- 434 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

State of Nebraska, appellee, v. 

Kelvin L. Smith, appellant.

___ N.W.2d ___

Filed January 15, 2016. No. S-14-769.

1. Trial: Evidence: Appeal and Error. An appellate court reviews a trial 

court’s ruling on authentication for abuse of discretion.

2. Trial: Witnesses: Testimony: Appeal and Error. An appellate court 

reviews a trial court’s allowance of leading questions for an abuse 

of discretion.

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. ____: ____. When judicial discretion is not a factor, whether the underlying facts satisfy the legal rules governing the admissibility of such 

evidence is a question of law, subject to de novo review.

6. Convictions: Evidence: Appeal and Error. When reviewing the sufficiency of the evidence to sustain a criminal conviction, it is not the 

province of an appellate court to resolve conflicts in the evidence, pass 

on the credibility of witnesses, determine the plausibility of explanations, or reweigh the evidence; such matters are for the finder of 

fact. The relevant question is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.

7. Constitutional Law: Due Process. The determination of whether the 

procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

01/15/2016 12:05 PM CST
- 435 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

8. Constitutional Law: Criminal Law: Jury Trials. Whether cumulative 

error deprived a criminal defendant of his or her Sixth Amendment right 

to a trial by an impartial jury presents a question of law to be reviewed 

de novo.

9. Statutes: Appeal and Error. Statutory interpretation is a question of 

law that an appellate court resolves independently of the court below.

10. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering and applying the relevant factors as well as any applicable 

legal principles in determining the sentence to be imposed.

11. Appeal and Error. Appellate review is limited to those errors specifically assigned as error in an appeal to a higher appellate court.

12. Trial: Evidence: Appeal and Error. An objection on the basis of insufficient foundation is a general objection, which requires the court to 

engage in interpretation on appeal, rather than be apprised of the real 

basis for the objection.

13. ____: ____: ____. A party may not normally complain on appeal for an 

overruled foundation objection unless the grounds for the exclusion are 

obvious without stating it.

14. Trial: Evidence. Whether there is sufficient foundation evidence for the 

admission of physical evidence must necessarily be determined by the 

trial court on a case-by-case basis.

15. Trial: Evidence: Appeal and Error. A trial court’s determination of 

the admissibility of physical evidence will not ordinarily be overturned 

except for an abuse of discretion.

16. Criminal Law: Trial: Witnesses. A trial court in a criminal case has a 

large, though not unlimited, discretion in granting or refusing permission 

to ask a witness a leading question.

17. Trial: Witnesses: Testimony: Appeal and Error. An appellate court 

reviews a trial court’s allowance of leading questions for an abuse 

of discretion.

18. Trial: Witnesses: Testimony. The concern with the use of leading questions during direct examination is that a witness already giving favorable 

testimony to a party may testify to facts suggested to the witness, rather 

than those personally known by the witness.

19. Evidence: Proof. A document is properly authenticated by evidence 

sufficient to support a finding that the matter in question is what its 

proponent claims.

20. Verdicts: Juries: Appeal and Error. In a harmless error review, an 

appellate court looks at the evidence upon which the jury 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, rather, 
- 436 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

whether the guilty verdict rendered in the trial was surely unattributable 

to the error.

21. Rules of Evidence: Witnesses: Testimony. To constitute a prior consistent statement for purposes of Neb. Evid. R. 801(4)(a)(ii), Neb. 

Rev. Stat. § 27-801(4)(a)(ii) (Reissue 2008), the out-of-court statement 

must be consistent with the in-court testimony recently charged with 

being fabricated.

22. ____: ____: ____. That witnesses’ memories conflict as to when, where, 

or how statements were made may be relevant to the credibility of 

the witnesses’ testimony, but it is not relevant for purposes of analyzing whether an out-of-court statement is a prior consistent statement 

under Neb. Evid. R. 801(4)(a)(ii), Neb. Rev. Stat. § 27-801(4)(a)(ii) 

(Reissue 2008).

23. Appeal and Error. For an alleged error to be considered by an appellate court, an appellant must both assign and specifically argue an 

alleged error.

24. ____. An argument that does little more than restate an assignment of 

error does not support the assignment, and an appellate court will not 

address it.

25. Criminal Law: Minors: Sexual Misconduct: Proof: Words and 

Phrases. In order to show “erotic nudity” as defined in Neb. Rev. 

Stat. § 28-1463.02 (Reissue 2008), the State must prove, first, that the 

depiction at issue displays a human’s genitals or human’s pubic area or 

female’s breast area, and second, that the depiction was created for the 

purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons involved.

26. Criminal Law: Minors: Sexual Misconduct: Photographs. 

Determination of whether a defendant took pictures for purposes of 

real or simulated overt sexual gratification or sexual stimulation should 

include consideration of whether (1) the focal point of the visual depiction is on a child’s genitalia or pubic area; (2) the setting of the visual 

depiction is sexually suggestive; (3) the child is depicted in an unnatural 

pose or in an inappropriate attire, considering the age of the child; (4) 

the child is clothed; (5) the visual depiction suggests sexual coyness or 

willingness to engage in sexual activity; and (6) the visual depiction is 

intended or designed to elicit sexual response in the viewer.

27. ____: ____: ____: ____. In prosecutions under the Child Pornography 

Prevention Act, the sexual nature of a photograph is not determined 

solely from the subject of the photograph, but from the motives of the 

persons generating it.

28. ____: ____: ____: ____. A defendant can be found guilty of creating or 

possessing child pornography beyond a reasonable doubt even when the 

actual depiction at issue is unavailable at trial.
- 437 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

29. Circumstantial Evidence. Circumstantial evidence is not inherently 

less probative than direct evidence.

30. Criminal Law: Sexual Misconduct: Photographs. Whether a photograph was created for the purpose of sexual gratification or stimulation 

must be determined, not only from the depiction, but from the motive of 

the persons generating it.

31. Criminal Law: Sexual Misconduct: Circumstantial Evidence: 

Photographs: Intent. A trier of fact may consider circumstantial evidence of a defendant’s intent in determining whether a depiction was 

created for overt sexual gratification or sexual stimulation.

32. Trial: Evidence: Prosecuting Attorneys: Due Process. The nondisclosure by the prosecution of material evidence favorable to the defendant, 

requested by the defendant, violates due process, irrespective of the 

good faith or bad faith of the prosecution. But due process is not violated where the evidence is disclosed during trial.

33. Criminal Law: Motions for Continuance: Evidence: Waiver. If a 

continuance would have been a sufficient remedy for a belated disclosure in violation of Neb. Rev. Stat. § 29-1912 (Reissue 2008), a defendant who fails to request a continuance waives any rights he or she may 

have had pursuant to § 29-1912.

34. Criminal Law: Prosecuting Attorneys: Witnesses: Indictments and 

Informations: Time. Neb. Rev. Stat. § 29-1602 (Reissue 2008) generally requires the prosecution to endorse the names of all known 

witnesses in the information at the time it is filed, but permits the 

endorsement of additional witnesses up to and including 30 days prior 

to trial.

35. Trial: Witnesses: Indictments and Informations: Time. A trial court, 

in the exercise of its discretion, may permit additional witnesses to 

be endorsed within the 30 days before trial and even after the trial 

has begun, provided doing so does not prejudice the rights of the 

defendant.

36. Trial: Expert Witnesses. The trial court acts as a gatekeeper to ensure 

the evidentiary relevance and reliability of an expert’s opinion.

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

waives the right to assert prejudicial error on appeal.

38. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and 

Error. A party who fails to make a timely motion for mistrial based 

on prosecutorial misconduct waives the right to assert on appeal that 

the court erred in not declaring a mistrial due to such prosecutorial misconduct.

39. Statutes: Intent. In construing a statute, a court must look at the statutory objective to be accomplished, the problem to be remedied, or the 
- 438 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a 

construction defeating the statutory purpose.

40. Criminal Law: Sexual Assault: Minors: Records: Proof. For purposes 

of Neb. Rev. Stat. §§ 28-319.01 (Cum. Supp. 2014) and 28-320.01 

(Reissue 2008), a duly authenticated copy of the former judgment and 

commitment, from any court in which such judgment and commitment 

was had, for any of such crimes formerly committed by the party so 

charged, shall be competent and prima facie evidence of such former 

judgment and commitment.

41. Rules of Evidence: Records: Proof. Copies of judicial records that 

are certified by a deputy clerk for the clerk of the district court and 

impressed with the court’s seal do not require extrinsic evidence of 

authenticity for admission under Neb. Evid. R. 902, Neb. Rev. Stat. 

§ 27-902 (Reissue 2008).

Appeal from the District Court for Sarpy County: David K. 

Arterburn, Judge. Affirmed and remanded for resentencing.

Thomas P. Strigenz, Sarpy County Public Defender, and 

April L. O’Loughlin for appellant.

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

Klein for appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, Cassel, and Stacy, JJ.

McCormack, J.

I. NATURE OF CASE

Kelvin L. Smith was convicted in a jury trial of two counts 

of first degree sexual assault of a child; three counts of third 

degree sexual assault of a child; three counts of incest; three 

counts of visual depiction of sexually explicit conduct; and one 

count of child abuse. Three of the sexual assault charges were 

charged as second offenses, which, pursuant to Neb. Rev. Stat. 

§ 28-319.01(3) (Cum. Supp. 2014), enhanced Smith’s penalty 

to a mandatory minimum sentence of 25 years in prison. In 

total, Smith was sentenced to 41 to 110 years of imprisonment, 
- 439 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

35 of those years being “hard” years, for which there is no 

possibility of parole. Smith appeals both his convictions and 

sentences, assigning 12 errors.

II. BACKGROUND

Smith and Jennifer Smith met and began dating in April 

2004. In late April or May, Smith moved into Jennifer’s apartment in Council Bluffs, Iowa, with Jennifer and her two daughters, S.D. and A.L., who were 9 and 6 years old at the time. 

Smith and Jennifer were married in June 2004. They conceived 

a son, who was born in September 2010.

On August 6, 2013, Child Protective Services received a 

child sexual abuse report with regard to S.D., A.L., and the 

Smiths’ son. As a result of the report, a caseworker went to the 

Smiths’ apartment to interview each family member. Based on 

disclosures made by A.L., the case was turned over to a detective. On August 12, the detective questioned Smith, and then 

placed him under arrest. On October 22, Smith was formally 

charged with offenses of which he was later convicted.

S.D. and A.L. both testified at Smith’s trial that Smith 

sexually assaulted them. Although they could not testify to 

the exact dates for each of the alleged incidents, the girls 

described their experiences in terms of where they were living 

at the time. Thus, it becomes relevant that the family moved 

to La Vista, Nebraska, in 2005 and to Bellevue, Nebraska, 

in 2007.

1. S.D.

At trial, S.D., then 19 years old, testified that Smith began 

sexually assaulting her when she was 10 years old and the 

family was living in La Vista. She testified that the first incident occurred one day while her mother and sister were gone. 

Smith called S.D. into his bedroom, grabbed her by the wrist 

and took her clothes off despite her asking him to stop. S.D. 

testified that Smith pulled her down to the bed, pulled down 

his pants, got on top of her, spread her legs open, and put his 

penis inside her. S.D. testified that incidents like the one she 
- 440 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

described occurred multiple times a month while they lived in 

La Vista. S.D. said she never told her mother because Smith 

told her not to and told her that it would upset her mother.

S.D. testified that the sexual assaults began to occur more 

frequently after the family moved to Bellevue in 2007. She 

testified that a couple of times a week, Smith would touch her 

inappropriately or force her to have oral sex or intercourse 

with him.

When S.D. was 12 or 13 years old, she began to go through 

puberty and began to grow pubic hair. At trial, S.D. testified 

that Smith told her she needed to start shaving because he 

did not like her having hair on her pubic area. She said Smith 

showed her how to shave; he used a razor on her legs and pubic 

area without soap or other lubricant and cut her. Although S.D. 

admitted she sometimes cut her wrists on purpose, S.D. testified that on another occasion, Smith had cut her on the inside 

of her thighs with a box cutter blade because she did not shave 

and was “disgusting and ugly.” At trial, Dr. Suzanne Haney 

discussed photographs of S.D.’s thighs, which show scarring 

consistent with small lacerations that have healed.

(a) Photographs

At trial, S.D. testified that Smith took nude photographs 

of her on multiple occasions. At trial, S.D. was able to recall 

specific details about an incident that occurred when she was 

13 years old. When asked to describe that incident, S.D. said:

He took off my clothes and put me on the bed . . . .

. . . .

[He] grabbed hold of my knees and put them in the air 

and took a picture [of my vaginal area].

. . . .

. . . There was another one where I was — I was on 

my hands and knees, and I remember he put his hand on 

the — on my back and pushed my butt up in the air and 

took a picture like that.

. . . .
- 441 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

. . . There was two more. The other one was — I was 

on my back, and it was from my neck down.

. . . .

. . . I can’t remember the fourth one.

S.D. testified that she saw the pictures after they were 

taken. She said that the photograph Smith took of her buttocks 

showed her vaginal area. S.D. testified that Smith placed the 

photographs into his photograph album (photo album), where 

there were also nude photographs of S.D.’s mother.

A detective, Sarah Spizzirri, obtained Smith’s photo album 

from Jennifer after Smith’s arrest. At the time Spizzirri obtained 

the album, it did not contain any photographs of S.D. Instead, 

there was an empty page where the photographs in question 

were alleged to have been placed.

Smith’s photo album was the kind with peel-back-and-stick 

contact sheets. At trial, Spizzirri testified about those types 

of photo albums, and Smith objected on form and foundation grounds throughout that testimony. Spizzirri said she was 

old enough to remember those types of photo albums and 

described how to insert a photograph into them. Spizzirri was 

allowed to testify that a contact sheet that has never been lifted 

is smooth and one that has been lifted is “all bubbled.” When 

the State asked Spizzirri whether a blank page of Smith’s photo 

album, where explicit photographs of S.D. had allegedly been, 

was bubbled and appeared to have been used, Smith objected 

again, and the court, believing the testimony had already been 

adduced, sustained Smith’s objection on the grounds that the 

question had been asked and answered.

(b) Prior Consistent Statements

S.D. testified that Smith had stopped sexually assaulting 

her in 2008 when she started dating her first boyfriend, Collin 

Ryan, whom she dated on and off for 4 years. S.D. testified 

that one day, while she was babysitting with Ryan, she told 

Ryan that Smith had touched her.

S.D. also testified that she had expressed to her best friend, 

Kendra Dick, that she was being sexually assaulted. S.D. 
- 442 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

testified that she wrote a poem about it in a notebook that she 

shared with Dick, sometime around their sophomore year of 

high school. Without any hearsay objections from Smith, S.D. 

explained that the poem “was about [her] being afraid to be 

alone; and [she] was afraid that if [she] was alone, then he 

would do it again to [her],” and that the poem “talked about 

[her] hurting because someone kept hurting [her].”

S.D.’s testimony was partly corroborated by Ryan’s and 

Dick’s statements at trial. Ryan testified that in December 

2008, he drove S.D. home after a date, and that as he was 

backing up to leave, S.D. came running back outside. Ryan 

said that he went up to her to see what was wrong and that 

S.D. started crying. Over Smith’s hearsay objections, Ryan testified that S.D. told him that she could not be there anymore, 

because “he” touches her. Ryan said he understood it to be 

Smith who was touching S.D., since no other males lived in 

the house.

Dick testified that in junior high, she and S.D. had a secret 

notebook in which they would write notes to each other and 

pass back and forth between classes. Dick testified that S.D. 

wrote a poem in the notebook, but Smith’s hearsay objections 

were sustained, and Dick was not allowed to testify to the specific contents of the poem. Rather, Dick was allowed to testify 

that the poem was significant to her and caused her to feel 

scared for S.D. because “something wasn’t right.” When asked 

if Dick’s understanding was that the poem was about Smith’s 

raping S.D., Dick answered yes. Smith then objected on hearsay grounds, and that objection was overruled.

2. A.L.

A.L., who was 16 years old at the time of trial, testified 

that Smith began sexually assaulting her when she was 11 

years old. She testified that the first time such an incident 

occurred, Smith came to her room at night and lay on her 

bed. A.L. testified that Smith took her pants and his clothes 

off, opened her legs, and put his penis inside her for what 

“felt like a long time.” A.L. testified that about a month 
- 443 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

later, Smith came to her room again, put his fingers inside 

her, and performed oral sex on her. She testified that Smith 

penetrated her with his penis only that one time, but that 

Smith continued to penetrate her with his fingers every other 

night for about a year. A.L. testified that Smith stopped sexually assaulting her sometime after she started her period and 

Jennifer became pregnant.

(a) Prior Consistent Statement

Although A.L. did not tell her mother about Smith’s sexually assaulting her, A.L. testified that she wrote a letter she 

hoped her mother would find and kept it in a box in her closet. 

When asked at trial what the letter was about, A.L. said she 

wrote about the time Smith penetrated her with his penis and 

how scared she was. A.L. said that at the end of the letter, she 

wrote, “[I]f this is my mom finding this, I’m sorry I didn’t 

tell you.”

A.L. testified that sometime after Smith stopped sexually 

assaulting her, she showed the letter to her friend, Natalie 

James. A.L. said that James came over on a day when A.L. was 

home by herself, and that A.L. went to her room, got the note, 

and gave it to James. She testified that James read it and cried. 

Smith did not object to any of A.L.’s statements about the letter 

or what she told James.

To corroborate A.L.’s testimony, the State called James to 

testify regarding the letter. James testified that rather than 

A.L.’s giving the letter to James, A.L. read the letter to James. 

Over Smith’s hearsay objections, James said the letter told the 

story of how “one night [Smith] came into [A.L.’s] room, laid 

in her bed, and then he raped her.” James did not remember 

any message at the bottom of the letter.

(b) Medical Examination 

and Expert Testimony

On the third day of trial, it came to light, through Smith’s 

cross-examination of Spizzirri and Det. Steve Miller, that a 

medical examination had been performed on A.L. Prior to 
- 444 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

that testimony, neither Smith nor the State was aware of the 

medical examination. Miller, who was assigned to investigate 

Smith’s case, received documentation of the examination from 

a child advocacy center and placed it in his personal file; he 

testified that he mistakenly failed to submit the documentation to the records division, where it would have become part 

of the official case file.

The parties stipulated that documentation of A.L.’s medical 

examination would be received into evidence without objection. The documentation, entered into evidence as exhibit 25, 

reflected that A.L.’s hymen had “a continuous hymenal border 

with a redundant hymenal surface,” meaning there was no disruption in the border or evidence of trauma on A.L.’s hymen. 

Neither party requested a continuance based on the surprise 

caused by the exhibit.

Prior to trial, the State was unaware of A.L.’s medical 

examination, and thus did not disclose to Smith that it intended 

to elicit expert testimony from Haney about the examination 

or about the hymen’s ability to heal. Before trial, the State 

expected that Haney would testify only about the photographs 

she took of the scars on S.D.’s thighs. At trial, however, 

Haney testified, not only about the scars on S.D.’s thighs, 

but also that the hymen is able to heal after penile or digital 

penetration. She testified that a physician cannot tell whether 

a woman or female child is a virgin based on the presence or 

absence of a hymen and that the fact exhibit 25 showed A.L. 

had a normal genital examination did not discount her sexual 

abuse disclosure.

Smith allegedly “had to scramble within 12 hours to find an 

expert of his own to counter . . . Haney’s surprise opinion.”1

Smith called Dr. Sean McFadden, a medical doctor certified in 

obstetrics and gynecology who did not have any recent experience treating victims of sexual abuse. At trial, McFadden 

often provided lengthy and highly technical answers not necessarily responsive to questions asked.

1 Brief for appellant at 33.
- 445 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

From what can be gleaned from McFadden’s testimony, his 

position appears to be that an 11-year-old girl has not yet had 

an increase in the production of estrogen and that as a result, 

her hymen is thinner and less elastic than it will be after she 

goes through puberty. He testified that if an adult male penetrated an 11-year-old girl’s vagina, there would likely be some 

laceration of the hymen, that the damage would be increased if 

the penetration was forced, and that A.L.’s medical examination was inconsistent with allegations that she was once penetrated by Smith’s penis and digitally penetrated every other 

night for a year.

McFadden testified that he disagreed with Haney’s testimony that there would be no medical evidence of tearing of the 

hymen. He said that, if injured, the hymen’s tissue will heal, 

but it will not go back to its original state; instead, there will 

be a “transection” where the tissue healed.

3. Conviction and Sentencing

At the conclusion of the trial, the jury found Smith guilty 

on the charges described above. An enhancement hearing was 

held, and the State offered, and the court accepted, exhibit 37 

into evidence. Exhibit 37 was purported to be a prior conviction of attempted first degree sexual assault. Three of the 

sexual assault of a child charges were found to be second 

offenses for purposes of § 28-319.01(3) and Neb. Rev. Stat. 

§ 28-320.01(4) (Reissue 2008), which requires a defendant 

convicted of sexual assault of a child, who has previously been 

convicted of a similar sexual offense, to serve a mandatory 

minimum of 25 years in prison. Prior to announcing the sentences, the trial judge said:

As I read the case law, with respect to the three charges 

that carry mandatory minimums, the Court must impose 

consecutive sentences as to those three charges.

It would seem to the Court, even if that was not 

required, that that would be appropriate given the time 

frames.
- 446 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

The Court has chosen to make some of the sentences 

imposed concurrent to each other and some of the sentences consecutive to each other.

Nothing can be concurrent with the mandatory minimum sentences, . . . but based upon victim, time frame 

of the offense and nature of the offense, the Court finds 

that certain sentences should be imposed on a consecutive basis and not a concurrent basis, in addition to the 

consecutive basis for the sentences on the mandatory 

minimums.

Smith was ultimately sentenced to 41 to 110 years in prison, 

35 of those years being “hard” years, for which there is no 

good time and no possibility of parole.

Additional facts relevant to our analysis of Smith’s assignments of error will be set forth herein.

III. ASSIGNMENTS OF ERROR

Smith filed a lengthy brief containing many assignments of 

error which have been consolidated, restated, and renumbered 

as follows: (1) The trial court erred in allowing exhibits 4 

and 6 to be admitted into evidence; (2) the trial court erred in 

allowing exhibit 9 to be admitted into evidence; (3) the trial 

court erred in allowing Spizzirri to testify about exhibit 7; 

(4) the trial court erred in allowing the hearsay testimony of 

Ryan, Dick, and James; (5) there was insufficient evidence for 

Smith’s convictions; (6) the trial court erred in failing to order 

a new trial after the medical report on A.L. was not timely 

disclosed, in violation of Brady v. Maryland2 and the Nebraska 

discovery rules; (7) the trial court erred in endorsing Haney 

as a witness and allowing her to testify about exhibit 25; (8) 

the trial court violated the cumulative error doctrine; (9) the 

trial court erred in finding Smith’s prior conviction was properly authenticated and certified; (10) the trial court erred in 

sentencing Smith to serve the mandatory minimum sentences 

2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
- 447 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

consecutively; and (11) the trial court erred in imposing excessive sentences.

IV. STANDARD OF REVIEW

[1] An appellate court reviews a trial court’s ruling on 

authentication for abuse of discretion.3

[2] An appellate court reviews a trial court’s allowance of 

leading questions for an abuse of discretion.4

[3-5] 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.5 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.6

 When judicial discretion is not a factor, whether the 

underlying facts satisfy the legal rules governing the admissibility of such evidence is a question of law, subject to de 

novo review.7

[6] When reviewing the sufficiency of the evidence to sustain a criminal conviction, it is not the province of this court 

to resolve conflicts in the evidence, pass on the credibility 

of witnesses, determine the plausibility of explanations, or 

reweigh the evidence; such matters are for the finder of fact.8

The relevant question is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

3 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).

4 State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010).

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

6 State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015); State v. Stricklin, 

290 Neb. 542, 861 N.W.2d 367 (2015); State v. Valverde, 286 Neb. 280, 

835 N.W.2d 732 (2013); State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 

(2013); State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).

7 State v. Draganescu, supra note 5.

8 See, State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012); State v. Epp, 

supra note 3; State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
- 448 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

of fact could have found the essential elements of the crime 

beyond a reasonable doubt.9

[7] The determination of whether the procedures afforded an 

individual comport with constitutional requirements for procedural due process presents a question of law.10

[8] Whether cumulative error deprived a criminal defendant 

of his or her Sixth Amendment right to a trial by an impartial 

jury presents a question of law to be reviewed de novo.11

[9] Statutory interpretation is a question of law that an 

appellate court resolves independently of the court below.12

[10] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether the sentencing court abused its discretion 

in considering and applying the relevant factors as well as 

any applicable legal principles in determining the sentence to 

be imposed.13

V. ANALYSIS

We affirm all of Smith’s convictions as listed above. We 

remand for resentencing in accordance with this opinion.

1. Exhibits 4 and 6

We first address Smith’s contention that the trial court 

erred in allowing exhibits 4 and 6 to be admitted into 

9 State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015); State v. Nave, 284 

Neb. 477, 821 N.W.2d 723 (2012).

10 State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012); State v. Smith, 

282 Neb. 720, 806 N.W.2d 383 (2011); State v. Boppre, 280 Neb. 774, 

790 N.W.2d 417 (2010); State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 

(2009); State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).

11 See, State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009); State v. 

Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007).

12 State v. Becker, 282 Neb. 449, 804 N.W.2d 27 (2011).

13 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013); State v. Erickson, 

281 Neb. 31, 793 N.W.2d 155 (2011); State v. Alford, 278 Neb. 818, 

774 N.W.2d 394 (2009); State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 

(2007); State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).
- 449 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

evidence. His argument adds exhibit 5, though it was not 

assigned as error.

Exhibits 4 through 6 are purported to be photographs of 

the scars on S.D.’s thighs. The process of authentication for 

each of the exhibits was similar. The State would start by asking S.D. if she recognized the exhibit, to which S.D. would 

respond, “[t]hat’s me” or “[m]y leg.” The State would then 

ask a leading question to more specifically identify what the 

photograph portrayed. For example, the State asked S.D., “Is 

that, particularly, your right leg . . . ?” and “[I]s that a picture 

of your inner part of your leg?” S.D. affirmed each time. The 

State then asked whether the exhibit “fairly and accurately 

reflect the scars from the cutting that [Smith] inflicted on 

you?” S.D. indicated that each exhibit did. Each time the 

State offered one of those three exhibits into evidence, Smith 

objected on form and foundation grounds. Smith’s objections 

were overruled.

[11-13] We need not consider whether the trial court erred 

in admitting exhibit 5, because appellate review is limited to 

those errors specifically assigned as error in an appeal to a 

higher appellate court.14 With regard to exhibits 4 and 6, Smith 

offers three reasons why he believes there was not sufficient 

foundation evidence for the exhibits’ admission. But Smith 

objected to the exhibits’ admission only on form and foundation grounds. A foundation objection is a general objection, 

which requires the court to engage in interpretation on appeal, 

rather than be apprised of the real basis for the objection.15

Thus, a party may not normally complain on appeal for an 

overruled foundation objection unless the grounds for the 

exclusion are obvious without stating it.16 Smith acknowledges 

14 State v. Hays, 253 Neb. 467, 570 N.W.2d 823 (1997).

15 See State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005).

16 State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005); State v. Davlin, 263 

Neb. 283, 639 N.W.2d 631 (2002); State v. Baker, 245 Neb. 153, 511 

N.W.2d 757 (1994).
- 450 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

this, but argues that the grounds for the exclusion are obvious 

from the record.

We acknowledge that in authenticating the exhibits, some of 

the State’s questions were leading questions, which suggested 

to S.D. the answer desired of her. Thus, we entertain Smith’s 

argument that exhibits 4 and 6 were improperly identified 

through leading questions and that as a result, there was not 

sufficient foundation evidence for their admission.

[14,15] Whether there is sufficient foundation evidence 

for the admission of physical evidence must necessarily be 

determined by the trial court on a case-by-case basis.17 A trial 

court’s determination of the admissibility of physical evidence will not ordinarily be overturned except for an abuse of 

discretion.18

[16,17] Our law is well settled that a trial court in a criminal 

case has a large, though not unlimited, discretion in granting or 

refusing permission to ask a witness a leading question.19 We 

also review a trial court’s allowance of leading questions for an 

abuse of discretion.20

[18] We find no abuse of discretion here. The concern with 

the use of leading questions during direct examination is that 

a witness already giving favorable testimony to a party may 

testify to facts suggested to her, rather than those personally known by her.21 Here, at the time the State first showed 

S.D. exhibits 4 and 6, S.D. had already testified that Smith 

had cut her legs. When asked to identify the exhibits, S.D. 

17 State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007); State v. 

Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005); State v. Tolliver, 

268 Neb. 920, 689 N.W.2d 567 (2004); State v. Mather, 264 Neb. 182, 

646 N.W.2d 605 (2002); State v. Carter, 255 Neb. 591, 586 N.W.2d 818 

(1998).

18 State v. Jacobson, supra note 17.

19 State v. Hoffmeyer, 187 Neb. 701, 193 N.W.2d 760 (1972).

20 State v. Fleming, supra note 4.

21 Charles W. Ehrhardt & Stephanie J. Young, Using Leading Questions 

During Direct Examination, 23 Fla. St. U. L. Rev. 401 (1995).
- 451 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

immediately responded, “[t]hat’s me” or “[m]y leg.” The State 

followed up with leading questions only to more specifically 

identify the exhibits as photographs of S.D.’s legs showing 

“the injuries or the scars, from the cutting” that S.D. had just 

testified Smith had inflicted upon her. We therefore conclude 

that the trial court did not abuse its discretion in permitting 

the leading questions used during the State’s authentication of 

exhibits 4 and 6.

[19] A document is properly authenticated by evidence sufficient to support a finding that the matter in question is what 

its proponent claims.22 In this case, the State claimed that the 

exhibits were photographs of S.D.’s legs, and even if we ignore 

the testimony adduced through the State’s leading questions, 

S.D.’s testimony established that they were in fact photographs 

of S.D.’s legs. Smith’s assignment of error with regard to 

exhibits 4 and 6 is without merit.

2. Exhibit 9

We next address Smith’s argument that the court erred in 

admitting exhibit 9 into evidence. Exhibit 9 is purported to 

be a copy of Smith’s birth certificate issued by the State of 

Mississippi. The document is signed by a state health officer 

and certified to be a true and correct copy of the certificate 

on file with the State of Mississippi. It contains a warning: 

“A REPRODUCTION OF THIS DOCUMENT RENDERS 

IT VOID AND INVALID. DO NOT ACCEPT UNLESS 

EMBOSSED SEAL OF THE MISSISSIPPI STATE BOARD 

OF HEALTH IS PRESENT.” The document contains the seal 

of Mississippi, as well as a seal of the Mississippi Board of 

Health. The parties disagree about whether the seal of the 

Mississippi Board of Health is embossed. In addition to exhibit 

9, the State established Smith’s birth date and age through two 

other witnesses.

At trial, Smith objected to exhibit 9’s admission on authentication and certification grounds. On appeal, Smith argues that 

22 State v. Jacobson, supra note 17.
- 452 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

the trial court erred in allowing exhibit 9 into evidence, claiming that the requirements of rule 90223 were not met.

Rule 901,24 not cited by Smith, states the general rule 

that authentication or identification is a condition precedent to admissibility, and that such requirement is “satisfied 

by evidence sufficient to support a finding that the matter 

in question is what its proponent claims.” Rule 902 is the 

“self-authentication” statute; it dictates that documents meeting certain requirements do not require extrinsic evidence of 

authenticity.

Rule 902(1) provides in relevant part that “[a] document 

bearing a seal purporting to be that of the United States, or of 

any state . . . and a signature purporting to be an attestation 

or execution” does not require extrinsic evidence of authenticity. Exhibit 9 bears a seal purporting to be that of the State of 

Mississippi and a signature certifying that the information contained in the certificate of live birth is a true and correct copy 

of the certificate on file with the State of Mississippi.

Smith argues that exhibit 9 does not meet rule 902(1), 

because the document itself says that it should not be accepted 

“unless embossed seal of the Mississippi State Board of Health 

is present,” and he claims that the Board of Health seal is not 

embossed. The State argues that the seal does not need to be 

embossed, but claims that “a cursory tactile examination of the 

document shows the [seal is] indeed embossed.”25 We do not 

make a finding of fact as to whether the seal is embossed, and 

we do not decide whether the lack of an embossed seal would 

render the document noncompliant with rule 902(1).

[20] Even if we found that the document was admitted in 

error, it would be harmless error. In a harmless error review, 

an appellate court looks at the evidence upon which the jury 

rested its verdict; the inquiry is not whether in a trial that 

23 Neb. Evid. R. 902, Neb. Rev. Stat. § 27-902 (Reissue 2008).

24 Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2008).

25 Brief for appellee at 23.
- 453 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

occurred without the error a guilty verdict would surely have 

been rendered, but, rather, whether the guilty verdict rendered 

in the trial was surely unattributable to the error.26 The certificate of live birth serves only as proof of the defendant’s age. 

Smith’s age, along with the victims’ ages, were pertinent to the 

severity and punishment of Smith’s crimes of sexual assault of 

a child.27 Evidence of Smith’s date of birth was also offered in 

the form of testimony from at least two witnesses, including 

Smith’s wife. Smith did not object to that testimony and did 

not present any contradicting testimony. Thus, the jury could 

have found Smith’s age even without exhibit 9. We therefore 

conclude that any error in admitting exhibit 9 would be harmless error.

3. Spizzirri’s Testimony

on Photo Albums

Smith also argues that Spizzirri’s testimony on the photo 

albums should not have been admitted. First, Smith argues 

that Spizzirri should not have been allowed to give “opinion 

testimony” about whether or not a contact sheet on the photo 

album was “all bubbled” or had been lifted up, because the 

State did not establish that she was an expert on contact sheets. 

Second, Smith claims that Spizzirri’s testimony was improper 

bolstering of S.D.’s credibility. Both of these arguments are 

without merit.

(a) Opinion Testimony

Rule 70128 allows a witness not testifying as an expert to 

provide “those opinions or inferences which are (a) rationally 

based on the perception of the witness and (b) helpful to a clear 

26 State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011); State v. Hudson, 

279 Neb. 6, 775 N.W.2d 429 (2009); State v. Pischel, 277 Neb. 412, 762 

N.W.2d 595 (2009); State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008); 

State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).

27 See Neb. Rev. Stat. § 28-319 (Reissue 2008).

28 Neb. Evid. R. 701, Neb. Rev. Stat. § 27-701 (Reissue 2008).
- 454 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

understanding of his testimony or the determination of a fact 

in issue.”

Spizzirri testified that she had “personal experience with 

[that] type of a photo album,” with “peeling away the clear 

sheet” and “putting a photo onto the sticky backing.” She testified that in the past, when she “peeled back the clear paper and 

tried to . . . rearrange or arrange photographs,” the clear sheet 

“never goes down quite right. It’s bubbled.”

We note that Spizzirri was not actually permitted to testify 

on direct examination that she believed photographs had been 

removed from the photo album, though the State’s questions 

certainly created that inference. Even so, such inference was 

rationally based on Spizzirri’s experiences with peel-back-andstick photo albums, and Spizzirri’s testimony was helpful to 

the jury, who may not have had experience with peel-back-andstick photo albums. We conclude that Spizzirri’s testimony was 

proper lay witness testimony under rule 701.

(b) Bolstering

Smith also claims that Spizzirri’s testimony regarding the 

photo album vouched for the character of S.D., in violation of 

Neb. Evid. R. 608, Neb. Rev. Stat. § 27-608 (Reissue 2008). 

We do not see, and Smith does not explain, how this statute 

applies to Spizzirri’s testimony.

Rule 608 provides:

(1) The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, 

but subject to [certain] limitations . . . .

(2) Specific instances of the conduct of a witness, for 

the purpose of attacking or supporting his credibility, 

other than conviction of crime as provided in section 

27-609, may not be proved by extrinsic evidence.

Subsection (1) does not apply, because the credibility 

of S.D. was neither attacked nor supported by Spizzirri’s 

testimony in the form of reputation or opinion testimony. 

Subsection (2) does not apply, because Spizzirri’s testimony 
- 455 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

about the photo album was not extrinsic evidence of specific 

instances of S.D.’s conduct.

It seems Smith is construing rule 608 as prohibiting a party 

from eliciting testimony from one witness to corroborate the 

testimony of another. There is no such rule. Smith’s argument 

is without merit. We conclude that Spizzirri’s testimony about 

the photo album was properly admitted.

4. Statements by Ryan, 

Dick, and James

Smith argues that the trial court erred in allowing the hearsay testimony of Ryan, Dick, and James as prior consistent 

statements.

We first note that this issue was properly preserved for 

appeal by Smith’s hearsay objections. The State argues that 

Smith waived this issue because he did not object on the 

specific basis that the statements were not prior consistent 

statements. The State claims that “there are so many components to the hearsay rule, and so many exceptions to it that 

a generic objection of ‘hearsay’ does not fit the ‘specific 

grounds’ requirement.”29 The State has cherry-picked cases 

State v. Cave30 and State v. Duncan31 for statements in support 

of its argument. But those cases did not involve hearsay objections and are easily distinguished.

We have never held that an objecting party must anticipate 

and specify every hearsay exclusion or exception potentially 

applicable in order to preserve his or her objection. We conclude that Smith’s hearsay objection at trial properly preserved 

the issue for appeal; thus, we address the merits of Smith’s 

arguments.

First, we review the general hearsay rule and “prior consistent statement” exclusion. Hearsay is “a statement, other 

29 Brief for appellee at 8.

30 State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).

31 State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
- 456 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

than one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter 

asserted[.]”32 Hearsay is not admissible at trial except as provided by the Nebraska Evidence Rules.33

Rule 801(4)(a)(ii), often referred to as the “prior consistent 

statement” exclusion, provides that a statement is not hearsay if 

“[t]he declarant testifies at the trial or hearing and is subject to 

cross-examination concerning the statement, and the statement 

is . . . consistent with his testimony and is offered to rebut an 

express or implied charge against him of recent fabrication or 

improper influence or motive.”

The court explicitly allowed Ryan’s testimony of S.D.’s 

out-of-court statement and James’ testimony of A.L.’s out-ofcourt statement into evidence as prior consistent statements. 

Dick’s statement that she understood the poem to be about rape 

was not included in that finding. The record does not show 

under which hearsay exclusion or exception Dick’s testimony 

was allowed, but Smith’s hearsay objections were nevertheless overruled.

Smith concedes that S.D. and A.L. were at trial and subject 

to cross-examination. Smith also concedes that he recently 

charged S.D. and A.L. with fabricating their allegations against 

him. Nevertheless, he argues that certain testimony of Ryan, 

Dick, and James should not have been admissible per rule 

801(4)(a)(ii) because it was not consistent with the testimony 

of S.D. and A.L. at trial.

[21] The main problem with Smith’s prior-consistentstatement analysis is that he compares for consistency the 

testimony of Ryan, Dick, and James with the testimony of 

S.D. and A.L. regarding the context in which the out-ofcourt statements were made. Smith should instead compare 

the out-of-court statements made by S.D. and A.L. with the 

32 Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2008).

33 Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2008).
- 457 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

in-court statements that Smith charged S.D. and A.L. with 

recently fabricating.34

For example, with regard to Ryan’s testimony, Smith is 

distracted by the witnesses’ inconsistent testimony about the 

location and timing of the conversation at issue. Ryan testified that S.D. made the statement “he touches me” after 

Ryan dropped S.D. off after a date. In contrast, S.D. testified 

that the conversation occurred while she was babysitting with 

Ryan. Smith contends this discrepancy makes Ryan’s testimony inadmissible.

But applying rule 801(4)(a)(ii), S.D.’s statement to Ryan 

was not hearsay. S.D. testified at trial and was subject to crossexamination concerning her statement to Ryan, “he touches 

me.” That statement was consistent with S.D.’s testimony at 

trial and was offered to rebut Smith’s charge that S.D. recently 

fabricated her sexual assault allegations against Smith.

With respect to James’ testimony, Smith focuses on James’ 

and A.L.’s conflicting accounts of who read A.L.’s letter. 

James testified that A.L. read the letter to her, and A.L. testified that James read the letter to herself. But we must compare 

A.L.’s out-of-court statement contained within the letter with 

the in-court statement that Smith claims A.L. fabricated. The 

out-of-court statement was that Smith came into A.L.’s room 

and raped her, and that statement was consistent with A.L.’s 

in-court testimony of the same.

[22] The fact that the witnesses’ memories conflict as to 

when, where, or how statements were made may be relevant to 

the credibility of the witnesses’ testimony, but it is not relevant 

for purposes of analyzing whether an out-of-court statement 

is a prior consistent statement under rule 801(4)(a)(ii). We 

conclude that the statements of S.D. and A.L., testified to by 

34 See, State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abrogated, 

State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996); State v. Tlamka, 244 

Neb. 670, 508 N.W.2d 846 (1993), abrogated, State v. Morris, supra note 

34; State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985), abrogated, 

State v. Morris, supra note 34.
- 458 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

Ryan and James respectively, were prior consistent statements 

properly admitted at trial.

As for Dick’s statement that she understood S.D.’s poem to 

be about Smith’s raping S.D., we first acknowledge that such 

testimony would be hearsay if not for rule 801(4)(a)(ii). In 

essence, Dick testified to S.D.’s out-of-court written assertion 

that Smith raped her.

Smith argues that this assertion was not a prior consistent 

statement, because, he claims, the poem was the declarant, 

was not produced at trial, and thus was not subject to crossexamination. Smith also makes this argument with respect to 

A.L.’s letter. Both arguments are without merit.

Rule 801(2) states that a “declarant is a person who makes a 

statement,” and rule 801(1) says that a “statement is (a) an oral 

or written assertion or (b) nonverbal conduct of a person, if it is 

intended by him as an assertion.” Dick’s challenged testimony 

involves statements contained within the poem. S.D. wrote 

the poem. As the poem’s author, S.D. is clearly the declarant. Likewise, A.L. was clearly the declarant of the statements 

contained within the letter she wrote. Both S.D. and A.L. were 

indisputably at trial and subject to cross-examination. Smith’s 

arguments that rule 801(4)(a)(ii) does not apply because the 

documents were the declarants and not available for crossexamination is without merit.

Smith also argues that Dick’s testimony about the poem (that 

Dick understood it to be about Smith’s raping S.D.) was inconsistent with S.D.’s in-court testimony, because S.D. did not use 

the word “rape” when S.D. described her poem. Instead, S.D. 

said the poem was very general and was about S.D.’s “hurting 

because someone kept hurting [her].” Although we think S.D.’s 

statement to Dick that Smith raped her is consistent with S.D.’s 

statement that someone hurt her, these two statements are not 

the ones rule 801(4)(a)(ii) requires us to compare.

To comport with rule 801(4)(a)(ii), the out-of-court statement 

must be consistent with the in-court testimony recently charged 

with being fabricated. Smith charged S.D. with fabricating 
- 459 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

her testimony that Smith sexually assaulted her. S.D.’s outof-court statement that Smith raped her is consistent with her 

in-court testimony.

5. Sufficiency of Evidence

[23,24] We turn to Smith’s next assignment of error that 

there was insufficient evidence to sustain the verdict. Smith 

assigns as error and briefly mentions in his argument that there 

was insufficient evidence as to all counts. But to be considered by an appellate court, an appellant must both assign and 

specifically argue an alleged error.35 An argument that does 

little more than restate an assignment of error does not support 

the assignment, and an appellate court will not address it.36

Because Smith’s argument addresses only the sufficiency of the 

evidence with respect to counts 10 through 12, we need only 

consider the evidence with regard to those charges.

(a) Counts 10 Through 12

Counts 10 through 12 are charges based on the three photographs that Smith allegedly took of S.D, which S.D. described 

at trial—one count per photograph. Since the photographs were 

not available at trial and do not have corresponding exhibit 

numbers, we will refer to the photographs as photographs “1,” 

“2,” and “3” for purposes of our analysis.

[25] All three counts involve charges that Smith violated 

Neb. Rev. Stat. § 28-1463.03(1) (Reissue 2008), which makes 

it “unlawful for a person to knowingly make, publish, direct, 

create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one 

of its participants or portrayed observers.” Neb. Rev. Stat. 

§ 28-1463.02(5)(e) (Reissue 2008) defines “[s]exually explicit 

conduct,” in relevant part, as “erotic nudity,” which means “the 

35 State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).

36 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014); State v. Pereira, 

284 Neb. 982, 824 N.W.2d 706 (2013); State v. Mata, 275 Neb. 1, 745 

N.W.2d 229 (2008).
- 460 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

display of the human male or female genitals or pubic area, 

the human female breasts, or the developing breast area of the 

human female child, for the purpose of real or simulated overt 

sexual gratification or sexual stimulation of one or more of the 

persons involved.”37 This means that in order to show “erotic 

nudity” as defined in § 28-1463.02, the State must prove, first, 

that the depiction displayed a human’s genitals or a human’s 

pubic area or female’s breast area, and second, that the depiction was created for the purpose of real or simulated overt 

sexual gratification or sexual stimulation.

[26,27] To determine whether photographs were taken for 

the purpose of real or simulated overt sexual gratification or 

sexual simulation, we consider the following factors from 

United States v. Dost38:

1) whether the focal point of the visual depiction is on 

the child’s genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, 

or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or 

nude;

5) whether the visual depiction suggests sexual coyness 

or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed 

to elicit a sexual response in the viewer.

A visual depiction need not involve all these factors to be 

considered “erotic nudity.”39 Nor are the factors exclusive. 

We have said that the sexual nature of a photograph is not 

37 § 28-1463.02(3).

38 United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), affirmed 

sub nom. U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and affirmed 813 

F.2d 1231 (9th Cir. 1987). See, also, State v. Saulsbury, 243 Neb. 227, 498 

N.W.2d 338 (1993).

39 See, § 28-1463.02; United States v. Dost, supra note 38.
- 461 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

determined solely from the subject of the photograph, but also 

from the motives of the persons generating it.40

(b) Prosecuting Child Pornography 

Cases Without Depiction 

at Issue in Evidence

Smith claims it was impossible for the jury to find beyond 

a reasonable doubt that the photographs Smith allegedly took 

of S.D. depicted erotic nudity, because the photographs were 

“not in existence” at trial.41 Smith’s argument appears to be 

that, without actual photographs, the jury could not determine 

whether a minor’s private parts were displayed in the photographs and could not apply the Dost factors to determine 

whether they were taken for the purpose of real or simulated 

overt sexual gratification or sexual simulation.

The State argues in contrast that a defendant can be found 

guilty of creating or possessing child pornography beyond a 

reasonable doubt even without the actual depictions in evidence. In support of its position, the State cites three federal 

cases, all of which rely on U.S. v. Villard.

42

In Villard, the defendant filed a motion for judgment of 

acquittal after a jury convicted him of violating the federal 

exploitation of children statute, see 18 U.S.C. § 2251 (2012). 

In the lower court’s order granting the motion, it indicated that 

it may be possible to prove beyond a reasonable doubt that the 

defendant violated § 2251, even without the actual depiction at 

issue.43 Nevertheless, the lower court found that the evidence 

against the defendant was insufficient to prove that the unavailable photographs at issue were illegal child pornography in 

violation of § 2251.

40 See State v. Saulsbury, supra note 38.

41 Brief for appellant at 53.

42 U.S. v. Villard, 885 F.2d 117 (3d Cir. 1989).

43 See U.S. v. Villard, 700 F. Supp. 803 (D. N.J. 1988), affirmed U.S. v. 

Villard, supra note 42.
- 462 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

The circumstantial evidence in Villard included a surveillance tape, which showed the defendant and another man 

looking at the depiction at issue and commenting on it. At one 

point, the other man said to the defendant, “‘I wonder if he’s 

asleep. He’s three quarters hard. Maybe he sleeps in the buff 

like that. He’s pretty hairy, though, God but not just much 

under the arm.’”44 The other man also testified at trial that the 

pictures were all closeups of a boy who was approximately 14 

or 15 years old, which showed the boy from his head to his 

knees. The man said that the boy’s knees were bent slightly 

upward and that he was “‘semi erect.’”45

After the jury in Villard convicted the defendant based on 

the evidence above, the lower court granted the defendant’s 

motion for judgment of acquittal. On appeal, the Third Circuit 

was able to find only two of the Dost factors with any certainty.46 It concluded that the evidence was insufficient and 

affirmed the district court’s grant of judgment of acquittal. One 

judge dissented, because she felt that more deference should 

have been given to the jury’s determination and that the majority was not viewing the evidence in the light most favorable to 

the government.

[28,29] We find it clear from the reasoning in Villard and 

similar cases that a defendant can be found guilty of creating or possessing child pornography beyond a reasonable 

doubt even when the actual depiction at issue is unavailable 

at trial. After all, we have often said that circumstantial evidence is not inherently less probative than direct evidence.47

And, although courts have recognized that proving a child 

44 Id. at 806.

45 Id. at 807.

46 U.S. v. Villard, supra note 42.

47 State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009); State v. Leibhart, 

266 Neb. 133, 662 N.W.2d 618 (2003); State v. Miner, 265 Neb. 778, 

659 N.W.2d 331 (2003); State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 

(2001); State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).
- 463 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

pornography case may be considerably more difficult without 

the actual depiction,48 we find no case in which the court says 

it is impossible. Smith does not cite to any.

(c) Merits of Smith’s Assignment

The question we must answer is whether, viewing the evidence in a light most favorable to the State, any rational trier 

of fact could have found that Smith created a depiction of 

“erotic nudity” involving a child, in violation of § 28-1463.02. 

This requires a two-step analysis.49 First, we must determine 

whether any rational trier of fact could have found that the 

photographs at issue displayed “human male or female genitals 

or pubic area, the human female breasts, or the developing 

breast area of the human female child.”50 If so, we proceed 

to the second step, which is to determine whether a rational 

trier of fact could have found that the depictions were created “for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons 

involved.”51 To answer this second question, we refer to the 

factors from Dost.

S.D. testified that when she was 13 years old, Smith took off 

her clothes, put her on the bed, and took photographs of her. 

For one photograph, Smith grabbed S.D.’s knees, put them in 

the air, and took a picture of her vaginal area (photograph 1). 

Another photograph was of S.D. on her hands and knees with 

her “butt up in the air” (photograph 2). S.D. testified that her 

vaginal area was visible in photograph 2. S.D. said a third photograph was taken of her from her neck down while she was 

on her back (photograph 3). S.D. did not say that photograph 

3 displayed her vaginal area. S.D. testified that Smith showed 

48 See, U.S. v. Villard, supra note 42; People v. Wayman, 379 Ill. App. 3d 

1043, 885 N.E.2d 416, 319 Ill. Dec. 145 (2008).

49 See State v. Saulsbury, supra note 38; § 28-1463.02.

50 § 28-1463.02(3).

51 Id.
- 464 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

her the photographs and that the photographs reflected what 

she had described Smith took of her.

(i) Display of Private Area

Based on S.D.’s testimony, we conclude that a rational trier 

of fact could find that the photographs displayed S.D.’s genital 

area. S.D. testified as to the contents of the photographs. With 

respect to photographs 1 and 2, S.D. testified that they displayed her vaginal area.

Although S.D. did not specifically describe the individual 

body parts depicted in photograph 3 the way she did with 

respect to photographs 1 and 2, we conclude that a rational 

jury could infer from S.D.’s testimony that at least her breasts, 

and possibly her genitals or pubic area, were depicted in photograph 3. This reasonable inference is supported by S.D.’s testimony that Smith took off her clothes and took a photograph of 

her from her neck down; that at the time Smith took the photographs of S.D., he had a history of sexually assaulting her and 

continued to do so after the photographs were taken; and that 

Smith placed the photograph into his photo album alongside 

sexually explicit photographs of S.D.’s mother.

(ii) Purpose of Sexual Stimulation 

or Gratification

We also conclude that a rational trier of fact could find that 

the photographs were created for the purpose of sexual gratification or sexual stimulation.

[30,31] We consider the Dost factors outlined above, which 

are primarily helpful in determining from the depiction whether 

it was created for sexual gratification or sexual stimulation. 

But we have also held that whether the photograph was created 

for the purpose of sexual gratification or stimulation must be 

determined, not only from the depiction, but from the motive 

of the persons generating it.52 Thus, a trier of fact may consider 

circumstantial evidence of a defendant’s intent in determining 

52 See State v. Saulsbury, supra note 38.
- 465 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

whether a depiction was created for overt sexual gratification 

or sexual stimulation.53

For example, the jury could consider the context in which 

the photographs were alleged to have been taken.54 Here, 

Smith took the photographs during the time he was forcing 

S.D. to have sexual intercourse and oral sex with him. The 

jury may have also considered S.D.’s testimony that Smith 

placed S.D.’s photographs in the photo album along with nude 

photographs of Jennifer, which Smith described as “adultoriented pictures.”

Additionally, the photographs meet many of the Dost factors. Photographs 1 and 2 meet, at least, factors 2 through 4 

and 6. Both photographs were taken while S.D. was lying on 

the bed, a place generally associated with sexual activity.55

S.D.’s attire and poses in those photographs were unnatural 

for a 13-year-old girl and suggest a willingness to engage in 

sexual activity. S.D. was nude and on her hands and knees 

with her “butt up in the air” in one photograph, and on her 

back with her knees up in the air in the other. And, based on 

the context of Smith’s repeated sexual assaults, the photograph 

was clearly designed to elicit a sexual response in the viewer, 

Smith. Photograph 3 meets, at least, Dost factors 4 and 6. The 

photograph depicted S.D. nude and was intended to elicit a 

sexual response in Smith.

Viewing the evidence in the light most favorable to the 

State, we conclude that a rational jury could find beyond a 

reasonable doubt that Smith took the photographs for the purpose of his own overt sexual gratification or sexual stimulation 

in violation of § 28-1463.03. Finding both parts of the “erotic 

nudity” analysis met, we affirm Smith’s convictions on counts 

10 through 12.

53 Id.

54 See id. See, also, U.S. v. Rivera, 546 F.3d 245 (2d Cir. 2008); U.S. v. 

Vanderwal, 533 Fed. Appx. 498 (6th Cir. 2013).

55 See United States v. Dost, supra note 38.
- 466 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

6. Brady v. Maryland and Neb. Rev. Stat. 

§ 29-1912 (Cum. Supp. 2014)

Next, Smith asserts that the trial court erred in failing to 

order a new trial, as to all counts, after the medical report on 

A.L. was not timely disclosed, which Smith alleges was in 

violation of Brady v. Maryland56 and the Nebraska discovery rules.

[32] Under Brady, the nondisclosure by the prosecution of 

material evidence favorable to the defendant, requested by the 

defendant, violates due process, irrespective of the good faith 

or bad faith of the prosecution.57 But Brady is not violated 

where the evidence is disclosed during trial.58 Here, the parties 

became aware of the medical examination on the third day of 

trial. Because the medical examination was disclosed during 

the trial, we conclude that Smith’s right to due process was not 

violated by the timing of the disclosure.

[33] However, our review is not complete. In Nebraska, 

discovery in criminal cases is also governed by statute, and 

we have said that § 29-1912 exacts more than the constitutional minimum.59 Nevertheless, if a continuance would have 

been a sufficient remedy for a belated disclosure in violation of § 29-1912, a defendant who fails to request a continuance waives any rights he or she may have had pursuant 

to § 29-1912.60

We do not determine whether the timing of the disclosure 

here violated § 29-1912, because we find that Smith waived 

his rights under that statute when he failed to request a 

56 Brady v. Maryland, supra note 2.

57 Id.

58 State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on 

denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999) (citing U.S. v. 

Gonzales, 90 F.3d 1363 (8th Cir. 1996)).

59 State v. Lotter, supra note 58; State v. Kula, 252 Neb. 471, 562 N.W.2d 

717 (1997).

60 See State v. Lotter, supra note 58.
- 467 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

continuance. Smith’s main complaint is that, had exhibit 25 

been disclosed sooner, Smith “would have been able to better prepare for the cross examinations of both [A.L.] and . . . 

Haney as well as aid in the preparation of . . . McFadden.”61

Because a continuance would have cured the prejudice Smith 

alleges and Smith failed to request a continuance, we conclude that he waived any rights he may have had pursuant 

to § 29-1912.

7. Haney’s Testimony Regarding

Exhibit 25

Smith makes several arguments that Haney’s testimony about 

exhibit 25 should not have been admitted. But his arguments 

overlap and are scattered. Thus, in this section, we address 

Smith’s complaints about Haney as we understand them, to the 

extent such issue has not already been addressed.

(a) Haney’s Endorsement

One of Smith’s complaints is that the trial court erred in 

endorsing Haney as a witness 3 months before the trial began. 

On February 24, 2014, the State moved to endorse additional 

witnesses, including Haney. On March 3, a hearing was held, 

and Smith’s counsel objected to the State’s motion on the 

grounds that it was the State’s sixth change to the complaint, 

trial was scheduled to occur on March 18, and Smith’s counsel did not know in what capacity Haney would be testifying. 

The court granted the State’s motion, requiring the State to 

submit an affidavit documenting discovery materials provided 

to Smith related to Haney. In its order, the court stated, “[I]f 

[Smith] needs additional time to conduct further discovery, 

a continuance may be requested.” Smith availed himself of 

that option and waived his right to a speedy trial. Trial began 

June 3.

[34,35] Neb. Rev. Stat. § 29-1602 (Reissue 2008) generally 

requires the prosecution to endorse the names of all known 

61 Brief for appellant at 37.
- 468 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

witnesses in the information at the time it is filed, but permits 

the endorsement of additional witnesses up to and including 30 

days prior to trial. Additionally, we have said that a trial court, 

in the exercise of its discretion, may permit additional witnesses to be endorsed within the 30 days before trial and even 

after the trial has begun, provided doing so does not prejudice 

the rights of the defendant.62

The trial court offered and granted Smith a continuance. The 

trial began on June 3, 2014, which made the State’s motion to 

endorse additional witnesses more than 90 days prior to trial. 

We conclude that Smith was not prejudiced as a result of the 

endorsement, and accordingly, the trial court did not err in 

endorsing Haney.

Smith seems to think that the trial court’s endorsement 

of Haney was somehow related to the sudden emergence of 

exhibit 25 at trial and somehow caused Haney’s unanticipated 

testimony that exhibit 25 did not exonerate Smith. However, it 

is clear from the record that exhibit 25 did not come to surface 

until the third day of trial, because Miller inadvertently kept it 

in his personal file. Thus, at the time of Haney’s endorsement, 

neither the court nor the State anticipated that Haney would 

testify about exhibit 25. Smith’s argument is without merit.

(b) Daubert v. Merrell Dow 

Pharamaceuticals, Inc.

Smith also claims that the trial court erred in allowing 

Haney to provide an expert opinion about exhibit 25, because it 

did not require the articles on which Haney based her opinion 

to be vetted under the standards set forth in Daubert v. Merrell 

Dow Pharmaceuticals, Inc.63

[36] Under Daubert and Schafersman v. Agland Coop,

64

the trial court acts as a gatekeeper to ensure the evidentiary 

62 State v. Mecum, 225 Neb. 293, 404 N.W.2d 431 (1987).

63 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 

2786, 125 L. Ed. 2d 469 (1993).

64 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
- 469 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

relevance and reliability of an expert’s opinion. This gatekeeping function entails a preliminary assessment of whether the 

reasoning or methodology underlying the testimony is valid 

and whether that reasoning or methodology properly can be 

applied to the facts in issue.65

But to sufficiently call specialized knowledge into question 

under Daubert and Schafersman is to object with enough specificity so that the court understands what is being challenged.66

The initial task falls on the party opposing expert testimony to 

sufficiently call into question the reliability of some aspect of 

the anticipated testimony.67

Normally, a challenge to the admissibility of evidence 

under Daubert and Schafersman should take the form of a 

concise pretrial motion.68 But we recognize this was not an 

option for Smith, because he was not aware prior to trial 

that Haney would testify about exhibit 25. Nevertheless, we 

have said that the pretrial motion should identify, in terms 

of the Daubert and Schafersman factors, what is believed 

to be lacking with respect to the validity and reliability of 

the evidence.69

Smith, in his brief on appeal, does not identify any particular factor he deems to be lacking, but asserts only that the 

trial court did not “determine if the studies were tested [or] if 

they were valid or if they had general acceptance within the 

relevant scientific community.”70

65 State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009); State v. Edwards, 278 

Neb. 55, 767 N.W.2d 784 (2009); State v. Schreiner, 276 Neb. 393, 754 

N.W.2d 742 (2008); State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 

(2007), abrogated on other grounds, State v. Thorpe, 280 Neb. 11, 783 

N.W.2d 749 (2010).

66 State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

67 Id.

68 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

69 Id.

70 Brief for appellant at 39.
- 470 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

[37] Moreover, although Smith claims the articles that 

Haney relied on in forming her opinion should have been 

subjected to Daubert standards, his true grievance concerns 

Haney’s opinion that a normal anal/genital examination neither 

confirms nor excludes the possibility of sexual abuse. When 

Haney testified to that opinion at trial, Smith did not object. 

Failure to make a timely objection waives the right to assert 

prejudicial error on appeal.71 We conclude that Smith did not 

properly preserve this issue for appeal.

8. Cumulative Error Doctrine

In Wamsley v. State,

72 we recognized the doctrine of cumulative error in the context of a criminal jury trial. We explained 

that although one or more trial errors might not, standing 

alone, constitute prejudicial error, their cumulative effect may 

be to deprive the defendant of his constitutional right to a public trial by an impartial jury.

Smith claims the trial court committed “copious errors 

including those aforementioned.”73 We have already determined that the errors assigned by Smith are either meritless 

or inconsequential. Smith did not assign, but adds to his 

cumulative-error allegations, only that the prosecution improperly gave S.D. “gas money” and improperly met with S.D. two 

or three times without providing Smith with reports.

[38] But a party who fails to make a timely motion for 

mistrial based on prosecutorial misconduct waives the right to 

assert on appeal that the court erred in not declaring a mistrial 

due to such prosecutorial misconduct.74 Smith did not make a 

timely motion for mistrial based on prosecutorial misconduct. 

71 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013); State v. Nadeem, 284 

Neb. 513, 822 N.W.2d 372 (2012); State v. Kibbe, supra note 6.

72 Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960).

73 Brief for appellant at 59.

74 State v. Stricklin, supra note 6; State v. Robinson, 271 Neb. 698, 715 

N.W.2d 531 (2006); State v. Lotter, supra note 58; State v. Wilson, 252 

Neb. 637, 564 N.W.2d 241 (1997).
- 471 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

We therefore conclude that Smith waived his right to assert that 

issue on appeal.

Smith’s argument that cumulative error deprived him of 

his right to a fair trial is without merit. Although we avoided 

the question of whether Smith’s birth certificate was properly authenticated, we determined that, regardless of error, 

its admission would be harmless. We determined that all of 

Smith’s other arguments concerning trial errors are without 

merit. Thus, there are not multiple trial errors to aggregate.

9. Enhancement

We turn lastly to sentencing issues, beginning with Smith’s 

assignment of error that the trial court erred in finding Smith’s 

prior conviction was properly authenticated and certified for 

purposes of enhancing his sentences.

Smith’s sexual assault of a child crimes were charged in 

the information as enhancements, to the effect that, if a prior 

similar conviction was proved, Smith would receive enhanced 

sentences for the sexual assault crimes of which he was convicted. Smith was convicted of three counts of third degree and 

two counts of first degree sexual assault of a child. At Smith’s 

enhancement hearing, the State offered exhibit 37, which was 

purported to be Smith’s prior conviction for attempted first 

degree assault. Exhibit 37 contains a signature and certification 

on the last page.

Smith argues that the trial court erred in finding that exhibit 

37 was properly authenticated and certified for purposes of 

enhancement, taking the position that a seal of authenticity 

should be on every page of the document.

Smith is correct that neither § 28-319.01 nor § 28-320.01 

provides any guidance as to what is required to prove a prior 

conviction. In contrast, for purposes of the habitual criminal 

statute, Neb. Rev. Stat. § 29-2222 (Reissue 2008) provides 

that “a duly authenticated copy of the former judgment and 

commitment, from any court in which such judgment and commitment was had, for any of such crimes formerly committed 
- 472 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

by the party so charged, shall be competent and prima facie 

evidence of such former judgment and commitment.”

[39] In construing a statute, a court must look at the statutory objective to be accomplished, the problem to be remedied, 

or the purpose to be served, and then place on the statute a 

reasonable construction which best achieves the purpose of 

the statute, rather than a construction defeating the statutory 

purpose.75 We see no reason why the proof required of prior 

conviction for purposes of §§ 28-319.01 or 28-320.01 should 

be any different than the proof required under § 29-2222 for 

the habitual criminal statute.

[40] Accordingly, we hold that for purposes of §§ 28-319.01 

and 28-320.01, a duly authenticated copy of the former judgment and commitment, from any court in which such judgment and commitment was had, for any of such crimes 

formerly committed by the party so charged, shall be competent and prima facie evidence of such former judgment and 

commitment.

[41] Exhibit 37 is a self-authenticating document. Copies 

of judicial records that are certified by a deputy clerk for the 

clerk of the district court and impressed with the court’s seal 

do not require extrinsic evidence of authenticity for admission 

under rule 902.76 Exhibit 37 is a copy of Smith’s record concerning his attempted first degree sexual assault conviction. It 

is certified by a deputy clerk for the Douglas County District 

Court and bears the court’s seal. Page 10, which is the order 

sentencing Smith for his conviction of attempted first degree 

sexual assault, is file stamped and separately authenticated 

by the clerk of the court. We conclude that exhibit 37 was a 

self-authenticating document, which was prima facie evidence 

of Smith’s previous attempted first degree assault conviction. 

Therefore, Smith’s argument is without merit.

75 State v. Rathjen, 266 Neb. 62, 662 N.W.2d 591 (2003).

76 § 27-902; State v. Hall, supra note 16.
- 473 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

10. Sentences

Smith argues that his case should be remanded for new sentencing because the trial court abused its discretion in imposing 

Smith’s sentences, which were based on the court’s erroneous 

impression that the counts with mandatory minimum sentences 

needed to be consecutive to all other counts.

Smith is correct that his sentencing was imposed by the trial 

court under a mistake of law. In imposing Smith’s sentences, 

the trial judge said that he understood the case law to require 

him to impose the sentences carrying mandatory minimum 

sentences consecutively to the sentences for the other counts. 

It appears the trial court relied on a statement in State v. 

Castillas77: “Mandatory minimum sentences cannot be served 

concurrently. A defendant convicted of multiple counts each 

carrying a mandatory minimum sentence must serve the sentence on each count consecutively.” We clarified this statement 

in State v. Berney,

78 when we said:

We were not speaking of enhancements under the habitual 

criminal statute, but of those specific crimes that required 

a mandatory minimum sentence to be served consecutively to other sentences imposed.

There is a distinction between a conviction for a crime 

that requires both a mandatory minimum sentence and 

mandates consecutive sentences, and the enhancement of 

the penalty for a crime because the defendant is found 

to be a habitual criminal. In the former, the mandatory 

minimum sentence must be served consecutively to any 

other sentence imposed, because the statute for that crime 

requires it. In the latter, the law does not require the 

enhanced penalty to be served consecutively to any other 

sentence imposed. The sentence is left to the discretion of 

the court.

77 State v. Castillas, 285 Neb. 174, 191, 826 N.W.2d 255, 268 (2013), 

disapproved, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).

78 State v. Berney, 288 Neb. 377, 382-83, 847 N.W.2d 732, 736 (2014).
- 474 -

Nebraska Advance Sheets

292 Nebraska Reports

STATE v. SMITH

Cite as 292 Neb. 434

The question is whether the trial court’s mistake of law 

amounted to an abuse of discretion in imposing Smith’s sentences when the judge expressly stated that “even if [consecutive imposition of mandatory minimum sentences] was 

not required, . . . that would be appropriate given the time 

frames.” The issue is unique, and we are unaware of any case 

law on point.

Nevertheless, we are concerned that the court’s imposition 

of Smith’s sentences on the convictions carrying mandatory 

minimum sentences may have seemed appropriate to the court 

because such sentences were ones thought to be required. This 

is not to say that the exact same sentences imposed with a 

full understanding of the law would be an abuse of discretion. 

Rather, we want to ensure that the court actually exercised its 

discretion and did not simply impose sentences that it thought 

were required. We therefore remand the cause for resentencing and do not reach Smith’s argument that his sentences 

were excessive.

VI. CONCLUSION

For the foregoing reasons, we affirm Smith’s convictions. 

We remand the cause for resentencing in accordance with 

this opinion.

Affirmed and remanded for resentencing.