State v. Dixon

considerations such as cost control or allocation of limited
resources. Although the decision (or lack thereof) of a third-
party payor contributed to the circumstances of this case,
UNMC’s decisions were still (according to its evidence) pre-
mised entirely upon the medical well-being of its patient. In a
perfect world, difficult medical decisions like the one at issue
in this case would be unnecessary. But we do not live in a per-
fect world, and we cannot say as a matter of law that UNMC’s
decisions in this case violated the standard of care.
CoNClUsIoN
For the foregoing reasons, the district court’s order granting
Robert’s motion for new trial is reversed.
R eveRsed.
WRight ands tephan, JJ., not participating.
state of nebRaska , appellee , v.
aRmon m. dixon, appellant.
802 N.W.2d 866
Fileds eptember 16, 2011. 	No.s -10-476.
1. Venue: Appeal and Error. An appellate court reviews the denial of a motion to
change venue for abuse of discretion.
2. Venue. Under Neb. Rev.s tat. § 29-1301 (Reissue 2008), a change of venue is
mandated when a defendant cannot receive a fair and impartial trial in the county
where the offense was committed.
3. Venue: Proof. Unless a defendant claims that the pretrial publicity has been so
pervasive and prejudicial that a court should presume the partiality of prospective
jurors, a change in venue is evaluated under the following factors: These factors
are (1) the nature of the publicity, (2) the degree to which the publicity has circu-
lated throughout the community, (3) the degree to which the publicity circulated
in areas to which venue could be changed, (4) the length of time between the
dissemination of the publicity complained of and the date of the trial, (5) the
care exercised and ease encountered in the selection of the jury, (6) the number
of challenges exercised during voir dire, (7) the severity of the offenses charged,
and (8) the size of the area from which the venire was drawn.
4. Venue: Due Process. Mere exposure to news accounts of a crime does not pre-
sumptively deprive a defendant of due process.
5. Venue: Due Process: Proof. To warrant a change of venue, a defendant must
show the existence of pervasive misleading pretrial publicity. A defendant must
show that publicity has made it impossible to secure a fair and impartial jury.
274 	282N eBRAskAR epoRTs
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www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

6. Venue.p ress coverage that is factual cannot serve as the basis for a change
of venue.
7. Trial: Juries: Appeal and Error. The decision to retain or reject a venireperson
as a juror rests in the trial court’s discretion, and an appellate court will reverse
only when it is clearly wrong.
8. Jurors: Appeal and Error.e ven if the trial court erroneously overrules a chal-
lenge for cause, an appellate court will not reverse the court’s decision unless the
defendant can show that an objectionable juror sat on the jury after the defendant
exhausted his or her peremptory challenges.
9. Trial: Jurors: Appeal and Error. Under Neb. Rev.s tat. § 29-2006 (Reissue
2008), dismissal of a prospective juror is mandatory only if the prospective juror
has formed an opinion about the defendant’s guilt or innocence based on conver-
sations with witnesses of the transactions or reading reports of their testimony or
hearing them testify.
10. Juror Qualifications. Nebraska law does not require that a juror be totally igno-
rant of the facts and issues involved in the case.
11. ____. A dismissal is not required if a prospective juror formed an opinion based
on newspaper statements, communications, comments or reports, or upon rumor
or hearsay if the prospective juror states under oath that he can render an impar-
tial verdict and the court is satisfied of such.
12. Trial: Jurors: Appeal and Error. An appellate court gives deference to a
trial court’s determination of whether a prospective juror can apply the laws
impartially.
13. Criminal Law: Motions for Continuance: Appeal and Error. A decision
whether to grant a continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion.
14. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
15. Motions for Continuance: Appeal and Error. A court does not abuse its discre-
tion in denying a continuance unless it clearly appears that the party seeking the
continuance suffered prejudice because of that denial.
16. ____: ____. Neb. Rev.s tat. § 25-1148 (Reissue 2008) requires motions for a
continuance to be in writing. But a failure to put such a motion in writing is but a
factor to be considered in determining whether a trial court abused its discretion
in denying a continuance.
17. Criminal Law: Motions for Continuance. When deciding whether to grant a
continuance in a criminal case, courts must take into consideration the public
interest in prompt disposition of the case.
18. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
19. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial that
is of such a nature that its damaging effect cannot be removed by proper admoni-
tion or instruction to the jury and thus prevents a fair trial.
sTATe v. dIxoN 	275
Cite as 282 Neb. 274

20. Motions for Mistrial. events that may require the granting of a mistrial include
egregiously prejudicial statements of counsel, the improper admission of prejudi-
cial evidence, and the introduction to the jury of incompetent matters.
21. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred.
22. Motions for Mistrial. A party must premise a motion for mistrial upon actual
prejudice, not the mere possibility of prejudice.
23. Motions to Dismiss: Evidence: Waiver: Appeal and Error. When a court over-
rules a defendant’s motion to dismiss at the close of thes tate’s case in chief and
the defendant proceeds to trial and introduces evidence, the defendant waives the
appellate right to challenge the trial court’s overruling of the motion to dismiss.
But the defendant may challenge the sufficiency of the evidence.
24. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence, it does not matter 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 finders
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.
25. Verdicts: Appeal and Error. only where evidence lacks sufficient probative
force as a matter of law may an appellate court set aside a guilty verdict as unsup-
ported by evidence beyond a reasonable doubt.
26. Prior Convictions: Proof. In a proceeding to enhance a punishment because of
prior convictions, thes tate has the burden of proving such prior convictions by a
preponderance of the evidence.
27. Sentences: Prior Convictions: Habitual Criminals: Proof. In a habitual crimi-
nal proceeding, thes tate’s evidence must establish with requisite trustworthiness,
based upon a preponderance of the evidence, that (1) the defendant has been
twice convicted of a crime, for which he or she was sentenced and committed to
prison for not less than 1 year; (2) the trial court rendered a judgment of convic-
tion for each crime; and (3) at the time of the prior conviction and sentencing, the
defendant was represented by counsel or had knowingly and voluntarily waived
representation for those proceedings.
28. Prior Convictions: Records: Proof. A prior conviction and the identity of the
accused as the person convicted may be shown by any competent evidence,
including the oral testimony of the accused and duly authenticated records main-
tained by the courts or penal and custodial authorities.
29. ____: ____: ____. In reviewing criminal enhancement proceedings, a judicial
record may be proved by the production of the original, or by a copy thereof,
certified by the clerk or the person having the legal custody thereof, and authen-
ticated by his or her seal of office, if he or she has one.
30. Prior Convictions: Records: Names. An authenticated record establishing a
prior conviction of a defendant with the same name is prima facie evidence suf-
ficient to establish identity for the purpose of enhancing punishment and, in the
276 	282N eBRAskAR epoRTs

absence of any denial or contradictory evidence, is sufficient to support a finding
by the court that the accused has been convicted prior thereto.
31. Statutes: Appeal and Error. statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
32. Statutes: Legislature: Intent. A court’s objective in interpreting a statute is to
determine and give effect to the legislative intent of the enactment.
33. Statutes: Appeal and Error. When construing a statute, an appellate court looks
to the statute’s purpose and gives the statute a reasonable construction that best
achieves that purpose, rather than a construction that would defeat it.
34. ____: ____. Absent a statutory indication to the contrary, an appellate court gives
words in a statute their ordinary meaning.
35. Aiding and Abetting. Aiding and abetting is not a separate crime; instead, aid-
ing and abetting is simply another basis for holding one liable for the underly-
ing crime.
36. Sentences: Appeal and Error. sentences imposed within the statutory limits will
not be disturbed on appeal in the absence of an abuse of discretion.
37. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
(6) motivation for the offense, (7) the nature of the offense, (8) and the violence
involved in the commission of the crime.
38. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from thed istrict Court forl ancaster County: Jodi
nelson, Judge. Affirmed.
dennis R.k eefe,l ancaster Countyp ublicd efender, and
shawne lliott for appellant.
Jon Bruning, Attorney General, andk imberly A.k lein for
appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
connolly, J.
A jury found Armon M.d ixon guilty of one count of first
degree sexual assault and one count of robbery. The court
determined thatd ixon was a habitual offender as to both
counts and sentencedd ixon to consecutive terms of 35 to 60
years in prison.d ixon asserts several errors, none of which
have any merit. We affirm.
sTATe v. dIxoN 	277
Cite as 282 Neb. 274

I. BACkGRoUNd
1. the cRime
In March 2009, the victim,s .I., arrived for work at a con-
venience store inl incoln, Nebraska.s .I. worked alone during
the morning shift, which began at 5 a.m. As she approached
the front door, someone came up behind her, grabbed her left
arm, pulled it behind her back, and then pinned her against a
“propane cage.” The assailant whispered tos .I., “[I have] been
watching [you] for a while now, bitch.” He askeds .I. if she had
any money. When she responded that she did not, he said that
he “was going to get something else instead.”
The assailant then forced her to the back of the building.
He tolds .I. to remove her belt, which she did. He then tied
s.I.’s hands behind her back with her belt and told her to
sit down. The assailant then began to take off one ofs .I.’s
boots. Realizing what was happening,s .I. began to scream and
attempted to kick the assailant. The assailant then grabbeds .I.
by the throat and choked her. As he choked her, he asked her
if she was going to stop screaming.s he nodded yes. He then
removeds .I.’s other boot and “yanked” her pants off.
s.I. began to scream again. The assailant then puncheds .I.
at least three times in the face, knocking her glasses off and
bloodying her lip. Then he sexually assaulted her.
The 	assailant 	then 	asked 	for 	her 	driver’s 	license. 	He
retrieved it from her purse and, after confirming with her that
it reflected her current address, tolds .I. that if she did not do
as he told her to, he was going to “either fuck with [her] or
[her] family.”
The assailant then led her to the front of the building. He
used her keys to gain access to the building.o nce inside, he
hads .I. lead him to the safe and provide him with the code and
keys to open it. He then put cash and coins into grocery bags
and ordereds .I. to lie on her stomach. After tyings .I.’s feet to
her hands behind her back, he left.
s.I. eventually managed to free herself and called the 911
emergency dispatch service. The police arrived shortly there-
after with a canine unit. The dog picked up a scent at the
entrance to the convenience store and continued to track it.
Following the dog’s track, the officers found two condoms, one
278 	282N eBRAskAR epoRTs

inside the other, and some coins.d NA testing was unable to
eliminates .I. as a possible source of thed NA on the outside
of the condom.
later, the investigation focused ond ixon. An officer asked
dixon to supply ad NA sample, andd ixon did so by swab-
bing his mouth.l ater testing was unable to eliminated ixon as
a source of thed NA that was inside the condom. The record
showed the most conservative odds of a person other than
dixon sharing the genetic profile found inside the condom are
1 in 3.17 quintillion.
2. dixon’s alibi defense
At trial,d ixon presented an alibi defense; he claimed that
he had been drinking with friends all night and thus could
not have committed the crimes.d ixon’s evidence showed that
he had gone to bars ino maha, Nebraska, that night with two
friends, Roman Alexis Zuniga (Alexis) and Jonathan Zuniga
(Jonathan).o n the way back, outside of Wahoo, Nebraska,
Alexis was arrested for driving under the influence. This
occurred at about 2:20 a.m. The arresting officer leftd ixon
and Jonathan at the scene with the vehicle. After about 5 to 10
minutes, the two decided to drive back tol incoln. According
tod ixon, he drove Alexis’ car to Alexis’ father’s house. Alexis’
father testified that he then dropped offd ixon and Jonathan
around North Firsts treet and Cornhusker Highway before
heading to Wahoo for Alexis.
dixon testified that they then went to the home of one of
Jonathan’s friends and stayed there for “[m]ore than an hour
and a half” before he was taken home. While riding home,
dixon claims that his alarm on his telephone went off, which
he claims he usually set for 5:25 a.m.d ixon’s sister, with
whom he was staying at the time, testified that she awoke to
hear him entering her apartment at about 6 a.m.
The jury foundd ixon guilty of both charges. At the habitual
criminal enhancement hearing,d ixon objected to the intro-
duction of records of his prior convictions. He claimed that
there was not sufficient evidence to prove that he was the
same person referred to in the records of the prior convictions.
He also argued that aiding and abetting was not a crime for
sTATe v. dIxoN 	279
Cite as 282 Neb. 274

which later sentences could be enhanced under Neb. Rev.s tat.
§ 29-2221(1)(a) (Reissue 2008). The court overruled these
objections and foundd ixon to be a habitual criminal. The
court sentenced him to consecutive terms of 35 to 60 years’
imprisonment.
II. AssIGNMeNTso Fe RRoR
dixon assigns, restated and renumbered, that the district
court erred as follows:
(1) in failing to sustain his motion for a change of venue;
(2) in failing to sustain his motion to strike jurors for cause;
(3) in failing to sustain his motion for a continuance when
he could not produce a witness;
(4) in failing to sustain his motions for mistrial;
(5) in failing to sustain his motion for a directed verdict;
(6) in finding that thes tate had adequately proved his
prior convictions so that he could be sentenced as a habitual
criminal;
(7) in concluding that aiding and abetting first degree assault
can serve as a predicate offense under § 29-2221(1)(a); and
(8) in imposing excessive sentences.
III. ANAlYsIs
1. motion foR a change of venue
[1]d ixon contends that the court erred in overruling his
motion to change venue. He claims that the pretrial publicity
made it impossible for him to receive a fair trial inl ancaster
County. We review the denial of a motion to change venue for
abuse of discretion.1
[2,3] Under Neb. Rev.s tat. § 29-1301 (Reissue 2008), we
have held that a change of venue is mandated when a defendant
cannot receive a fair and impartial trial in the county where
the offense was committed.2 Unless a defendant claims that
the pretrial publicity has been so pervasive and prejudicial that
a court should presume the partiality of prospective jurors—
1 see State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009), cert. denied
559 U.s. 1010, 130s . Ct. 1887, 176l .e d. 2d 372 (2010).
2 State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
280 	282N eBRAskAR epoRTs

whichd ixon does not—a change of venue is evaluated under
the following factors3: These factors are (1) the nature of the
publicity, (2) the degree to which the publicity has circulated
throughout the community, (3) the degree to which the pub-
licity circulated in areas to which venue could be changed, (4)
the length of time between the dissemination of the publicity
complained of and the date of the trial, (5) the care exercised
and ease encountered in the selection of the jury, (6) the num-
ber of challenges exercised during voir dire, (7) the severity of
the offenses charged, and (8) the size of the area from which
the venire was drawn.4
[4,5] As we know, mere exposure to news accounts of a
crime does not presumptively deprive a defendant of due proc-
ess.5 To warrant a change of venue, a defendant must show
the existence of pervasive misleading pretrial publicity.6s o, to
secure a change of venue based on pretrial publicity, a defend-
ant must show that the publicity has made it impossible to
secure a fair and impartial jury.7
dixon has presented exhibits containing many news accounts
of the crimes and his arrest. These articles discuss all stages of
the investigation and the lead-up tod ixon’s trial.s ome of the
articles were written befored ixon emerged as a suspect, and
so do not mention him by name, while others were written after
dixon had become a suspect.
The articles that do not specifically mentiond ixon discuss
efforts to find the suspect.s everal describe reward funds that
had been set up by area businesses, while another mentions
that police had stepped up patrols and were seeking tips.o ther
articles recount requests by police to not have women open or
close businesses alone.
3 see Galindo, supra note 1.
4 State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007); State v. Strohl,
255 Neb. 918, 587 N.W.2d 675 (1999).
5 Rodriguez, supra note 4; Strohl, supra note 4.
6 Rodriguez, supra note 4; Strohl, supra note 4; State v. Phelps, 241 Neb.
707, 490 N.W.2d 676 (1992).
7 Phelps, supra note 6; State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468
(1987).
sTATe v. dIxoN 	281
Cite as 282 Neb. 274

Generally, the articles that mentiond ixon recount the alle-
gations of the assault ofs .I. as well as other assaults in which
dixon was a suspect. The articles also mention that while being
questioned,d ixon lunged at an officer and tried to wrestle the
officer’s gun from him.o ne article recounts the prison sen-
tencesd ixon faced if convicted of the charges.s ome articles
discuss some of the evidence that the police had, such asd NA
evidence or a witness identification.
other articles discuss the pretrial proceedings. For exam-
ple, one article describes howd ixon successfully moved to
sever the charges relating tos .I. from charges relating to
another victim. Another article discusses an officer’s interro-
gation ofd ixon that the district court suppressed because it
had concluded that the interrogation had violatedd ixon’s
Miranda rights.
Finally, the exhibits also contain articles that reflect more
personally ond ixon.o ne recounts statements fromd ixon’s
mother. His mother commented that she believed her son
was innocent and that he had promised to change after he
was 	released 	on 	parole. Another 	discussesd 	ixon’s 	prior
convictions.
[6] The above-mentioned articles are generally factual and
none of them are misleading.p ress coverage that is factual
cannot serve as the basis for a change of venue.8 The most
important consideration “is whether the media coverage [is]
factual, as distinguished from ‘invidious or inflammatory.’”9
Because the coverage was factual and not inflammatory, the
court did not abuse its discretion in overrulingd ixon’s motion
for a change of venue.
2. motion to stRike JuRoRs
dixon argues that the court erred in failing to strike nine
jurors for cause. He claims that these jurors were exposed to
publicity surrounding the trial. After peremptory challenges,
only two of these jurors ultimately sat on the jury that decided
the case.
8 e.g., Galindo, supra note 1; Strohl, supra note 4.
9 Galindo, supra note 1, 278 Neb. at 638, 774 N.W.2d at 225.
282 	282N eBRAskAR epoRTs

[7,8] The decision to retain or reject a venireperson as a
juror rests in the trial court’s discretion, and we will reverse
only when it is clearly wrong.10 And even if the trial court erro-
neously overrules a challenge for cause, we will not reverse the
court’s decision unless the defendant can show that an objec-
tionable juror sat on the jury after the defendant exhausted his
or her peremptory challenges.11s o, we consider only jurors
Nos. 10 and 13, the only two challenged venirepersons to sit
on the jury.
[9-12] Neb. Rev.s tat. § 29-2006 (Reissue 2008) establishes
when jurors in a criminal trial may be challenged for cause.
Under this statute, dismissal is mandatory only if the prospec-
tive juror has formed an opinion about the defendant’s guilt
or innocence based on “‘conversations with witnesses of the
transactions or reading reports of their testimony or hearing
them testify.’”12 But the law does not require that a juror be
totally ignorant of the facts and issues involved in the case.13
A dismissal is not required if a prospective juror formed an
opinion based on newspaper statements, communications, com-
ments or reports, or upon rumor or hearsay if the prospective
juror states under oath that he can render an impartial verdict
and the court is satisfied of such.14 We give deference to a trial
court’s determination of whether a prospective juror can apply
the laws impartially.15
Juror No. 10 mentioned that he had previously heard some-
thing about the case on television several months earlier. He
recalled that a robbery and an assault had occurred but did not
recall anything more specific than that. He mentioned the name
“Armond ixon” was “vaguely familiar.” He stated that he could
disregard anything he might have heard and decide the case
solely on the evidence introduced at trial.
10 Galindo, supra note 1.
11 Id.
12 State v. Hessler, 274 Neb. 478, 496, 741 N.W.2d 406, 421 (2007). Accord,
Galindo, supra note 1; Rodriguez, supra note 4.
13 Galindo, supra note 1; Strohl, supra note 4.
14 Hessler, supra note 12.
15 see Galindo, supra note 1.
sTATe v. dIxoN 	283
Cite as 282 Neb. 274

Juror No. 13 had also heard about the case through televi-
sion reports, which he said included images ofd ixon. He also
stated that he had heard thatd ixon had been accused of “rape
and burglary” and that there was “maybed NA evidence.” He
stated that he had not yet formed an opinion and that he could
disregard what he saw and decide the case solely on the evi-
dence presented at trial.
Both jurors were exposed to only news accounts of the inci-
dents, and neither was exposed before the trial to any testimony
of the witnesses. Further, both jurors stated that they could
render impartial verdicts based only on the evidence adduced
at trial and the law as explained by the court. Nothing in the
record refutes their statements. And the trial judge was in the
best position to assess their attitudes and demeanors. The court
was not clearly wrong in overrulingd ixon’s motion to strike
these jurors.
3. motion foR a continuance
dixon argues that the court erred in overruling his motion
for a continuance. To bolster his alibi defense,d ixon wanted to
present the testimony of Jonathan, a friend that he was drink-
ing with the night of the incident.d ixon claims that Jonathan’s
testimony would support his alibi. Jonathan, however, was the
target of an unrelated arrest warrant and was thus making him-
self difficult to find.
[13-15] A decision whether to grant a continuance in a
criminal case is within the discretion of the trial court and
will not be disturbed on appeal absent an abuse of discretion.16
An abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
the evidence.17 A court, however, does not abuse its discretion
in denying a continuance unless it clearly appears that the
party seeking the continuance suffered prejudice because of
that denial.18
16 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
17 Id.
18 Id.
284 	282N eBRAskAR epoRTs

[16] Neb. Rev.s tat. § 25-1148 (Reissue 2008) requires
motions for a continuance to be in writing;d ixon never sub-
mitted a written motion. Nevertheless, we have previously
stated that the failure to put such a motion in writing “‘is but
a factor to be considered in determining whether a trial court
abused its discretion in denying a continuance.’”19
We conclude that the court did not abuse its discretion in
denyingd ixon a continuance.d ixon did not submit a writ-
ten motion for a continuance even though he knew early on
that securing Jonathan’s presence would be difficult.d ixon’s
counsel mentioned the difficulty before voir dire of the jurors.
But the motion was never put into writing. This weighs
againstd ixon.
[17] But more important,d ixon could not say when—if
ever—he could serve Jonathan with a subpoena. To grant a
continuance in such a circumstance would put the trial in
limbo. When deciding whether to grant a continuance in a
criminal case, a court must take into consideration “the pub-
lic interest in prompt disposition of the case.”20 A potentially
never-ending continuance would undermine such an interest.21
The court did not abuse its discretion in denying the motion for
a continuance.
4. motions foR mistRial
[18]d ixon argues that the court erred in denying his
motions for mistrial.d ixon twice moved for a mistrial—one
motion stemmed from an allegation that thes tate violated a
motion in limine, while the other related to an incident when
dixon became sick outside the presence of the jury. Whether
to grant a mistrial is within the trial court’s discretion, and
we will not disturb its ruling unless the court abused its
discretion.22
19 State v. Davlin, 272 Neb. 139, 151, 719 N.W.2d 243, 256 (2006), quoting
State v. Santos, 238 Neb. 25, 468 N.W.2d 613 (1991).
20 Neb. Rev.s tat. § 29-1206 (Reissue 2008).
21 see, Davlin, supra note 19; State v. Newton, 193 Neb. 129, 225 N.W.2d
562 (1975).
22 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
sTATe v. dIxoN 	285
Cite as 282 Neb. 274

(a) Questioning by thes tate
Before trial,d ixon moved in limine to bar any testimony
indicating thatd ixon could have tested the condoms ford NA
but chose not to. The court granted this motion. While ques-
tioning the technician who had tested the material, thes tate
asked “was there enoughd NA in those exhibits . . . for other
testing to be done on it?”d ixon objected as to relevancy and
also moved for a mistrial. The court overruled both the objec-
tion and the motion. The court, however, instructed thes tate
to rephrase the question. Thes tate then asked the expert if,
“in [her] testing of [the] samples[, she] consume[d] all the
material.”d ixon did not request the court to admonish the
jury because he did not want to “highlight[] the issue for
the jury.”23
[19-21] A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial that is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus prevents
a fair trial.24e vents that may require the granting of a mis-
trial include egregiously prejudicial statements of counsel,
the improper admission of prejudicial evidence, and the intro-
duction to the jury of incompetent matters.25 And before it is
necessary to grant a mistrial for prosecutorial misconduct, the
defendant must show that a substantial miscarriage of justice
has actually occurred.26 In brief, a mistrial is granted when “a
fundamental failure prevents a fair trial.”27
We conclude that the trial court did not abuse its discretion
in overruling the motion for mistrial. As mentioned, a mistrial
may be granted when there is an event whose damaging effect
cannot be removed by an admonition or instruction to the
jury. Butd ixon did not ask for such an admonition because
23 Brief for appellant at 36.
24 State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
25 see, id.; State v. Beeder, 270 Neb. 799, 707 N.W.2d 790 (2006), disap-
proved on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d
727 (2007).
26 Robinson, supra note 22.
27 Beeder, supra note 25, 270 Neb. at 803, 707 N.W.2d at 795.
286 	282N eBRAskAR epoRTs

he did not want to highlight the issue for the jury. It appears
he thought the jury likely did not notice the question or would
not assign any importance to it. This undercuts his claim that
the error was so prejudicial that his trial was unfair.s tating the
obvious—if the error was so minor thatd ixon would gamble
on a jury’s not noticing it—it is doubtful that it could have
resulted in a substantial miscarriage of justice. The trial court
did not abuse its discretion in refusing to grant a mistrial.
(b)d ixon’s Medical Incident
dixon also moved for a mistrial after he became sick while
being brought into court.d ixon apparently fell to the ground
and began vomiting. This incident, however, occurred outside
the jury’s presence.d ixon does not claim that the jurors saw
the incident as they were in the jury room when it occurred.
Grasping at a slender reed, he suggests that the jurors may have
heard the commotion from their room.
After the incident, the court told the jurors that an issue
had arisen that required the court’s attention. It released the
jurors and asked that they return at 1:30 p.m. the following
day. Although there were news accounts of the incident, the
court had repeated its admonishment that the jurors avoid news
accounts of the trial.
[22] We conclude that the court did not err in refusing to
grant a mistrial because ofd ixon’s medical incident. The
record fails to show that the jury ever knew it had happened.
A party must premise a motion for mistrial upon actual preju-
dice, not the mere possibility of prejudice.28d ixon has failed to
show that the incident prejudiced him.
5. motion foR a diRected veRdict
dixon argues that the court erred in failing to grant his
motion to dismiss. He argues that thes tate did not prove the
elements of the crime beyond a reasonable doubt.
[23] When a court overrules a defendant’s motion to dismiss
at the close of thes tate’s case in chief and the defendant pro-
ceeds to trial and introduces evidence, the defendant waives the
28 Robinson, supra note 22.
sTATe v. dIxoN 	287
Cite as 282 Neb. 274

appellate right to challenge the trial court’s overruling of the
motion to dismiss.29 But the defendant may challenge the suf-
ficiency of the evidence.30s o we analyzed ixon’s assignment
of error as a challenge to the sufficiency of the evidence.
[24,25] When reviewing a criminal conviction for suffi-
ciency of the evidence, it does not matter whether the evidence
is direct, circumstantial, or a combination thereof, the standard
is the same: We do not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such
matters are for the finders of fact.31 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.32
only where evidence lacks sufficient probative force as a mat-
ter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt.33
The information chargedd ixon with first degree sexual
assault34 and first degree robbery.35 Thes tate can prove first
degree sexual assault in one of three ways. Here, thes tate
proved first degree sexual assault when it showed beyond a
reasonable doubt that the defendant subjected another person to
sexual penetration without that person’s consent.
Viewing the evidence in the light most favorable to the pros-
ecution, we determine the record reflects sufficient evidence to
sustain the conviction beyond a reasonable doubt.
•s .I. testified that the assailant sexually penetrated her.
•s .I. did not consent; she kicked and screamed and, in response,
was choked and punched in the face.36
29 see, State v. Branch, 277 Neb. 738, 764 N.W.2d 867 (2009); State v.
Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
30 Id.
31 see State v. Thompson, 278 Neb. 320, 770 N.W.2d 598 (2009).
32 State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
33 State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006).
34 Neb. Rev.s tat. § 28-319 (Reissue 2008).
35 Neb. Rev.s tat. § 28-324 (Reissue 2008).
36 see Neb. Rev.s tat. § 28-318(8)(a)(iii) (Reissue 2008).
288 	282N eBRAskAR epoRTs

•e xperts were unable to excludes .I. andd ixon as contributors
of thed NA found on the condom. The odds of its being some-
one other thand ixon were at least 1 in 3.17 quintillion.
Here, a rational trier of fact could find that thes tate proved that
dixon committed sexual assault beyond a reasonable doubt.
To prove robbery, thes tate must show beyond a reasonable
doubt that the defendant, with the intent to steal, forcibly and
by violence, or by putting in fear, took any money or personal
property of any value whatever from another person. “To steal”
is commonly understood to mean taking without right or leave
with intent to keep wrongfully.37 And the property need not be
taken from the actual person, it is sufficient if the property is
taken from an individual’s protection or control.38
Thes tate has presented evidence that would allow a rational
trier of fact to find the material elements of the crime beyond
a reasonable doubt.
• Thed NA evidence allowed the jury to conclude thatd ixon
had assaulteds .I. Ands .I.’s testimony established that the
same person who assaulted her forced her into the store and
to help open the safe.
•s .I.’s testimony also established thatd ixon had threatened
her and her family.
• The evidence showed thatd ixon took money from the safe in
the convenience store, wheres .I. was an employee.
Thes tate has presented evidence to allow the jury to find
beyond a reasonable doubt thatd ixon committed robbery.
Butd ixon makes three arguments as to why a rational jury
could not have found him guilty. First, he argues that thes tate
did not challenged ixon’s alibi defense. Although thes tate did
not explicitly argue thatd ixon had not been with his friends
at all that night, thes tate presentedd NA evidence that tied
dixon to the assault ofs .I.o bviously, if thisd NA evidence
was believed, this putd ixon at the convenience store; the
jurors could not also believed ixon’s alibi.
second,d ixon argues that he cannot be the man described
ins .I.’s testimony. He argues that the man thats .I. described is
37 Aldaco, supra note 33.
38 see State v. Martin, 232 Neb. 385, 440 N.W.2d 676 (1989).
sTATe v. dIxoN 	289
Cite as 282 Neb. 274

taller thand ixon. And he points out thats .I. testified that she
did not smell alcohol on her assailant;d ixon claimed that he
was drinking all night.
Third,d ixon contends that thes tate’sd NA evidence was
unreliable. First, he claims that the officer who collected his
sample touched the swabs without gloves—although the officer
denied this.d ixon also claims thed NA evidence is unreliable
because the technician had a difficult time generating a com-
plete profile from the sample.
Regarding these last two arguments, whatd ixon asks us
to do is to reweigh the evidence presented to the jury. But we
do not reweigh evidence, resolve conflicts in the evidence, or
assess the credibility of witnesses; that is the province of the
jury.39 Viewing the evidence most favorably to thes tate, we
determine the evidence is sufficient to support the convictions
beyond a reasonable doubt.
6. pRoof of pRioR convictions
dixon 	argues 	that 	under 	Neb. 	Rev.s 	tat. 	§ 	29-2222
(Reissue 2008), the court erred in concluding that thes tate
had sufficiently proved his prior convictions.s ection 29-2222
provides:
At the hearing of any person charged with being a
habitual criminal, a duly authenticated copy of the for-
mer 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.
[26,27] In a proceeding to enhance a punishment because
of prior convictions, thes tate has the burden of proving such
prior convictions by a preponderance of the evidence.40 In a
habitual criminal proceeding, thes tate’s evidence must estab-
lish with requisite trustworthiness, based upon a preponderance
of the evidence, that (1) the defendant has been twice convicted
of a crime, for which he or she was sentenced and committed
39 see State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).
40 State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
290 	282N eBRAskAR epoRTs

to prison for not less than 1 year; (2) the trial court rendered
a judgment of conviction for each crime; and (3) at the time
of the prior conviction and sentencing, the defendant was rep-
resented by counsel or had knowingly and voluntarily waived
representation for those proceedings.41
[28,29] A prior conviction and the identity of the accused
as the person convicted may be shown by any competent evi-
dence, including the oral testimony of the accused and duly
authenticated records maintained by the courts or penal and
custodial authorities.42 In reviewing criminal enhancement pro-
ceedings, a judicial record may be proved by the production of
the original, or by a copy thereof, certified by the clerk or the
person having the legal custody thereof, and authenticated by
his or her seal of office, if he or she has one.43
Thes tate introduced four exhibits showing certified felony
convictions for an “Armond ixon.”d ixon argues that thes tate
has failed to prove that he is the “Armond ixon” convicted
in these cases.d ixon does not argue that the defendant in
the above exhibits was not represented by counsel during the
earlier convictions. Nor does he argue that the defendant was
not committed to prison for at least 1 year for these earlier
crimes. His sole argument is that thes tate did not sufficiently
prove that he was the person convicted in the four exhibits.
We note thatd ixon is referred to in court records before this
court as “Armon M.d ixon.” And, as mentioned, the record
contains newspaper articles referring to the criminal investiga-
tion as well as the lead-up tod ixon’s trial. A newspaper article
dated May 16, 2009, states thatd ixon is 29 years old. A July
2, 2009, article refers tod ixon as being 30 years old. His birth
date then would fall either in late May or sometime in June.
Further, it shows thatd ixon was born in 1979.
The first conviction is a conviction from Illinois for delivery
of a controlled substance. The “Armond ixon” convicted in that
case had a birth date of June 2, 1979. The second conviction is
41 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009); State v. King, 272
Neb. 638, 724 N.W.2d 80 (2006).
42 Alford, supra note 40.
43 see Epp, supra note 41.
sTATe v. dIxoN 	291
Cite as 282 Neb. 274

a conviction from Minnesota. It is another conviction for sell-
ing drugs. The “Armon Monetd ixon” convicted in that case
had a birth date of June 2, 1979. The third conviction is from
lancaster County, Nebraska. Those records show convictions
for possession of a controlled substance and theft by receiving
stolen property. The “Armon M.d ixon” in that conviction was
born on June 2, 1979. The final conviction introduced by the
state is again froml ancaster County, and the defendant was
“Armond ixon.” It is a conviction for aiding and abetting first
degree assault. It does not include a birth date.
[30]d ixon’s argument mirrors the one made by the appel-
lant in State v. Thomas.44 In Thomas, the defendant did not
deny that he was the person referred to in the prior documents;
instead, the defendant argued that thes tate failed to meet its
burden. We stated that
an authenticated record establishing a prior conviction
of a defendant with the same name is prima facie evi-
dence sufficient to establish identity for the purpose of
enhancing punishment and, in the absence of any denial
or contradictory evidence, is sufficient to support a find-
ing by the court that the accused has been convicted
prior thereto.45
likewise,d ixon never denied that he was the “Armon
dixon” in the earlier cases. Nor did he present any evidence
showing that he was not that person. He simply argued that the
state had not met its burden. We disagree.
The names in all four of the prior convictions are “Armon
dixon” or “Armon M.d ixon” and thus matchd ixon’s name.
Becaused ixon has not denied that he is the person referred
to in these earlier convictions and has not presented any evi-
dence contradicting thes tate’s position, under Thomas, this
is sufficient. Moreover, the birth dates reflected on three of
the prior convictions are consistent withd ixon’s age. The
state has proved the prior convictions by a preponderance of
the evidence.
44 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).s ee, also, State v.
Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).
45 Thomas, supra note 44, 268 Neb. at 590, 685 N.W.2d at 86.
292 	282N eBRAskAR epoRTs

7. aiding and abetting undeR
§ 29-2221(1)(a)
[31]d ixon next argues that a conviction for aiding and abet-
ting first degree assault cannot serve as a predicate offense
under § 29-2221(1)(a). This assignment of error presents a
question of statutory interpretation.s tatutory interpretation
is a question of law that we resolve independently of the
trial court.46
section 29-2221(1)(a) provides that if the defendant is con-
victed of one of several enumerated crimes and one of the
defendant’s two previous felony convictions is for one of those
crimes, the minimum sentence is 25 years’ imprisonment, as
opposed to the 10-year minimum under § 29-2221(1). The
offenses listed in § 29-2221(1)(a) are first degree murder,47 sec-
ond degree murder,48 first degree assault,49 kidnapping,50 first
degree sexual assault,51 first degree sexual assault of a child,52
first degree arson,53 first degree assault on an officer,54 and use
of explosives to commit a felony.55 The statute does not men-
tion aiding and abetting.
[32-34]o ur objective in interpreting a statute is to deter-
mine and give effect to the legislative intent of the enactment.56
When construing a statute, we look to the statute’s purpose and
give the statute a reasonable construction that best achieves
that purpose, rather than a construction that would defeat it.57
46 see State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
47 Neb. Rev.s tat. § 28-303 (Reissue 2008).
48 Neb. Rev.s tat. § 28-304 (Reissue 2008).
49 Neb. Rev.s tat. § 28-308 (Reissue 2008).
50 Neb. Rev.s tat. § 28-313 (Reissue 2008).
51 § 28-319.
52 Neb. Rev.s tat. § 28-319.01 (Reissue 2008).
53 Neb. Rev.s tat. § 28-502 (Reissue 2008).
54 Neb. Rev.s tat. § 28-929 (Reissue 2008).
55 Neb. Rev.s tat. § 28-1222 (Reissue 2008).
56 see Mena-Rivera, supra note 46.
57 see id.
sTATe v. dIxoN 	293
Cite as 282 Neb. 274

Absent a statutory indication to the contrary, we give words in
a statute their ordinary meaning.58
dixon points out that the record contains a previous convic-
tion for aiding and abetting first degree assault. While first
degree assault is a crime listed in § 29-2221(1)(a), aiding and
abetting59 is not.s o,d ixon argues, he is not subject to the 25-
year minimum sentence of imprisonment under § 29-2221(1)(a).
But because aiding and abetting is not a separate crime in
Nebraska,60 we disagree.
At common law, there were four classes of parties to a
felony: (1) principal in the first degree, (2) principal in the
second degree, (3) accessory before the fact, and (4) accessory
after the fact.61 A principal in the first degree was the person
who actually committed the felony.62 A principal in the second
degree was someone who was present while the crime was
committed and aided and abetted the crime.63 An accessory
before the fact was not present at the crime but aided and abet-
ted the crime before its commission.64 Finally, an accessory
after the fact was not present at the crime but helped the felon
after the crime occurred.65
These common-law categories sometimes presented pro-
cedural difficulties.66 For example, before a defendant could be
convicted as an accessory, the principal must have been first
convicted.67 If the principal was acquitted, had died, or was
otherwise unavailable to be tried, an accessory could not be
58 Id.
59 Neb. Rev.s tat. § 28-206 (Reissue 2008).
60 see State v. Contreras, 268 Neb. 797, 688 N.W.2d 580 (2004).
61 see, 2 Wayne R.l aFave,s ubstantive Criminall aw § 13.1 (2d ed. 2003);
1 Charlese . Torcia, Wharton’s Criminall aw § 29 (15th ed. 1993).
62 1 Torcia, supra note 61.
63 see id.
64 see id.
65 see id.
66 2l aFave, supra note 61, § 13.1(d).
67 see 1 Torcia, supra note 61, § 34.
294 	282N eBRAskAR epoRTs

found guilty, no matter how clear the evidence was that he was
an accessory to the crime.68
[35] Because of these procedural difficulties, today, all
states have abolished the distinction between principals and
accessories before the fact.69 Many states, however, still treat
accessories after the fact separately.70 Under statutes that have
abolished the distinction between principals and accessories
before the fact, if a person is “charged as a party to the under-
lying crime and, if the evidence shows that he committed the
prohibited act, or aided and abetted its commission, . . . he
may be found guilty of the crime as a party.”71 That is, one
who aids and abets crimex 	is not guilty of the crime of aid-
ing and abetting; that person is guilty of crimex . Aiding and
abetting is not a separate crime; instead, aiding and abetting
is simply another basis for holding one liable for the underly-
ing crime.72
Nebraska has followed this modern statutory trend of abol-
ishing the distinction between principals in the first and second
degree and accessories before the fact.73s o, because aiding
and abetting is not a separate crime,74d ixon’s conviction is not
for “aiding and abetting.” His conviction was for first degree
assault. Asd ixon concedes, first degree assault is a crime
listed under § 29-2221(1)(a). The district court did not err in
concluding thatd ixon’s sexual assault conviction carried with
it a 25-year minimum sentence.
68 see id.
69 2l aFave, supra note 61, § 13.1(e).
70 1 Torcia, supra note 61, § 35.s ee, also, Neb. Rev.s tat. § 28-204 (Reissue
2008).
71 1 Torcia, supra note 61, § 35 at 207-08.
72 see, e.g., U.S. v. Ellis, 525 F.3d 960 (10th Cir. 2008); U.S. v. Garcia,
400 F.3d 816 (9th Cir. 2005); U.S. v. Hornaday, 392 F.3d 1306 (11th Cir.
2004); Contreras, supra note 60; Sanquenetti v. State, 727 N.e.2d 437
(Ind. 2000); State v. Nash, 261k an. 340, 932p .2d 442 (1997); State v.
Carrasco, 124 N.M. 64, 946p .2d 1075 (1997).
73 see State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004). see, also,
§ 28-206.
74 Contreras, supra note 60.
sTATe v. dIxoN 	295
Cite as 282 Neb. 274

8. excessive sentences
dixon’s final argument is that the court erred in imposing
excessive sentences. After findingd ixon to be a habitual crimi-
nal, the court sentencedd ixon to consecutive terms of 35 to 60
years’ imprisonment.
As we explained earlier, the sentence ford ixon’s sexual
assault conviction is covered by § 29-2221(1)(a). The statu-
tory limits under this section are 25 to 60 years’ imprisonment.
dixon’s sentence falls within these limits.d ixon’s robbery
conviction is covered by § 29-2221(1), which provides for a
sentence of 10 to 60 years’ imprisonment. Again,d ixon’s sen-
tence falls within the statutory limits.
[36] We will not disturb a sentence imposed within the
statutory limits in the absence of an abuse of discretion.75 An
abuse of discretion occurs when a trial court bases its deci-
sion upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence.76
[37,38] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, (6)
motivation for the offense, (7) the nature of the offense, and
(8) the violence involved in the commission of the crime.77
Yet the appropriateness of a sentence is necessarily a subjec-
tive judgment and includes the sentencing judge’s observation
of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life.78
The record showsd ixon has a long history of criminal
activity, including crimes involving drugs and violence. The
district court correctly noted that the offenses the jury found
him guilty of were “simply terrifying . . . in a civilized soci-
ety.” Furthermore, the record shows thats .I. has suffered from
75 see Dinslage, supra note 32.
76 see State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).
77 Id.
78 Id.
296 	282N eBRAskAR epoRTs

flashbacks, depression, anxiety, and sleeplessness. We affirm
the convictions and sentences.
affiRmed.
WRight, J., not participating.
sTATe v.TAY loR 	297
Cite as 282 Neb. 297
state of nebRaska , appellee , v.
tRevelle J. tayloR, appellant.
803 N.W.2d 746
Fileds eptember 16, 2011. 	No.s -10-794.
1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
2. Rules of Evidence: Appeal and Error. 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 such
discretion a factor in determining admissibility. Where the Nebraskae vidence
Rules commit the evidentiary question at issue to the discretion of the trial court,
the admissibility of evidence is reviewed for an abuse of discretion.
3. ____: ____. The exercise of judicial discretion is implicit in the determinations
of relevancy under Neb.e vid. R. 403, Neb. Rev.s tat. § 27-403 (Reissue 2008),
and a trial court’s decisions regarding them will not be reversed absent an abuse
of discretion.
4. Trial: Evidence. A court must determine whether there is sufficient foundation
evidence for the admission of physical evidence on a case-by-case basis. Because
authentication rulings are necessarily fact specific, a trial court has discretion to
determine whether evidence has been properly authenticated.
5. Criminal Law: Constitutional Law: Due Process: Presumptions: Proof. A
presumption that relieves thes tate of its burden of proof beyond a reasonable
doubt on any essential element of a crime violates a defendant’s due process
rights and is constitutionally impermissible.
6. Jury Instructions: Evidence: Proof. When a trial court instructs a jury on an
inference regarding a specific fact or set of facts, the instruction must specifically
include a statement explaining to the jury that it may regard the basic facts as
sufficient evidence of the inferred fact, but that it is not required to do so. And
the instruction must explain that the existence of the inferred fact must, on all the
evidence, be proved beyond a reasonable doubt.
7. Double Jeopardy: Evidence: New Trial: Appeal and Error. Thed ouble
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict.
8. Homicide: Intent: Time. No particular length of time for premeditation is
required, provided that the intent to kill is formed before the act is committed and
not simultaneously with the act that caused the death.