Nebraska Advance Sheets

STATE v. ELY 147

Cite as 287 Neb. 147

State of Nebraska, appellee, v. 

Nicholas J. Ely, appellant.

___ N.W.2d ___

Filed January 3, 2014. No. S-12-1228.

1. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, 

or a combination thereof, the standard is the same: An appellate court does not 

resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh 

the evidence; such matters are for the finder of fact. The relevant question for an 

appellate court is whether, after viewing the evidence in the light most favorable 

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

2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the 

admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial 

discretion is involved only when the rules make discretion a factor in determining admissibility.

3. Evidence. Determining the relevancy of evidence is a matter entrusted to the 

discretion of the trial court.

4. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion 

of the trial court to determine relevancy and admissibility of evidence of other 

wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403 

(Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial court’s decision 

will not be reversed on appeal absent an abuse of discretion.

5. Jury Instructions. Whether jury instructions given by a trial court are correct is 

a question of law.

6. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

7. Homicide: Intent: Presumptions. The critical difference between felony murder 

and premeditated first degree murder is that the underlying felony takes the place 

of the intent to kill, or premeditated malice, and the purpose to kill is conclusively presumed from the criminal intent required for the underlying felony.

8. Homicide: Intent. A specific intent to kill is not required to constitute felony 

murder, only the intent to do the act which constitutes the felony in question.

9. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an 

appellate court.

10. Evidence: Words and Phrases. Relevant evidence means evidence having any 

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without 

the evidence.

11. Homicide: Sentences. When a defendant is sentenced to life imprisonment for 

first degree murder, the defendant is not entitled to credit for time served in 

custodial detention pending trial and sentence; however, when the defendant 

receives a sentence consecutive to the life sentence that has maximum and 
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148 287 NEBRASKA REPORTS

minimum terms, the defendant is entitled to receive credit for time served against 

the consecutive sentence.

12. Sentences. A sentencing judge must separately determine, state, and grant the 

amount of credit on the defendant’s sentence to which the defendant is entitled.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed as modified.

Mary C. Gryva, of Frank & Gryva, P.C., L.L.O., and Alan G. 

Stoler, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Stephan, J.

Nicholas J. Ely was convicted by a jury of first degree murder and use of a deadly weapon to commit a felony. He was 

sentenced to life in prison on the murder conviction and to a 

consecutive prison term of 5 to 5 years on the weapon conviction. This is his direct appeal, which we hear pursuant to Neb. 

Rev. Stat. § 24-1106(1) (Reissue 2008). We find no error and 

therefore affirm.

FACTS

Around noon on July 6, 2011, a group of friends gathered at 

Ely’s home. The group consisted of Ely, Marqus Patton, Ryan 

Elseman, and Emily G. Emily was 15 or 16 years old.

The group decided to obtain some marijuana and then go 

swimming at Patton’s residence. Ely called Drake Northrop 

and asked him for a ride. Northrop picked up Ely, Emily, 

Patton, and Elseman, and Ely told Northrop they wanted to get 

some marijuana. Emily had previously purchased marijuana 

from Kristopher Winters, and she suggested they could obtain 

it from him. Emily directed Northrop to Winters’ house.

En route to Winters’ house, Northrop heard Elseman, Emily, 

and Ely discuss “going to go hit a lick,” which is a street term 

for committing a robbery. Northrop agreed to take part. The 

three people in the back seat, Ely, Elseman, and Emily, said 
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STATE v. ELY 149

Cite as 287 Neb. 147

they thought it would be an “easy lick” because Winters would 

not fight back.

Northrop parked near Winters’ house, and everyone walked 

to the house. Initially, they planned to kick in the door, but 

because it was daylight, Emily said she would get them into the 

house in another manner. Northrop, Ely, Elseman, and Patton 

returned to the vehicle to wait for Emily to gain entry. The only 

objection made by anyone was Northrop, who suggested they 

should return when it was darker, but Patton and Ely said they 

should proceed.

Eric Brusha, a friend of Winters, arrived at Winters’ house 

around noon and found Emily waiting in the driveway. Brusha 

did not know Emily. Brusha telephoned Winters to tell him 

Brusha was outside. Winters let Brusha into the house, and 

Emily followed him. Winters asked Emily what she wanted to 

purchase, and because Brusha knew Winters was a marijuana 

dealer, Brusha did not think the conversation was unusual.

Within 5 minutes, Emily sent a text message to Elseman 

informing him that she was inside Winters’ house, that there 

were two other people there, and that the doors were unlocked. 

Northrop, Ely, Elseman, and Patton then went to Winters’ 

house. They entered the basement of the house through a 

garage door. Elseman and Patton displayed weapons. Elseman 

entered first, followed by Patton, Ely, and then Northrop. 

Brusha did not recognize any of them as they entered, but he 

noticed that two of them were carrying black revolvers.

When Northrop, Ely, Elseman, and Patton entered, Winters 

and Brusha stood up. Elseman pointed a gun at Winters and 

said “you know what it is.” Winters rushed at Elseman. A 

struggle ensued. During the struggle, Patton hit Winters in the 

head with the butt of a handgun, causing Winters to stumble 

backward. Winters then grabbed a chair and pushed Patton 

into a wall with it. Patton told Elseman to shoot Winters, 

and he did so, causing Winters to fall onto the steps leading upstairs. Winters then grabbed a stool or similar object 

and was approaching his assailants when he was shot a second time.

Winters’ mother, Kellie Winters, was upstairs and heard a 

sound she thought was Winters’ banging on the furnace, so 
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she went to the top of the stairs leading to the basement and 

called out to him. Kellie then went down the stairs where 

she found Winters holding his neck and Brusha yelling that 

Winters was hurt. Kellie ran outside and saw three males running away. She also saw a “young small girl,” whom she did 

not recognize, standing in the driveway. This person was later 

determined to be Emily. Kellie yelled at Emily for not calling 

the 911 emergency dispatch service, and then Kellie struck 

Emily, knocking her down. Kellie then returned to the basement of the home where she found Winters, who was bleeding. Winters died before help arrived.

Northrop, Ely, Elseman, and Patton ran from the house to 

their vehicle immediately after the shooting. Emily left the 

area on foot. While fleeing, she received a text message from 

Elseman telling her to go to a nearby restaurant where Nicholas 

Palma would pick her up.

Brusha stayed at Winters’ home and talked to the police. He 

then agreed to go to police headquarters for an interview and 

rode there with an officer. While riding with the officer, Brusha 

saw Emily walking on the street, and he identified her as the 

female who was in Winters’ house at the time of the shooting. 

Police then apprehended Emily.

Meanwhile, Northrop dropped off Ely, Elseman, and Patton 

at Patton’s residence. Patton told the others that he had been 

grazed by a bullet. When Palma could not find Emily, he 

called Ely, who told Palma to come to Patton’s residence. Ely 

told Palma that they had tried to commit a robbery, but that 

things went wrong and a man was shot in the neck. Some 

days later, Ely called Palma and said he was leaving for Sioux 

City, Iowa. On July 11, 2011, Ely called Palma and asked him 

to pick him up in Sioux City and drive him back to Omaha, 

which Palma did.

Ely contacted two friends in Sioux City on July 9, 2011. 

Jacy Steiner said Ely called and said he was in town and 

needed to talk to someone because a robbery “went bad” in 

Omaha. Steiner met with Ely, and Ely said Emily had gone to 

the house to ask to use the telephone, and as Winters answered 

the door, people ran in, Winters fought back, and “somebody 

got shot.” Ely told Steiner he had been in the vehicle, but he 
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did not say if he had gone into the house. Another friend of 

Ely’s, Jacob Wilde, testified that he also met Ely in Sioux City 

on July 9. Ely told Wilde that he was in some trouble because 

he and some friends had gone into a house to rob someone, 

someone yelled “shoot,” a shot went off, and then they all ran. 

Ely told Wilde that a girl had set up the robbery and that the 

person they were trying to rob was shot because he had put 

up a fight.

On the day before the robbery, a text message was sent 

from Ely’s cell phone indicating that the sender was “‘broke’” 

and had bills to pay. The message further stated, “‘I ain’t trying to go to prison for robbing but I feel like there ain’t many 

other choices.’” Later the same day, another text message 

sent from Ely’s cell phone stated: “‘Wsup wita lick bro.’” 

A subsequent text in the same conversation, sent from Ely’s 

cell phone, indicated that the sender needed money. And a 

text message from the same cell phone sent on the day of the 

homicide indicated that it was from “‘Lunny,’” which was 

Ely’s nickname, and that he was with Elseman, Emily, and 

two other persons.

An autopsy disclosed that one bullet went through Winters’ 

neck, hitting the carotid artery on the right side. The pathologist 

who performed the autopsy testified that the cause of Winters’ 

death was a gunshot wound to the neck which partially severed 

the carotid artery and led to a fatal hemorrhage.

ASSIGNMENTS OF ERROR

Ely assigns three errors. They are, restated, (1) that the 

evidence was insufficient to sustain the guilty verdicts, (2) 

that the district court erred in sustaining the State’s motion 

in limine and excluding evidence of prior illegal conduct by 

Emily, and (3) that the district court erred in giving a flight 

instruction to the jury.

STANDARD OF REVIEW

[1] In reviewing a sufficiency of the evidence claim, 

whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does 

not resolve conflicts in the evidence, pass on the credibility of 
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witnesses, or reweigh the evidence; such matters are for the 

finder of fact.1 The relevant question for an appellate court is 

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.2

[2-4] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility.3

 Determining the relevancy of evidence is a matter 

entrusted to the discretion of the trial court.4 Likewise, it is 

within the discretion of the trial court to determine relevancy 

and admissibility of evidence of other wrongs or acts under 

Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403 

(Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial 

court’s decision will not be reversed on appeal absent an abuse 

of discretion.5

[5,6] Whether jury instructions given by a trial court are 

correct is a question of law.6 When dispositive issues on appeal 

present questions of law, an appellate court has an obligation 

to reach an independent conclusion irrespective of the decision 

of the court below.7

ANALYSIS

Sufficiency of Evidence

[7,8] The State prosecuted Ely under the theory of murder 

in the first degree, commonly known as felony murder. It is 

defined by statute as the killing of another “in the perpetration 

1 State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).

2 Id.

3 State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).

4 State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).

5 State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013); State v. PayneMcCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).

6 State v. Valverde, supra note 3.

7 Id.
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STATE v. ELY 153

Cite as 287 Neb. 147

of or attempt to perpetrate any sexual assault in the first degree, 

arson, robbery, kidnapping, hijacking of any public or private 

means of transportation, or burglary.”8 The critical difference 

between felony murder and premeditated first degree murder is 

that the underlying felony takes the place of the intent to kill, 

or premeditated malice, and the purpose to kill is conclusively 

presumed from the criminal intent required for the underlying 

felony.9 A specific intent to kill is not required to constitute 

felony murder, only the intent to do the act which constitutes 

the felony in question.10

It is undisputed that Winters was killed in the perpetration 

of a robbery and that Ely was present at all times during the 

robbery. But Ely argues on appeal that the evidence was insufficient to establish that he formed an intent to commit the robbery during which the killing occurred. Viewing the evidence 

in the light most favorable to the prosecution, as our standard 

of review requires,11 we conclude that a rational trier of fact 

could have concluded beyond a reasonable doubt that Ely 

formed the intent to commit the robbery.

The text messages sent from Ely’s cell phone the day 

before the homicide indicated the sender needed money and 

was considering robbery. Emily testified that while the group 

was on its way to Winters’ house, they devised a plan to rob 

him. Northrop testified that he heard Ely say from the rear 

seat that they were “going to go hit a lick” and that Ely or 

one of the other rear seat passengers also said that the robbery would be easy because Winters would not fight back. 

Northrop also testified that when Emily signaled Elseman that 

she had entered Winters’ house, he suggested that they should 

wait until dark before going in, but that Ely and Patton said 

they should go ahead. After the failed robbery attempt, Ely 

made statements to Palma and others indicating that he had 

8 Neb. Rev. Stat. § 28-303(2) (Reissue 2008).

9 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).

10 See State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006).

11 See State v. Eagle Bull, supra note 1.
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been involved in a robbery attempt which “went bad” because 

someone was shot.

From this evidence, a rational finder of fact could find 

beyond a reasonable doubt that Ely needed money and was 

contemplating robbery as a means of addressing this problem. 

A rational finder of fact could also conclude that en route to 

Winters’ house with his companions, Ely was an active participant in the plan to “hit a lick,” i.e., rob Winters during the 

purported drug transaction. Likewise, a finder of fact could 

conclude that Ely was an active and willing participant in the 

implementation of the plan which ultimately led to the fatal 

shooting. There is no evidence that Ely raised any objections 

to the robbery plan or attempted to extricate himself from its 

implementation by, for example, remaining in the car. Although 

Ely argues that the testimony of Emily and Northrop lacked 

credibility because they hoped for, but were not promised, 

leniency with respect to pending charges against them arising 

from the same incident, our standard of review precludes us 

from passing on the credibility of witnesses or reweighing the 

evidence.12 Whatever the motive Emily and Northrop had for 

testifying, it was for the jury to determine their credibility. And 

we note that the jury was specifically instructed that because 

Emily and Northrop were claimed accomplices of Ely, their 

testimony should be examined closely “for any possible motive 

he or she might have to testify falsely.” Accordingly, we conclude that the evidence was sufficient to support the verdict of 

guilty on the charge of felony murder.

[9] We note that while Ely’s first assignment of error is 

worded broadly enough to challenge the sufficiency of the 

evidence to support his convictions on both the murder and 

weapons charges, he makes no argument specific to the latter. 

An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.13 Because the sufficiency of 

the evidence to support Ely’s conviction on the weapon charge 

is not preserved for our review, we do not address it.

12 See id.

13 Id.; State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
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Exclusion of Evidence of Prior

Unlawful Conduct

Before trial, the State filed a motion in limine seeking 

to prevent Ely from adducing evidence that prior to July 6, 

2011, Emily and Elseman had engaged in criminal conduct, 

specifically, robbing individuals who were selling marijuana. 

The State argued that the evidence would be improper character evidence in violation of § 27-404(1) and was not relevant 

under § 27-404(2). The State also asserted that the evidence 

did not comport with the statutory requirements for proving 

character evidence of a witness under Neb. Evid. R. 608, Neb. 

Rev. Stat. § 27-608 (Reissue 2008). Over Ely’s objection, the 

district court sustained the motion. When Ely sought to elicit 

testimony from Emily at trial regarding prior illegal acts she 

had committed at the behest of Elseman, the court sustained 

the State’s objection. We construe Ely’s second assignment of 

error to encompass this ruling.

Ely argues on appeal, as he did below, that Emily’s prior 

robberies were relevant and admissible under Neb. Evid. R. 

401, Neb. Rev. Stat. § 27-401 (Reissue 2008), and § 27-404(2), 

because they were committed without his knowledge or 

involvement. He contends that Emily’s prior unlawful conduct 

is relevant to motive, opportunity, and planning of the intended 

robbery of Winters, and that therefore, the evidence should 

have been admissible under § 27-404(2).

[10] We need not examine the admissibility of the proffered 

evidence under § 27-404(2), because we conclude that the fact 

that Emily and Elseman may have committed prior robberies 

without the knowledge or participation of Ely is irrelevant 

to any issue in this case. Relevant evidence means evidence 

having any tendency to make the existence of any fact that is 

of consequence to the determination of the action more probable or less probable than it would be without the evidence.14

The fact that Ely was not involved in prior unlawful conduct 

has no bearing, one way or another, on the issue of whether 

he committed the crimes he was charged with in this case. 

The district court did not abuse its discretion in sustaining 

14 § 27-401.
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the State’s motion in limine and its objection to Ely’s attempt 

to elicit testimony from Emily regarding her prior unlawful conduct.

Flight Instruction

Lastly, Ely assigns error with respect to the following jury 

instruction given over his objection:

You are instructed that the voluntary flight of a person 

immediately or soon after the occurrence of a crime is a 

circumstance, not sufficient of itself to establish guilt, but 

a circumstance nevertheless which the jury may consider 

in connection with all the other evidence in the case to aid 

you in determining the question of the guilt or innocence 

of such person.

He contends the instruction was prejudicial and prevented him 

from receiving a fair trial.

We first note that, in Ely’s brief, while he objects to the 

entire instruction, he highlights certain language related to the 

timing of a defendant’s voluntary flight. The record shows that 

the instruction given did not include that language. Nor does 

the record indicate that Ely objected to that specific language 

during the instruction conference.

We addressed the factual basis for a flight instruction in 

State v. Pullens,

15 stating:

[F]or departure to take on the legal significance of flight, 

there must be circumstances present and unexplained 

which, in conjunction with the leaving, reasonably justify 

an inference that it was done with a consciousness of guilt 

and pursuant to an effort to avoid apprehension or prosecution based on that guilt.

In Pullens, the defendant declined to give police a detailed 

statement because he said he was drunk. Although he was 

taken to the police station for blood and DNA samples, he was 

not placed under arrest. Instead, the defendant was taken to 

a motel by a police officer, who said he would return in the 

morning to discuss the facts of the victim’s death. But when 

the officer returned, the defendant was not in the motel. The 

15 State v. Pullens, 281 Neb. 828, 862, 800 N.W.2d 202, 230 (2011).
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defendant admitted that he knew he was a suspect when he 

fled, but claimed he left the motel to try to talk with a lawyer 

before speaking further with the police. We found no error in 

the trial court’s giving the jury a flight instruction.

The record reflects that at some point after July 6, 2011, 

Ely went to Sioux City. While there, Ely talked to two friends 

about a robbery and said he was in trouble because of a shooting. This evidence supports a reasonable inference that Ely had 

a consciousness of guilt and was attempting to avoid apprehension. It was for the jury to determine whether Ely’s actions 

demonstrated his guilt or innocence. We find no error in the 

giving of a flight instruction based on this record.

Credit for Time Served

[11,12] Finally, we find plain error in the allocation of 

credit for time served. Ely was sentenced to life in prison for 

the first degree murder conviction and to a period of 5 to 5 

years in prison for the use of a deadly weapon conviction, to 

run consecutively to the life sentence. Ely was given credit 

for time served of 531 days against the sentence for first 

degree murder. When a defendant is sentenced to life imprisonment for first degree murder, the defendant is not entitled 

to credit for time served in custodial detention pending trial 

and sentence; however, when the defendant receives a sentence consecutive to the life sentence that has maximum and 

minimum terms, the defendant is entitled to receive credit for 

time served against the consecutive sentence.16 A sentencing 

judge must separately determine, state, and grant the amount 

of credit on the defendant’s sentence to which the defendant 

is entitled.17

Ely is entitled to receive credit for 531 days served, but 

the credit should be applied against the sentence for use of a 

deadly weapon rather than against the sentence for first degree 

murder. We therefore modify Ely’s sentences by ordering that 

the credit for time served be applied against the sentence for 

use of a deadly weapon.

16 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

17 Id.
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CONCLUSION

For the reasons discussed, we find no merit in any of 

Ely’s assignments of error. However, we conclude that the 

district court incorrectly granted Ely credit for time served 

against his life sentence. We therefore modify the credit for 

time served by applying it to the sentence for use of a deadly 

weapon. In all other respects, we affirm the judgment of the 

district court.

Affirmed as modified.