State v. Newman, S-94-833

Decision Date07 June 1996
Docket NumberNo. S-94-833,S-94-833
Citation548 N.W.2d 739,250 Neb. 226
CourtNebraska Supreme Court
PartiesSTATE of Nebraska, Appellee, v. John Byron NEWMAN, Appellant.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous.

2. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

3. Criminal Law: Identification Procedures. Whether identification procedures in connection with photographic arrays were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of all the circumstances surrounding the procedures.

4. Constitutional Law: Search and Seizure. Both the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, § 7, protect against unreasonable searches and seizures by the government.

5. Search and Seizure: Warrants: Probable Cause. Searches conducted pursuant to a warrant supported by probable cause are generally considered to be reasonable.

6. Constitutional Law: Search and Seizure. Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment to the U.S. Constitution, subject only to a few specifically established and well-delineated exceptions.

7. Arrests: Search and Seizure. Inventory searches after an arrest are permissible.

8. Search and Seizure. The propriety of an inventory search is judged by a standard of reasonableness, and such a search must be conducted in accordance with standard operating procedures.

9. Constitutional Law: Search and Seizure: Police Officers and Sheriffs: Property: Prisoners. The purpose of an inventory exception is not to avoid the requirements of the Fourth Amendment to the U.S. Constitution, but, rather, to advance legitimate governmental interests which include (1) protecting the property of an arrestee in custody, (2) protecting the police from groundless claims that an arrestee's property has not been properly safeguarded, (3) protecting or maintaining the security of a detention facility by preventing the introduction of weapons or contraband into the facility, and (4) ascertaining or verifying an arrestee's identity.

10. Convictions: Appeal and Error. Not all trial errors, even those of constitutional magnitude, entitle an accused to a reversal of an adverse trial result; it is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, which requires that a conviction be set aside.

11. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by those rules, not by judicial discretion, except in those instances in which the rules make judicial discretion a factor.

12. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 1995), is a rule of inclusion, rather than exclusion, and permits the use of relevant bad acts for all purposes except to prove the character of a person in order to prove that the person acted in conformity with that character.

13. Rules of Evidence: Other Acts. The list of acceptable uses recited in Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 1995), is illustrative and not meant to be exclusive.

14. Rules of Evidence: Other Acts. Evidence which is otherwise admissible under Neb.Rev.Stat. § 27-404(2) (Reissue 1995) may be excluded under Neb.Rev.Stat. § 27-403 (Reissue 1995) if its probative value is substantially outweighed by other considerations.

15. Rules of Evidence: Other Acts: Appeal and Error. In reviewing the admission of evidence of other acts under Neb.Rev.Stat. § 27-404(2) (Reissue 1995), an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted.

16. Trial: Evidence: Other Acts: Appeal and Error. It is within the discretion of a trial court to determine the admissibility of evidence of other wrongs or acts, and the trial court's decision will not be reversed absent an abuse of discretion.

17. Trial: Words and Phrases. An abuse of judicial discretion means that the reasons or rulings of a trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.

18. Evidence: Words and Phrases. Relevant evidence means any evidence having a 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.

19. Evidence. Determining the probative value of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues in the case.

20. Constitutional Law: Self-Incrimination: Testimony. The Fifth Amendment privilege against self-incrimination protects only against compulsion to engage in testimonial self-incriminating activity.

21. Constitutional Law: Self-Incrimination. The Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.

22. Evidence. A defendant may be compelled to produce a voice exemplar.

23. Constitutional Law: Self-Incrimination: Evidence. Due process principles of reciprocity permit an otherwise admissible voice exemplar to be introduced by a defendant without waiving his or her Fifth Amendment privilege against self-incrimination.

24. Convictions: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, 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; a conviction will be affirmed in the absence of prejudicial error if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

Dennis R. Keefe, Lancaster County Public Defender, and Webb E. Bancroft, Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.


CAPORALE, Justice.


After the jury found the defendant, John Byron Newman, guilty of first degree sexual assault, in violation of Neb.Rev.Stat. § 28-319(1) (Reissue 1989), the district court held an enhancement hearing at which it was determined that this was not Newman's first such conviction. In accordance with the provisions of Neb.Rev.Stat. § 28-105 (Reissue 1989) and § 28-319(2) and (3), the district court then sentenced Newman to imprisonment for a period of not less than 25 nor more than 50 years, without the possibility of parole. Newman thereupon appealed to the Nebraska Court of Appeals, asserting, in summary, that the district court erred in (1) not suppressing certain evidence, (2) other evidential rulings, and (3) finding the evidence sufficient to support the conviction. The Court of Appeals affirmed the district court's judgment. State v. Newman, 4 Neb.App. 265, 541 N.W.2d 662 (1995). Newman then successfully petitioned this court for further review. We now affirm the judgment of the Court of Appeals.


At approximately 11 p.m. on the evening of March 21, 1993, the victim fell asleep with her 3-year-old son while watching television in the living room of the Lincoln, Lancaster County, Nebraska, apartment in which they lived. During the early morning hours of March 22, she was awakened by a knock at the living room door. She got up and looked through the peephole and, seeing nothing, opened the door slightly. Now noticing a man outside, she asked if he had the wrong apartment. Replying that he did not, the man forced his way inside. As she backed away, the victim started hitting and kicking, and asked what he was doing. The man kept coming toward her and eventually pushed her down on the couch.

At this point, the victim was lying lengthwise on the couch with the man between her legs. As she threatened to scream, the man grabbed her by the throat and told her that if she did so, he was going to "bash [her] fucking head in." He then began squeezing her throat as he unfastened her belt and removed her clothing, which consisted of a green shirt, bra, jean shorts, underwear, shoes, socks, and a white T-shirt. The man then opened his pants, pulled them down past his buttocks, and unsuccessfully tried to insert his penis into the victim's vagina.

The man next picked the victim up in a "bear hug" and carried her into a bedroom. Once there, he threw her on the bed and again attempted coitus. Being again unsuccessful, he inserted a finger into the victim's vagina. At this point, although she had never seen him and did not know him, the man spoke the victim's name and told her that he had wanted to do this for awhile. The man then attempted to muffle the sound of the victim's cries by putting a pillow over her face.

After awhile, he got up, turned on the lights, and threw a blanket and pillow over the victim's face so she could not see....

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