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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

STATE v. CAVITTE

Cite as 28 Neb. App. 601

State of Nebraska, appellee, v. 

Augustine L. Cavitte, appellant.

___ N.W.2d ___

Filed July 7, 2020. No. A-19-643.

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

Rights: Appeal and Error. In reviewing a motion to suppress a 

confession based on the claimed involuntariness of the statement, 

including claims that it was procured in violation of 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), appellate courts apply a 

two-part standard of review. With regard to historical facts, appellate 

courts review the trial court’s findings for clear error. Whether those 

facts suffice to meet the constitutional standards, however, is a question 

of law which appellate courts review independently of the trial court’s 

determination.

2. Motions for New Trial: Prosecuting Attorneys: Appeal and Error.

An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion of the trial court.

3. Motions for Mistrial: Appeal and Error. An appellate court will not 

disturb a trial court’s decision whether to grant a motion for mistrial 

unless the court has abused its discretion.

4. Rules of Evidence: Other Acts. An appellate court reviews for abuse 

of discretion a trial court’s evidentiary rulings on the admissibility of 

a defendant’s other crimes or bad acts under Neb. Rev. Stat. § 27-404 

(Reissue 2016), or under the inextricably intertwined exception to 

the rule.

5. Miranda Rights. The U.S. Supreme Court in Miranda v. Arizona, 384 

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), adopted a set of 

safeguards to protect suspects during modern custodial interrogations.

6. ____. The safeguards under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 

1602, 16 L. Ed. 2d 694 (1966), are implicated whenever a person is in 

custody and interrogated.

Nebraska Supreme Court Online Library

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

07/21/2020 12:07 AM CDT
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STATE v. CAVITTE

Cite as 28 Neb. App. 601

7. Miranda Rights: Self-Incrimination. When a custodial interrogation 

occurs in the absence of Miranda-style procedural safeguards, an arrestee’s self-incriminating statements are inadmissible in court.

8. Miranda Rights. Miranda warnings, once given, are not to be accorded 

unlimited efficacy or perpetuity.

9. Miranda Rights: Constitutional Law: Time. A suspect need not be 

advised of his or her constitutional rights more than once unless the time 

of warning and the time of subsequent interrogation are too remote in 

time from one another.

10. Miranda Rights: Waiver. A valid Miranda waiver must be voluntary 

in the sense that it was the product of a free and deliberate choice made 

with a full awareness of both the nature of the right being abandoned 

and the consequences of the decision to abandon it.

11. ____: ____. In determining whether a waiver of Miranda rights is 

knowingly and voluntarily made, a court applies a totality of the circumstances test, and factors to be considered include the suspect’s age, 

education, intelligence, prior contact with authorities, and conduct.

12. Confessions: Police Officers and Sheriffs. In determining whether an 

accused’s statement was given freely and voluntarily, courts examine the 

tactics used by the police and the details of the interrogation.

13. ____: ____. While intoxication is relevant to determining whether police 

conduct amounted to coercion of a confession, intoxication does not 

automatically render a confession involuntary.

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

a claim of prosecutorial misconduct, appellate courts first consider 

whether the prosecutor’s acts constitute misconduct.

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

not mislead and unduly influence the jury is not misconduct.

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

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

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

fair trial.

17. Trial: Prosecuting Attorneys. Public prosecutors are charged with the 

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

have a fair and impartial trial.

18. Trial: Prosecuting Attorneys: Words and Phrases. Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical 

standards for various contexts because the conduct will or may undermine a defendant’s right to a fair trial.

19. Judgments: Appeal and Error. A correct result will not be set aside 

merely because the trial court applied the wrong reasoning in reaching 

that result.
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STATE v. CAVITTE

Cite as 28 Neb. App. 601

20. Rules of Evidence: Other Acts. Inextricably intertwined evidence 

includes evidence that forms part of the factual setting of the crime, or 

evidence that is so blended or connected to the charged crime that proof 

of the charged crime will necessarily require proof of the other crimes or 

bad acts, or if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.

Appeal from the District Court for Douglas County: Thomas 

A. Otepka, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

Bethany R. Stensrud for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

Riedmann, Judge.

I. INTRODUCTION

Augustine L. Cavitte appeals her conviction following a 

jury trial in the district court for Douglas County of one count 

of second degree domestic assault. On appeal, she argues the 

court erred in overruling her motions for a mistrial and a new 

trial, in admitting evidence of her prior bad acts, and in denying her pretrial motion to suppress. For the reasons set forth 

below, we affirm.

II. BACKGROUND

In May 2018, Cavitte was charged in the county court for 

Douglas County with one count of domestic assault in the 

second degree, in violation of Neb. Rev. Stat. § 28-323(2) 

and (6) (Reissue 2016), a Class IIIA felony, following an 

altercation with her husband. Cavitte was subsequently bound 

over to the district court for Douglas County, where she 

was charged by information with the same count. She filed 

a motion to suppress her statements made to law enforcement on the night of the incident, arguing that the statements 
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STATE v. CAVITTE

Cite as 28 Neb. App. 601

were obtained in violation of her rights under the U.S. and 

Nebraska Constitutions.

At the hearing on Cavitte’s motion to suppress, the State 

adduced testimony from Sgt. Cody Baines of the Omaha 

Police Department. Baines testified that on the evening of 

April 30, 2018, he responded to a call stating that a female 

had stabbed a male. When he arrived at the scene, Cavitte 

was handcuffed and placed in the back of a police cruiser, 

while the victim was transported for medical attention. Baines 

questioned Cavitte while she was in the police cruiser, inquiring as to her name, the victim’s name, their relationship, and 

a brief description of what occurred. Her Miranda rights 

were then administered and questioning continued. Baines’ 

questioning of Cavitte is laid out in greater detail in the 

analysis section below. Baines informed the court that while 

he was questioning Cavitte, it appeared that she had been 

crying and there was a moderate odor of alcohol emanating 

from her.

The State also provided testimony from Det. Derrick 

Kreikemeier, who interviewed Cavitte at the police headquarters. Prior to interviewing her, Kreikemeier inquired of 

Cavitte whether she remembered her Miranda rights previously administered or whether she needed them read again. 

She indicated she remembered, and Kreikemeier proceeded to 

interview her without reading them to her again. After initially 

telling Kreikemeier a false story, Cavitte told him that she had 

been staying at her husband’s apartment for 3 days to work 

on marital issues. She became angry with him when he told 

her that he had been having an affair, and she grabbed a small 

knife and “glazed” him on the head with it. After “glazing” 

him, the two wrestled until she realized he was bleeding. She 

then wrapped his head in an article of clothing. Kreikemeier 

testified that he noticed an odor of alcohol on Cavitte and 

she was emotional, but that she appeared to be appropriately 

answering his questions. Kreikemeier also admitted that he 

had to redirect Cavitte multiple times during the interview. 
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STATE v. CAVITTE

Cite as 28 Neb. App. 601

Additional details regarding Kreikemeier’s interview with 

Cavitte are provided below.

Following the suppression hearing, the district court overruled Cavitte’s motion to suppress. The court determined that 

Cavitte was properly arrested, she was advised of her Miranda

rights, and she knowingly and voluntarily waived her Miranda

rights. A jury trial was held in March 2019. Prior to the 

start of trial, a discussion was held among the State, defense 

counsel, and the court regarding a statement Cavitte made 

to Kreikemeier that the abuse between her and her husband 

was “50/50.” Defense counsel argued that the statement was 

improper under Neb. Rev. Stat. § 27-404 (Reissue 2016). The 

court disagreed, stating that the issue was discussed in chambers, its ruling had not changed, and it did not find that the 

statement was barred by § 27-404.

At trial, Baines and Kreikemeier testified consistently with 

their testimony at the suppression hearing. The State also 

offered into evidence audio recordings of Cavitte’s telephone 

calls from jail following the altercation, as well as testimony 

from her husband’s treating physician, who testified that her 

husband had four lacerations on his head which were not deep. 

Cavitte’s defense consisted of testimony from an expert witness on domestic violence and intimate partner abuse, who 

testified generally regarding the nature of a relationship involving domestic violence. Cavitte also testified in her own behalf, 

stating that she “glazed” her husband in self-defense, after he 

choked and punched her. Cavitte was found guilty of second 

degree domestic assault and was sentenced to 3 years’ probation. She timely appealed.

III. ASSIGNMENTS OF ERROR

Cavitte assigns, restated, that the district court erred by (1) 

overruling her motion to suppress, (2) denying her motion for 

a mistrial and her motion for a new trial based on prosecutorial 

misconduct, and (3) admitting evidence of her prior bad acts 

under § 27-404.
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STATE v. CAVITTE

Cite as 28 Neb. App. 601

IV. STANDARD OF REVIEW

[1] In reviewing a motion to suppress a confession based on 

the claimed involuntariness of the statement, including claims 

that it was procured in violation of 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), we apply a 

two-part standard of review. State v. Rogers, 277 Neb. 37, 760 

N.W.2d 35 (2009). With regard to historical facts, we review 

the trial court’s findings for clear error. Id. Whether those facts 

suffice to meet the constitutional standards, however, is a question of law which we review independently of the trial court’s 

determination. Id.

[2,3] An appellate court reviews a motion for new trial on 

the basis of prosecutorial misconduct for an abuse of discretion 

of the trial court. State v. McSwine, 292 Neb. 565, 873 N.W.2d 

405 (2016). An appellate court will not disturb a trial court’s 

decision whether to grant a motion for mistrial unless the court 

has abused its discretion. State v. Gonzales, 294 Neb. 627, 884 

N.W.2d 102 (2016).

[4] An appellate court reviews for abuse of discretion a trial 

court’s evidentiary rulings on the admissibility of a defendant’s 

other crimes or bad acts under § 27-404, or under the inextricably intertwined exception to the rule. State v. Burries, 297 Neb. 

367, 900 N.W.2d 483 (2017).

V. ANALYSIS

1. Miranda Violations

Cavitte argues that the district court erred in overruling her 

motion to suppress statements made in violation of her rights 

under the Fifth Amendment to the U.S. Constitution and article 

I, section 7, of the Nebraska Constitution. Specifically, Cavitte 

alleges that the court erred in failing to suppress her statements 

made prior to receiving the Miranda warning, failing to suppress her statements made after receiving the Miranda warning, and in finding that her Miranda waiver was given knowingly, voluntarily, and intelligently. We disagree.
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STATE v. CAVITTE

Cite as 28 Neb. App. 601

(a) Pre-Miranda Statements

Cavitte argues that the district court erred in not suppressing statements she made while in custody in the police cruiser 

because she had not been advised of her rights pursuant to 

Miranda v. Arizona, supra. We disagree.

[5-7] The Miranda Court adopted a set of safeguards to 

protect suspects during modern custodial interrogations, which 

have also been implemented through Nebraska courts. State v. 

Williams, 26 Neb. App. 459, 920 N.W.2d 868 (2018). These 

safeguards are implicated whenever a person is in custody 

and interrogated. Id. It is undisputed that a person who is 

handcuffed and placed in a police cruiser’s back seat is in 

custody. State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 

(2010). When a custodial interrogation occurs in the absence 

of Miranda-style procedural safeguards, an arrestee’s selfincriminating statements are inadmissible in court. See State v. 

Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).

Baines began questioning Cavitte at 12:10 a.m. while she 

was handcuffed in the back of his police cruiser, and he asked 

about her living arrangements, her relationship with her husband, and her injuries. After Cavitte informed him that she 

did not know she had any injuries, Baines asked, “If they 

happened, and they did happen, how do you think they happened?” Cavitte then responded that it was “a disagreement.” 

Baines then questioned, “A disagreement with your husband? 

What did you guys disagree about?” Cavitte informed him 

that “we’ve been going through a lot in our marriage.” Baines 

next stated, “You guys still love each other and it’s tough, I 

understand,” which prompted Cavitte to state that they had 

been married two times. Baines then requested another officer 

help him with the rights advisory and read Cavitte her Miranda

rights at 12:12 a.m.

Cavitte asserts her statements that a “disagreement” occurred 

and that “we hurt each other” were incriminating statements. 

We disagree. First, although Cavitte asserts she stated that 

“we hurt each other” in response to Baines’ questioning, and 
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STATE v. CAVITTE

Cite as 28 Neb. App. 601

Baines agreed with Cavitte’s attorney’s recitation of Cavitte’s 

responses at the suppression hearing, our review of the audio 

recording of Baines’ questioning of Cavitte does not reveal she 

stated that “we hurt each other” prior to her Miranda rights 

being given.

Further, even if Cavitte did state that “we hurt each other” in 

response to Baines’ question about the nature of the disagreement between Cavitte and her husband, neither that statement 

nor Cavitte’s assertion that a disagreement occurred is incriminating because Baines was questioning her about how she suffered her own injuries. The questions asked by Baines did not 

reference Cavitte’s husband’s injuries or whether Cavitte had 

caused his injuries.

Other jurisdictions have found that a law enforcement officer’s pre-Miranda questions regarding a suspect’s apparent 

injuries are valid. See, State v. Ramos, 317 Conn. 19, 31, 114 

A.3d 1202, 1209 (2015) (police officer’s question of “‘what 

happened to you?’” made to defendant covered with blood 

was not to elicit incriminating response); Archanian v. State, 

122 Nev. 1019, 145 P.3d 1008 (2006) (inquiry into suspect’s 

medical condition not likely to elicit incriminating response); 

Johnson v. State, 269 Ind. 370, 377, 380 N.E.2d 1236, 1240 

(1978) (officer’s question of “what happened” to defendant 

with blood on face was valid). Therefore, because Baines’ 

question of “how do you think [your injuries] happened?” was 

not intended to elicit an incriminating response, but, rather, 

was meant to inquire into Cavitte’s welfare, it was not a 

Miranda violation.

Cavitte argues that Baines’ question was similar to that in 

State v. Juranek, 287 Neb. 846, 849, 844 N.W.2d 791, 797 

(2014), where the officer asked, “‘Do you want to tell it to 

me?’” before providing the suspect with his Miranda rights, 

which the court determined was a Miranda violation. However, 

in Juranek, directly before the officer asked, “‘Do you want 

to tell it to me?’” the suspect had stated that he had already 

told “‘it,’” meaning his confession, to another officer “‘14 
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times.’” 287 Neb. at 849, 844 N.W.2d at 797. Thus, the court 

determined that the officer’s use of the word “it” referred to 

the suspect’s confession, which the officer should have known 

would likely elicit an incriminating response. Id. Here, Baines’ 

question was in reference to Cavitte’s injuries and how she 

obtained them; they were not intended to elicit an incriminating response.

Accordingly, the district court did not err in receiving 

Cavitte’s pre-Miranda statements.

(b) Post-Miranda Statements

Cavitte also asserts that her statements made to Kreikemeier 

should have been suppressed, because the statements were 

made during the continuation of a custodial interrogation 

begun before the Miranda warning was administered. Cavitte’s 

argument that her post-Miranda statements should have been 

suppressed is predicated on the argument that her pre-Miranda

statements were a confession. However, as stated above, we 

do not find her pre-Miranda statements to have been a confession. Nonetheless, we address Cavitte’s argument that 

her post-Miranda confession should have been suppressed. 

We disagree.

Cavitte bases her argument on Missouri v. Seibert, 542 U.S. 

600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), in which 

the U.S. Supreme Court addressed the two-step interrogation 

technique of (1) giving Miranda warnings only after an interrogation has produced a confession and then (2) questioning 

the suspect so as to cover the same ground a second time, but 

with Miranda warnings in place. See State v. Juranek, supra. 

A plurality of the U.S. Supreme Court concluded that “when 

Miranda warnings are inserted in the midst of coordinated 

and continuing interrogation, they are likely to mislead and 

‘depriv[e] a defendant of knowledge essential to his ability to 

understand the nature of his rights and the consequences of 

abandoning them.’” See Missouri v. Seibert, 542 U.S. at 613-

14 (quoting Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 
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89 L. Ed. 2d 410 (1986)). Accord State v. Juranek, supra. The 

plurality explained that when a suspect is advised of his or 

her Miranda rights in the middle of an interrogation, the issue 

becomes whether the warnings effectively advised that he or 

she “could choose to stop talking even if he [or she] had talked 

earlier.” See Missouri v. Seibert, 542 U.S. at 612. Accord State 

v. Juranek, supra. Of particular significance to the Court’s 

conclusion that the pre-Miranda confession made the later 

Miranda warnings ineffective was the fact that questioning 

before the Miranda warnings was “systematic, exhaustive, and 

managed with psychological skill” to such an extent that after 

the unwarned interrogation, “there was little, if anything, of 

incriminating potential left unsaid.” See Missouri v. Seibert, 

542 U.S. at 616. Accord State v. Juranek, supra.

In State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014), 

the Nebraska Supreme Court determined that the Miranda

warning issued during an interrogation, but after incriminating statements had been made, did not invalidate the postMiranda statements because the initial interrogation consisted 

of one question that was not focused on the key points of the 

investigation. In State v. Clifton, 296 Neb. 135, 892 N.W.2d 

112 (2017), the court found that the defendant was questioned 

for 5 minutes prior to receiving the Miranda warning, mostly 

about background information, and the defendant did not make 

any incriminating statements; thus, the post-Miranda confession was valid. Finally, in State v. Williams, 26 Neb. App. 

459, 920 N.W.2d 868 (2018), this court held that the defend

ant’s post-Miranda confession was admissible because his preMiranda statements did not go to many of the key points of the 

investigation.

Here, as iterated above, Cavitte did not make any incriminating statements to Baines before receiving the Miranda

warning. Thus, as in State v. Clifton, supra, her post-Miranda

confession was admissible. Even if we were to find that Cavitte 

made incriminating statements to Baines, her post-Miranda

confession to Kreikemeier would not be void, because Baines’ 
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questioning did not go to the key points of the investigation. 

Baines merely asked how Cavitte was injured and what the 

nature of her disagreement was with her husband. Her confession to Kreikemeier was much more detailed and was not simply a restatement of her “confession” to Baines.

Cavitte further asserts that her confession to Kreikemeier 

should have been suppressed because Kreikemeier did not 

re-administer the Miranda warning to her prior to questioning 

her. We disagree.

First, while Kreikemeier did not provide Cavitte with her 

Miranda rights, he ensured that she recalled the rights advisory that Baines went over with her. At the start of the 

interview, Cavitte made a statement about the length of her 

relationship with her husband. Before asking any questions, 

Kreikemeier asked her if she remembered the rights advisory 

form that the officers at the scene went over with her. Cavitte 

nodded her head and indicated that she did. Kreikemeier 

again asked if she recalled the rights or if he needed to go 

over them again with her. Cavitte asked, “If I say I recall 

does that mean I’m going to jail?” After informing Cavitte 

that he was there to get her side of the story, Kreikemeier 

again asked if she recalled the rights advisory and informed 

her that if she did not recall, he would go over the rights with 

her again. Cavitte once again indicated that she recalled the 

rights advisory.

[8,9] Miranda warnings, once given, are not to be accorded 

unlimited efficacy or perpetuity. In re Interest of Miah S., 290 

Neb. 607, 861 N.W.2d 406 (2015). However, a suspect need 

not be advised of his or her constitutional rights more than 

once unless the time of warning and the time of subsequent 

interrogation are too remote in time from one another. Id. 

There is no fixed time limit as to how much time must pass 

before the warnings are ineffective. Id. Thus, in In re Interest 

of Miah S., supra, the Supreme Court determined that 24 hours 

between the Miranda warning and subsequent interrogation did 

not render the warning ineffective.
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The Supreme Court also enunciated several factors to consider whether a Miranda warning has expired, including:

“(1) the length of time between the giving of the first 

warnings and subsequent interrogation . . . ; (2) whether 

the warnings and the subsequent interrogation were given 

in the same or different places . . . ; (3) whether the 

warnings were given and the subsequent interrogation 

conducted by the same or different officers . . . ; (4) the 

extent to which the subsequent statement differed from 

any previous statements . . . ; (5) the apparent intellectual 

and emotional state of the suspect.”

In re Interest of Miah S., 290 Neb. at 615, 861 N.W.2d at 414. 

See, also, State v. Williams, 26 Neb. App. 459, 920 N.W.2d 868 

(2018) (citing Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 

2601, 159 L. Ed. 2d 643 (2004)).

When examining the above factors, it is clear the district 

court did not err in overruling Cavitte’s motion to suppress. 

First, the interrogations took place roughly 2 hours apart, 

which is a far shorter period than the 24 hours deemed proper 

in In re Interest of Miah S., supra. Next, and importantly, 

prior to questioning Cavitte, Kreikemeier asked multiple times 

whether she recalled the rights advisory Baines issued to her 

and told her that if she did not, Kreikemeier would go over 

it with her. Cavitte responded that she remembered the rights 

advisory and did not need to hear it again.

The Supreme Court in In re Interest of Miah S., supra, 

found the juvneile defendant’s insistence that he recalled the 

Miranda warning was a strong factor in determining that the 

warnings were still fresh. Although Cavitte was questioned by 

different officers and in different locations, both Baines and 

Kreikemeier were part of the same law enforcement department and questioned her regarding the same offense; thus, 

there was less risk of confusion than if the officers were from 

different agencies or questioned the suspect about separate 

offenses. See In re Interest of Miah S., supra. Therefore, in 

light of the fact that just a short period of time had passed 
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between the time Cavitte received the Miranda warning and 

when she was questioned by Kreikemeier, and because she 

indicated to Kreikemeier that she recalled her rights and did 

not need the advisory again, Kreikemeier was not required to 

administer Miranda warnings a second time to Cavitte.

Accordingly, the district court did not err in overruling 

Cavitte’s motion to suppress her post-Miranda statements.

(c) Valid Waiver of Rights

Finally, Cavitte argues that the district court erred in overruling her motion to suppress because she was intoxicated and 

did not knowingly, intelligently, and voluntarily waive her 

Fifth Amendment rights. We disagree.

[10,11] Miranda warnings are a prerequisite to interrogation, and fundamental with respect to the Fifth Amendment 

privilege. See State v. Burries, 297 Neb. 367, 900 N.W.2d 

483 (2017). Miranda rights can be waived if the suspect does 

so knowingly and voluntarily. State v. Burries, supra. A valid 

Miranda waiver must be voluntary in the sense that it was the 

product of a free and deliberate choice and made with a full 

awareness of both the nature of the right being abandoned 

and the consequences of the decision to abandon it. State v. 

Burries, supra. In determining whether a waiver is knowingly 

and voluntarily made, a court applies a totality of the circumstances test, and factors to be considered include the suspect’s 

age, education, intelligence, prior contact with authorities, and 

conduct. Id.

[12,13] In determining whether an accused’s statement was 

given freely and voluntarily, courts examine the tactics used 

by the police and the details of the interrogation. See State 

v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). Other 

relevant factors include any characteristics of the accused 

known to police, which might cause his or her will to be easily 

overborne, such as a defendant’s mental state or intoxication. 

Id. However, while intoxication is relevant to determining 

whether police conduct amounted to coercion, intoxication 
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does not automatically render a confession involuntary. Id. 

Concerning intoxication, the Supreme Court has stated that 

the defendant must be so intoxicated that he or she is unable 

to understand the meaning of his or her statements. State v. 

Williams, 269 Neb. 917, 697 N.W.2d 273 (2005). If the trial 

judge is satisfied that under the totality of the circumstances 

the defendant was able to reason, comprehend, or resist, the 

statements are to be admitted. Id.

Here, the district court determined that Cavitte was not 

intoxicated to the point that her waiver of her Miranda rights 

was invalid. The court found that Cavitte did not give any 

indication to Baines or Kreikemeier that she did not understand her rights, that her off-topic statements and mumbled 

answers did not render her confession involuntary, and that 

neither Baines nor Kreikemeier used coercive actions to overbore Cavitte’s free will. Based on the record before us, we do 

not find that the district court erred in overruling Cavitte’s 

motion to suppress.

The video taken from inside the police cruiser indicates 

that Baines was calm and polite when questioning Cavitte 

and that Cavitte’s responses were appropriate to the questions 

asked. Cavitte did not give any indication that she did not 

understand her rights when Kreikemeier asked her whether 

she remembered when Baines previously advised her of her 

rights. Further, while both Baines and Kreikemeier indicated 

that Cavitte had an odor of alcohol emanating from her, and 

Cavitte informed Kreikemeier that she had been drinking, 

neither officer found her to be intoxicated to the point she did 

not understand their questions. The record reflects this assertion, as Cavitte generally provided appropriate answers to the 

questions asked. The district court determined that, although 

Cavitte did have to be redirected occasionally by Kreikemeier, 

she was coherent and able to understand the questions posed 

to her.

On appeal, Cavitte asserts that the coercive tactics 

employed by Kreikemeier, including the size of the interview 
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room and the fact that Kreikemeier lied to her and used profanity, combined with her intoxication, overcame her free 

will. The district court, after examining the evidence and 

observing the witnesses, determined that coercive tactics were 

not used. This was not clearly erroneous. As iterated above, 

Kreikemeier did not coerce her to speak with him by offering leniency or using threats. Based on the evidence before 

us, the district court did not err in determining that Cavitte’s 

waiver of her Miranda rights was done knowingly, intelligently, and voluntarily.

The district court did not err in overruling Cavitte’s motion 

to suppress, because she did not provide an incriminating 

statement prior to receiving a Miranda warning and her postMiranda confession was not invalid. Further, the record indicates that Cavitte knowingly, intelligently, and voluntarily 

waived her Miranda rights.

2. Prosecutorial Misconduct

Cavitte asserts that the district court erred by overruling her 

motion for a mistrial and her motion for a new trial based upon 

prosecutorial misconduct by the State. We disagree, and we 

find that the district court did not abuse its discretion in overruling Cavitte’s motions.

During its closing argument, the State argued that Cavitte 

had given a variety of different stories and that now it came 

down to what the jury should believe. Referencing the different 

versions of events, it framed Cavitte’s defense as follows:

Believe me then, but don’t believe me now? Believe 

me as I stand up here and testify to my own story that’s 

not making sense, ten and a half months after this took 

place when I was in an interview room with a detective 

for over an hour and during no time did I state anything 

about [my hisband’s] using any threats against me, [his] 

using any force against me, prior to me cutting him?

Later in its closing, the State emphasized, “And nowhere in 

the ten and a half months leading up to this trial was there 
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any evidence that she tried to reach out to law enforcement to 

change her story.” And again, stating:

It doesn’t make sense that [Cavitte], mere hours after 

the assault and after being in contact with law enforcement for hours, intending to get her side of the story from 

her, is just now informing us of this self-defense ten and 

a half months after the assault took place. And even when 

she’s questioned about what happened, then she backtracks and isn’t able to remember what happened.

After the State finished its closing argument, Cavitte moved 

for a mistrial, asserting that the State was attempting to use 

her silence regarding her claim of self-defense against her 

and shifting the burden of proving self-defense to her. The 

court denied the motion. After trial, Cavitte filed a motion 

for a new trial, arguing, in relevant part, misconduct of the 

prosecuting attorney which prevented her from having a fair 

trial. The court subsequently overruled the motion for a new 

trial, finding that the State did not shift the burden of proving 

self-defense to Cavitte and did not improperly comment on her 

postarrest silence.

[14-16] When considering a claim of prosecutorial misconduct, we first consider whether the prosecutor’s acts constitute 

misconduct. State v. McSwine, 292 Neb. 565, 873 N.W.2d 

405 (2016). A prosecutor’s conduct that does not mislead and 

unduly influence the jury is not misconduct. Id. But if we conclude that a prosecutor’s acts were misconduct, we next consider whether the misconduct prejudiced the defendant’s right 

to a fair trial. Id.

[17,18] Public prosecutors are charged with the duty to 

conduct criminal trials in such a manner that the accused may 

have a fair and impartial trial. State v. Gonzales, 294 Neb. 627, 

884 N.W.2d 102 (2016). While a prosecutor should prosecute 

with “‘earnestness and vigor’” and “‘may strike hard blows, 

he is not at liberty to strike foul ones.’” Id. at 645, 884 N.W.2d 

at 117. Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts 
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because the conduct will or may undermine a defendant’s right 

to a fair trial. State v. Dubray, 289 Neb. 208, 854 N.W.2d 

584 (2014). Prosecutors are charged with the duty to conduct 

criminal trials in such a manner that the accused may have 

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

the prejudices or excite the passions of the jury against the 

accused. Id.

While prosecutors are prohibited from stating a personal 

opinion as to the credibility of a witness, or the guilt or innocence of an accused, they are permitted to present a spirited 

summation that a defense theory is illogical or unsupported 

by the evidence and to highlight the relative believability of 

witnesses for the State and the defense, when their comments 

rest on reasonably drawn inferences from the evidence. State 

v. Gonzales, supra (citing State v. Dubray, supra). Thus, in 

cases where the prosecutor comments on the theory of defense, 

the defendant’s veracity, or the defendant’s guilt, the prosecutor crosses the line into misconduct only if the prosecutor’s 

comments are expressions of the prosecutor’s personal beliefs 

rather than a summation of the evidence. Id.

As indicated above, the State’s comments during closing, 

when examined in the context of the full trial, were in reference to Cavitte’s multiple versions of her story that she told 

law enforcement officers; thus, her credibility was called 

into question. Such comments went to the veracity of her 

defense and her credibility, and they were not prosecutorial 

misconduct.

On appeal, Cavitte argues that the State’s comments throughout the case infringed on her right against self-incrimination 

and improperly shifted the burden to her to prove self-defense. 

She asserts that the State’s comments were similar to comments made by the State in State v. Lofquest, 227 Neb. 567, 

418 N.W.2d 595 (1988), and State v. Rocha, 295 Neb. 716, 890 

N.W.2d 178 (2017). We disagree.

Cavitte’s argument that the State improperly commented on 

her post-Miranda silence regarding her defense of self-defense 
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is derived from the U.S. Supreme Court’s holding in Doyle 

v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). 

In Doyle, the petitioners were arrested for selling marijuana 

and did not make any statements about their involvement in 

the crime after receiving Miranda warnings. At trial, the petitioners testified they were framed by a government informant. 

Id. On cross-examination, the prosecutor repeatedly inquired 

why the petitioners did not inform police of their explanation for their offense following their arrest. Id. The Court 

held that prosecutors were prohibited from using a defend

ant’s post-Miranda silence for impeachment purposes. Doyle 

v. Ohio, supra.

The U.S. Supreme Court later distinguished Doyle from 

scenarios where a defendant did not exercise his or her right 

to remain silent, but, rather, provided law enforcement with 

a different story than what was later testified to at trial. In 

Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. 

Ed. 2d 222 (1980), the respondent was arrested and charged 

with first degree murder after he was discovered driving the 

victim’s stolen vehicle. After being arrested and receiving his 

Miranda warning, the respondent informed officers that he 

stole the vehicle from the street about 2 miles from a local 

bus station. Anderson v. Charles, supra. However, at trial, the 

respondent stated that he stole the unattended vehicle from a 

parking lot directly next to the bus station. Id. The Court held 

that it was not improper for the prosecutor to question the 

respondent regarding his past inconsistent statements made 

after receiving a Miranda warning. Anderson v. Charles, supra. 

Distinguishing Doyle, the Court stated:

Doyle bars the use against a criminal defendant of 

silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that 

merely inquires into prior inconsistent statements. Such 

questioning makes no unfair use of silence, because a 

defendant who voluntarily speaks after receiving Miranda 

warnings has not been induced to remain silent. As to the 
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subject matter of his statements, the defendant has not 

remained silent at all.

Anderson v. Charles, 447 U.S. at 408.

The Court’s holding in Anderson v. Charles, supra, has 

been applied in similar factual scenarios as the present case in 

numerous federal and state courts. See, U.S. v. May, 52 F.3d 

885 (10th Cir. 1995); Phelps v. Duckworth, 772 F.2d 1410 

(7th Cir. 1985) (defendant did not remain silent after Miranda

warning; thus, prosecutors’ questions about inconsistent stories 

did not violate Doyle v. Ohio, supra); Lofton v. Wainwright, 

620 F.2d 74 (5th Cir. 1980) (not improper for prosecutors to 

use defendant’s post-Miranda statements to contradict inconsistent trial testimony); State v. McReynolds, 288 Kan. 318, 202 

P.3d 658 (2009).

Here, Cavitte did not exercise her right to remain silent 

after receiving the Miranda warning. Rather, she confessed to 

Kreikemeier that she became angry with her husband when he 

told her that he had been having an affair and “glazed” him 

in the head. However, at trial, she testified that she was acting in self-defense after he choked and punched her. Thus, her 

inconsistent statements are not governed by Doyle v. Ohio, 

supra, but by Anderson v. Charles, supra. Accordingly, the 

State’s comments during closing argument and throughout trial 

regarding Cavitte’s credibility and inconsistent stories do not 

constitute misconduct.

[19] Although the district court denied Cavitte’s motion 

for a new trial under an analysis of Doyle v. Ohio, supra, and 

not Anderson v. Charles, supra, it reached the correct result 

that the State’s comments were not improper. A correct result 

will not be set aside merely because the trial court applied the 

wrong reasoning in reaching that result. State v. Kolbjornsen, 

295 Neb. 231, 888 N.W.2d 153 (2016).

In light of the above, Cavitte’s reliance on State v. Lofquest, 

227 Neb. 567, 418 N.W.2d 595 (1988), in which the court found 

the prosecutor’s references to the defendant’s post-Miranda

silence, specifically that the defendant did not inform law 
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enforcement of his story, which would have enabled them to 

corroborate his version of events, were improper because they 

violated Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. 

Ed. 2d 91 (1976), is misplaced. As iterated above, Cavitte did 

not exercise her right to remain silent; thus, the State was not 

impermissibly commenting on her post-Miranda silence, but, 

rather, it was attacking her credibility due to the inconsistent 

versions of the altercation she provided.

Cavitte’s reliance on State v. Rocha, 295 Neb. 716, 890 

N.W.2d 178 (2017), as it relates to burden shifting is equally 

misplaced. In Rocha, the Supreme Court found that the State’s 

questioning of a witness regarding whether the defendant had 

conducted his own independent DNA and fingerprint testing 

was improper because it may have misled the jury to believe 

the defendant had the burden to produce evidence to prove his 

innocence. Here, the State did not place the burden on Cavitte 

to prove that she acted in self-defense. The State merely 

emphasized that the more credible version of her story was 

what she told Kreikemeier immediately following the incident, 

and not her version of the events told at trial.

Upon our review of the record, the district court did not 

abuse its discretion when it denied Cavitte’s motion for a 

mistrial and motion for a new trial because the State’s comments at issue did not constitute misconduct. Further, because 

the State did not commit prosecutorial misconduct, we do 

not need to address whether Cavitte was prejudiced by the 

alleged misconduct.

3. Inextricably Intertwined 

Evidence

Cavitte next argues that the district court erred by admitting evidence of her prior bad acts in violation of § 27-404. 

Specifically, Cavitte argues that her statement that the abuse 

between her and her husband was “50/50” was evidence of 

prior bad acts, and should have been excluded under § 27-404. 

We disagree.
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Section 27-404(2) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show 

that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.

[20] The Supreme Court has stated that § 27-404(2)’s list of 

permissible purposes is not exhaustive. State v. Burries, 297 

Neb. 367, 900 N.W.2d 483 (2017). Nonetheless, § 27-404(2) 

does not apply to evidence of a defendant’s other crimes or 

bad acts if the evidence is inextricably intertwined with the 

charged crime. State v. Burries, supra. Inextricably intertwined evidence includes evidence that forms part of the 

factual setting of the crime, or evidence that is so blended 

or connected to the charged crime that proof of the charged 

crime will necessarily require proof of the other crimes or 

bad acts, or if the other crimes or bad acts are necessary for 

the prosecution to present a coherent picture of the charged 

crime. Id.

In State v. Burries, supra, the defendant was convicted of 

first degree murder for killing his girlfriend. In his appeal, 

the defendant asserted that the trial court erred in admitting 

evidence of an assault of the victim committed by him 2 years 

before the murder. Id. The defendant argued that the evidence 

was prohibited by § 27-404(2). The Supreme Court found 

that the previous assault was inextricably intertwined with 

the murder because it was part of the factual setting of the 

murder. State v. Burries, supra. Specifically, the court found 

that while the defendant was in prison for the prior assault, he 

would call and threaten the victim; after being released from 

prison, he continued to threaten the victim; the victim had 

injuries consistent with an assault prior to her murder; and 

the defendant told police that he burned his clothes after the 

murder because they still had blood on them from the assault. 

Id. Thus, the court concluded that the evidence of the prior 
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assault was necessary to present a coherent picture of the 

murder. Id.

In the case before us, which is similar to State v. Burries, 

supra, the district court did not err in admitting Cavitte’s 

statement that the abuse between her and her husband was 

“50/50” because the statement was necessary to present a 

coherent picture of the assault. The State’s theory of the case 

was that Cavitte became angry after her husband informed 

her that he had been having an affair, and she then assaulted 

him. Cavitte’s theory at trial was that she and her husband 

began arguing and that he then choked and punched her, which 

led her to stab him. Therefore, the nature of the relationship 

between Cavitte and her husband, including the fact that each 

abused the other, was necessary to present a coherent picture 

of the assault.

Cavitte argues that her case is akin to State v. Woods, 6 Neb. 

App. 829, 577 N.W.2d 564 (1998), where this court found that 

the trial court erred by admitting evidence that the defendant 

had received controlled substances without a prescription on 

previous occasions. This court found that the evidence fell 

under the constraints of § 27-404 and that a hearing should 

have been held outside the presence of the jury to determine 

the admissibility of the evidence. Here, unlike in Woods, 

Cavitte’s statement that the abuse between her and her husband 

was “50/50” was necessary to understand the circumstances 

of the assault at issue. It was not referring to a specific past 

assault; rather, it was necessary to form a coherent picture of 

the relationship between Cavitte and her husband.

Cavitte also urges this court to follow the Supreme Court’s 

holding in State v. Ash, 286 Neb. 681, 838 N.W.2d 273 

(2013). In Ash, the court reversed the trial court’s receipt of 

evidence that the defendant had sold the victim’s jacket 2 days 

prior to his murder. The court determined that the selling of 

the victim’s jacket was not part of the factual setting for the 

murder and did not fall under the circumstances under which 

the court had previously applied the inextricably intertwined 
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exception. Id. However, in the case at bar, Cavitte’s statement 

that the abuse in the relationship occurred “50/50” was part 

of the factual setting of the offense, because it offered insight 

into the nature of Cavitte’s relationship with her husband; 

therefore, Ash is not instructive for our analysis.

Based on the record before us, and given the factual similarities between the present case and those of State v. Burries, 

297 Neb. 367, 900 N.W.2d 483 (2017), we find that the district court did not abuse its discretion in admitting Cavitte’s 

statement that the abuse between her and her husband was 

“50/50.”

VI. CONCLUSION

Having found no error in the orders and rulings challenged 

by Cavitte herein, we affirm her conviction.

Affirmed.