State v. Reznicek

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. REZNICEK
Cite as 315 Neb. 272
State of Nebraska, appellee, v.
Julena J. Reznicek, appellant.
___ N.W.2d ___
Filed September 22, 2023. 	No. S-22-798.
1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
2. Hearsay: Words and Phrases. 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.
3. Rules of Evidence: Hearsay: Words and Phrases. For purposes of the
hearsay rule, a statement is (a) an oral or written assertion or (b) nonver-
bal conduct of a person, if it is intended by him or her as an assertion.
4. Rules of Evidence: Hearsay. Hearsay is not admissible unless other-
wise provided for in the Nebraska Evidence Rules or elsewhere.
5. Rules of Evidence. When a Nebraska Evidence Rule is substantially
similar to a corresponding federal rule of evidence, Nebraska courts will
look to federal decisions interpreting the corresponding federal rule for
guidance in construing the Nebraska rule.
6. Rules of Evidence: Hearsay. For a statement to be admissible under
Neb. Rev. Stat. § 27-803(1) (Cum. Supp. 2022) three requirements must
be met: (1) The declarant must have personally perceived the event
or condition described, (2) the declaration must be an explanation or
description of the event or condition, and (3) the declaration must be
substantially contemporaneous with the event or condition described.
7. Hearsay: Time. When determining whether a declaration and an event
or condition are substantially contemporaneous, a trial court should
consider whether sufficient time elapsed to have permitted reflec-
tive thought.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:50 AM CDT

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. REZNICEK
Cite as 315 Neb. 272
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Alexander D. Sycher for appellant.
Michael T. Hilgers, Attorney General, Erin E. Tangeman,
and Braden Dvorak, Senior Certified Law Student, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
After a bench trial in county court, Julena J. Reznicek was
found guilty of misdemeanor shoplifting and sentenced to a
$100 fine. She appealed to the district court, which affirmed.
Reznicek now appeals to this court, challenging the admis-
sion of certain testimony over her hearsay objection and argu-
ing there was insufficient evidence to sustain her conviction.
We affirm.
BACKGROUND
On October 8, 2021, Reznicek was charged in Douglas
County Court with theft by shoplifting ($0 to $500), first
offense, a Class II misdemeanor, in violation of Neb. Rev.
Stat. §§ 28-511.01 and 28-518(4) (Reissue 2016). The charge
related to events occurring July 16, 2021, at a department store
in Omaha, Nebraska. The following evidence was adduced at a
bench trial held in May 2022.
Trial Evidence
In July 2021, Tyler Tietz was employed by the depart-
ment store as a loss prevention department manager, and his
duties included investigating suspected theft. On the evening
of July 16, Tietz was watching live surveillance camera foot-
age of shoppers in the store. He observed Reznicek, who was
carrying a large purse, “fairly quickly” select nine pairs of

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. REZNICEK
Cite as 315 Neb. 272
women’s shorts and carry them to a fitting room. Tietz testified
the shorts had a value of more than $1 and less than $500.
The security cameras show the hallway of the fitting room
area, but there are no cameras inside the fitting rooms. While
Reznicek was inside a fitting room, Tietz contacted Megan
Krumme, a department store manager who was working in
the area and whose duties included assisting with loss preven-
tion. Tietz alerted Krumme to a possible theft and provided a
description of the individual and the items to be looking for.
Reznicek was the only customer in the fitting rooms at the
time, and Krumme waited in the hallway of the fitting room
area for Reznicek to leave.
Tietz continued to watch on the live security camera and,
after several minutes, saw Reznicek leave the fitting room
area carrying only four or five pairs of shorts. Tietz then saw
Krumme enter and leave the fitting room used by Reznicek.
Meanwhile, Tietz watched as Reznicek placed the shorts she
was carrying back on clothing racks in the store and headed
toward the store’s exit.
Krumme testified that “immediately” after she saw Reznicek
leave the fitting room, she checked it for merchandise. She
then used either a walkie-talkie or a telephone to let Tietz
“know of the merchandise [she] did have or didn’t have.”
At the time of trial, Krumme could not recall specifically
what she saw inside the fitting room. But Tietz testified,
over Reznicek’s hearsay objection, that Krumme told him no
shorts were found in the fitting room. He also testified that if
Krumme had reported finding shorts in the fitting room, he
would not have attempted to contact Reznicek about a pos-
sible theft.
After receiving this communication from Krumme, Tietz
left the video room, planning to intercept Reznicek, who was,
at the time, “on the escalator and exit[ing] the store.” Tietz
was able to contact Reznicek in the store’s parking lot, and
approached Reznicek as she was talking on her cell phone and
walking toward her vehicle. According to Tietz, he identified

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STATE v. REZNICEK
Cite as 315 Neb. 272
himself as “loss prevention security” and showed her his
badge. Reznicek ignored him, got into her vehicle, and drove
away. Tietz wrote down the license plate number and provided
it to police. Tietz testified that after a subsequent search of the
store racks, the missing pairs of shorts were not found.
An officer with the Omaha Police Department testified that
she telephoned Reznicek after being provided with the license
plate number and a copy of the department store’s surveillance
video. Reznicek denied stealing anything and told the officer
she had allowed Tietz to look into her bag before driving
away. The officer thought the surveillance video contradicted
the events as described by Reznicek and issued her a citation
for shoplifting.
After the State rested its case in chief, Reznicek testified
in her own defense. She admitted shopping for shorts at the
department store on the evening of July 16, 2021, and tak-
ing eight or nine pairs into a fitting room. Reznicek described
selecting mostly black shorts, but also several that were lighter
in color. According to Reznicek, she decided the lighter shorts
were too “see through.” She hung the “ones [she] didn’t want”
on the back of the fitting room door and carried the rest with
her out of the fitting room. She then began to experience a
panic attack and decided to leave the store. Before doing so,
she returned the shorts she was carrying to the clothing racks,
while talking to her son on her cell phone.
Reznicek testified that when she got to the parking lot, she
heard Tietz “screaming” at her and telling her to return to
the store, but she denied that he ever identified himself as a
store employee. She also denied telling the police officer that
she let Tietz see inside her bag. Instead, Reznicek testified
she thought Tietz could see inside her bag because he asked,
“‘What is that green thing in your bag?’” She also testified
that when she told Tietz she did not take anything, he called
her a “‘thief’” and said, “‘[W]e’ll get you one way or the
other.’” Reznicek then got into her vehicle and drove away.

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. REZNICEK
Cite as 315 Neb. 272
The time-stamped video surveillance from July 16, 2021,
was 	received 	into 	evidence 	without 	objection. The 	video
depicts Reznicek selecting and carrying a total of nine pairs of
shorts and then entering the fitting room area. The shorts were
all on hangers, and several were brightly colored. The video
shows a store employee letting Reznicek into a fitting room.
After approximately 6 to 7 minutes, the video shows Reznicek
leaving the fitting room carrying only four or five pairs of
shorts, none of which were brightly colored.
Within 30 to 60 seconds after Reznicek left the fitting room,
the video shows Krumme entering and leaving the fitting room.
The video then follows Reznicek through the store and shows
her talking on her cell phone while she places the shorts back
on the clothing racks and leaves the store. Approximately 3
minutes after Krumme left the fitting room, the video shows
Tietz approaching Reznicek in the parking lot and, in the
process, fumbling and dropping what appears to be a wallet
or badge. Tietz went back to retrieve the dropped item and
approached Reznicek again. She turned toward him once, while
still talking on her cell phone, but did not engage with Tietz
and instead entered her vehicle and drove away.
The county court found Reznicek guilty as charged and
imposed a $100 fine.
District Court
Reznicek timely appealed to the Douglas County District
Court. Her notice of errors claimed (1) there was insufficient
evidence to sustain the conviction and (2) the county court
erred in allowing inadmissible hearsay testimony by Tietz
regarding the out-of-court statement made to him by Krumme.
In a written order, the district court affirmed the judgment
of the county court. As relevant to this appeal, the court deter-
mined the county court did not err in admitting the hearsay
statement because the exception in Neb. Rev. Stat. § 27-803(1)
(Cum. Supp. 2022) applied. Reznicek filed this timely appeal,
which we moved to our docket on our own motion.

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. REZNICEK
Cite as 315 Neb. 272
ASSIGNMENTS OF ERROR
Reznicek assigns, restated, that (1) the county court erred
in admitting Tietz’ testimony that Krumme told him no shorts
were found in the fitting room and (2) there was insufficient
evidence to find Reznicek guilty beyond a reasonable doubt.
STANDARD OF REVIEW
[1] 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 or exclude evidence on hearsay grounds. 1
ANALYSIS
[2-4] 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. 2 For pur-
poses of the hearsay rule, a statement is (a) an oral or written
assertion or (b) nonverbal conduct of a person, if it is intended
by him or her as an assertion. 3 Hearsay is not admissible
unless otherwise provided for in the Nebraska Evidence Rules
or elsewhere. 4
Here, the trial court overruled Reznicek’s hearsay objection
and allowed Tietz to testify that Krumme told him she did not
find any shorts in the fitting room. The State does not dispute
that it offered Krumme’s out-of-court statement for the truth
of the matter asserted, but it argues the statement was properly
admitted under the new hearsay exception for present sense
impression in § 27-803(1).
The Nebraska Legislature enacted the hearsay exception
for present sense impression in 2021, 5 and this appeal is our
1 State v. Vaughn, 314 Neb. 167, 989 N.W.2d 378 (2023).
2 Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2022); Vaughn, supra note 1.
3 § 27-801(1).
4 Vaughn, supra note 1.
5 2021 Neb. Laws, L.B. 57.

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STATE v. REZNICEK
Cite as 315 Neb. 272
first opportunity to address it. In the sections that follow, we
review the rationale for the exception and adopt a framework
for applying it.
Hearsay Exception for Present
Sense Impression
Pursuant to § 27-803(1), a statement is not excluded by the
hearsay rule, even though the declarant is available as a wit-
ness, if it is a “statement describing or explaining an event or
condition, made while or immediately after the declarant per-
ceived it.” This is commonly referred to as the “present sense
impression” hearsay exception, 6 and it has been recognized by
federal courts and other jurisdictions for decades. 7
[5] The language of § 27-803(1) is identical to the language
of Fed. R. Evid. 803(1). When a Nebraska Evidence Rule is
substantially similar to a corresponding federal rule of evi-
dence, Nebraska courts will look to federal decisions interpret-
ing the corresponding federal rule for guidance in construing
the Nebraska rule. 8
The hearsay exception for present sense impression is gen-
erally understood to have three distinct requirements: (1) The
statement must describe or explain the event perceived, (2)
the declarant must have in fact perceived the event described,
and (3) the description must be substantially contemporane-
ous with the event in question. 9 One legal treatise explains the
rationale for the exception this way:
Generally, statements that fit within the present sense
impression exception are viewed as trustworthy because:
6 See, generally, 31A C.J.S. Evidence § 478 (2020).
7 See id. (citing cases). See, also, Unif. Rules of Evidence 64(4)(a) and (b)
(1953); A.L.I., Model Code of Evidence, Rule 512(a) (1942).
8 State v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015).
9 See, e.g., U.S. v. Ruiz, 249 F.3d 643 (7th Cir. 2001); State v. Prather, 429
S.C. 583, 840 S.E.2d 551 (2020); State v. Spinks, 239 W. Va. 588, 803
S.E.2d 558 (2017). See, also, 31A C.J.S., supra note 6 (citing cases).

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STATE v. REZNICEK
Cite as 315 Neb. 272
(1) there is no loss of memory; (2) there is little or no
time for calculated misstatement; and (3) they are usually
made to one who has equal opportunity to observe and
check misstatements. The theory supporting the present
sense impression exception is that substantial contempo-
raneity of the event and the statement negates the likeli-
hood of memory deficiencies or deliberate misstatements.
Its use is limited to statements made while the witness is
perceiving an event or condition or immediately thereaf-
ter. If the statement describes something that happened at
an earlier time, it does not fit within this exception and
will not be admitted as a present sense impression. The
party offering the evidence must show that the declarant
perceived the event or condition, but it does not matter
whether the declarant is available to testify at trial. 10
Another legal treatise compares the exception for present
sense impression to the more familiar “excited utterance”
exception:
Like all hearsay exceptions and exclusions other than
admissions, present sense impressions and excited utter-
ances require that the declarant have firsthand knowledge,
which can sometimes be proved entirely by the statement.
These two exceptions otherwise differ in a number of
important respects. First, no exciting event or condition
is required for present sense impressions. Second, while
excited utterances “relating to” the startling event or con-
dition are admissible, present sense impressions are lim-
ited to “describing or explaining” the event or condition
perceived. Tighter correspondence between observation
and statement is appropriate given the theory underly-
ing the present sense impression exception. Although
fabrication and forgetfulness are reduced by the absence
of time lapse between perception and utterance, the lack
10 2 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal Evidence
§ 6:19 at 176-78 (15th ed. 1998).

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STATE v. REZNICEK
Cite as 315 Neb. 272
of a startling event makes the assumption of spontaneity
difficult to maintain unless the statements directly pertain
to perception. Third, although the time within which an
excited utterance may be made is measured by the dura-
tion of the stress caused by the exciting event, statements
of present sense impression may be made only while or
“immediately after” the declarant “perceived” the event
or condition. This shortened period is also consistent
with the weaker guarantee of trustworthiness of the pres-
ent sense impression. While principle might seem to call
for a limitation to exact contemporaneity, some allow-
ance must be made for the time needed for translating
observation into speech. Thus, the appropriate inquiry is
whether sufficient time elapsed to have permitted reflec-
tive thought. 11
When discussing the hearsay exception for present sense
impression, 	both 	federal 	and 	state 	courts 	have 	articu-
lated rationales similar to those expressed by these legal
commentators. 12
The requirement of immediacy between the perception and
the statement lies at the heart of the present sense impression
exception, 13 and trial courts should determine whether any
11 2 McCormick on Evidence § 271 at 382-85 (Robert P. Mosteller ed., 8th
ed. 2020).
12 See, e.g., U.S. v. Dean, 823 F.3d 422, 427 (8th Cir. 2016) (rationale of
present sense impression exception is that “‘substantial contemporaneity
of 	event 	and 	statement 	minimizes 	unreliability 	due 	to 	defective
recollection or conscious fabrication’”), quoting U.S. v. Hawkins, 59 F.3d
723 (8th Cir. 1995); State v. Dessinger, 958 N.W.2d 590, 600 (Iowa 2021)
(rationale behind present sense impression exception is that declarant
has no opportunity to fabricate statement if statement is made during or
“‘immediately’” after event); Knudson v. Dir., N.D. Dept. of Transp.,
530 N.W.2d 313 (N.D. 1995) (reason for exception is that substantial
contemporaneity of event and statement negates likelihood of memory
deficiencies and deliberate misstatements).
13 See, generally, id.; 31A C.J.S., supra note 6.

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STATE v. REZNICEK
Cite as 315 Neb. 272
lapse of time in a particular case renders the statement unre-
liable. 14 Rather than adopt a per se rule regarding the interval
of time, courts view the issue on a case by case basis, 15 with
the primary considerations being whether the declaration is
substantially contemporaneous with the event in question 16
and whether the declarant had the opportunity to reflect on
the event prior to making the statement. 17 As explained by the
Supreme Court of North Dakota:
There is no per se rule indicating what interval is too
long between a person’s perception of an event and the
person’s subsequent statement describing that event. .
. . The proper inquiry is “whether sufficient time elapsed
to have permitted reflective thought.” . . . Ordinarily,
whether a statement is substantially contemporaneous
with an event is a fact question. . . . However, when the
evidence is such that reasonable minds can draw but one
conclusion, the issue becomes one of law. 18
[6,7] Based on the plain language of § 27-803(1) and the
foregoing authority, we now hold that three requirements must
be met for a statement to be admissible under the hearsay
exception for present sense impression: (1) The declarant must
have personally perceived the event or condition described,
(2) the declaration must be an explanation or description
of the event or condition, and (3) the declaration must be
14 See 2 Bergman & Hollander, supra note 10.
15 See, 31A C.J.S., supra note 6; David F. Binder, Hearsay Handbook, 4th
§§ 8:1 and 8:2 (2022-23 ed.). See, also, Hawkins, supra note 12; U.S. v.
Mejia-Velez, 855 F. Supp. 607 (E.D.N.Y. 1994) (admitting 911 emergency
service calls made 3 minutes and 16 minutes after shooting as present
sense impressions); U.S. v. Campbell, 782 F. Supp. 1258 (N.D. Ill. 1995)
(admitting 911 emergency service call made after defendant left scene of
shooting).
16 31A C.J.S., supra note 6, § 479.
17 Id., § 480.
18 Knudson, supra note 12, 530 N.W.2d at 317 (citations omitted).

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STATE v. REZNICEK
Cite as 315 Neb. 272
substantially contemporaneous with the event or condition
described. 19 When determining whether a declaration and an
event or condition were substantially contemporaneous, a trial
court should consider whether sufficient time elapsed to have
permitted reflective thought. 20
Applying this framework to Krumme’s statement, we find
no error in affirming the trial court’s decision to overrule
Reznicek’s hearsay objection and allow Tietz to testify about
Krumme’s statement that no shorts were found in the fit-
ting room.
Krumme Declaration Was
Present Sense Impression
On appeal, we do not understand Reznicek to dispute that
Krumme personally perceived the event or condition she
described to Tietz (the absence of shorts in the fitting room)
or to dispute that Krumme’s declaration was describing that
event or condition. Instead, Reznicek argues the State failed
to prove the requirement that Krumme’s declaration was sub-
stantially contemporaneous with the event or condition being
described. More specifically, Reznicek argues the evidence at
trial did not establish “the time between Krumme[’s] viewing
the dressing room and [her] then relaying that information to
Tietz.” 21 We disagree.
The declaration, as testified to by Tietz, was that Krumme
told him she found no shorts inside the fitting room. While no
witness testified to the number of minutes, if any, that elapsed
between when Krumme looked inside the fitting room and
when she communicated what she saw to Tietz, there is consid-
erable circumstantial evidence on that issue.
19 See, e.g., Ruiz, supra note 9; Prather, supra note 9; Spinks, supra note 9.
See, also, 31A C.J.S., supra note 6 (citing cases).
20 See 2 McCormick on Evidence, supra note 11.
21 Brief for appellant at 13.

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Nebraska Supreme Court Advance Sheets
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STATE v. REZNICEK
Cite as 315 Neb. 272
There is direct testimony, supported by video surveillance,
that Krumme looked inside the fitting room immediately
after Reznicek left the room. And there is testimony that
shortly after looking inside the fitting room, Krumme con-
tacted Tietz by either walkie-talkie or telephone to report what
she observed. Tietz testified that he received the communi-
cation from Krumme while Reznicek was on the escalator
leaving the store and in sufficient time to enable him to leave
the video room and make contact with Reznicek in the park-
ing lot. Time stamps on the surveillance footage indicate that
approximately 3 minutes elapsed from when Krumme entered
the fitting room to when Tietz contacted Reznicek in the park-
ing lot.
The only reasonable inference from this evidence is that, at
most, no more than 3 minutes elapsed from the time Krumme
perceived the condition inside the fitting room to the time
she described that condition to Tietz. We thus find no merit
to Reznicek’s contention that the evidence was insufficient
to establish how much time elapsed between the perceived
event and the declaration. Moreover, Reznicek has not argued,
either in the lower courts or on appeal, that a lapse of 3 min-
utes or less cannot support a finding that the statement was
substantially contemporaneous with the event or condition
being described.
On 	this 	record, 	we 	agree 	with 	the 	district 	court 	that
Krumme’s declaration fell withing the hearsay exception for
present sense impression in § 27-803(1), and we find no error
in the ultimate determination to admit Krumme’s declaration
over Reznicek’s hearsay objection.
Evidence Sufficient to
Sustain Conviction
In her second assignment, Reznicek argues the evidence
at trial was insufficient to sustain her conviction. Her appel-
late briefing on this assignment, however, is limited to argu-
ing that without Krumme’s hearsay statement, the evidence

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STATE v. REZNICEK
Cite as 315 Neb. 272
was insufficient to support the conviction. Because we have
already concluded that Krumme’s statement was admissible,
we need not further examine this assignment of error. 22
CONCLUSION
For the foregoing reasons, we affirm the decision of the
district court.
Affirmed.
22 See Brush & Co. v. W. O. Zangger & Son, 314 Neb. 509, 991 N.W.2d 294
(2023) (appellate court not obligated to engage in analysis not needed to
adjudicate controversy before it).