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297 Nebraska Report

STATE v. BURRIES

Cite as 297 Neb. 367

State of Nebraska, appellee, v.

Anthony L. Burries, appe

___ N.W.2d ___

Filed August 4, 2017. No. S-15-1008.

1. Appeal and Error. An appellate court independently decides questions 

of law presented on appeal.

2. Constitutional Law: Self-Incrimination: Appeal and Error. Whether 

a defendant voluntarily made a statement while in custody and whether 

a defendant unambiguously invoked his or her right to remain silent or 

to have counsel present are mixed questions of law and fact. An appellate court reviews a trial court’s finding of historical facts for clear error 

and independently determines whether those facts satisfy the constitutional standards.

3. 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.

4. 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.

5. ____: ____. An appellate court reviews for abuse of discretion a trial 

court’s evidentiary rulings on relevance, whether the probative value of 

evidence is substantially outweighed by the danger of unfair prejudice, 

and the sufficiency of a party’s foundation for admitting evidence.

6. 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. Evid. R. 404(2), Neb. 

Rev. Stat. § 27-404(2) (Reissue 2016), or under the inextricably intertwined exception to the rule.

7. Judgments: Words and Phrases. An abuse of discretion occurs when 

a trial court’s decision is based upon reasons that are untenable or 

Nebraska Supreme Court Online Library

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

09/29/2017 09:11 AM CDT
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unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.

8. Rules of Evidence: Appeal and Error. When judicial discretion is not 

a factor, whether the underlying facts satisfy the legal rules governing 

the admissibility of a proponent’s evidence is a question of law, subject 

to de novo review.

9. Rules of Evidence: Hearsay. Hearsay is not admissible except as provided by the Nebraska Evidence Rules.

10. 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 to 

admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

11. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement.

12. Effectiveness of Counsel: Appeal and Error. An appellate court 

determines as a matter of law whether the record conclusively shows 

that (1) a defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s alleged deficient performance.

13. Constitutional Law: Miranda Rights. The warnings required by 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966), are an absolute prerequisite to interrogation and fundamental 

with respect to the Fifth Amendment privilege.

14. Miranda Rights: Waiver: Proof. If a defendant seeks suppression of 

a statement because of an alleged violation of Miranda v. Arizona, 384 

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the State must prove 

that the defendant validly waived his or her Miranda rights by a preponderance of the evidence.

15. Miranda Rights: Waiver: Appeal and Error. An appellate court looks 

to the totality of the circumstances to determine whether a defendant 

validly waived his or her rights under Miranda v. Arizona, 384 U.S. 436, 

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A valid waiver must be made 

knowingly and voluntarily, 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. Factors to be considered include the suspect’s age, education, intelligence, prior contact with authorities, and conduct.
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16. Miranda Rights: Police Officers and Sheriffs. Law enforcement officers are not required to rewarn suspects from time to time of their 

rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 

L. Ed. 2d 694 (1966). The Miranda rule and its requirements are met 

if a suspect receives adequate Miranda warnings, understands them, 

and has an opportunity to invoke the rights before giving any answers 

or admissions.

17. Miranda Rights. The precise advisement language set out in Miranda 

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

not mandatory.

18. Right to Counsel: Waiver. The key inquiry in determining whether a 

defendant waived his or her right to counsel during an interrogation is 

whether the defendant was made sufficiently aware of his or her right to 

have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel.

19. Self-Incrimination: Right to Counsel: Waiver: Proof. Although an 

express written or oral statement of waiver of the right to remain silent 

or the right to counsel is usually strong proof of the validity of the 

waiver, it is not dispositive.

20. Effectiveness of Counsel. A defense counsel is not ineffective for failing to raise an argument that has no merit.

21. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a 

claim of ineffective assistance of counsel under Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant 

must show that his or her counsel’s performance was deficient and that 

this deficient performance actually prejudiced the defendant’s defense. 

An appellate court may address the two prongs of this test, deficient 

performance and prejudice, in either order.

22. Effectiveness of Counsel: Proof. To show prejudice under Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

the defendant must demonstrate a reasonable probability that but for 

counsel’s deficient performance, the result of the proceeding would have 

been different.

23. DNA Testing: Evidence. The relevance of DNA evidence depends on 

its tendency to include or exclude an individual as the source of a biological sample.

24. Expert Witnesses. A court should exclude an expert’s opinion when 

it gives rise to two conflicting inferences of equal probability, so the 

choice between them is a matter of conjecture.

25. Rules of Evidence: Expert Witnesses: DNA Testing. A DNA expert’s 

testimony that there may have been a minor contributor’s DNA in a biological sample is irrelevant evidence because it is not probative of the 

source of the DNA.
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26. Trial: DNA Testing: Evidence. A DNA expert’s inconclusive results 

that a defendant cannot be excluded as a minor contributor to a biological sample allows the jury to speculate that the defendant might have 

been the minor contributor when the expert fails to provide any statistical relevance for the detected alleles in relationship to the defendant’s 

DNA profile.

27. ____: ____: ____. The value of inconclusive DNA testing results is 

substantially outweighed by the danger that the evidence will mislead 

the jurors absent statistical evidence that will help them to assess 

whether a defendant is or is not the source of DNA found in a biological sample.

28. Postconviction: Effectiveness of Counsel: Appeal and Error. When 

a defendant’s appellate counsel is not the defendant’s trial counsel, the 

defendant must raise on direct appeal any claim that the trial counsel 

provided ineffective assistance, if the issue is known to the defendant or 

apparent from the record, in order to avoid a procedural bar to raising 

the claim later in a postconviction proceeding.

29. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must 

make specific allegations of the conduct that he or she claims constitutes 

deficient performance by a trial counsel when raising an ineffective 

assistance claim on direct appeal.

30. Trial: Effectiveness of Counsel: Records: Appeal and Error. The fact 

that an ineffective assistance of counsel claim is raised on direct appeal 

does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question. 

An ineffective assistance of counsel claim will not be addressed on 

direct appeal if it requires an evidentiary hearing.

31. Effectiveness of Counsel: Records: Appeal and Error. An appellate 

court will address a claim on direct appeal that a defendant’s trial counsel was ineffective only if the record is sufficient to adequately review 

the question.

32. Rules of Evidence: Other Acts. The list of permissible purposes under 

Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), is 

not exhaustive.

33. ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 

2016), does not apply to evidence of a defendant’s other crimes or bad 

acts if the evidence is inextricably intertwined with the charged crime.

34. ____: ____. 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.
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35. Homicide: Rules of Evidence: Other Acts: Time. Evidence of a 

murder defendant’s previous threat to the victim or statement to others 

showing a desire to harm or kill the victim are facts that are inextricably 

intertwined with the charged murder if the defendant made the threat or 

statement fairly close in time to the murder.

36. Criminal Law: Witnesses. A defendant’s attempted intimidation or 

intimidation of a State’s witness is evidence of the defendant’s conscious 

guilt that a crime has been committed and serves as a basis for an inference that the defendant is guilty of the crime charged.

37. Rules of Evidence: Other Acts: Proof. Pursuant to Neb. Evid. R. 

404(3), Neb. Rev. Stat. § 27-404(3) (Reissue 2016), before the prosecution can offer evidence of a criminal defendant’s extrinsic acts under 

rule 404(2), it must first prove to the trial court, by clear and convincing 

evidence and outside the jury’s presence, that the defendant committed 

the act.

38. ____: ____: ____. Upon objection to evidence offered under Neb. Evid. 

R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), the proponent 

must state on the record the specific purpose or purposes for which the 

evidence is being offered, and the trial court must similarly state the 

purpose or purposes for which it is receiving the evidence. A trial court 

must then consider whether the evidence is independently relevant, 

which means that its relevance does not depend upon its tendency to 

show propensity.

39. Rules of Evidence: Other Acts. Evidence offered under Neb. Evid. R. 

404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), is subject to the 

overriding protection of Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), which requires a trial court to consider whether the probative value of the evidence is substantially outweighed by the danger 

of unfair prejudice.

40. Trial: Rules of Evidence: Other Acts: Juries. When requested, the 

trial court must instruct the jury on the specific purpose or purposes for 

which it is admitting the extrinsic acts evidence under Neb. Evid. R. 

404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), to focus the jurors’ 

attention on that purpose and ensure that it does not consider it for an 

improper purpose.

41. Trial: Rules of Evidence: Other Acts: Appeal and Error. A proponent’s clear explanation for evidence offered under Neb. Evid. R. 

404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), ensures that a trial 

court has an opportunity to examine the evidence for its independent 

relevance and the potential for unfair prejudice. The requirement that 

the trial court state on the record the purpose or purposes for which such 

evidence is received is primarily to ensure that an appellate court can 

review the trial court’s ruling.
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42. Rules of Evidence: Proof. Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 

(Reissue 2016), requires authentication or identification of evidence sufficient to support a finding that a matter is what the proponent claims as 

a condition precedent for admission.

43. ____: ____. Authentication or identification under Neb. Evid. R. 901, 

Neb. Rev. Stat. § 27-901 (Reissue 2016), is not a high hurdle. A proponent is not required to conclusively prove the genuineness of the 

evidence or to rule out all possibilities inconsistent with authenticity. If 

the evidence is sufficient to support a finding that the evidence is what 

it purports to be, the rule is satisfied.

44. Circumstantial Evidence. The identity of a participant in a telephone 

conversation may be established by circumstantial evidence such as the 

circumstances preceding or following the telephone conversation.

45. Hearsay: Words and Phrases. Hearsay is a statement, other than one 

made by the declarant while testifying at the trial or hearing, offered to 

prove the truth of the matter asserted.

46. Hearsay. A declarant’s out-of-court statement offered for the truth of the 

matter asserted is inadmissible unless it falls within a definitional exclusion or statutory exception.

47. Rules of Evidence: Hearsay. The hearsay exception under Neb. Evid. 

R. 803(1), Neb. Rev. Stat. § 27-803(1) (Reissue 2016), for 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,” comprises excited utterances.

48. ____: ____. Excited utterances are an exception to the hearsay rule, 

because the spontaneity of excited utterances reduces the risk of inaccuracies inasmuch as the statements are not the result of a declarant’s 

conscious effort to make them. The justification for the excited utterance 

exception is that circumstances may produce a condition of excitement 

which temporarily stills the capacity for reflection and produces utterances free of conscious fabrication.

49. Rules of Evidence: Hearsay: Proof. For a statement to be an excited 

utterance, the following criteria must be met: (1) There must be a startling event, (2) the statement must relate to the event, and (3) the declarant must have made the statement while under the stress of the event.

50. Rules of Evidence: Hearsay: Time. An excited utterance may be subsequent to the startling event if there was not time for the exciting influence to lose its sway. The true test for an excited utterance 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.

51. Rules of Evidence: Hearsay: Police Officers and Sheriffs. The period 

in which the excited utterance exception applies depends on the facts 
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of the case. Relevant facts include the declarant’s physical conditions 

or manifestation of stress and whether the declarant spoke in response 

to questioning. But a declarant’s response to questioning, other than 

questioning from a law enforcement officer, may still be an excited 

utterance if the context shows that the declarant made the statement 

without conscious reflection.

52. Pretrial Procedure: Evidence: Juries. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury.

53. Trial: Pretrial Procedure: Evidence: Appeal and Error. When a 

motion in limine to exclude evidence is overruled, to preserve error 

for appeal, the movant must renew the objection when the particular 

evidence which was sought to be excluded by the motion is offered during trial.

54. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of 

a criminal case, an erroneous evidentiary ruling results in prejudice to a 

defendant unless the error was harmless beyond a reasonable doubt.

55. Verdicts: Juries: Appeal and Error. Harmless error review looks to 

the basis on which the jury actually rested its verdict. The inquiry is 

not whether in a trial that occurred without the error, a guilty verdict 

would surely have been rendered, but whether the actual guilty verdict 

rendered was surely unattributable to the error.

56. Trial: Evidence. The erroneous admission of evidence is generally 

harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding 

by the trier of fact.

Appeal from the District Court for Douglas County: 

J Russell Derr, Judge. Affirme

Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro, 

L.L.P., for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke,

Funke, 

I. NATURE OF CASE

A jury found the appellant, Anthony L. Burries, guilty of 

premeditated first degree murder for killing his girlfriend, Tina 
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Hoult. The court sentenced him to life imprisonment. This is 

Burries’ direct appeal.

II. BACKGROUND

1. Evidence of Cr

Hoult lived alone in a southwest Omaha apartment. After 

she failed to report for her scheduled work shifts on Friday 

and Saturday, May 16 and 17, 2014, her employer contacted 

law enforcement. On Sunday morning, May 18, police officers 

went to her apartment to check on her. A neighbor identified 

Hoult’s car in the parking lot and told the officers that he had 

not seen Hoult in about 2 days. When she did not respond to 

knocks at her door, the maintenance manager unlocked the 

deadbolt to her apartment for the officers. None of the apartment doors had locks on the doorknobs. The deadbolts could 

only be locked from the inside or by someone using a key 

from the outside.

The officers found Hoult’s body slumped over in a chair 

with multiple gashes in her skull. She was deceased. They saw 

blood on the chair, splattered on the walls, and pooled on the 

floor below her head. Her apartment had no signs of a forced 

entry or a struggle. No weapons were found in the apartment 

that could have inflicted Hoult’s injuries.

An autopsy revealed that Hoult died from at least nine 

blows to her head from a heavy instrument with a sharp edge. 

She had died at least several hours before she was found, 

but the pathologist could not determine the time or date of 

her death.

Steffanie Beck was a long-time friend of Hoult who testified 

that Burries had been Hoult’s boyfriend, on and off, for 11 to 

12 years before her death. He was also romantically involved 

with Harmony Howard, who was the mother of his son.

Howard learned about Burries’ relationship with Hoult when 

Burries was arrested in December 2012 for assaulting Hoult. 

After he was arrested for the assault, he called Howard to tell 

her that her car, which he had borrowed, was in the parking 
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lot of Hoult’s apartment complex. One of Burries’ roommates 

drove Howard there to get it. As a result, Howard knew the 

location of the complex where Hoult lived, but she did not 

know which apartment was Hoult’s.

At Burries’ trial, the State submitted cell phone records 

showing text messages that Hoult and Burries exchanged from 

late Tuesday, May 13, 2014, until the early morning of Friday, 

May 16. A little before midnight on Tuesday, Burries began 

texting Hoult stating that he wanted to come to her apartment. Hoult responded that he should stay where he was and 

expressed dissatisfaction with their relationship. Burries’ texts 

expressed his frustration with Hoult. This texting stopped at 

about 1:45 a.m. on Wednesday.

On Wednesday evening, May 14, 2014, Howard drove 

Burries to a bar close to Hoult’s apartment where Hoult and 

other residents at the apartment complex would often socialize. 

When Burries returned after 10 to 15 minutes, Howard said 

he seemed agitated and she drove him home. Late Wednesday 

night, Burries began texting Hoult again. She responded that 

her cell phone was not working properly and that she was 

going to bed.

On Thursday, May 15, 2014, beginning about 6 a.m., Burries 

texted Hoult multiple times that he was coming over for sex. 

Hoult repeatedly responded that she was not interested and to 

leave her alone. He accused her of being with other men and 

lying about being at work. She responded that she was tired of 

him trying to control her and threatening her. She specifically 

stated that he should not have threatened to torture her or say 

that she “owe[d him] a limb.” She wrote that she did not feel 

safe around him. Burries responded that she had caused his 

conduct by being disrespectful: “[L]ook at everything you’ve 

been doing lately just disrespect after another. All intentional 

and you think i’m not going to be mad. . . . You caused all of 

this and you ain’t getting away with it. . . . You lucky I haven’t 

fucked you up fur all this shit.” When he said he could easily 

come to her apartment, she responded that she did not want 
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him to; she wanted him to leave her alone. The text messages 

stopped Thursday morning.

Around 10:30 or 11 p.m. on Thursday, May 15, 2014, 

Burries called Howard to borrow her car. She went and picked 

him up, and he dropped her off at her house before going to a 

bar. She said that he was wearing a striped shirt over a black 

tank top, jeans, and white athletic shoes.

About 11:30 p.m. on Thursday, Hoult went to visit Adrian 

Hogan, who was a resident at Hoult’s apartment complex. 

Hogan said that Hoult left his apartment about 1:30 a.m. 

on Friday.

At about 3:20 a.m. on Friday, May 16, 2014, Burries texted 

Hoult that he needed to see her and that he knew she was 

home. At 3:25 a.m., he sent another text message that if her 

cell phone was not working, he would just show up. Hoult 

opened these messages but did not respond.

Howard came to Burries’ house about 3:30 a.m. on Friday. 

When she arrived, Burries approached her car in his driveway 

and told Howard to take him to the intersection that was close 

to Hoult’s apartment complex. Howard said she was frightened by a look Burries gets in his eyes: “[I]t’s like a blank 

look. It’s almost like looking in the eyes of the devil.” She 

drove him to the requested intersection.

When they got to the intersection, Burries told Howard that 

he needed to talk to Hoult. Howard drove to Hoult’s apartment 

complex, and Burries directed her to Hoult’s apartment. She 

waited in her car for 2 to 5 minutes while Burries went inside. 

She estimated that she dropped Burries off at Hoult’s apartment between 3:30 to 4 a.m. Cell phone records showed that 

at 3:34 a.m., Hoult received two text messages from Burries 

and that she opened them. At 3:40 a.m., Hoult texted Burries 

that he should be sleeping. That was the last text message she 

sent. Burries’ cell phone did not receive this message until 

5:54 a.m.

When Burries returned to Howard’s car, he told her to 

“‘[d]rive,’” in an “[a]ngry, firm” tone. Howard said that she 
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was afraid because he was yelling at her not to look at him and 

not to pull up next to anyone. She did not see anything in his 

hands, but she believed that the car’s dome light was off. She 

said that he had grabbed his cream-colored coat from the back 

seat and laid the coat over his lap.

Burries had Howard drive past his house and eventually told 

her to stop in front of a randomly chosen house which was 

close to a bridge in south Omaha. He was screaming at Howard 

that she was the only person who knew that he was “there,” 

which she understood to mean at Hoult’s apartment, and that 

she would be an accessory if she told anyone. Howard said that 

she was not concerned then about what he might have done 

to Hoult, because she was afraid of what he might do to her. 

He instructed her to drive across the bridge. While they were 

crossing the bridge, he rolled down the passenger window and 

threw something out. Howard did not see what he threw out 

because he told her not to look at him. Howard then dropped 

Burries off at his house. It was almost 5 a.m. when Howard 

returned to her home.

As stated, Burries’ cell phone did not receive Hoult’s last 

text message until 5:54 a.m. on Friday. The testimony of 

an investigator who performed digital forensics for the State 

showed that if a person puts his or her cell phone into airplane 

mode or turns it off, it will not receive a text message during 

this period. The cell phone records showed that approximately 

4 minutes after receiving Hoult’s last text message, Burries 

responded. He asked why she had not answered his messages. 

He said that he had done what she asked and burned all the 

clothes that reminded her of “that night” in the fireplace and 

that he wanted to move on. He repeated that he wanted to come 

over and accused her of playing games by ignoring his text 

messages. His periodic text messages to Hoult continued until 

9 p.m. on Friday. None were opened.

Between 4 and 5 a.m. on Friday, Burries also contacted 

Melissa Eledge, whom he had been seeing and asked her to 

pick him up. Eledge arrived at Burries’ house before 6 a.m. 
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She said that Burries was intoxicated and asked her to take him 

to his brother’s house. He was carrying a gray or black bag. 

Eledge waited in the car while Burries went inside his brother’s 

house for 5 to 10 minutes. When he returned, he asked Eledge 

to take him to a tire store. When they arrived, Burries took 

the bag and went to a house next to the tire store. He did not 

explain his actions to Eledge.

After that stop, Eledge took Burries back to his house. 

During the drive, Burries told Eledge that he was texting an 

old girlfriend named “Tina Hoult.” He told Eledge that Hoult 

was mad at him for wearing the same clothes that he had worn 

when he went to jail and that she wanted him to get rid of 

them. When they arrived at Burries’ home, Eledge believed 

that she could smell something that had been burned inside. 

After Eledge’s memory was refreshed, she testified that she 

had asked Burries about the smell and that he had told her he 

had been “‘burning stuff’” before she arrived.

One of Burries’ roommates, Eric Paine, testified that on 

Friday morning when he woke up, he saw embers from a fire 

in the fireplace and noticed a heavy smoke smell in the house. 

Paine said that Burries called him from Howard’s house sometime in the early afternoon on Saturday, May 17, 2014. Burries 

asked him to buy him some items from a store. When Paine 

arrived at Howard’s house, Burries was cleaning a boat with 

Howard’s father and asked Paine to pick up two bottles of 

ammonia for cleaning.

Burries texted Eledge on Saturday between 1 and 2 p.m. to 

tell her that he was going to Iowa. About 2:30 p.m., he arrived 

at the house where Eledge was. He brought cleaning supplies 

and carpet shampoo with him for cleaning out the car he was 

driving. Unknown to Eledge, Burries had arrived in Howard’s 

car. He and Eledge cleaned Howard’s car for about an hour. 

About 3 to 4 p.m. on Sunday, May 18, 2014, Burries told 

Eledge he was going fishing with friends and left.

Sunday evening, Howard called Burries to ask when he 

would be returning her car. Burries told her that Hoult had 
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been found “fucked up in her apartment” and that he was 

going to call the detectives to “clear his name.” He returned 

her car a couple of minutes later. Police officers arrived at 

Howard’s house shortly thereafter and seized the car.

Also on Sunday evening, investigators arrived at Burries’ 

residence, but he was not home. Around midnight, Burries 

called Paine while investigators were at the house and asked 

to speak to a police officer. Burries told the officer that he 

was getting an attorney and planned to come in the next 

day. Officers noticed that the fireplace had been cleaned 

out recently, and Paine told them that he had not done it. 

Investigators searched a bag of ash they found in the trash but 

did not find any clothing remnants.

On the morning of May 19, 2014, Burries came to Eledge’s 

home. While there, he told her that he needed to get out of 

town. He seemed “frazzled,” and kept saying that “[i]t was 

bad” and he needed to get out of town. He told Eledge that 

he was going to St. Louis and asked if she would at least take 

him to Kansas City. Shortly thereafter, they left her house and 

traveled to “St. Joe.” During the trip, Burries had two cell 

phones with him and would power them off when he was not 

using them.

2. Burries’ Statements

Police Investiga

A Missouri state trooper arrested Burries in Missouri at 

about 5 p.m. on Monday. Two Nebraska investigators traveled 

to Missouri to interview him. After Det. Larry Cahill, with the 

Omaha Police Department, advised Burries of his Miranda1

rights, he asked if knowing these rights, Burries was willing to talk to the officers. Burries said, “Within limitations, 

I’ll talk to you.” During the investigation, Burries stated 

that he and Hoult had hit each other during their fights and 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).
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admitted that he had been incarcerated from December 2012 

to November 2013. He admitted that Hoult had given him 

a key to her apartment. He admitted to burning his clothes 

between 3 and 5 a.m. on Friday. He stated that at Hoult’s 

request, he had burned his jeans, a cream-colored jacket, and 

a black hoodie in his fireplace. But when Cahill informed 

Burries that investigators had learned from Howard that he 

was at Hoult’s apartment when she was murdered and that he 

had told Howard not to talk about it, Burries cut off the interview until he had an attorney.

3. Pretrial Proceed

Before trial, the State filed notice that it intended to present 

evidence under Neb. Evid. R. 404.2 It also requested a pretrial 

hearing to determine the voluntariness of Burries’ statements 

to investigators. Burries moved in limine to exclude the 

evidence that the State wanted to present. He argued it was 

inadmissible on grounds of foundation, relevance, hearsay, 

or prejudice.

For the voluntariness portion of the hearing, the court admitted the audio recording of the investigator’s interview of 

Burries in Missouri. The court later ruled in a written order that 

the statement was admissible.

Regarding the State’s rule 404 motion, the State argued that 

it intended to prove Burries had assaulted Hoult in December 

2012, had served a year of imprisonment for the crime, and 

had harmed or threatened Hoult since 2012. For the hearing, 

the court admitted a copy of the complaint, conviction, and 

sentencing order for the 2012 assault, which evidence showed 

Burries was convicted of assaulting Hoult and was sentenced 

to 2 years’ imprisonment. In addition to these documents, the 

State intended to present the testimony of witnesses who had 

seen Hoult after the 2012 assault. The State also intended to 

call “a number of witnesses” to prove “motive, opportunity, 

2 See Neb. Rev. Stat. § 27-404 (Reissue 2016).
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intent, preparation, plan, knowledge, and identity.” But it did 

not specify the purpose for admitting any witness’ testimony, 

and it argued that its evidence “may not be [rule] 404 evidence 

but rather really res gestae of the crime.”

In support of its res gestae argument, the prosecutor stated 

that Burries had told his roommate that the clothes he burned 

on Friday morning were the clothes that still had blood on 

them from the last time he assaulted Hoult. The State argued 

that because of Burries’ statement, the 2012 assault was res 

gestae to the murder crime: “[A]rguably, the clothes he was 

burning [were] either bloody clothes from the actual event in 

this case or the previous assault.” The State also argued that 

the 2012 assault was inextricably intertwined with the murder 

charge because very soon after the murder, Burries had told 

Cahill that he had burned his clothes. Additionally, the State 

intended to present the testimony of witnesses who would say 

they had overheard telephone conversations in which Burries 

had threatened Hoult before her murder.

After the hearing, the court issued an order in which it 

addressed both the State’s rule 404 motion and Burries’ motion 

in limine resisting the evidence. The court ultimately accepted 

the State’s argument that Burries’ December 2012 assault 

of Hoult was inextricably intertwined with her murder in 

May 2014:

[T]he events surrounding the December, 2012 incident, 

including [Burries’] conviction, are admissible, particularly because there is evidence of the burning of clothes 

by [Burries] so close to the time of the murder of . . . 

Hoult. The State will argue this was an act of [Burries] 

to dispose of the evidence of . . . Hoult’s murder even 

though [Burries] argues that the clothes that were burned 

were from the 2012 incident. The 2012 incident is an 

integral part of the allegations against [Burries] in this 

case such that the evidence may “complete the story or 

provide a total picture of the charged crime[.]”
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The court then set out the specific testimony that it would 

allow from the State’s witnesses. It rejected Burries’ relevance, hearsay, and foundation challenges to the witnesses’ 

testimonies.

4. State’s Evidence at Tri

Burries’ Other Bad

Despite the court’s inextricably intertwined ruling, just 

before the State presented evidence at trial, the court again 

heard argument as to the State’s evidence of Burries’ other 

bad acts. The court ruled that Burries’ attorney could have 

a standing objection to the rule 404 evidence that the court 

ruled on in its pretrial order. The court rejected Burries’ 

request to give an instruction limiting the jurors’ consideration 

of the evidence to help them decide whether he had a motive 

to murder Hoult. The court stated that it was “just going to 

read [rule] 404(2), as to evidence of other crimes, wrongs, et 

cetera.” The State agreed to this approach, arguing that all of 

its intended evidence was relevant to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absen[ce 

of] mistake or accident.”

One of the court’s approved witnesses was the apartment complex maintenance manager. He stated that in 2010, 

Hoult moved into apartment No. 19. He also testified that in 

December 2012, Hoult asked him to come to her apartment, 

at which time he saw that she had been beaten. Her eyes were 

blackened, and he saw blood on her face, arms, and neck. The 

manager then changed Hoult’s lock, and later that month, she 

moved to apartment No. 142. He said he changed her locks 

at least three times before she moved to apartment No. 142. 

After the manager’s testimony, in the jury’s presence, the State 

submitted exhibit 1, which it described as a copy of Burries’ 

conviction and sentence for assaulting Hoult on December 

1, 2012.

Brian Coburn was Hoult’s neighbor when she lived in 

apartment No. 142. He testified that when he first met Hoult 
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in October 2012, she had obviously been beaten up because 

her eyes were blackened and swollen. Coburn testified that he 

knew Hoult had a boyfriend named “Tony.” About a month 

before Hoult’s murder, Coburn was out by the parking lot 

with Hoult when a car passed them. Hoult identified the 

driver as “Tony,” and then received a call from “Tony.” She 

put the call on “speaker,” and Coburn could hear Tony asking Hoult where she was. Hoult said she was home, and Tony 

called her a “‘fucking liar’” and said, “‘I will find you, you 

cunt — you f’ing cunt.’” Coburn said Hoult looked a little 

nervous but brushed it off. Coburn said that on the Sunday 

before Hoult was murdered, Hoult came to his apartment and 

asked him to check her apartment because she thought “Tony” 

was inside.

Another witness testified that in 2014, he and his wife lived 

across the hall from Hoult’s apartment. He testified that when 

Hoult was moving into apartment No. 142, he saw her in the 

hall and she had a black eye. She told him that the black eye 

was the reason she was moving.

Terry Robinson also lived in Hoult’s apartment complex 

and met her in the summer of 2013. About the middle of April 

2014, he was with Hoult and other neighbors in the outside 

commons area when her cell phone rang. She told Robinson 

that he could answer it, and he saw the name “Tony” on her 

cell phone. A male, whom Robinson believed to be Burries, 

asked where Hoult was and said that “he did time once for 

[Hoult] and he wasn’t scared to do it again.”

On Monday, May 12, 2014, Robinson and three other people 

were with Hoult in her apartment when her cell phone rang. 

She told Robinson that the call was from “Tony,” and Robinson 

could hear that the male caller was upset. Hoult held the cell 

phone so he could listen. “Tony” said that Hoult had “‘better 

be [home] when [he] g[o]t there’” and that he had come by 

the previous night and she was not home. Robinson said Hoult 

“teared up” during this call. He and Hoult’s other guests then 

went outside while she was talking. When Hoult joined them, 
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she told Robinson that “Tony” had accused her of cheating and 

threatened to “beat her, revive her, and repeat it.”

As stated, Steffanie Beck was Hoult’s long-time friend and 

had worked with Hoult for 4 years before the murder. Beck 

had never met Burries, but she knew he was Hoult’s boyfriend. 

Beck said that she knew Burries’ voice because he had called 

Hoult many times from jail when Beck was present, and Hoult 

would hold the cell phone so that Beck could hear him. While 

Burries was incarcerated, Beck said she had heard him accuse 

Hoult of cheating and threaten to “kill her, tear her face off, 

cut her legs off.”

Beck also said that when Burries was going to be released, 

Hoult was nervous and planned to leave the state and move 

in with her mother. Beck testified that the last time she saw 

Hoult was on Thursday afternoon, May 15, 2014, when Beck 

was leaving work and Hoult was walking in from the parking 

lot. Although it was a hot day, Hoult was wearing a longsleeved jacket. Beck thought Hoult was hiding something and 

convinced Hoult to take the jacket off. Beck said that Hoult 

had bruising on her arms from her elbows to her shoulders but 

told Beck it was nothing.

Howard testified that she had received a 4-page handwritten 

letter from Burries a few days before giving her trial testimony. 

After the court gave its rule 404(2) instruction, it allowed 

the prosecutor to read the entire letter verbatim. In the letter, 

Burries warned Howard that he would be getting out shortly 

and not to “lie” at his trial. He threatened retribution to anyone 

who interfered with his ability to rear his children.

5. DNA Evi

At trial, Mellissa Helligso, a forensic DNA analyst, testified 

for the State about her testing of a blood sample from Hoult’s 

arm. Helligso testified the testing showed that the blood was 

from a single source and that Hoult could not be excluded as 

the contributor, because every allele she detected in Hoult’s 

DNA profile matched the alleles that she found in the blood 
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sample. An allele is a genetic variation in the sequencing of 

the DNA molecule at one of the specific segments, or loci, 

with known individual variations, which forensic analysts 

focus on to determine an individual’s DNA profile.3 The prosecutor also elicited Helligso’s testimony that the DNA testing had produced an allele that could have been a common 

“artifact” that the testing produces or it could have come from 

another person, but that she could not compare a single allele 

to another person’s profile.

Burries’ attorney did not object to the prosecutor’s questions or the expert’s testimony. On cross-examination, he elicited testimony that the allele could have come from someone 

else and that the State’s expert had not analyzed Burries’ 

DNA profile.

III. ASSIGNMENTS OF ERROR

Burries assigns, restated and renumbered, that the court 

erred as follows:

(1) in finding that Burries’ statements to investigators were 

voluntary;

(2) in admitting evidence of his 2012 assault of Hoult and 

threats that he made to her because the evidence constituted 

hearsay, lacked proper foundation, was irrelevant, or was inadmissible under Neb. Evid. R. 4034

;

(3) in allowing the State to introduce the same evidence 

under rule 404(2) and as part of the res gestae of the crime;

(4) in admitting an August 2015 letter from Burries to 

Howard, because the evidence was inadmissible under rules 

403 and 404.

Additionally, Burries assigns that his trial counsel provided 

ineffective assistance as follows:

(1) in failing to file a motion to suppress Burries’ statements to investigators when the recorded interview showed 

3 See State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

4 Neb. Rev. Stat. § 27-403 (Reissue 2016).
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that Burries did not understand his constitutional right to a 

court-appointed attorney;

(2) in failing to object to irrelevant DNA evidence and 

exacerbating the jury’s likely confusion by eliciting testimony 

that Burries could have been the contributor;

(3) in failing to renew an objection to the certified copy of 

Burries’ assault conviction; and

(4) in failing to adequately investigate and present several 

aspects of Burries’ defense.

IV. STANDARD OF REVIEW

[1,2] An appellate court independently decides questions 

of law presented on appeal.5 Whether a defendant voluntarily 

made a statement while in custody and whether a defendant 

unambiguously invoked his or her right to remain silent or to 

have counsel present are mixed questions of law and fact. We 

review a trial court’s finding of historical facts for clear error 

and independently determine whether those facts satisfy the 

constitutional standards.6

[3-7] 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.7

 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.8 We 

review for abuse of discretion a trial court’s evidentiary rulings on relevance,9

 whether the probative value of evidence is 

5 See, e.g., State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016); State 

v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016); In re Interest of Edward 

B., 285 Neb. 556, 827 N.W.2d 805 (2013).

6 See State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).

7 State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).

8 State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).

9 State v. Patton, 287 Neb. 899, 845 N.W.2d 572 (2014).
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substantially outweighed by the danger of unfair prejudice,10

and the sufficiency of a party’s foundation for admitting evidence.11 We also review for abuse of discretion a trial court’s 

evidentiary rulings on the admissibility of a defendant’s other 

crimes or bad acts under rule 404(2), or under the inextricably intertwined exception to the rule.12 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.13

[8-10] When judicial discretion is not a factor, whether the 

underlying facts satisfy the legal rules governing the admissibility of a proponent’s evidence is a question of law, subject to 

de novo review.14 Hearsay is not admissible except as provided 

by the Nebraska Evidence Rules.15 Apart from rulings under 

the residual hearsay exception, we review for clear error the 

factual findings underpinning a trial court’s hearsay ruling and 

review de novo the court’s ultimate determination to admit 

evidence over a hearsay objection or exclude evidence on hearsay grounds.16

[11,12] Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law,17 which turns upon the sufficiency of the record to 

address the claim without an evidentiary hearing18 or whether 

the claim rests solely on the interpretation of a statute or 

10 State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

11 State v. Casterline, 293 Neb. 41, 878 N.W.2d 38 (2016).

12 See, Parnell, supra note 5; State v. Ash, 286 Neb. 681, 838 N.W.2d 273 

(2013).

13 Draper, supra note 8.

14 Smith, supra note 7.

15 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

16 See State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).

17 See State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).

18 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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constitutional requirement.19 We determine as a matter of law 

whether the record conclusively shows that (1) a defense 

counsel’s performance was deficient or (2) a defendant was 

or was not prejudiced by a defense counsel’s alleged deficient performance.20

V. ANALYSIS

1. Burries Validly Waived His Righ

Counsel When He Made Incr

Statements to Investiga

After the pretrial hearing on the admissibility of Burries’ 

statements to police investigators, the court determined that the 

statements were voluntary:

There is nothing to suggest that [Burries’] statement 

was involuntary. While there is no question that [Burries] 

was in custody at the time, he was advised of his Miranda 

rights and once he requested an attorney no further substantive questions were asked of [Burries]. Although he 

mentioned getting an attorney early in the interview, he 

did not invoke his right to an attorney in such a manner 

that it was unequivocal.

Burries does not contend that the officer’s language was 

insufficient to convey his Miranda right to appointed counsel 

if he could not afford one. He posits no other language that the 

officers should have used. Instead, without citing any authority, Burries argues that under these circumstances, the officers 

should have reread the advisement and confirmed his understanding of his right to a free appointed counsel. We disagree.

[13-15] Miranda warnings are “‘an absolute prerequisite to 

interrogation’ . . . and ‘fundamental with respect to the Fifth 

Amendment privilege.’”21 If a defendant seeks suppression 

19 See State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014).

20 See id.

21 See State v. Juranek, 287 Neb. 846, 856-57, 844 N.W.2d 791, 801 (2014), 

quoting Miranda, supra note 1.
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of a statement because of an alleged Miranda violation, the 

State must prove that the defendant validly waived his or 

her Miranda rights by a preponderance of the evidence.22 We 

look to the totality of the circumstances to determine whether 

a defendant validly waived his or her Miranda rights during 

an interrogation:

Miranda rights can be waived if the suspect does so 

knowingly and voluntarily. 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. In determining whether a waiver is knowingly and voluntarily 

made, a court applies a totality of the circumstances 

test. Factors to be considered include the suspect’s age, 

education, intelligence, prior contact with authorities, 

and conduct.23

[16] But law enforcement officers “are not required to 

rewarn suspects from time to time. . . . The Miranda rule and 

its requirements are met if a suspect receives adequate Miranda

warnings, understands them, and has an opportunity to invoke 

the rights before giving any answers or admissions.”24

Before questioning Burries, Cahill read him the following 

Miranda25 advisements: You have the right to remain silent and 

not make any statements; anything that you may say can be 

used against you in a court; you have the right to consult with 

a lawyer and have a lawyer with you when you are questioned; 

if you cannot afford a lawyer, the court will appoint one to 

22 See State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004), 

citing Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 

473 (1986). See, also, Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 

2250, 176 L. Ed. 2d 1098 (2010), citing Miranda, supra note 1.

23 State v. Goodwin, 278 Neb. 945, 956, 774 N.W.2d 733, 743 (2009). 

Accord Fernando-Granados, supra note 22.

24 See, e.g., Berghuis, supra note 22, 560 U.S. at 386-87.

25 Miranda, supra note 1.
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represent you. After each statement, Cahill asked Burries if he 

understood and Burries said yes.

[17] In Miranda, the U.S. Supreme Court stated that 

a suspect

must be warned prior to any questioning that he has the 

right to remain silent, that anything he says can be used 

against him in a court of law, that he has the right to the 

presence of an attorney, and that if he cannot afford an 

attorney one will be appointed for him prior to any questioning if he so desires.26

But the precise advisement language set out in Miranda is 

not mandatory.27

[18] We have recognized that under Patterson v. Illinois,

28

Miranda warnings which adequately inform a defendant of 

his or her Fifth Amendment right to counsel are also adequate 

to inform a defendant of his or her Sixth Amendment right 

to counsel.29 In either case, the “key inquiry” in determining whether a defendant waived his right to counsel during 

an interrogation is whether the defendant was “made sufficiently aware of his right to have counsel present during 

the questioning, and of the possible consequences of a decision to forgo the aid of counsel.”30 And in analyzing waivers 

of the right to counsel during an interrogation under both 

the Fifth Amendment and the Sixth Amendment, the U.S. 

Supreme Court has held that substantially similar advisements were sufficient to convey to the defendant his right to 

counsel during the questioning even if he could not afford 

26 Id., 384 U.S. at 479.

27 See, State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012), citing California 

v. Prysock, 453 U.S. 355, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981); 

Fernando-Granados, supra note 22.

28 Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 

(1988).

29 See State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated 

on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

30 Patterson, supra note 28, 487 U.S. at 292-93.
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one, and sufficient to convey the consequences of foregoing 

that right.31

[19] Although an “express written or oral statement of 

waiver of the right to remain silent or the right to counsel is 

usually strong proof of the validity of the waiver,” it is not 

dispositive.32 But here, the totality of the circumstances shows 

that Burries understood his right to consult with counsel and 

that he voluntarily and intelligently waived that right to the 

extent that he answered Cahill’s questions.

Immediately after Cahill advised Burries of his Miranda

rights, Burries stated that he would answer questions with 

some limitations. He explained that he wanted to answer some 

questions with an attorney present:

I’m not going to throw the lawyer word out there right 

now, but I’m going to say this though. There’s a lot of 

things that I would like to talk about. I would like to 

talk about in the presence of my attorney. I mean I’ll 

get one eventually. I don’t [know] when. I don’t know 

how. [Slight pause.] But in [the] simplest terms, this 

situation with me and [Hoult] has been going on for way 

too long.

Burries contends that his statement—he did not know when or 

how he would get an attorney—showed he did not understand 

that he had the right to a free attorney if he could not afford 

one. But his other statements during the interrogation refute 

that argument.

When Cahill asked Burries if he wanted to talk about Friday 

morning, Burries said, “That’s the point where I should probably have somebody here, but I’m going to break it down flat 

out from the point of 10 talking to her on Thursday evening 

up ‘til going to the bar about 11:30-12, getting home about 

2:30-3 in the morning.” He then made the incriminating 

31 See, Patterson, supra note 28; Prysock, supra note 27. Accord Wilkerson 

v. State, 365 Ark. 349, 229 S.W.3d 896 (2006).

32 North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 

286 (1979).
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statements about burning his clothes on the night that Hoult 

was murdered, purportedly because Hoult had asked him to 

get rid of his clothes from their fight in December 2012, to 

close the door on their past. He stated that these clothes still 

had blood on them and that between 3 and 5 a.m. on Friday, he 

burned his jeans, a cream-colored jacket, and a black hoodie 

in his fireplace.

Cahill then told Burries that he knew Howard drove him 

to Hoult’s apartment about 3 a.m. and drove him to a bridge 

afterward where he threw something off the bridge. He said 

Howard had placed him at Hoult’s apartment at the time of the 

murder and that he knew Burries had told Howard not to talk 

to anyone about the incident and had burned his clothes after 

Howard dropped him off at his home. Burries responded that 

he could not give Cahill any information and cut off the questioning: “I’m going to leave it at that and I’m going to talk to 

my attorney about it. . . . I’ll talk to my attorney, and then we’ll 

talk.” Cahill told Burries he could talk to him later with an 

attorney if he wanted. Burries said that he was definitely going 

back to Nebraska and that his trip was about getting money 

for an attorney, not running. Cahill said that after Burries was 

booked for a homicide in Nebraska, he could get an attorney 

or one would be appointed, but that their current conversation 

would stop.

Burries’ firm statement that he was ending the interrogation 

until he could consult with an attorney demonstrated his understanding of his right to do so. Burries’ understanding of his 

rights is further supported by his previous encounters with law 

enforcement in 2012. Finally, Burries specifically stated that he 

had gone to Missouri to get money for an attorney, and he was 

represented by a nonresident attorney at trial.

Under these facts, Burries’ statement that he did not know 

how or when he would obtain an attorney was a reference 

to his intent to retain a paid attorney. It did not show that he 

failed to understand his right to have an attorney present even 

if he could not afford one. It is true that at the end of the 
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interrogation, Cahill stated that after Burries was booked for 

homicide in Nebraska, he could get an attorney or one would 

be appointed. But this statement was made after the questioning had stopped and was in response to Burries’ statement that 

he had gone to Missouri to get money for an attorney. It did 

not negate Cahill’s explicit Miranda advisements that Burries 

was entitled to consult an attorney and have an attorney present during the interrogation and that the court would appoint 

an attorney if he could not afford one.33 We conclude that the 

court did not err in determining that Burries voluntarily and 

intelligently waived his right to counsel when he answered 

Cahill’s questions, despite understanding his right to terminate 

the questioning until he obtained an attorney.

[20] This conclusion also resolves Burries’ claim that his trial 

attorney provided ineffective assistance in failing to seek suppression of his statements during the interrogation. A defense 

counsel is not ineffective for failing to raise an argument that 

has no merit.34

2. Defense Counsel’s Failure to

to DNA Expert’s Testimo

Cross-Examination of Ex

Is Not Reversible Er

Burries contends that his trial attorney was ineffective for 

failing to object to the State’s introduction of irrelevant DNA 

testing results through Helligso, its DNA expert. He argues 

that under our decision in State v. Johnson,

35 the introduction 

of this evidence was improper. He also contends that his trial 

counsel was ineffective in cross-examining Helligso because 

his questions suggested that Burries could have been a contributor to the DNA sample that she testified about.

33 See Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d 

166 (1989).

34 See, e.g., State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).

35 Johnson, supra note 3.
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(a) Additional Facts

As previously mentioned, Helligso testified that her testing 

of the blood sample from Hoult’s arm contained DNA from 

a single source and that Hoult could not be excluded as the 

contributor because every allele she detected in Hoult’s DNA 

profile matched the alleles that she found in the blood sample. 

The prosecutor then asked if the detected alleles had matched 

Hoult’s profile perfectly or if there were some alleles in the 

blood sample “popping up” that did not match. Burries did 

not object. Helligso said that the testing showed one additional allele, “but it was in a position that is a common artifact 

when doing DNA testing, and I only had one extra allele. So 

when I only have one extra allele, I can’t really compare that 

to anyone else, but the major profile and every other single 

number matched . . . Hoult.” Helligso said that the term “artifact” meant something that was not real and just a product 

of the DNA testing and that there was no way for her to tell 

whether the allele was an artifact or from another person. She 

said that she could not “do anything with that information anyway” because she would need three to five additional alleles 

before she could determine that someone else’s DNA was in 

the sample. She stated that for this reason, she concluded the 

DNA came from a single source. Burries did not object during 

this colloquy.

On cross-examination, Burries’ attorney asked Helligso if 

she had determined that the artifact was not an allele because it 

fell below the threshold requirement for an allele. Helligso said 

no; it was above the threshold. This colloquy followed:

Q. . . . Now, you never — you never actually ran 

[Burries’ profile], but there is at least some possibility 

or maybe a very small possibility that this random allele 

could be coming from someone else besides . . . Hoult, 

correct?

A. Yes.

Q. Okay. You never did a profile for . . . Burries, 

correct?
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A. Right.

Q. You also never did a profile for anyone else besides 

. . . Hoult in this case, correct?

A. Right.

On redirect examination, Helligso testified that even if she 

had detected a real allele and had the DNA profile for Burries 

or other persons, she could not have made a comparison with 

only one allele.

(b) Ineffective Assistance Standards

[21,22] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington,

36 the defendant must 

show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

defendant’s defense.37 An appellate court may address the two 

prongs of this test, deficient performance and prejudice, in 

either order.38 To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have 

been different.39

(c) Admissibility of DNA Evidence

[23] In Johnson, we explained that the relevance of DNA 

evidence depends on its tendency “to include or exclude an 

individual as the source of a biological sample.”40 We reiterated that DNA evidence without a probability assessment does 

not aid the trier of fact to make that determination. We concluded that the trial court erred in admitting inconclusive DNA 

testing results from three biological samples.

36 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

37 Betancourt-Garcia, supra note 17.

38 Id.

39 Id.

40 Johnson, supra note 3, 290 Neb. at 879, 862 N.W.2d at 771.
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The DNA expert in Johnson testified that one DNA sample 

revealed a partial DNA profile for a minor contributor to 

the sample; a “‘possible mixture’” because the expert had 

detected a “‘possible allele’” separate from the victim’s profile but could not determine if it was “‘a true allele or not.’”41

The expert could not draw any conclusions about the contributor to the partial minor profile in a second sample because 

she had detected only three weak alleles, two of which did 

not match the defendant’s DNA profile. In a third sample, she 

detected a partial minor profile from a weak DNA sample, 

but did not explain why she could not exclude the defendant 

as the contributor despite recording alleles that did not match 

his profile.

[24-27] We explained in Johnson that a court should exclude 

an expert’s opinion when it gives rise to two conflicting inferences of equal probability, so the choice between them is a 

matter of conjecture.42 We concluded that a DNA expert’s testimony that there may have been a minor contributor’s DNA 

in a biological sample is irrelevant evidence because it is not 

probative of the source of the DNA.43 Additionally, we held 

that a DNA expert’s inconclusive results that a defendant cannot be excluded as a minor contributor to a biological sample 

allows the jury to speculate that the defendant might have 

been the minor contributor when the expert fails to provide 

any statistical relevance for the detected alleles in relationship 

to the defendant’s DNA profile.44 We held that the value of 

inconclusive DNA testing results is substantially outweighed 

by the danger that the evidence will mislead the jurors absent 

statistical evidence that will help them to assess whether a 

41 Id. at 877, 862 N.W.2d at 770.

42 Johnson, supra note 3.

43 Id.

44 Id.
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defendant is or is not the source of DNA found in a biological sample.45

(d) Defense Counsel’s Failure to Object 

to Irrelevant DNA Evidence and 

Cross-Examination of State’s 

Expert Did Not Prejudice Burries

The State contends that the instant case is distinguishable 

from Johnson. It argues that because Helligso testified that 

the additional allele she detected was probably an artifact, no 

inconclusive testing results were presented. It argues that on 

cross-examination and redirect examination, Helligso was discussing only a hypothetical scenario of “what if the artifact had 

been a true allele.”46 We disagree.

On direct examination, Helligso testified that she had no 

way of determining whether she had detected an artifact or 

an allele from another person. On cross-examination, Helligso 

conceded that the additional allele she detected during testing 

was probably an artifact or false reading, but she agreed that 

she could have detected an allele from another person. On redirect examination, she testified that even if it were a real allele, 

she could not compare it to another person’s profile without 

detecting three to five alleles.

Helligso’s testimony was the functional equivalent of presenting inconclusive DNA evidence that suggested a defendant 

could be linked to the evidence if investigators had found a 

better biological sample. We specifically held in Johnson that 

a DNA expert’s opinion that there may have been a minor contributor’s DNA in a biological sample was irrelevant because 

the evidence was not probative of the source of the DNA.47

The same problem exists here. Evidence of a minor contributor in the blood sample could only be relevant to Burries’ guilt 

45 See id.

46 Brief for appellee at 42.

47 See Johnson, supra note 3.
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if it tended to include or exclude him as the minor contributor. 

Because Helligso’s opinion did neither, the jurors could find it 

relevant only through pure speculation. Accordingly, any relevance the evidence had was substantially outweighed by its 

potential to mislead the jurors.

But we need not consider whether any strategic decision 

justified defense counsel’s failure to object to the evidence. 

In the context of the State’s other evidence, we conclude that 

there is no reasonable probability that the result of the proceeding would have been different even if Burries’ counsel 

had successfully objected to Helligso’s testimony and had not 

elicited her testimony on cross-examination that the additional 

allele could have come from someone else and that she had not 

determined Burries’ DNA profile.

First, the DNA evidence was weak. As stated, Helligso 

conceded that the additional allele was probably an artifact or 

false reading and that she had no way of determining whether 

the allele was an artifact or came from another person. Equally 

important, while the evidence permitted the jurors to speculate 

that Burries was linked to the evidence, this case is also similar 

to Johnson in that the State’s other evidence of Burries’ guilt 

was overwhelming.

Howard’s testimony and the State’s cell phone records 

showed that Burries was inside Hoult’s apartment within minutes of 3:40 a.m. on Friday, when Hoult sent her last text 

message to him. After returning to Howard’s car, he covered 

himself from view with his jacket, ordered her not to look at 

him, and demanded that she drive him across a bridge where he 

threw something out the passenger window. Shortly before he 

demanded that Howard drive him across the bridge, he threatened her that she would be prosecuted as an accessory if she 

told anyone that he had been at Hoult’s apartment.

His statements to investigators showed that he had a key to 

Hoult’s apartment and that after Howard drove him back to his 

residence, he burned his clothes in the fireplace. On Saturday, 

he thoroughly cleaned Howard’s vehicle. On Monday morning, 
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after police officers had found Hoult’s body and he knew they 

were investigating at his residence, he frantically told Eledge 

that something bad had happened and that he needed to get out 

of town. Shortly before trial, he again threatened Howard about 

testifying against him through a letter he penned.

We conclude that the record in this direct appeal is sufficient to show that Burries was not prejudiced by his attorney’s 

failure to object to the State’s inconclusive DNA evidence 

or his cross-examination of Helligso. There is no reasonable 

probability that the jury’s guilty verdict rested on speculation 

that Burries’ DNA was found in a blood sample taken from 

Hoult’s arm.

3. Record Is Insufficient to

Burries’ Remaining Inef

Investigation Cla

Burries also contends that his trial counsel was ineffective 

in failing to investigate and obtain favorable evidence from 

several potential witnesses and in failing to investigate other 

potential sources of favorable evidence.

Specifically, Burries contends that despite his requests, trial 

counsel failed to independently investigate, interview, depose, 

or subpoena each of the following entities and/or potential witnesses: subpoena cell phone location and/or global positioning 

system data, nor did he obtain all information extracted from 

Hoult’s cell phone in 2014, which would have demonstrated 

that Howard, Burries, and/or Hoult were not present in the 

places or at the times offered by the State’s theory at trial; 

subpoena records, receipts, and video from a fast-food restaurant, which would have disproved Howard’s testimony regarding her visit to the restaurant at Burries’ request on the night 

of the murder and further disproved the State’s theory as to 

the timeline of the murder; call Burries’ brother as a witness, 

who would have confirmed Hoult’s involvement with multiple 

boyfriends with whom Hoult drank excessively and who subjected Hoult to violence; call Burries’ brother-in-law as a witness, who would have testified similarly to Burries’ brother, 
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and who also would have testified that he saw Howard in 

handcuffs on her front lawn just prior to her interview with 

police; call Burries’ cousin as a witness, who would have testified that police interrogated her and disclosed their motive 

for maliciously prosecuting Burries—that all the women associated with Burries were scared of him and had been beaten 

and that it needed to stop; call an acquaintance of Burries as 

a witness, who would have provided an alibi for Burries at a 

time when, according to the neighbors’ testimony, Burries was 

arguing with Hoult; subpoena an airline itinerary that would 

have corroborated Burries’ alibi for the time when, according to the neighbors’ testimony, Burries was arguing with 

Hoult in her apartment; call a potential witness who would 

have provided testimony invalidating the State’s witnesses’ 

claims that Hoult had bruising and that Burries had likely 

caused the bruising; call another potential witness who would 

testify as to seeing Hoult alive after the time of death according to the State’s theory, corroborating a neighbor of Hoult’s 

testimony that Hoult was alive the morning of Friday, May 

16, 2014; subpoena records of a hospital which would have 

disproved Hoult’s coworkers’ testimony that Hoult did not 

work Friday, May 16; subpoena Hogan’s work and cell phone 

records which would have disproved Hogan’s alibi at the time 

of Hoult’s death and proved that Hogan did have a romantic 

relationship with Hoult; obtain Hogan’s prior criminal record 

which could have been used in impeachment; subpoena video 

footage from a bar in Hoult’s neighborhood on May 13, 

which would have disproved the testimony of the State’s witnesses; obtain all video footage of Hoult’s apartment complex’s address between the dates of May 14 and June 14, 

which would have supported the exculpatory testimony of two 

potential witnesses; subpoena medical records from Hoult’s 

medical providers, which contained evidence suggesting drug 

use, supporting the defense’s theory that Hoult’s involvement 

in the illicit drug community led to her murder; obtain recordings of inmate calls from the Douglas County Correctional 
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Center which would have provided support to the defense’s 

theory that someone other than Burries murdered Hoult; call 

Hoult’s aunt, who would have testified as to Hoult’s having 

multiple boyfriends at the time of her murder, at least one of 

which was potentially dangerous.

Burries further contends that trial counsel failed to act or 

present evidence during trial when trial counsel knew action 

was required or evidence should be presented. The following 

is a list of trial counsel’s failures as alleged by Burries: confront a trial witness who was a police investigator with prior, 

off-the-record, inconsistent statements made to her during her 

interview with a potential witness who told her that she saw 

Hoult alive at 2:30 p.m. on Friday, May 16, 2014; make a 

record and move for replacement of a juror or a mistrial after 

he learned that one of the jurors had a close association with 

one of the State’s witnesses; make a record and either move 

for replacement of a juror or a mistrial when the juror repeatedly slept through much of the trial; make a record and object 

during voir dire to the State’s peremptory challenges that the 

State used those challenges to strike all but one minority juror 

for race-based reasons; present evidence of Burries’ heavy 

intoxication at the time of his interview with Cahill; file a 

motion based on the State’s violation of Brady v. Maryland48

that occurred when the State refused to turn over exculpatory 

text messages it obtained during its 20l4 extraction of data 

from Hoult’s cell phone; call as a witness a cell phone expert 

hired by Burries, who would have rebutted the testimony of 

the State’s cell phone experts as to the reasons for the delayed 

text message between Hoult and Burries on May 16; impeach 

a trial witness who was a neighbor of Hoult with his prior 

inconsistent identification of a different man as Burries; introduce Burries’ clothing that would have proved, contrary to the 

State’s theory, that he did not burn the clothing he had worn 

on the night of May 15.

48 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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[28,29] When a defendant’s appellate counsel is not the 

defendant’s trial counsel, the defendant must raise on direct 

appeal any claim that the trial counsel provided ineffective 

assistance, if the issue is known to the defendant or apparent 

from the record, in order to avoid a procedural bar to raising 

the claim later in a postconviction proceeding.49 An appellant 

must make specific allegations of the conduct that he or she 

claims constitutes deficient performance by a trial counsel 

when raising an ineffective assistance claim on direct appeal.50

[30,31] The fact that an ineffective assistance of counsel 

claim is raised on direct appeal does not necessarily mean 

that it can be resolved.51 The determining factor is whether 

the record is sufficient to adequately review the question.52 An 

ineffective assistance of counsel claim will not be addressed 

on direct appeal if it requires an evidentiary hearing.53 We 

will address a claim on direct appeal that a defendant’s trial 

counsel was ineffective only if the record is sufficient to 

adequately review the question.54 This principle applies to 

Burries’ claims that his trial counsel should have investigated 

sources of potentially favorable evidence, and we do not 

address them here.

4. Court Did Not Err in Admi

Evidence of Burries’ 2

Assault of Hou

Rule 404(2) provides the following:

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, 

49 See Parnell, supra note 5.

50 Betancourt-Garcia, supra note 17.

51 State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).

52 Id.

53 Id.

54 See Betancourt-Garcia, supra note 17.
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however, be admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[32,33] It should be noted that rule 404(2)’s list of permissible purposes is not exhaustive.55 Nonetheless, under our 

decisional law, rule 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.56

In its pretrial order, the court ruled that evidence of Burries’ 

2012 assault of Hoult was admissible under the inextricably 

intertwined exception to rule 404(2), because Burries had 

claimed that the clothes he burned on May 16, 2014, were 

from the 2012 assault. At trial, however, the court concluded 

that rule 404 governed the admission of the assault evidence. 

It overruled Burries’ request to limit the jurors’ consideration 

of 2012 assault evidence to determining whether Burries had a 

motive to murder Hoult. Instead, the court stated it would read 

rule 404(2) as an instruction to the jury. The State then agreed 

that all of its intended evidence was relevant to prove “motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

absen[ce of] mistake or accident.”

(a) Parties’ Contentions

Burries contends that the court committed reversible error 

when it admitted documentary and testimonial evidence of 

his 2012 assault of Hoult. He argues that the State’s primary 

purpose for presenting this evidence was to establish that he 

had a bad character and to suggest that he likely killed Hoult 

because of his propensity to perpetrate domestic violence. He 

contends that the court erred in concluding in its pretrial order 

that the evidence was part of the res gestae of the crime. He 

argues that the assault occurred 17 months before Hoult’s murder and was not closely intertwined with it.

55 See Parnell, supra note 5.

56 See State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).
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Burries also contends that both the prosecutor’s arguments to 

the court for admitting the evidence and the court’s instruction 

to the jury did not comply with our requirements under State 

v. Sanchez57 for admitting evidence of a defendant’s other bad 

acts under rule 404(2). He argues that the prosecutor offered no 

purpose for the evidence other than to state it was res gestae 

evidence and that the court failed to identify a specific purpose 

for which it would receive the evidence.

The State contends that rule 404 did not apply because the 

evidence of Burries’ 2012 assault of Hoult and Beck’s testimony of his past conduct was inextricably intertwined with the 

charged murder. It argues that this evidence was part of the factual setting of the crime because it showed the following: (1) 

the increasingly violent nature of Hoult and Burries’ relationship; (2) why law enforcement focused on him as a suspect; 

(3) what Burries meant when he told investigators that he had 

burned his clothes from the December 2012 assault at Hoult’s 

request; (4) why Hoult sent texts to Burries about his control 

of her and his threats to torture her, and why she stated that 

she did not feel safe around him; and (5) what Burries meant 

when he told Robinson that “he did time once for [Hoult] and 

he wasn’t scared to do it again.” The State argues that without 

Beck’s testimony and evidence of Hoult’s injuries from the 

2012 assault, the jury would believe that despite Hoult’s longterm relationship with Burries, she had an “unexplained and 

unsupported fear of Burries.”58

(b) Evidence of Burries’ 2012 Assault 

Was Inextricably Intertwined 

With Charged Murder

[34] 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 

57 State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).

58 Brief for appellee at 29.
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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.59

We have previously explained that our jurisprudence initially 

adopted a broad concept of this class of evidence.60 Although 

in other cases we have partially backed away from the inextricably intertwined exception and instead applied a broader 

notion of rule 404, the exception is still viable.61

The 2012 assault of Hoult was part of the factual setting 

of her murder in May 2014. During the murder trial, the jury 

heard testimony that Burries and Hoult had a volatile relationship; that while Burries was in prison for the assault, he would 

call Hoult and threaten her; that after being released from 

prison, Burries threatened Hoult on multiple occasions; that 

prior to the murder, Hoult had injuries consistent with being 

assaulted; that Burries told Robinson that he had served time 

in prison for Hoult; and that Burries told Cahill and Eledge 

that he burned his clothes because they still had blood on them 

from the last time he assaulted her before he went to prison.

Burries himself repeatedly interjected the 2012 assault of 

Hoult into the 2014 murder of Hoult. Burries told investigators 

that Hoult had asked him to get rid of the clothes he had worn 

during the previous assault, Burries told Eledge that Hoult 

wanted him to get rid of the clothing from the last time he went 

to jail, and Burries told Robinson that “he did time once for 

[Hoult] and he wasn’t scared to do it again.”

The record supports the trial court’s finding that the evidence of the assault was necessary to present a coherent picture 

of the murder. As a result, we conclude that the trial court did 

not err in its pretrial ruling that the 2012 assault was part of the 

factual setting of the crime.

59 See, e.g., Parnell, supra note 5.

60 State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).

61 See id.
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We are cognizant of the fact that at trial, the court concluded that the admission of Burries’ 2012 assault of Hoult 

was admissible under rule 404(2). However, since we find that 

the assault evidence was inextricably intertwined and not 404 

evidence, we need not consider that ruling.

5. Court Did Not Err in Admi

Testimony of Burries’ Thr

of Further Assaul

Burries contends that the court erred by admitting the testimony from Hoult’s acquaintances that Burries threatened 

Hoult while he was incarcerated from December 2012 to 

November 2013, and after his release from prison. However, 

in several circumstances, this court has held that evidence of a 

defendant’s threats to a murder or assault victim can be admitted under the inextricably intertwined exception to rule 404.

In State v. Smith,

62 the defendant and another man were 

convicted of shooting two brothers, one fatally, after the brothers cooperated with federal authorities in exchange for more 

lenient sentencing. We concluded that rule 404 did not apply to 

evidence that within 30 to 40 days prior to the shootings, one 

of the defendants’ made threatening statements to the brothers 

on two occasions. We held that the evidence was necessary 

to present a coherent picture of the crime and was part of the 

factual setting.

In concluding that the threats were inextricably intertwined 

with the shootings, we relied on another case involving evidence of a defendant’s stated desire to harm or kill a murder 

victim. In State v. Canbaz,

63 the disputed evidence did not 

involve the defendant’s threats to the victim. Instead, after the 

defendant’s girlfriend broke up with him, he told witnesses 

that he wanted to kill her and her family members, or he made 

statements that evidenced his desire to kill her. Some of his 

62 State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).

63 State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).
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statements were made a few days before the murder, but others were made at an unspecified time after the defendant’s 

girlfriend broke up with him in early July. He killed her in 

early September. We held that rule 404(2) did not govern the 

admission of the defendant’s statements to these witnesses and 

that the trial court erred in concluding otherwise. Instead, the 

statements were admissible as evidence that the defendant had 

killed intentionally and with premeditation.

More recently, in State v. Parnell,

64 the defendant shot two 

women multiple times, killing one of them. The woman who 

survived described the defendant’s vehicle, which she had 

previously seen. She testified that 2 days before the shooting, 

the defendant had threatened her with a gun because she had 

brought a rival gang member to a party. He was prosecuted 

and convicted of making a terroristic threat before the State 

tried him for shooting the women. The State filed notice that 

it intended to present evidence of the terroristic threat under 

rule 404 to show his motive, intent, and plan. After a pretrial 

hearing, the trial court ruled that the threat was inextricably 

intertwined with the shooting but would have also been admissible under rule 404. We affirmed the court’s ruling that the 

inextricably intertwined exception applied. We reasoned that 

evidence of the threat was necessary to present a coherent picture of the crimes because it showed that he had acted upon a 

recent threat to the victim.

[35] Under this precedent, evidence of a murder defendant’s previous threat to the victim or statement to others 

showing a desire to harm or kill the victim are facts that 

are inextricably intertwined with the charged murder if the 

defendant made the threat or statement fairly close in time to 

the murder.65

Accordingly, the inextricably intertwined exception applied 

to Beck’s testimony that she overheard threats from Burries 

64 Parnell, supra note 5.

65 See id.
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in his calls to Hoult while he was incarcerated. Though these 

threats were made at least 6 months prior to the murder, the 

threats were relevant to show that Burries killed Hoult intentionally or with premeditation or that he had acted on a recent 

threat to harm or kill Hoult.

The inextricably intertwined exception applied to Robinson’s 

testimony of hearing Burries’ statement about doing time for 

Hoult in April. It also applied to Robinson’s testimony of 

seeing Hoult upset after getting a call from Burries in May. 

Further, it applied to Hoult’s statement to Robinson shortly 

after that call about the threats made to her by Burries.

The inextricably intertwined exception applied to Coburn’s 

testimony that about a month before Hoult’s murder, he also 

heard Burries threaten Hoult.

Because Burries’ threats prior to the murder were inextricably intertwined with the murder, the court did not err in failing to comply with the procedural requirements for admitting 

evidence under rule 404 and failing to properly instruct the 

jury on the specific purpose for which it was receiving the 

testimony.

As we discuss later, we reject Burries’ argument that the 

State failed to prove by clear and convincing evidence that 

Burries, and not someone else, had threatened Hoult. There 

was ample evidence that Burries was known as “Tony.” These 

witnesses testified to hearing threatening statements in calls 

from “Tony” to Hoult, or Hoult told them that “Tony” had 

threatened her after speaking to him on her cell phone.

6. Court Erred in Admitting Burr

Threatening Letter to 

(a) Additional Facts

Burries’ letter to Howard was presented to the court during 

the trial because Howard gave it to the prosecutor when she 

appeared to testify. During an in camera hearing, the State 

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prosecutor stated that if the court ordered a redaction, she 

would comply. But she felt strongly that the entire letter should 

be admitted. Defense counsel did not believe the letter was 

admissible at all but stated that the defense would consider 

a redacted version after seeing it. The court agreed with the 

prosecutor and admitted the entire letter.

Before the letter was read to the jury, the court instructed 

the jury as follows:

[S]ome of the evidence you are about to receive is — evidence of other crimes, wrongs or acts is not admissible to 

prove the character of a person or in order to show that 

he or she is acting 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.

(b) Parties’ Contentions

Burries contends that the court erred in admitting the entire 

letter because portions of the letter were not relevant for any 

purpose other than proving that he had a bad character. He 

also contends that the court erred in reciting potential purposes under rule 404(2) per the letter, instead of providing the 

jury with a precise purpose for which the court was admitting 

the evidence. The State responds that Burries did not ask for 

a redaction and that even if he had, the unredacted portions 

would have been the most probative of his consciousness of 

guilt. Relying on State v. Jenkins,

66 the State also argues that 

Burries’ letter was not subject to rule 404 and that it was highly 

probative of his consciousness of guilt.

(c) Resolution

We disagree with the State that Burries’ attorney should 

have requested a redaction when the prosecutor offered to 

redact the letter and the court determined that the entire letter 

was admissible under rule 404. However, as the State argued, 

66 State v. Jenkins, 294 Neb. 475, 883 N.W.2d 351 (2016).
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the unredacted portions would have been the most probative of 

his consciousness of guilt and the admission of the remaining 

portions of the letter was harmless error.

We also disagree with the State that under Jenkins, Burries’ 

letter to Howard was not subject to rule 404. In Jenkins, the 

defendant was convicted of first degree murder. Sometime after 

the murder, the defendant got into a heated argument with her 

mother. When her brother took the defendant into a different 

room, her sisters heard her yell that she would “‘pop that bitch 

like I popped that nigga.’”67 We concluded that in the context 

of witnesses’ testimonies, the jurors could have reasonably 

inferred that she had threatened to shoot her mother, just like 

she had shot the victim. We concluded that her statement was 

an admission, which was not subject to exclusion under rule 

404(2), because it was direct evidence of the charged crime. 

But Burries did not admit to killing Hoult in his letter to 

Howard, so Jenkins does not control here.

[36] However, we do agree with the State that Burries’ letter to Howard was intended to threaten her on the eve of her 

testimony. This court has held that “[a] defendant’s attempted 

intimidation or intimidation of a State’s witness is evidence of 

the defendant’s ‘conscious guilt’ that a crime has been committed and serves as a basis for an inference that the defendant is 

guilty of the crime charged.”68

In State v. Clancy,

69 evidence was presented that the defendant had called a woman and threatened to kill her or her 

husband or to blow up their house if the woman provided 

further information to law enforcement authorities. We held 

that evidence of a threatening communication to a witness had 

probative value and was admissible as relevant evidence if it 

67 Id. at 480, 883 N.W.2d at 357.

68 State v. Clancy, 224 Neb. 492, 499, 398 N.W.2d 710, 716 (1987), 

disapproved on other grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d 

662 (1989).

69 Id.
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allowed a reasonable juror to believe that it was more probable that the declarant was conscious or knew that a crime had 

been committed.70

As such, Burries’ letter to Howard was relevant to show 

his consciousness of guilt.71 Though neither the prosecutor 

nor the court stated this purpose, the court acknowledged that 

portions of the letter were relevant to show Burries’ threats to 

a witness.

However, we also held in Clancy that consciousness of guilt 

evidence is subject to rule 404(2).72 As a result, evidence of 

Burries’ letter to Howard was subject to the same procedural 

requirements as other evidence offered under rule 404(2).

[37] Pursuant to rule 404(3), before the prosecution can 

offer evidence of a criminal defendant’s extrinsic acts under 

rule 404(2), it must first prove to the trial court, by clear and 

convincing evidence and outside the jury’s presence, that the 

defendant committed the act.73

[38-40] Upon objection to evidence offered under rule 

404(2), the proponent must state on the record the specific 

purpose or purposes for which the evidence is being offered, 

and the trial court must similarly state the purpose or purposes 

for which it is receiving the evidence.74 A trial court must 

then consider whether the evidence is independently relevant, 

which means that its relevance does not depend upon its 

tendency to show propensity.75 Additionally, evidence offered 

under rule 404(2) is subject to the overriding protection of 

rule 403, which requires a trial court to consider whether the 

probative value of the evidence is substantially outweighed 

70 Id.

71 See id.

72 See id.

73 See Jenkins, supra note 66.

74 See, e.g., id.; State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).

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

McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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by the danger of unfair prejudice.76 Finally, when requested, 

the trial court must instruct the jury on the specific purpose 

or purposes for which it is admitting the extrinsic acts evidence under rule 404(2), to focus the jurors’ attention on 

that purpose and ensure that it does not consider it for an 

improper purpose.77

In Sanchez, we agreed with the reasoning of federal courts 

under their counterpart to rule 404(2) that a fine line often 

exists between what is admissible and inadmissible evidence 

under this rule because such evidence can sometimes carry a 

substantial danger of unfair prejudice. “‘Therefore, it is advisable for a trial judge to insist that a party offering [extrinsic 

acts] evidence place on the record a clear explanation of 

the chain of inferences leading from the evidence in question to a fact “that is of consequence to the determination of 

the action.”’”78

[41] A proponent’s clear explanation for evidence offered 

under rule 404(2) ensures that a trial court has an opportunity 

to examine the evidence for its independent relevance and the 

potential for unfair prejudice. The requirement that the trial 

court state on the record the purpose or purposes for which 

such evidence is received is primarily to ensure that an appellate court can review the trial court’s ruling.79 The requirement 

that the court give the jury a limiting instruction upon request 

ensures that the jury does not focus on the evidence for an 

improper purpose.80

In the instant case, the court’s limiting instruction did not 

instruct the jury on the specific purpose or purposes for which 

the letter was being admitted. Instead, it instructed the jury 

76 See, Pullens, supra note 10; Perrigo, supra note 56.

77 See, Oldson, supra note 75; Torres, supra note 74.

78 Sanchez, supra note 57, 257 Neb. at 307, 597 N.W.2d at 374, quoting U.S. 

v. Murray, 103 F.3d 310 (3d Cir. 1997).

79 See id. Accord State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).

80 See Oldson, supra note 75.
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that the evidence “may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity or absence of mistake or accident.” 

(Emphasis supplied.)

The court’s instruction allowed the jury to consider the letter for any purpose under rule 404(2) instead of considering it 

for Burries’ conscious guilt for the crime charged, exclusively. 

As a result, the court’s admission of the letter was error.

7. Court Properly Admitted Eviden

Burries’ and Hoult’s State

to Robin

Although we have concluded that Robinson’s testimony 

about Burries’ threatening statements to Hoult were inextricably intertwined with the charged crime, Burries argues that 

the court erred in failing to exclude his testimony under other 

evidence rules.

(a) Additional Facts

As previously mentioned, Robinson testified that about the 

middle of April, he answered a call on Hoult’s cell phone and 

saw the name “Tony” on it. Robinson believed that he was 

speaking to Burries. Robinson said that after asking where 

Hoult was, the caller said that “he did time once for [Hoult] 

and he wasn’t scared to do it again.” The court overruled 

Burries foundation objection to this testimony. In its pretrial 

order, the court explained its ruling:

[Robinson] can testify as to what he saw and observed 

even though he cannot testify that the caller actually was 

[Burries]. This is no different from a fact witness testifying that he saw a particular make/model/color of car in a 

parking lot without . . . being able to specifically identify it as belonging to a Defendant. The evidence is still 

admissible even though it is subject to weight and credibility considerations.

Robinson also testified that on Monday, May 12, 2014, 

Hoult told him “Tony” was calling and that he overheard 
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part of the conversation and saw Hoult become distressed 

and emotional. He stated that about 20 to 30 minutes later, 

she told him that “Tony” had threatened to beat her, revive 

her, and beat her again. The court overruled Burries’ hearsay objections to Robinson’s testimony that Hoult told him 

“Tony” was the caller and that Hoult told him that “Tony” 

had said he would beat her. In its pretrial order, the court 

ruled that Hoult’s statements to Robinson on May 12 were 

admissible under three hearsay exceptions: the excited utterance exception, the state-of-mind exception, and the residual exception.

(b) Foundation Challenge to 

Robinson’s Testimony 

Regarding Burries’ Call 

to Hoult in April 2014

Burries argues that the court erred in rejecting his foundation challenge because Robinson could not know that Burries 

was the person calling Hoult in April 2014 when he saw the 

name “Tony” on Hoult’s cell phone. He argues that despite 

the court’s ruling that Robinson could not identify Burries as 

the caller, it permitted him to testify that he believed the caller 

was Burries.

First, we reject Burries’ interpretation of the court’s order. 

The court meant that Robinson could testify to what he saw on 

Hoult’s cell phone—i.e., the name “Tony”—even if Robinson 

could not positively know whether Hoult had assigned the 

name “Tony” to calls that she received from Burries’ cell 

phone number. It did not preclude Robinson from testifying 

that he believed the caller was Burries. It ruled that the evidence was admissible even though it was subject to weight and 

credibility considerations.

[42-44] Second, we reject Burries’ authentication argument. 

Neb. Evid. R. 90181 requires authentication or identification of 

81 Neb. Rev. Stat. § 27-901 (Reissue 2016).
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evidence sufficient to support a finding that a matter is what 

the proponent claims as a condition precedent for admission. 

But authentication or identification under rule 901 is not a high 

hurdle.82 A proponent is not required to conclusively prove 

the genuineness of the evidence or to rule out all possibilities 

inconsistent with authenticity.83 If the evidence is sufficient to 

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

the rule is satisfied.84 And we have held that the identity of a 

participant in a telephone conversation may be established by 

circumstantial evidence such as the circumstances preceding 

or following the telephone conversation.85 Many other courts 

hold the same.86

The State did not submit records of the cell phone calls 

that Hoult received in April 2014. But at that time, her cell 

phone was programmed to identify the caller as “Tony.” As 

stated, ample evidence in the record established that Burries 

was known as Tony. The record also showed that Robinson 

knew Hoult had a boyfriend named “Tony” and that on May 

12, 2014, he heard “Tony” speaking to Hoult on her cell phone 

in a threatening manner. It would have been an implausible 

coincidence if Hoult had known two different males named 

“Tony” who called her to make threats. Equally important, on 

redirect examination, Robinson testified that he recognized the 

voice he heard on May 12—when Hoult identified the caller 

as “Tony”—as the same voice that he had heard when he 

answered Hoult’s cell phone in April. We conclude that the circumstantial evidence sufficiently established that Burries was 

the “Tony” who called Hoult’s cell phone in April and spoke 

to Robinson.

82 See, e.g., Casterline, supra note 11.

83 Id.

84 Id.

85 See State v. McSwain, 194 Neb. 31, 229 N.W.2d 562 (1975).

86 See Annot., 79 A.L.R.3d 79 (1977 & Supp. 2017).
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(c) Hearsay Challenge to 

Robinson’s Testimony 

About May 12, 2014, 

Call From Burries

Burries contends that the court erroneously ruled that 

Hoult’s statements to Robinson on May 12, 2014, were admissible under residual hearsay exception or under the exceptions for excited utterances and to show the declarant’s state 

of mind. The State argues that Burries’ statements to Hoult 

were admissible as the statement of a party opponent and that 

Hoult’s statements to Robinson were admissible as excited 

utterances. Regarding the excited utterance exception, Burries 

argues that Hoult did not tell Robinson about Burries’ threats 

to beat her until 20 to 30 minutes after Robinson observed 

her change in demeanor during the call. He also suggests 

that Hoult was not upset by the time she made the statement 

because Robinson testified that she “‘just needed someone to 

vent to.’”87

[45,46] Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered to 

prove the truth of the matter asserted.88 A declarant’s out-ofcourt statement offered for the truth of the matter asserted is 

inadmissible unless it falls within a definitional exclusion or 

statutory exception.89

[47] Under Neb. Evid. R. 803(1),90 the rule against hearsay 

does not exclude 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.” This exception 

comprises excited utterances.91

87 Brief for appellant at 27.

88 Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2016).

89 See, Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2016); State v. 

McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

90 Neb. Rev. Stat. § 27-803(1) (Reissue 2016).

91 See, e.g., Smith, supra note 62.
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[48] Excited utterances are an exception to the hearsay rule, 

because the spontaneity of excited utterances reduces the risk 

of inaccuracies inasmuch as the statements are not the result of 

a declarant’s conscious effort to make them.92 The justification 

for the excited utterance exception is that circumstances may 

produce a condition of excitement which temporarily stills the 

capacity for reflection and produces utterances free of conscious fabrication.93

[49,50] For a statement to be an excited utterance, the following criteria must be met: (1) There must be a startling 

event, (2) the statement must relate to the event, and (3) the 

declarant must have made the statement while under the stress 

of the event.94 An excited utterance does not have to be contemporaneous with the exciting event.95 An excited utterance 

may be subsequent to the startling event if there was not time 

for the exciting influence to lose its sway.96 The true test for 

an excited utterance 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.97

[51] The period in which the excited utterance exception 

applies depends on the facts of the case.98 Relevant facts 

include the declarant’s physical conditions or manifestation 

of stress and whether the declarant spoke in response to questioning.99 But a declarant’s response to questioning, other than 

questioning from a law enforcement officer, may still be an 

92 State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

93 Id.

94 Id.

95 See State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).

96 Id.

97 Britt, supra note 92.

98 Hale, supra note 95.

99 See id.
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excited utterance if the context shows that the declarant made 

the statement without conscious reflection.100

The record does not show the lapse of time from when 

Hoult ended her conversation with Burries and when Robinson 

saw her outside. Robinson testified that Hoult was still on 

the cell phone with Burries when he and Hoult’s other guests 

went outside because “it was getting inappropriate for a child 

to be in the room.” He said he saw Hoult 20 to 30 minutes later when she came outside. But she could have been 

on her cell phone with Burries until just before she appeared 

outside.

Moreover, Robinson’s statement that Hoult “just needed 

someone to vent to” showed only that Hoult spoke voluntarily, 

as distinguished from responding to questioning. It did not 

show that Hoult was no longer speaking under the influence 

of nervous excitement and shock because of Burries’ threats. 

Robinson specifically testified that Hoult came outside with 

tears in her eyes. We conclude that the court did not err in 

admitting Hoult’s statement to Robinson under the excited 

utterance exception. Because we reach this conclusion, we do 

not consider the court’s rulings that the statement was admissible under other hearsay exceptions.

8. Burries Failed to Prese

Error Regarding Cobu

Testimony About Hou

Statements to 

Burries contends that Coburn’s testimony was inadmissible 

for other reasons, despite our conclusion that it was inextricably intertwined with the charged murder. Coburn testified that 

on the Sunday before Hoult was killed, he checked her apartment, because Hoult wanted him to make sure that Burries 

was not inside. After Coburn assured Hoult that Burries was 

not there, she gathered some clothes to stay at a friend’s 

100 Id.
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house. But when her friend did not come, Coburn took Hoult 

back to her apartment and made sure she was locked inside. 

Burries did not object to Coburn’s testimony.

Burries argues that the court erred in its pretrial ruling that 

(1) Hoult’s statements to Coburn were admissible under the 

residual hearsay exception and under exceptions for excited 

utterances and present sense impressions and (2) the testimony was relevant to show Hoult was avoiding Burries 

and the volatility of their relationship was escalating just 

before Hoult’s murder. The State contends that Burries did 

not timely object to this testimony. Alternatively, the State 

argues that Coburn’s testimony was relevant to show Hoult’s 

fear of Burries and not offered to prove the truth of the matter asserted.

[52,53] A motion in limine is a procedural step to prevent 

prejudicial evidence from reaching the jury.101 Normally, when 

a motion in limine to exclude evidence is overruled, to preserve error for appeal, the movant must renew the objection 

when the particular evidence which was sought to be excluded 

by the motion is offered during trial.102 We recognize that 

the court allowed Burries to have a standing objection to its 

pretrial rulings under rule 404. But it did not give Burries a 

standing objection to its pretrial rulings under any other rule 

of evidence. Accordingly, because Burries failed to object to 

Coburn’s testimony at trial, he did not preserve his claimed 

errors for appeal.

9. Burries Failed to Preserve E

Regarding Another of Ho

Neighbor’s Testimony Ab

Overhearing Argum

Another of Hoult’s neighbors testified that she would often 

hear loud arguments between Hoult and a male or Hoult 

101 State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).

102 See id.
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and a female. She thought that the last time she heard yelling between Hoult and a male was on the Wednesday or 

Thursday night before Hoult was killed. But she could not 

identify the male who had argued with Hoult because she 

never saw anything.

Burries contends that this testimony lacked foundation 

because she could not identify the male voice and that her 

testimony posed a high potential for unfair prejudice because 

Hoult could have been arguing with another person. However, 

the record shows that Burries failed to object to the neighbor’s 

testimony at trial. So, we again conclude that he did not preserve his claimed error for appeal.

10. Court’s Improper Admissions

Burries’ Letter to Ho

Was Harmless Err

[54-56] In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the 

error was harmless beyond a reasonable doubt.103 Harmless 

error review looks to the basis on which the jury actually 

rested its verdict. The inquiry is not whether in a trial that 

occurred without the error, a guilty verdict would surely have 

been rendered, but whether the actual guilty verdict rendered 

was surely unattributable to the error.104 The erroneous admission of evidence is generally harmless error and does not 

require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the 

trier of fact.105

As stated, the court erred in admitting evidence of the letter 

that Burries wrote to Howard shortly before the trial to show 

his consciousness of guilt. Although the letter was admissible 

for that purpose, the court’s jury instruction was erroneous. 

103 State v. Rask, 294 Neb. 612, 617, 883 N.W.2d 688, 693 (2016).

104Draper, supra note 8.

105 See State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
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But the jury heard cumulative, and much stronger, evidence of 

his consciousness of guilt that was properly admitted.

Specifically, Howard testified that after she drove Burries 

away from Hoult’s apartment, he had her stop in front of a 

randomly chosen house and screamed at her that she would 

be an accessory if she told anyone that he had been at Hoult’s 

apartment that night. An innocent person would not have 

referred to Howard as an accessory or threatened her with 

criminal liability for reporting his whereabouts on the night 

Hoult was killed. Immediately after this statement, Burries had 

Howard drive across a bridge where he threw something out 

the window. Howard testified that she complied with his orders 

that night because she was afraid of what he might do to her. 

This evidence firmly established that Burries had attempted 

to intimidate Howard into silence and that she was afraid he 

would harm her.

Given the strength of the State’s properly admitted evidence, 

we conclude that the jury’s guilty verdict was surely unattributable to the court’s error.

VI. CONCLUSION

We conclude that the court erred in admitting evidence of 

Burries’ letter to Howard without complying with the procedural requirements for admitting such evidence under rule 

404(2). But we conclude that because the State’s other evidence of Burries’ guilt was overwhelming, the court’s error was 

harmless beyond a reasonable doubt. As a result, we affirm.

Affirmed