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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. HASSAN

Cite as 309 Neb. 644

State of Nebraska, appellee, v. 

Yahia Hassan, appellant.

___ N.W.2d ___

Filed July 2, 2021. No. S-20-562.

1. 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.

2. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

3. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than 

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

to prove the truth of the matter asserted.

4. Rules of Evidence: Hearsay. Hearsay is not admissible unless otherwise provided for in the Nebraska Evidence Rules or elsewhere.

5. Hearsay: Words and Phrases. A verbal act is a statement that has legal 

significance, i.e., it brings about legal consequences simply because it 

was spoken.

6. Statutes: Intent. When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, understood 

in context.

7. Statutes. It is not within the province of the courts to read meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

Nebraska Supreme Court Online Library

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

09/17/2021 08:11 AM CDT
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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. HASSAN

Cite as 309 Neb. 644

Appeal from the District Court for Hall County: Andrew C. 

Butler, Judge. Affirmed.

Jerrod P. Jaeger, Deputy Hall County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

After the State charged Yahia Hassan with various drug 

offenses, the county court ordered Hassan to appear at a preliminary hearing on an upcoming Thursday. Hassan did not 

appear for the hearing, a bench warrant was issued, and Hassan 

was arrested on the following Monday. Although Hassan was 

not convicted of any of the underlying drug offenses, he was 

charged and convicted in district court for failure to appear.

Two questions are at issue in this appeal. The first is whether 

the court records the State relied upon to prove Hassan’s failure to appear were properly admitted. The second is whether 

there was sufficient evidence to support Hassan’s conviction. 

Hassan claims there was insufficient evidence of an essential 

element of a failure to appear violation: that he willfully failed 

to surrender himself within 3 days of being ordered to appear. 

Hassan argues that the 3-day period must be determined with 

reference to Neb. Rev. Stat. § 25-2221 (Reissue 2016), a statute setting out a method for the computation of time. He contends that if that statute applied, the period in which he could 

lawfully surrender himself extends to the Monday on which 

he was arrested, and there was thus insufficient evidence he 

committed the offense. We find that there was no error in the 

admission of the court records and that § 25-2221 should not 

be used to calculate the 3-day period in the failure to appear 

statute, and thus, we affirm.
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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. HASSAN

Cite as 309 Neb. 644

BACKGROUND

After police conducted a search of a car in which Hassan 

was riding as a passenger and discovered drugs and drug 

paraphernalia, Hassan was charged with criminal offenses in 

the county court for Hall County, and he was released from 

custody. The State later added an additional charge for failure 

to appear, alleging that Hassan willfully failed to appear for a 

preliminary hearing in the county court.

After the case was bound over to the district court, it proceeded to trial before a jury. Most of the State’s evidence 

was relevant to the possession charges. The State sought to 

prove the failure to appear charge through exhibit 7. Exhibit 

7 consisted of multiple records from the county court, including a journal entry from September 3, 2019, ordering Hassan 

to appear for a preliminary hearing on October 24 and warning that failure to appear could result in the issuance of an 

arrest warrant, an additional charge for failure to appear, and 

a finding of contempt; an October 24 journal entry noting that 

Hassan failed to appear for the preliminary hearing; an October 

24 bench warrant issued by the county court as a result of 

Hassan’s failure to appear; and a warrant return indicating that 

law enforcement arrested Hassan pursuant to the warrant on 

October 28.

Hassan objected to the admission of exhibit 7. Following a 

sidebar discussion not reflected in the bill of exceptions, the 

district court stated it was overruling the objection. Hassan’s 

counsel noted for the record that “the objection was under the 

public records exception.” The district court acknowledged the 

objection and again noted it was overruled.

Following the conclusion of the State’s case, Hassan moved 

for a directed verdict on all charges. The district court granted 

Hassan a directed verdict on one of the possession charges, but 

denied a directed verdict on all others. Hassan did not introduce evidence.

The jury returned a verdict finding Hassan not guilty of 

the remaining possession charges and guilty of the failure to 
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Nebraska Supreme Court Advance Sheets

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STATE v. HASSAN

Cite as 309 Neb. 644

appear charge. For the failure to appear conviction, the district 

court sentenced Hassan to 10 days’ incarceration with credit 

given for 10 days’ time served.

ASSIGNMENTS OF ERROR

Hassan assigns that the district court erred (1) by admitting 

exhibit 7 under the public records exception to the hearsay rule 

and (2) by overruling Hassan’s motion for directed verdict and 

finding the evidence sufficient to support his conviction for 

failure to appear.

STANDARD OF REVIEW

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

we review for clear error the factual findings underpinning a 

trial court’s hearsay ruling and review de novo the court’s ultimate determination to admit evidence over a hearsay objection. 

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

[2] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of 

the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, 

in the absence of prejudicial error, if the evidence admitted at 

trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Price, 306 Neb. 38, 

944 N.W.2d 279 (2020).

ANALYSIS

Admissibility of County Court Records.

Hassan contends that the county court records found in 

exhibit 7 should not have been admitted into evidence at trial. 

He asserts that exhibit 7 is hearsay and was not admissible 

under the public records exception to the hearsay rule. See 

Neb. Rev. Stat. § 27-803(7) (Reissue 2016). Specifically, he 
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STATE v. HASSAN

Cite as 309 Neb. 644

claims that the State did not provide adequate notice or show 

that exhibit 7 contained records of facts required to be observed 

and recorded pursuant to a duty imposed by law, both of which 

are required by § 27-803(7). We find that it is unnecessary to 

determine whether exhibit 7 was admissible under § 27-803(7), 

because Hassan objected to exhibit 7 as a whole, but exhibit 7 

is not entirely inadmissible hearsay.

[3,4] Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered to 

prove the truth of the matter asserted. State v. Poe, 292 Neb. 

60, 870 N.W.2d 779 (2015). Hearsay is not admissible unless 

otherwise provided for in the Nebraska Evidence Rules or 

elsewhere. State v. Poe, supra. But an out-of-court statement is 

not hearsay if the proponent offers it for a purpose other than 

proving the truth of the matter asserted. Id. This last principle 

is crucial here, because at least part of exhibit 7 could not have 

been offered for the truth of the matter asserted.

[5] Included within exhibit 7 was a journal entry ordering 

Hassan to appear for a preliminary hearing on October 24, 

2019. This journal entry was a “verbal act” and was thus not 

hearsay. A verbal act is a statement that has legal significance, 

i.e., it brings about legal consequences simply because it was 

spoken. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 

(2011). Such statements are not hearsay. See id. As a commentator has explained, verbal acts are not hearsay, because 

they “involve words that have a legal effect that is not concerned with the out-of-court declarant’s memory, perceptions, 

or honesty.” G. Michael Fenner, The Hearsay Rule, 26 (3d 

ed. 2013).

The county court’s order directing Hassan to appear for a 

preliminary hearing had legal significance simply because it 

was spoken. Because the county court issued the order, Hassan 

was obligated to appear and faced legal consequences if he 

did not. His failure to appear as ordered formed the basis for 

the conviction at issue. Several courts have concluded that 

imperative statements in court orders are not hearsay, because 
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STATE v. HASSAN

Cite as 309 Neb. 644

they bring about legal consequences as a result of being spoken. See, e.g., U.S. v. Dupree, 706 F.3d 131, 137 (2d Cir. 

2013) (“the question whether a court’s command imposes legal 

obligations on a party is outside the hearsay rule’s concerns”); 

U.S. v. Boulware, 384 F.3d 794, 806 (9th Cir. 2004) (“[a] prior 

judgment is not hearsay . . . to the extent that it is offered as 

legally operative verbal conduct that determined the rights 

and duties of the parties”); Prudential Ins. Co. of America v. 

Sagers, 421 F. Supp. 3d 1199, 1204 (D. Utah 2019) (“orders by 

the court are not offered for the truth of those statements, but 

rather to demonstrate the legal effect of the statements on the 

parties”). See, also, U.S. v. Hayes, 369 F.3d 564, 568 (D.C. Cir. 

2004) (reasoning that because imperative statements were not 

assertive, they did not “express a ‘truth’ for which they could 

be offered”). For the same reason, we conclude that the journal 

entry and order directing Hassan to appear for a preliminary 

hearing was a verbal act and not hearsay.

Hassan may contend that other portions of exhibit 7 contained inadmissible hearsay, but we need not reach that question. Hassan objected to exhibit 7 as a whole. We have held 

that even if there are inadmissible parts within an exhibit, “an 

objection to an exhibit as a whole is properly overruled where 

a part of the exhibit is admissible.” State v. Merrill, 252 Neb. 

736, 743, 566 N.W.2d 742, 748 (1997). Because part of exhibit 

7 was admissible, the district court did not err in overruling 

Hassan’s objection to its admission.

Sufficiency of Evidence.

Hassan also contends that his conviction cannot stand, 

because the State failed to introduce sufficient evidence of all 

of the essential elements of a failure to appear offense.

The statute underlying the basis of the failure to appear 

charge, Neb. Rev. Stat. § 29-908 (Reissue 2016), provides in 

relevant part:

Whoever is charged with a felony and is released from 

custody under bail, recognizance, or a conditioned release 
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STATE v. HASSAN

Cite as 309 Neb. 644

and willfully fails to appear before the court granting 

such release when legally required or to surrender himself 

within three days thereafter, shall be guilty of a Class IV 

felony . . . .

We have held that to sustain a conviction under § 29-908, 

the State must establish that (1) the defendant was charged 

with a felony; (2) the defendant was released from custody 

under bail, recognizance, or a conditioned release; and (3) the 

defendant willfully failed (a) to appear before the court when 

legally required or (b) to surrender himself or herself within 

3 days thereafter. State v. Valdez, 236 Neb. 627, 463 N.W.2d 

326 (1990).

Hassan does not contest that the State introduced evidence 

that he was charged with a felony; that he was released from 

custody under bail, recognizance, or a conditioned release; or 

that he willfully failed to appear for the preliminary hearing 

as ordered. He does claim that the State failed to show that he 

willfully failed to surrender himself within 3 days of failing to 

appear for the preliminary hearing.

Hassan argues that the 3-day period referred to in § 29-908 

must be determined with reference to § 25-2221. Section 

25-2221 provides in pertinent part:

Except as may be otherwise more specifically provided, the period of time within which an act is to be 

done in any action or proceeding shall be computed by 

excluding the day of the act, event, or default after which 

the designated period of time begins to run. The last day 

of the period so computed shall be included unless it is a 

Saturday, a Sunday, or a day during which the offices of 

courts of record may be legally closed as provided in this 

section, in which event the period shall run until the end 

of the next day on which the office will be open.

Hassan argues that although § 29-908 obligates defendants 

to surrender themselves within 3 days of a failure to appear 

before the court, § 25-2221 dictates that when the failure to 

appear occurs on a Thursday and the third day thereafter thus 
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STATE v. HASSAN

Cite as 309 Neb. 644

falls on a Sunday, as it did here, the time in which the defend

ant can surrender himself or herself and avoid a violation of 

§ 29-908 includes the following Monday. And because the 

State’s evidence showed that Hassan was arrested on the following Monday, he claims the State did not prove he failed to 

surrender himself as required by § 29-908.

The State counters that § 25-2221 should not be applied here. 

The State does not contend that § 25-2221 has no application 

in the criminal context, but acknowledges that we have applied 

§ 25-2221 in many such cases. See, e.g., State v. Hirsch, 

245 Neb. 31, 511 N.W.2d 69 (1994) (applying § 25-2221 in 

determining whether prosecution was time barred); State v. 

Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993) (applying 

§ 25-2221 in determining whether motion for new trial was 

timely filed); State v. Bridger, 223 Neb. 250, 388 N.W.2d 831 

(1986) (applying § 25-2221 in determining whether appeal 

was timely filed); State v. Jones, 208 Neb. 641, 305 N.W.2d 

355 (1981) (applying § 25-2221 in speedy trial computation). 

Instead, the State attempts to distinguish those cases, arguing that the deadlines in those cases were “administrative” or 

“procedural,” while the deadline in § 29-908 is not. Brief for 

appellee at 14 and 15.

[6,7] To answer whether the 3-day period in § 29-908 should 

be determined with reference to § 25-2221, we must interpret 

§ 25-2221. To do so, we apply our familiar principles of statutory interpretation, which we briefly review here. When interpreting a statute, the starting point and focus of the inquiry is 

the meaning of the statutory language, understood in context. 

In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 

307 (2020). Our analysis begins with the text, because statutory language is to be given its plain and ordinary meaning, 

and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, 

and unambiguous. See id. Neither is it within the province of 

courts to read meaning into a statute that is not there or to read 
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STATE v. HASSAN

Cite as 309 Neb. 644

anything direct and plain out of a statute. Parks v. Hy-Vee, 307 

Neb. 927, 951 N.W.2d 504 (2020).

Applying these principles to the question at hand, we conclude that § 25-2221 should not be used to determine the 3-day 

surrender period in § 29-908. Section 25-2221 provides that its 

procedure for counting days is to be applied when there is a 

“period of time within which an act is to be done in any action 

or proceeding” (emphasis supplied). There is no question that 

by requiring defendants to surrender themselves within 3 days 

of failing to appear as ordered, § 29-908 creates a period of 

time in which an act is to be done. In addition, our prior cases 

appear to have treated a criminal prosecution as an “action or 

proceeding” for purposes of § 25-2551. We do not, however, 

understand § 29-908 to require defendants to perform the timesensitive act of surrendering themselves following a failure to 

appear in the action or proceeding.

Section 29-908 makes it a crime for certain individuals to 

willfully fail (1) to appear for court when legally required and 

(2) to surrender themselves within 3 days. It does not, however, 

direct to whom those defendants must surrender or provide 

any indication that their required surrender must take place 

to the court in the criminal proceeding. We see nothing in the 

statute that would prevent a defendant who failed to appear for 

a required court appearance from surrendering to law enforcement in the county in which he or she was ordered to appear 

within 3 days and thereby avoiding a violation of § 29-908. 

Yet, in that scenario, the defendant is not taking any action in

the criminal proceeding. The defendant is simply surrendering 

to law enforcement to avoid committing a criminal offense. 

The failure to surrender within 3 days of being ordered to 

appear is an essential element of a violation of § 29-908, but 

the defendant is not required to take that action in the underlying proceeding. Accordingly, § 25-2221, by its terms, does 

not apply.

We acknowledge that this court has not always adhered 

closely to the text of § 25-2221 in determining whether its 
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method for computing time should be applied. In State ex rel. 

Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518 (1994), 

we applied § 25-2221 as we were determining whether statements describing proposed constitutional amendments were 

timely filed with the Secretary of State. We concluded that 

§ 25-2221 applied in reliance on a treatise, which stated that 

“[a] statutory rule for the computation of time is usually construed as a general provision relating to all acts required and 

permitted by law, unless an intention to the contrary affirmatively appears or a different construction seems imperative 

. . . .” State ex rel. Wieland v. Beermann, 246 Neb. at 812, 523 

N.W.2d at 523, quoting 86 C.J.S. Time § 8 (1954) (internal 

quotation marks omitted).

To the extent we suggested in State ex rel. Wieland that 

§ 25-2221 should be “construed as a general provision relating to all acts required and permitted by law,” we glossed over 

§ 25-2221’s text. Unlike some time computation statutes from 

other states, see, e.g., 5 Ill. Comp. Stat. Ann. 70/1.11 (West 

2016) (“[t]he time within which any act provided by law is 

to be done shall be computed by . . . .”), § 25-2221 does not 

state that its method of time computation should be applied to 

any and all acts required by law. As we have noted, it applies 

only to those acts which must be done “in any action or proceeding.” It is the function of the Legislature, through the 

enactment of statutes, to declare what is the law and public 

policy of this state. Rogers v. Jack’s Supper Club, 304 Neb. 

605, 935 N.W.2d 754 (2019). The Legislature has specified the 

circumstances in which the method of computing time outlined 

in § 25-2221 is to be applied. We are obligated to follow its 

policy direction.

Because § 25-2221 does not apply to determining the 3-day 

surrender period of § 29-908, we interpret the reference in 

§ 29-908 to 3 days according to its plain and ordinary meaning 

of 3 calendar days. See In re Guardianship of Eliza W., 304 

Neb. 995, 938 N.W.2d 307 (2020). With this understanding 

in mind, it becomes clear that the State introduced sufficient 
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Cite as 309 Neb. 644

evidence that Hassan failed to surrender himself within 3 

days of the preliminary hearing. As we have discussed, Hassan 

failed to appear for the preliminary hearing on Thursday, 

October 24, 2019, and was then arrested on Monday, October 

28. As more than 3 calendar days elapsed between his failure 

to appear and his arrest, there was evidence by which the jury 

could have found each of the essential elements of a violation 

of § 29-908.

CONCLUSION

Because we find that Hassan’s assignments of error lack 

merit, we affirm.

Affirmed.