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70 290 NEBRASKA REPORTS

motion is a bar to retrial only when there is an intent to “‘goad’ 

the defendant into moving for a mistrial.”42

It was not clearly erroneous for the district court to conclude that the prosecutor did not intend to goad Muhannad into 

moving for the second mistrial. Therefore, double jeopardy 

does not bar a third trial of Muhannad and the district court did 

not err in overruling his plea in bar.

CONCLUSION

For the foregoing reasons, we affirm the order of the district 

court which overruled Muhannad’s plea in bar following the 

second mistrial.

Affirmed

Wright, J., participating on briefs.

Heavican, C.J., not participatin

42 See Oregon v. Kennedy, supra note 6, 456 U.S. at 676.

State of Nebraska, appellee, v.

Terrance J. Hale, appell

___ N.W.2d ___

Filed February 6, 2015. No. S-14-183.

1. 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.

2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the 

residual hearsay exception, an appellate court reviews for clear error the factual 

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

court’s ultimate determination to admit evidence over a hearsay objection.

3. 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.

4. ____: ____. The relevant question when an appellate court reviews a sufficiency 

of the evidence claim 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.
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5. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made 

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

prove the truth of the matter asserted.

6. Rules of Evidence: Hearsay. For a statement to be an excited utterance, the following criteria must be met: (1) There must be a startling event; (2) the statement 

must relate to the event; and (3) the declarant must make the statement while 

under the stress of the event.

7. ____: ____. The true test for an excited utterance is not when the exclamation 

was made but whether, under all the circumstances, the declarant was still speaking under the stress of nervous excitement and shock caused by the event.

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

the declarant’s manifestation of stress, the declarant’s physical condition, and 

whether the declarant spoke in response to questioning.

9. Rules of Evidence: Hearsay: Police Officers and Sheriffs. Statements made in 

response to questions from law enforcement in particular do not generally have 

inherent guarantees of reliability and trustworthiness. But the declarant’s answer 

to a question may still be an excited utterance if the context shows that the statement was made without conscious reflection.

Appeal from the District Court for Douglas County: Leig

Ann Retelsdorf, Judge. Affir

Thomas C. Riley, Douglas County Public Defender, Scott C. 

Sladek, and Douglas A. Johnson for appellant.

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

appellee.

Wright, Connolly, Stephan, McCormack, Mille

and Cassel, JJ

Connolly,

SUMMARY

Raymond Vasholz died from inhaling smoke from a fire set 

in his home. His wife, Elizabeth Vasholz, testified that Terrance 

J. Hale broke into the house, demanded money, assaulted her 

and Raymond, and set several objects on fire. A jury convicted 

Hale of first degree murder, and the court sentenced him to 

life imprisonment. Hale argues that the court erred in allowing 

two witnesses to testify about out-of-court statements made by 

Elizabeth. The court overruled Hale’s hearsay objections on 

the ground that the statements were excited utterances. Hale 

also contends that the evidence is not sufficient to support his 

conviction. We affirm.
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72 290 NEBRASKA REPORTS

BACKGROUND

Fire and Immediate Res

Elizabeth, 76 years old at the time of the assault, testified 

that she was living with her husband, Raymond, in Omaha, 

Nebraska, on February 7, 2013. In the time “leading up to 9 

o’clock a.m.,” Elizabeth testified that she was sitting in the 

living room with Raymond when she heard “[b]reaking glass” 

that “sounded like it was coming from the basement.” Elizabeth 

testified that a man wearing a coat, whom Elizabeth identified 

in court as Hale, came up the basement stairs. Elizabeth testified that she recognized Hale because he had done yardwork 

for her, but she did not know him by name.

Elizabeth testified that Hale demanded money. After she 

replied that she had no money, Elizabeth said that Hale 

assaulted her and Raymond. As Hale hit Raymond, Elizabeth 

recalled striking Hale’s back with a lamp. Elizabeth testified 

that Hale grabbed “a paper” and lit it using the gas stove. 

Elizabeth said that Hale threw the lit paper at her and then set 

a couch cushion on fire and “came at” her, pushing the burning 

cushion against her arms.

Elizabeth testified that she escaped the house, grabbing a 

recycling bin to cover herself because Hale had torn off the 

pajama top she had been wearing. She recalled knocking on her 

neighbor’s door, but no one answered, so she sat on her neighbor’s porch and began “screaming my head off.” Elizabeth 

stated that Hale then came outside and “threw his coat down.” 

Then another man arrived, and Elizabeth asked him for help. 

After police arrived, Elizabeth recalled that they arrested Hale 

because she yelled, “That’s him, that’s him,” while pointing at 

Hale. Elizabeth stated that she suffered burns on her back and 

both arms and cracked vertebrae.

About 9 a.m., Gary Burns was driving in his car when he 

saw an elderly woman sitting outside. Burns said that the 

woman—who was “real dingy and dirty” and looked like “she 

had been beat up, basically,”—had no shirt on, and was covering herself with a recycling bin. The woman was yelling, 

“‘Help, help, help.’” Burns also saw a man, whom he identified in court as Hale, about 15 feet from the woman.
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Burns got out of his car and called the 911 emergency 

dispatch service to report an assault. As he approached the 

woman, Burns testified that she pointed at Hale and said, 

“‘You did this, you did it.’” According to Burns, Hale threw up 

his arms and said, “‘I didn’t do this.’”

Firefighters responded to an alarm for a house fire at 

9:12 a.m. Smoke was escaping from the house when they 

arrived. Inside they found “pockets of fire” that they quickly 

extinguished.

The firefighters searched the house for victims and found 

a man, later identified as Raymond, lying across a bed in a 

bedroom. The firefighters carried Raymond out of the house 

and to the front yard, where paramedics immediately attended 

to him. A paramedic testified that Raymond was not breathing and did not have a pulse. Electronic monitors placed on 

Raymond while an ambulance transported him to a hospital 

showed no signs of cardiac activity.

Police officer Roger Oseka was patrolling with a training 

officer, Patrick Andersen, when they heard a request for assistance over the radio at 9:12 a.m. Oseka estimated that it took 

him and Andersen less than 5 minutes to reach the scene. When 

Oseka arrived, he saw an elderly white woman sitting on the 

“front porch” of a neighbor’s house. Oseka also saw a black 

man, whom he identified in court as Hale, “walking in circles” 

and saying, “‘I was trying to save them.’”

Oseka exited his cruiser and approached the woman, whom 

he said was bleeding from her nose and mouth and had “burn 

sores” on both arms. Oseka observed the woman “throwing up 

or spitting into” a green recycling bin. He made contact with 

the woman and described her “tone” as “[s]urprisingly, for the 

chaotic scene . . . was calm, but yet concise.” Oseka talked 

with the woman and—after the court overruled Hale’s hearsay 

objection—he testified that the woman “looked past me, raised 

her arm and pointed it and said, ‘He did it.’” Oseka turned and 

saw Hale standing where the woman was pointing. Oseka then 

directed Andersen to arrest Hale.

Andersen said that the woman appeared to be in “a state of 

shock” and was “screaming” at them and fire personnel. When 
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74 290 NEBRASKA REPORTS

the State asked, “[W]hat does she scream to you?” Andersen 

testified that the woman said, “‘That’s him. He did this.’” As 

she screamed, Andersen said that the woman pointed at a black 

man, whom Andersen identified in court as Hale. Andersen 

stated that Hale thereafter screamed, “‘I tried to help them. I 

saved her, but I couldn’t save him.’”

William Guidebeck, a paramedic, arrived at about 9:19 a.m. 

and saw a woman sitting on a “neighbors’ stoop,” cradling a 

green recycling bin against her chest. Guidebeck observed that 

she was not wearing a shirt but had a green coat with blood 

on it draped over her back. Guidebeck described the condition of the woman: “She was in pain. She was kind of hanging 

her arms over the recycle bin as to not touch anything. She 

had burns—severe burns on her arms, on her face. Her hair 

was singed. She just kind of had a blank look on her face.” 

Guidebeck also noted that she had a “significant amount of 

soot around her mouth and nose.”

Nevertheless, Guidebeck testified that the woman was “alert 

and oriented,” based on her answers to the “times three” questions of “[p]erson, place, and time.” That is, she “knew where 

she was at, she knew what day it was, and she was very aware 

of her surroundings.” Guidebeck removed the coat, and he testified that the woman “reacted in pain.”

At this point in Guidebeck’s testimony, the State asked 

whether he had “receive[d] any response of any kind from 

this female patient.” Hale objected on hearsay grounds. The 

court overruled Hale’s objection on the ground that Elizabeth’s 

answer was an excited utterance. Guidebeck testified:

We removed the coat from her. We threw it down. 

Asked her if there was anybody else inside. She said her 

husband. We asked her if that was her husband’s coat, 

because it was kind of odd that she didn’t have a shirt 

on, but she had a coat draped around her. When I asked if 

that was her husband’s coat, she said, “No.” We asked her 

whose coat it was, and she said, “It’s his.”

After the court overruled another hearsay objection from Hale, 

Guidebeck testified, “And we said, ‘Whose?’ And she pointed 

in the direction of one of the [police] cars.” Guidebeck knew 

that someone was in the cruiser, but he could not see who.
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Investigat

Raymond was pronounced dead during the afternoon of 

February 7, 2013. A coroner’s physician performed an autopsy 

on February 8. He testified that 10 to 18 percent of the body 

was covered by second-degree burns. Additionally, the autopsy 

showed numerous abrasions, lacerations, and bruises. The physician stated that “soot” in the trachea and lungs showed that 

Raymond had been alive during the fire. Blood sample tests 

showed a fatal amount of carbon monoxide. The physician testified that Raymond’s death was caused by “the complication 

of breathing smoke, soot, carbon monoxide, and the other hot 

gasses in the fire, [and] being burned by the fire.”

Fire investigator Michael Shane McClanahan examined the 

house on February 7, 2013. McClanahan identified six different 

points of origin, each independent of the other. McClanahan also 

found a couch cushion with “thermal damage.” McClanahan 

opined that the fire was “intentionally-set,” based on the multiple points of origin and no indication that they would have 

naturally spread from one to another. McClanahan testified that 

his conclusions were consistent with Elizabeth’s description 

of events.

Inside, the house showed signs of a violent struggle. 

Firefighters saw what appeared to be “blood streaks” on a 

refrigerator in the kitchen. Photographs of the house showed 

“apparent blood” on the leg of an upturned table, a windowsill 

in the room where Raymond was found, an exterior door, and 

the wall leading to the basement. “[A]pparent blood” was also 

documented on the sleeve and lining of the green coat and on 

the recycling bin. Additionally, a pane in a basement window 

was broken and the latch used to open the window was bent. A 

handprint was pressed into the dirt outside the window.

Regarding Hale’s condition, Oseka testified that he offered 

Hale medical attention because Hale was “complaining that he 

was in the house and he was breathing in the smoke and he was 

coughing.” Andersen said that Hale “started coughing up or 

spitting up black soot” after he drank some water. Photographs 

of Hale after his arrest show a small cut on his nose, a scratch 

on his right arm, a small cut on his right leg, and “scrapes or 

lacerations” on his back.
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76 290 NEBRASKA REPORTS

The University of Nebraska Medical Center performed a 

forensic DNA analysis of several items retrieved from the 

scene. Blood on the “left chest area” and left sleeve of the 

green coat generated a genetic profile matching Elizabeth’s. 

Hale’s DNA profile was consistent with blood on the right 

sleeve of the coat. The probability of an unrelated African 

American individual matching the profile is 1 in 6.35 

quintillion.

Hale did not testify, but the State played for the jury several 

recordings of his statements. In a statement to police, Hale said 

that he “tried to save this lady.” Hale said that he was walking near the Vasholzes’ home when he saw smoke. Because 

the doors were locked, Hale said that he kicked in a basement 

window and pulled Elizabeth from the house.

Four days after Raymond’s death, Hale sat for an interview 

with local media. During the interview, Hale said that he was 

walking to a bus stop when he saw smoke rising from the 

Vasholzes’ house. Hale said that he opened a door and saw an 

older woman that he recognized as a neighbor. Hale pulled her 

out of the house and went back for her husband when “somebody attacked me from behind.” Hale said that he went to the 

basement, broke a window, climbed out, called 911, and waited 

for police to arrive. Hale said that he covered the woman with 

his coat, but she told him to get away. Hale claimed that the 

police caused the laceration to his nose when they took him 

into custody.

At trial, Hale’s attorneys emphasized the differences in 

Elizabeth’s accounts of the event. Police officer Scott Warner 

interviewed Elizabeth on February 8 and 19, 2013. The first 

interview occurred when Elizabeth was still at the hospital, 

and Warner testified that she was “medicated that time with 

morphine,” “spoke very quietly,” and “spent most of the time 

with her eyes closed.” During the first interview, Elizabeth told 

Warner that it was “getting darker” at the time of the attack and 

that her assailant wore a colorful hat. Warner asked Elizabeth 

whether she had seen her assailant before February 7, and she 

said, “‘I really don’t know.’”

At the second interview, Warner testified that Elizabeth 

said she recognized the man because he had previously done 
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yardwork for her. Elizabeth again told Warner that her assailant 

wore a hat.

At trial, Elizabeth testified that she could not recall whether 

Hale wore a hat, and there is no evidence that he did. 

Elizabeth also testified that the green coat was never over her 

shoulders.

In the operative information, the State charged Hale with one 

count of first degree murder under Neb. Rev. Stat. § 28-303(2) 

(Reissue 2008). The information alleged that Hale killed 

Raymond while committing, or attempting to commit, a robbery, burglary, or arson.

A jury convicted Hale, and the court sentenced him to life 

imprisonment.

ASSIGNMENTS OF ERROR

Hale assigns, restated, that (1) the court erred in overruling 

his hearsay objections to Oseka’s and Guidebeck’s testimony 

about Elizabeth’s out-of-court statements and (2) the evidence 

is not sufficient to support his conviction.

STANDARD OF REVIEW

[1] 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.1

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

an appellate court reviews for clear error the factual findings 

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

the court’s ultimate determination to admit evidence over a 

hearsay objection.2

[3,4] 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 

1 State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014).

2 See State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014).
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78 290 NEBRASKA REPORTS

finder of fact.3 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.4

ANALYSIS

Oseka’s and Guidebeck’s Test

Hale argues that the court erred in overruling his hearsay 

objections to testimony by Oseka and Guidebeck about outof-court statements made by Elizabeth. Regarding Oseka’s 

testimony, Hale argues that the statement to which Oseka testified was not an excited utterance because Oseka described 

Elizabeth as “‘calm and concise.’”5 Regarding Guidebeck’s testimony, Hale contends that the statement to which Guidebeck 

testified was not an excited utterance because Elizabeth spoke 

after conscious reflection and in response to “investigative 

questioning.”6

[5] Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.7

 Hearsay is not 

admissible unless otherwise provided for under the Nebraska 

Evidence Rules or elsewhere.8

To recap, Oseka testified that Elizabeth pointed at Hale and 

said, “‘He did it.’” Guidebeck testified that he asked Elizabeth 

whose coat was draped over her shoulders and that she said, 

“‘It’s his,’” while pointing at an individual in a police cruiser. 

Elizabeth made her statement to Oseka before her statement to 

Guidebeck. Both statements are hearsay.

[6] Excited utterances are one of the exceptions to the prohibition of hearsay.9

 For a statement to be an excited utterance, 

3 State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).

4 See State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).

5 Brief for appellant at 10.

6 Id. at 9.

7 State v. Castillo-Zamora, supra note 2.

8 Id.

9 See State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013). 
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the following criteria must be met: (1) There must be a startling event; (2) the statement must relate to the event; and (3) 

the declarant must make the statement while under the stress of 

the event.10 The justification for the excited utterance exception 

is that circumstances may produce a condition of excitement 

which temporarily stills the capacity for reflection and produces utterances free of conscious fabrication.11

Hale does not dispute that the attack Elizabeth suffered 

and witnessed was a startling event. And when the startling 

event is the commission of a crime, a statement identifying 

the perpetrator relates to the event.12 So, the issue is whether 

Elizabeth made her statements to Oseka and Guidebeck while 

still under the stress from the assault and fire.

[7] An excited utterance does not have to be contemporaneous with the exciting event.13 It may be subsequent to the 

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

its sway.14 The true test is not when the exclamation was 

made but whether, under all the circumstances, the declarant 

was still speaking under the stress of nervous excitement and 

shock caused by the event.15 Therefore, the lapse of time is 

not dispositive,16 and the proponent does not have to produce 

definitive evidence of the time of the startling event.17 The 

period in which the exception applies depends on the facts of 

the case.18

[8,9] Relevant facts include the declarant’s manifestation 

of stress,19 such as “yelling,”20 and the declarant’s physical 

10 See State v. Castillo-Zamora, supra note 2.

11 Id.

12 See State v. Smith, supra note 9.

13 State v. Castillo-Zamora, supra note 2.

14 Id.

15 See id.

16 See State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).

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

18 State v. Castillo-Zamora, supra note 2.

19 See, e.g., id.

20 See State v. Canbaz, 259 Neb. 583, 591, 611 N.W.2d 395, 402 (2000).
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80 290 NEBRASKA REPORTS

condition.21 Also relevant is whether the declarant spoke in 

response to questioning.22 Statements made in response to 

questions from law enforcement in particular do not generally 

have inherent guarantees of reliability and trustworthiness.23

But the declarant’s answer to a question may still be an excited 

utterance if the context shows that the statement was made 

without conscious reflection.24

Here, Elizabeth testified that the attack occurred in the 

period “leading up to 9 o’clock a.m.” on February 7, 2013. 

Burns testified that he saw Elizabeth “yelling” for help on her 

neighbor’s stoop at “approximately 9 a.m.” An alarm for a 

house fire was sounded at 9:12 a.m., and Oseka and Andersen 

testified that they arrived in less than 5 minutes. Guidebeck 

estimated that he arrived at “about 9:19 a.m.”

So, we can infer that Oseka and Guidebeck arrived minutes 

after Elizabeth left her burning home. And they both found 

Elizabeth sitting on a neighbor’s stoop in pajama bottoms, 

with untreated “severe burns,” cradling a plastic recycling bin 

against her bare chest in the “chilly” February air.

Whether Elizabeth was still stressed when she spoke to 

Oseka is a difficult question. Oseka testified that when he and 

Andersen approached Elizabeth, she “had open burn sores on 

both her left and right arms” and was bleeding from these sores 

and her mouth. Additionally, Oseka stated that Elizabeth was 

“throwing up or spitting into” the recycling bin. Nevertheless, 

Oseka testified that Elizabeth, “[s]urprisingly, for the chaotic 

scene . . . was calm, but yet concise.” If this was the only 

description of Elizabeth’s demeanor, her statement to Oseka 

would not be an excited utterance.

But Andersen witnessed—and testified about—the same 

statement, and he described Elizabeth differently. According 

21 Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).

22 Id.

23 See State v. Hughes, 244 Neb. 810, 510 N.W.2d 33 (1993). See, also, State 

v. Sullivan, 236 Neb. 344, 461 N.W.2d 84 (1990).

24 Werner v. County of Platte, supra note 21. See State v. Hembertt, 269 Neb. 

840, 696 N.W.2d 473 (2005); State v. Plant, 236 Neb. 317, 461 N.W.2d 

253 (1990). 
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STATE v. HALE 81

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to Andersen, Elizabeth was in a “state of shock” and was 

“screaming” at the responders. In fact, Andersen described 

Elizabeth’s identification of Hale not as a “statement,” but as 

a “scream.”

So, Oseka’s and Andersen’s accounts of Elizabeth’s apparent stress level differ. But considering the totality of the 

circumstances—including the nearness of the event and 

Elizabeth’s manifestations of physical stress—we conclude 

that Elizabeth was still under the stress from the assault and 

fire when she identified Hale as the perpetrator. The court 

did not err by overruling Hale’s hearsay objection to Oseka’s 

testimony.

We similarly conclude that Elizabeth’s statement to 

Guidebeck was an excited utterance. Guidebeck testified that 

Elizabeth was visibly “in pain” when he approached. Her 

hair was singed, and she had burns on her arms and face. 

Guidebeck testified that Elizabeth “had a blank look on her 

face.” From these facts, we can infer that Elizabeth was under 

the stress of the assault and fire when she spoke to Guidebeck. 

Hale emphasizes that Guidebeck also described Elizabeth as 

“alert and oriented” because she knew who she was, where 

she was, and the day. But alertness is not inconsistent with 

a stimulation of the sympathetic nervous system from the 

adrenal gland’s release of hormones, a possible response to 

stress.25 Hale also notes that Elizabeth told Guidebeck that 

the green coat belonged to the person in the back of a police 

cruiser only after Guidebeck asked whose coat it was. But the 

record does not indicate that Elizabeth labored over the question, and we conclude that her answer—“‘[i]t’s his’”—did not 

involve conscious reflection.

Sufficiency of the Evid

Hale argues that the evidence is not sufficient to support 

his conviction. He contends that Elizabeth’s testimony was 

25 See, Attorney’s Illustrated Medical Dictionary E31 (West 1997); Emily 

Campbell, Comment, The Psychopath and the Definition of “Mental 

Disease or Defect” Under the Model Penal Code Test of Insanity: A 

Question of Psychology or a Question of Law? 69 Neb. L. Rev. 190 

(1990). 
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82 290 NEBRASKA REPORTS

critical to the State’s case and that her credibility is questionable due to her “admitted confusion” and the differences 

between her trial testimony and her statements to Warner.26

Hale also claims that the State produced little physical evidence and failed to more aggressively investigate another man 

who was spotted near the Vasholzes’ home.

The State prosecuted Hale under the species of first degree 

murder known as felony murder. Section 28-303 provides: “A 

person commits murder in the first degree if he or she kills 

another person . . . (2) in the perpetration 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 . . . .” The critical difference 

between felony murder and premeditated first degree murder 

is that the intent to commit the underlying felony is substituted 

for an intent to kill.27 Here, the underlying felonies alleged in 

the operative information and put to the jury were robbery, 

burglary, or arson.

We conclude that the evidence is sufficient to support Hale’s 

conviction. Elizabeth and McClanahan testified that someone 

intentionally damaged the Vasholzes’ home and contents by 

starting a fire. The coroner’s physician testified that Raymond 

died from breathing in smoke and carbon monoxide from the 

fire. Elizabeth testified that Hale was the person who intentionally set the fire, and her account is supported by circumstantial evidence such as Hale’s blood on the green coat and 

the marks on his body. Viewing the evidence in the light most 

favorable to the State, a rational fact finder could have found 

beyond a reasonable doubt that Hale killed Raymond in the 

perpetration of an arson.28 We need not address whether the 

same conclusion can be reached under the two alternate underlying felonies of robbery and burglary.29

26 Brief for appellant at 12.

27 See State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014).

28 See, Neb. Rev. Stat. § 28-503(1) (Cum. Supp. 2014); State v. Ruyle, 234 

Neb. 760, 452 N.W.2d 734 (1990).

29 State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014).
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Elizabeth’s recounting of the events at trial differed somewhat from her statements to Warner, and her statements to 

Warner themselves were not identical. This was a matter that 

the jury could consider when weighing Elizabeth’s testimony 

and credibility, but it is not a matter for us. Our question is 

only whether a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt.30 The 

credibility and weight of witness testimony is the province 

of the jury, and we will not reassess credibility on appellate review.31

CONCLUSION

We conclude that the out-of-court statements Oseka and 

Guidebeck testified about were excited utterances, and therefore admissible despite their hearsay status. And we conclude 

that the evidence is sufficient to support Hale’s conviction for 

murder in the first degree.

Affirmed

Heavican, C.J., participating on brief

30 See State v. Matit, supra note 4.

31 See, State v. Tolbert, 288 Neb. 732, 851 N.W.2d 74 (2014); State v. Huff, 

282 Neb. 78, 802 N.W.2d 77 (2011).

State of Nebraska, appellee, v.

Ramez Merheb, appella

___ N.W.2d ___

Filed February 6, 2015. No. S-14-315.

1. Appeal and Error. To the extent issues of law are presented, an appellate court 

has an obligation to reach independent conclusions irrespective of the determinations made by the court below.

2. Constitutional Law: Postconviction. A manifest injustice common-law claim 

must be founded on a constitutional right that cannot and never could have been 

vindicated under the Nebraska Postconviction Act or by any other means.

3. Constitutional Law: Effectiveness of Counsel: Convictions. As a general 

proposition, counsel’s advice about collateral matters—those not involving 

the direct consequences of a criminal conviction—are irrelevant under the 

Sixth Amendment.