed. J.E.’s bedtime routine included 

speaking to her father, an over-the-road truckdriver, by telephone. That evening, while the mother was calling the father, 

J.E. started pulling down her underwear and told her mother 

that her “pee-pee” hurt, and when the mother asked why, 

J.E. said that it was because “papa put his fingers in there.” 

“[P]apa” was J.E.’s name for Edwards. J.E. repeated her allegation when speaking to her father on the telephone.

J.E.’s parents discussed what to do about her disclosure, and 

because the mother suffered from severe anxiety, they decided 

to wait until the father returned to address the situation. J.E.’s 

father returned home late Friday night of that week, and J.E.’s 

parents contacted law enforcement the following day. This 

contact resulted in the forensic interview and medical examination of J.E., as well as the police contact with Edwards discussed above.

Peters testified regarding her forensic interview of J.E. 

at the FAN on June 27, 2017. First, Peters explained how 
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forensic interviews are conducted and her role in the interview 

process. Next, Peters testified about J.E.’s responses during 

the forensic interview, and a video recording of the interview 

was received into evidence and played for the jury. During the 

interview, J.E. told Peters that “papa” put his fingers in her 

“pee-pee,” which J.E. identified as her vaginal area, and that it 

“very, very hurt.” J.E. also reported that Edwards rubbed her 

“boobies” and her “butt.” J.E. reported that Edwards did this in 

the water at the pool and that no one else saw what happened. 

J.E.’s own trial testimony differed from the forensic interview; 

at trial, she testified that Edwards touched her under her swimsuit on the outside of her private part and that it happened 

while she was out of the water.

Greenwald testified about her physical examination of J.E. 

and about the concept of grooming. Her testimony at trial 

about her qualifications and about the concept of grooming was 

similar to her deposition testimony admitted at the motion in 

limine hearing. During Greenwald’s examination of J.E., which 

occurred on the same day that J.E. was interviewed by Peters, 

Greenwald observed internal injuries to J.E.’s vaginal area. 

Greenwald testified that the injuries she observed were consistent with digital penetration. She was asked about “straddle 

injuries” from something like falling on a bike, and she testified that with such an accident, “if there is any damage to the 

inner structures, you’d see a lot of damage to the outer structures first.” Greenwald did not observe any such outer injuries 

during her examination of J.E. During the examination, when 

Greenwald told J.E. that she was going to take pictures of J.E.’s 

“pee-pee,” J.E. “just jumped up on the table and spread her 

legs and laid down very calmly and was ready.” Greenwald testified that that behavior “really caught [her] attention because 

it’s so unusual.” According to Greenwald, “that kind of behavior is the result of being trained or groomed.” Greenwald then 

testified further about “grooming,” which she described during this portion of her testimony as “a very commonly seen 

method that sexual offenders will use to gain the cooperation 

of children.”
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Davis testified regarding her investigation, including her 

interview with Edwards at his residence and her subsequent 

interaction with Edwards at the residence of J.E.’s parents. 

Video recordings from Davis’ body camera showing the interview of Edwards and a portion of the interaction at the parents’ residence were received into evidence and played for the 

jury. During both encounters, Edwards denied touching J.E. 

inappropriately. During the interview at his residence, he also 

volunteered information about the incident with J.E.’s sister 

and denied any wrongdoing in that regard. Davis testified that 

Edwards was not under arrest during the interview at his residence, and a review of the video shows that he subsequently 

left the parents’ residence without being placed under arrest.

Both J.E.’s mother and J.E.’s sister testified regarding some of 

the prior incidents with Edwards discussed above. Specifically, 

J.E.’s mother testified regarding the incident involving J.E.’s 

cousin and Edwards, and J.E.’s sister testified regarding the 

various incidents involving her and Edwards. The sister also 

testified about Edwards calling both her and J.E. his girlfriend 

and his wife. The incident between Edwards and J.E.’s mother 

was not referenced at trial.

Finally, Edwards testified in his own behalf. Edwards testified that he would spend time with J.E. and that he took her 

to places like the pool and park. He testified that he “spoiled” 

J.E., which he indicated included buying her food treats or 

toys if she wanted them. Edwards denied doing anything inappropriate to J.E. He acknowledged that on June 19, 2017, he 

took J.E. to the swimming pool and she went into “the kiddie 

pool” once, but he denied having gotten into the water himself while they were at the pool. He testified that there was 

a water fountain in the park but not in the “pool area,” and 

he denied having taken J.E. to the water fountain. Later, he 

testified that he did not remember a water fountain in the pool 

area. He stated that he did take J.E. to the bathroom while 

they were at the pool, but he denied going into the bathroom 

with her. Edwards disputed the prior incidents testified to by 
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J.E.’s mother and her sister, which involved Edwards and the 

sister and Edwards and the cousin.

5. Verdict and Sentence

The jury found Edwards guilty of first degree sexual assault 

of a child, and the district court accepted the jury’s verdict. 

The court subsequently sentenced Edwards to 25 to 30 years’ 

imprisonment.

III. ASSIGNMENTS OF ERROR

Edwards asserts that (1) the district court erred in denying 

his motion in limine, in granting the State’s motion to offer 

evidence of prior bad acts, and in allowing the testimony of 

prior bad acts, hearsay statements of J.E., and the testimony 

of Greenwald; (2) the court erred in denying his motion to 

suppress; (3) he was prejudiced by the introduction of impermissible evidence; and (4) the court abused its discretion by 

imposing an excessive sentence.

IV. STANDARD OF REVIEW

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

apply, the admissibility of evidence is controlled by such 

rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility. State v. Lee, 

304 Neb. 252, 934 N.W.2d 145 (2019). Where 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. Id. An 

abuse of discretion occurs when a trial court’s decision is based 

upon reasons that are untenable or unreasonable or if its action 

is clearly against justice or conscience, reason, and evidence. 

State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).

[4] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de novo 

the court’s ultimate determination whether the court admitted 

evidence over a hearsay objection or excluded evidence on 
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hearsay grounds. State v. Dady, 304 Neb. 649, 936 N.W.2d 

486 (2019).

[5] In reviewing a motion to suppress a statement based on 

its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the 

U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies 

a two-part standard of review. State v. Montoya, 304 Neb. 96, 

933 N.W.2d 558 (2019). Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. Id.

Whether those facts meet constitutional standards, however, is 

a question of law, which an appellate court reviews independently of the trial court’s determination. Id.

[6,7] In reviewing a criminal conviction for a sufficiency 

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

appellate court does not resolve conflicts in the evidence, pass 

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

such matters are for the finder of fact. State v. Dady, supra. 

When examining a sufficiency of the evidence claim, the relevant question for an appellate court is whether, after viewing 

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

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. Id.

[8] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. State v. Iddings, supra.

V. ANALYSIS

1. Motion in Limine

Edwards asserts that the district court erred in denying 

his motion in limine and granting the State’s motion to offer 

evidence of prior bad acts. He argues that the court erred in 

admitting into evidence testimony about certain prior incidents 

involving Edwards, J.E.’s hearsay statements to various individuals, and Greenwald’s testimony about “grooming.”
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(a) Evidence of Prior Bad Acts

Edwards argues that evidence of prior bad acts against the 

sister, the cousin, and the mother should have been excluded 

from evidence at trial, pursuant to § 27-414 (governing admission of evidence of defendant’s commission of other offenses 

of sexual assault in criminal cases where defendant is accused 

of sexual assault). In its order ruling on the portion of Edwards’ 

motion in limine that sought to exclude § 27-414 evidence and 

the State’s motion seeking to introduce such evidence, the district court found clear and convincing evidence that Edwards 

had committed sexual offenses against J.E.’s cousin and sister. 

The court stated that it had considered the probability that 

the offenses had occurred and the similarity of the acts to the 

crime charged to determine that the probative value of the 

evidence substantially outweighed the dangers of unfair prejudice. Accordingly, the court found the evidence of prior bad 

acts of Edwards against the cousin and the sister was admissible at trial.

(i) Incidents With J.E.’s Sister

There was evidence admitted at trial about the incidents 

between Edwards and J.E.’s sister. When asked if Edwards 

ever did “anything” to her when she was younger, the sister 

responded affirmatively and indicated that this happened in 

Maryland. When she was asked how old she was at the time, 

Edwards objected on the bases of relevance, speculation, and 

hearsay; he also asked for “a running objection.” The district 

court overruled these objections. The sister proceeded to testify that when she was 7 or 8 years old, Edwards would put 

her on his lap in the rocking chair, rock her back and forth, 

and then reach under her shirt toward her breast area. She clarified that by saying “reach toward [her] breast area underneath 

[her] shirt,” she meant “like putting your hands and pulling the 

shirt up and reaching toward the breast area of the boobs and 

grabbing it.” She stated that Edwards did this to her on more 

than one occasion. She also indicated that when Edwards did 

this, he “said that he didn’t think that girls at [her] age would 
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have boobs.” The sister testified further that Edwards also 

touched her “[i]n the semi-truck,” again in Maryland, and that 

he would try to unzip her pants. Finally, the sister testified 

that when she was younger, Edwards would call her “his girlfriend” and “his wife,” say that “[she] had a nice body,” and 

tell her that he was going to marry her and that no one else 

was allowed to marry her. She testified that when Edwards 

was doing these things to her, it felt “[v]ery uncomfortable and 

completely wrong.”

J.E.’s mother was also questioned about the incidents involving Edwards and the sister. She responded affirmatively when 

asked if she remembered an incident with Edwards and the 

sister in Maryland. When asked to tell “a little bit about that,” 

she replied, “She was like seven or eight years and she was 

starting to get breasts and everything . . . .” At that point, 

Edwards’ attorney objected on the bases of relevancy and 

“improper impeachment” and asked “that that part be stricken.” 

Following an off-the-record sidebar, the district court overruled 

Edwards’ objections. The mother was asked about the incident 

again, and the court sustained “leading” and “hearsay” objections to various questions. The mother then testified that she 

never observed anything that happened. She also recalled that 

Edwards referred to the sister as “his girlfriend” and that sometimes he would say “hot stuff.”

[9,10] The State asserts that Edwards’ arguments about the 

incidents involving the sister are not properly before us because 

Edwards “did not object on § 27-414 grounds or otherwise 

renew his motion in limine.” Brief for appellee at 16. Because 

overruling a motion in limine is not a final ruling on admissibility of evidence and, therefore, does not present a question 

for appellate review, a question concerning admissibility of 

evidence which is the subject of a motion in limine is raised 

and preserved for appellate review by an appropriate objection to the evidence during trial. State v. Wood, 296 Neb. 738, 

895 N.W.2d 701 (2017). In his reply brief, Edwards asserts 

that to the extent he did not mention § 27-414, the nature of 

his objection “was apparent by the context.” Reply brief for 
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appellant at 9. We disagree. In his objections to the sister’s 

testimony about the incidents with her and Edwards, he neither 

referenced his motion in limine nor § 27-414. He objected to 

the sister’s testimony on the grounds of relevance, speculation, 

and hearsay. He does not argue on appeal that his objections 

on those grounds were improperly overruled. Edwards failed 

to preserve for appellate review his argument that the district 

court erred in failing to grant his motion in limine with respect 

to the sister’s testimony about these incidents, and on appeal, 

a defendant may not assert a different ground for his or her 

objection than was offered at trial. State v. Swindle, 300 Neb. 

734, 915 N.W.2d 795 (2018). As to the mother’s testimony, she 

did not actually testify about the rocking and touching incidents, and Edwards does not otherwise argue that the mother’s 

testimony referenced above was improperly admitted.

(ii) Incident With Victim’s Cousin

As noted above, Edwards objected at trial when the sister 

was asked about incidents involving Edwards and herself, 

and he sought a continuing objection with respect to that testimony. However, J.E.’s sister was also asked if she remembered an incident between Edwards and the cousin, and she 

testified, without objection, to an occasion when J.E.’s mother 

and cousin “were horse playing around” and “throwing a pillow back and forth,” and Edwards “got up from the chair 

and went toward [the] cousin . . . and tried to kiss her and 

grabbed her boob.” J.E.’s sister, who was 23 years old at the 

time of her testimony, stated that this occurred when she was 

a teenager.

During the mother’s testimony, when she was asked about 

what she observed to have happened between Edwards and the 

cousin, Edwards objected on the bases of hearsay, improper 

impeachment, and relevance. The court overruled these objections. The mother then testified, without further objection 

by Edwards, that she and the cousin were “playing around”; 

that the cousin “grabbed [the mother’s] boob”; and that after 
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they ran into another room, Edwards followed them, said 

something, and “grabbed [the cousin’s] boob.” The mother was 

questioned further about Edwards’ proximity to them during 

the initial horseplay and lack of involvement in that activity, 

as well as his proximity to them after they went into another 

room. Then she again testified, without objection, that Edwards 

came into the room where they were sitting, said something, 

and “grabbed [the cousin’s] boob.” The mother testified that 

she said to Edwards, “[w]hat the hell are you doing,” but that 

he laughed and walked out without further response.

[11] The State again asserts that Edwards failed to preserve 

his arguments for appellate review because he did not object 

on the basis of § 27-414 or otherwise renew his motion in 

limine. Regardless of whether Edwards’ objections at trial to 

the mother’s testimony about the incident involving the cousin 

were sufficient to preserve the issues raised in his motion in 

limine, he has waived any prejudicial error. As noted, J.E.’s 

sister testified at trial without objection to the incident between 

Edwards and the cousin. Failure to make a timely objection 

waives the right to assert prejudicial error on appeal. State v. 

Swindle, supra. And, while Edwards objected at the start of 

the mother’s testimony about this incident, he did not ask for a 

continuing objection (something he did at other points during 

trial), and the mother subsequently stated twice, without objection, that Edwards “grabbed [the cousin’s] boob.”

(iii) Incident With Victim’s Mother

[12] While evidence about an incident between Edwards 

and J.E.’s mother was introduced at the hearing on Edwards’ 

motion in limine, such evidence was not introduced at trial. 

Accordingly, we need not further address Edwards’ arguments 

about this particular incident. An appellate court is not obligated to engage in analysis that is not necessary to adjudicate 

the case and controversy before it. State v. Lillard, 27 Neb. 

App. 824, 937 N.W.2d 1 (2019).
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(b) Hearsay Statements of J.E.

[13] In presenting arguments about this portion of his assignment of error, Edwards reviews various hearsay statements in 

the depositions of J.E.’s mother, Peters, and Greenwald, but 

those depositions were not offered as evidence at trial. He does 

cite to certain portions of trial testimony, and we have limited 

our review of his hearsay arguments to those areas of the trial 

record cited in Edwards’ brief, as it is not the function of an 

appellate court to scour the record looking for unidentified evidentiary errors. Smith v. Colorado Organ Recovery Sys., 269 

Neb. 578, 694 N.W.2d 610 (2005). To the extent that Edwards 

objected to the cited testimony on the grounds of hearsay, 

he has preserved his arguments with respect to the motion 

in limine.

(i) Testimony of Greenwald

Edwards objected on the basis of hearsay to Greenwald’s 

testimony that J.E. was brought to the FAN because of J.E.’s 

statement to her father that “her pee-pee hurt.” After the 

State argued that the testimony should be allowed because 

it was “part of medical diagnosis,” the district court overruled Edwards’ objection. Greenwald again testified that J.E. 

was brought to the FAN because she said “her pee-pee hurt.” 

Greenwald explained further that the interviewer (Peters) told 

Greenwald that “pee-pee” was J.E.’s word for vagina and 

that J.E. had told the interviewer that “her pee-pee” had been 

touched and that it “hurt badly.” Greenwald concluded her 

response by stating that this was “why we did the exam.” 

Greenwald testified without objection that she was told “they 

were looking for trauma that might have been caused by a 

digital penetration.” Edwards objected on bases including hearsay to the offer of Greenwald’s report of her examination of 

J.E., and the district court sustained the objections. During the 

State’s redirect examination of Greenwald, she affirmed without objection that she had received information “from the interview” that J.E.’s grandfather “had stuck his fingers in [J.E.’s] 

pee-pee,” which was J.E.’s term for her vagina.
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[14] “Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Neb. Rev. Stat 

§ 27-801(3) (Reissue 2016). Hearsay is not admissible at trial 

except as provided by the Nebraska Evidence Rules. See Neb. 

Rev. Stat. § 27-802 (Reissue 2016). “Hearsay included within 

hearsay is not excluded under the hearsay rule if each part of 

the combined statements conforms with an exception to the 

hearsay rule provided in these rules.” Neb. Rev. Stat. § 27-805 

(Reissue 2016). When an out-of-court statement relates the 

content of another out-of-court statement, there must be an 

independent hearsay exception for each statement. State v. 

Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

As discussed below, J.E.’s statements to her father are admissible under the excited utterance exception. Thus, the first step 

of the double hearsay requirement is met with respect to those 

statements. We conclude that it is also met with respect to J.E.’s 

statements to Peters, which are admissible under the medical 

diagnosis or treatment exception. Additionally, we conclude 

that Peters’ statements to Greenwald were admissible under the 

medical diagnosis or treatment exception, and thus, the district 

court did not err in admitting the portion of Greenwald’s trial 

testimony complained of by Edwards in his brief.

[15] Neb. Rev. Stat. § 27-803(3) (Reissue 2016) provides 

that the hearsay rule does not exclude “[s]tatements made for 

purposes of medical diagnosis or treatment and describing 

medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or 

external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Section 27-803(3) is based on the notion 

that a person seeking medical attention will give a truthful 

account of the history and current status of his or her condition 

in order to ensure proper treatment. State v. Jedlicka, 297 Neb. 

276, 900 N.W.2d 454 (2017).

[16-18] Statements made by a child victim of sexual abuse 

to a forensic interviewer in the chain of medical care may be 
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admissible under § 27-803(3) even though the interview has 

the partial purpose of assisting law enforcement’s investigation of the crimes. State v. Jedlicka, supra. The fundamental 

inquiry to determine whether statements, made by a declarant 

who knew law enforcement was listening, had a medical purpose is if the challenged statement has some value in diagnosis 

or treatment, because the patient would still have the requisite 

motive for providing the type of sincere and reliable information that is important to that diagnosis and treatment. Id.

However, statements having a dual medical and investigatory 

purpose are admissible under § 27-803(3) only if the proponent 

of the statements demonstrates that (1) the declarant’s purpose 

in making the statements was to assist in the provision of 

medical diagnosis or treatment and (2) the statements were of 

a nature reasonably pertinent to medical diagnosis or treatment 

by a medical professional. State v. Jedlicka, supra.

[19,20] Under § 27-803(3), the fundamental inquiry when 

considering a declarant’s intent is whether the statement was 

made in legitimate and reasonable contemplation of medical diagnosis or treatment. State v. Jedlicka, supra. Under 

§ 27-803(3), the appropriate state of mind of the declarant may 

be reasonably inferred from the circumstances; such a determination is necessarily fact specific. State v. Jedlicka, supra.

With respect to the scope of this hearsay exception, the 

Nebraska Supreme Court has stated:

Although the heart of this exception lies in statements 

made by a patient to a treating physician, the exception 

casts its net wider than the patient-physician relationship. Under the federal and Nebraska rules of evidence, 

statements admissible under the medical diagnosis and 

treatment exception are not restricted to statements made 

by the patient and the statements need not be made to a 

physician. . . . As a general rule, the exception applies 

to persons seeking medical assistance from persons who 

are expected to provide some form of health care. . . . 

Thus, “[t]he declarant need not be the patient—need not 
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be the person who is experiencing the symptoms to be 

diagnosed or treated. In other words, the statement need 

not refer to the declarant’s own symptoms.”

In re Interest of B.R. et al., 270 Neb. 685, 691, 708 N.W.2d 

586, 591 (2005) (citations omitted) (statements by child’s 

foster mother to therapist, reporting unusual sexual behavior 

by child and her suspicions of sexual abuse, were admissible 

under § 27-803(3)). See, also, State v. Huntington, 216 Wis. 2d 

671, 575 N.W.2d 268 (1998) (statements made to nurse practitioner by victim’s mother regarding allegations that defendant 

sexually abused victim were admissible, over double hearsay 

objection, under medical treatment exception to hearsay rule).

In this case, Peters testified that her forensic interviews are 

used in conjunction with Greenwald’s medical examinations of 

potential child sexual abuse victims. Peters’ interview with J.E. 

was not scheduled until several days after Peters was initially 

contacted by law enforcement so that the interview could be 

conducted on a date when Greenwald was also available to 

allow for “a fuller picture of what’s going on.” Greenwald’s 

testimony shows that her medical examination of J.E.’s vaginal 

area was due to a concern of sexual trauma, and she indicated 

that it is important to perform a complete examination to 

determine whether a medical diagnosis could be found. Peters’ 

interview elicited information that was reasonably pertinent 

to Greenwald’s examination of J.E. and the need for any 

further diagnosis and treatment of her. Peters subsequently 

relayed this pertinent information to Greenwald in the chain of 

medical care. Based on our review of the record, the district 

court did not err in finding that J.E.’s statements, as relayed 

to Greenwald by Peters and testified to by Greenwald, were 

admissible under the medical treatment exception to the rule 

against hearsay.

(ii) Testimony of J.E.’s Parents

The district court overruled Edwards’ hearsay objection 

when J.E.’s mother testified at trial that on the evening of 

June 19, 2017, J.E. started pulling down her underwear and 
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said “my pee-pee hurts.” After the court overruled the objection, the mother testified that she asked J.E. “why,” and J.E. 

responded that “papa put his fingers in there.” The mother testified further, without objection, that J.E. told her because “papa 

put his fingers in there” and that J.E. told her father, who was 

on the telephone with them at the time, “the same thing that 

she told me.” Edwards also references his objections to the 

testimony of J.E.’s father. The court overruled Edwards’ hearsay objection when J.E.’s father started to testify at trial about 

what J.E. told him on the telephone on the evening in question. The father then testified that she told him her “pee-pee” 

hurt because Edwards “had put his fingers in there” and that 

Edwards had said to her “ha ha I got my fingers in there.”

[21-24] In ruling on Edwards’ motion in limine, the district 

determined that J.E.’s statements to her parents were admissible as excited utterances. Section 27-803(1) provides that 

“[a] statement relating to a startling event or condition made 

while the declarant was under the stress of excitement caused 

by the event or condition” is not excluded by the hearsay rule. 

For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a 

startling event, (2) the statement must relate to the event, and 

(3) the statement must have been made by the declarant under 

the stress of the event. State v. Nolt, 298 Neb. 910, 906 N.W.2d 

309 (2018). The key requirement to the excited utterance 

exception is spontaneity, which requires a showing that the 

statements were made without time for conscious reflection. 

Id. An excited utterance does not have to be contemporaneous 

with the exciting event. Id. It may be subsequent to the event 

if there was not time for the exciting influence to lose its sway. 

Id. The true test is not when the exclamation was made but 

whether, under all the circumstances, the declarant was still 

speaking under the stress of nervous excitement and shock 

caused by the event. Id. Facts relevant to whether a statement 

is an excited utterance include the declarant’s manifestation 
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of stress, the declarant’s physical condition, and whether the 

declarant spoke in response to questioning. Id.

Here, although J.E. explained her distress in response to 

questions from her parents, she initially, without inquiry or 

prompting, pulled down her underwear and told her mother 

that her “pee-pee” hurt. Her initial statement was made the 

same evening after the digital penetration of her vagina by 

Edwards that afternoon at the swimming pool. Her statement 

and physical actions reflect the stress of her grandfather having touched her in a painful and unexpected way. The district 

court did not err in admitting the parents’ testimony about 

J.E.’s statements.

(c) Testimony of Greenwald 

About Grooming

In his motion in limine, Edwards sought to exclude testimony 

by Greenwald about “‘grooming’” technique, arguing that it 

did not meet the standard of Daubert/Schafersman. The district 

court, while not explicitly addressing Daubert/Schafersman, 

ruled that Greenwald was qualified to testify about grooming 

and that her testimony would be useful to the jury.

At trial, Greenwald was allowed to testify over Edwards’ 

foundational objection that J.E.’s behavior in positioning herself on the examination table indicated to Greenwald that “the 

child had most likely been trained, or what we call groomed.” 

Greenwald then testified further about “grooming” in general, 

and Edwards objected on the bases of speculation, foundation, 

and Daubert/Schafersman to this testimony. The court overruled Edwards’ objections but gave him a continuing objection 

to this line of questioning.

[25,26] On appeal, Edwards argues that he was prejudiced 

by Greenwald’s testimony about grooming and that it should 

have been excluded under Daubert/Schafersman. Under the 

Daubert/Schafersman framework, the trial court acts as a 

gatekeeper to ensure the evidentiary relevance and reliability 

of an expert’s opinion. State v. Simmer, 304 Neb. 369, 935 

N.W.2d 167 (2019). The purpose of the gatekeeping function 
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is to ensure that the courtroom door remains closed to “junk 

science” that might unduly influence the jury, while admitting 

reliable expert testimony that will assist the trier of fact. Id.

The parties do not cite to any reported Nebraska cases, nor 

have we found any, that specifically address the admissibility 

of expert testimony regarding the theory of grooming in child 

sexual assault cases under a Daubert/Schafersman inquiry. 

However, our statutes and case law regarding the admissibility 

of expert opinion testimony are instructive.

[27,28] Neb. Rev. Stat. § 27-702 (Reissue 2016) provides, 

“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.” Before admitting expert opinion testimony, the trial court must (1) determine whether the expert’s knowledge, skill, experience, training, and education qualify the witness as an expert; (2) if an 

expert’s opinion involves scientific or specialized knowledge, 

determine whether the reasoning or methodology underlying 

the testimony is valid; (3) determine whether that reasoning or 

methodology can be properly applied to the facts in issue; and 

(4) determine whether the expert evidence and the opinions 

related thereto are more probative than prejudicial. Gonzales v. 

Nebraska Pediatric Practice, 26 Neb. App. 764, 923 N.W.2d 

445 (2019). A trial court can consider several nonexclusive 

factors in determining the reliability of an expert’s opinion: (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. Simmer, supra.

[29-31] A trial court, when faced with a Daubert/Schafersman

objection, must adequately demonstrate by specific findings 

on the record that it has performed its duty as gatekeeper. 
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Gonzales v. Nebraska Pediatric Practice, supra. After such 

a Daubert/Schafersman objection has been made, the losing 

party is entitled to know that the trial court has engaged in the 

heavy cognitive burden of determining whether the challenged 

testimony was relevant and reliable, as well as a record that 

allows for meaningful appellate review. Gonzales v. Nebraska 

Pediatric Practice, supra. Without specific findings or discussion on the record, it is impossible to determine whether the 

trial court carefully and meticulously reviewed the proffered 

scientific evidence or simply made an off-the-cuff decision 

to admit expert testimony. Id. The trial court must explain its 

choices so that the appellate court has an adequate basis to 

determine whether the analytical path taken by the trial court 

was within the range of reasonable methods for distinguishing 

reliable expert testimony from false expertise. Id.

In his motion in limine, Edwards asked the district court to 

prohibit any testimony by Greenwald (or any other witness) as 

to the concept of grooming. Edwards asserted that the theory 

did not meet the standard of Daubert/Schafersman for reasons 

including that it could not be tested “as it is backward looking,” did not appear to be peer reviewed, did not appear to 

have a known rate of error, and was not generally accepted 

within the scientific community. He further asserted that the 

theory was not relevant and that any evidence referring to it 

would be prejudicial. In sum, Edwards was challenging the 

validity and reliability of any evidence about the grooming 

process, as well as its relevance.

In ruling on that portion of Edwards’ motion in limine, the 

district court concluded that Greenwald was qualified as an 

expert in the area of child sexual abuse and her testimony 

regarding “grooming patterns and behavior” was relevant. 

However, the court did not address the validity and reliability 

of the concept of grooming as a process whereby perpetrators 

acclimate children to sexual activity. We conclude that the 

district court failed to fulfill its gatekeeping function under 

Daubert/Schafersman.
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We further conclude that the court’s admission of Greenwald’s 

testimony regarding grooming, without performing the gatekeeping function, was prejudicial error. See State v. Henley, 

363 Or. 284, 422 P.3d 217 (2018) (admission of forensic interviewer’s testimony about grooming without first determining 

its validity and reliability was prejudicial error; appellate court 

declined to address scientific validity of such evidence for first 

time on appeal).

2. Motion to Suppress

Edwards asserts that the district court erred in denying his 

motion to suppress. He argues that statements he made to 

Davis when she spoke with him at his residence and then at the 

residence of J.E.’s parents should be suppressed because Davis 

subjected him to custodial interrogation without advising him 

of his Miranda rights.

[32-36] The safeguards provided by Miranda v. Arizona, 

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come 

into play whenever a person in custody is subjected to either 

express questioning or its functional equivalent. State v. Landis, 

281 Neb. 139, 794 N.W.2d 151 (2011). Miranda warnings are 

required only where there has been such a restriction on one’s 

freedom as to render one “in custody.” State v. Schriner, 303 

Neb. 476, 929 N.W.2d 514 (2019). Being in custody does not 

require an arrest, but refers to situations where a reasonable 

person in the defendant’s situation would not have felt free to 

leave and, thus, would feel the restraint on freedom of movement of the degree associated with a formal arrest. Id. But, 

statements made in a conversation initiated by the accused or 

spontaneously volunteered by the accused are not the result 

of interrogation and are admissible. Id. Any statement given 

freely and voluntarily without compelling influences is admissible in evidence. See id.

We find that Edwards was not in custody for the purposes 

of Miranda and the Fifth Amendment at any point prior to 

his formal arrest, which was subsequent to the conversations 
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with Davis at issue here. Based on the evidence, including the 

video recordings from Davis’ body camera of both encounters, Edwards freely volunteered various statements during his 

interactions with Davis on June 24, 2017, as to his interactions with J.E. and about prior allegations concerning him and 

J.E.’s sister. Davis’ initial interview of Edwards occurred at 

his residence. He was not restrained during the encounter and 

moved freely about the residence to retrieve his cell phone and 

cigarettes at various points. The interview was conducted in a 

conversational tone, and Davis left without arresting Edwards. 

After leaving Edwards’ residence, Davis went to the residence 

of J.E.’s parents where Edwards showed up without invitation. 

While there, he voluntarily denied “touch[ing]” J.E. Edwards 

was asked to leave and eventually did so, again without 

being placed under arrest. The video recordings from Davis’ 

body camera, which were received into evidence, support a 

conclusion that Edwards was not in custody at the time of 

either encounter.

Because Edwards was not in custody, Miranda did not 

apply, and the district court did not err in denying Edwards’ 

motion to suppress.

3. Double Jeopardy and Remaining 

Assignments of Error

[37,38] Having found reversible error in Edwards’ assertions with respect to the grooming issue, we must determine 

whether the totality of the evidence admitted by the district 

court was sufficient to sustain Edwards’ conviction. Upon 

finding reversible error in a criminal trial, an appellate court 

must determine whether the total evidence admitted by the 

district court, erroneously or not, was sufficient to sustain a 

guilty verdict. State v. Draper, 289 Neb. 777, 857 N.W.2d 334 

(2015). If evidence is not sufficient to sustain a verdict after 

an appellate court finds reversible error, then double jeopardy forbids a remand for a new trial. Id. After reviewing the 

record, we find that the evidence presented at trial, including 
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the erroneously admitted evidence, was sufficient to support 

Edwards’ conviction. Accordingly, we conclude that double 

jeopardy does not preclude a new trial.

[39] Because we must reverse and remand for a new trial, we 

are not required to consider Edwards’ additional assignments of 

error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy 

before it. State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 

(2019), cert. denied ___ U.S. ___, 140 S. Ct. 545, 205 L. Ed. 

2d 345. An appellate court may, at its discretion, discuss issues 

unnecessary to the disposition of an appeal where those issues 

are likely to recur during further proceedings. State v. Mann, 

302 Neb. 804, 925 N.W.2d 324 (2019). We have addressed 

Edwards’ other assertions regarding evidentiary issues and his 

motion to suppress above as those issues are likely to recur on 

remand. However, we need not reach his assigned error regarding sentencing, as this issue must be evaluated in the context 

of a particular trial.

VI. CONCLUSION

We conclude that the district court’s failure to fulfill its 

gatekeeping function with regard to the Daubert/Schafersman 

challenge to the evidence regarding grooming was prejudicial 

error. As a result, we reverse Edwards’ conviction and remand 

the cause to the district court for a new trial.

Reversed and remanded for a new trial.