State v. Anthony

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
State of Nebraska, appellee, v.
Donald Gene Anthony, appellant.
___ N.W.3d ___
Filed April 12, 2024. 	No. S-23-130.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
3. Trial: Evidence: Appeal and Error. An appellate court reviews the trial
court’s conclusions with regard to evidentiary foundation and witness
qualification for an abuse of discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
5. 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.
6. Witnesses: Intoxication. A lay witness may give an opinion as to
intoxication, at least where it has been established that the witness had
an opportunity to observe the person.
7. Intoxication. To be “under the influence” entails loss to an appreciable
degree of the normal control of one’s bodily and mental faculties and to
the extent that there is an impairment of the capacity to think and act
correctly and efficiently.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:35 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
8. Witnesses: Intoxication. A lay witness can render an opinion regarding
intoxication provided the witness first details the facts upon which the
opinion is based.
9. Witnesses. A witness is not permitted to render an opinion based on
obvious speculation or conjecture.
10. Trial: Witnesses. To the extent reasonably feasible, the witness ought to
attempt to convey the concrete primary facts to the trier of fact.
11. ____: ____. Generally, the lay witness’ opinion must be based on the
witness’ perception, foundation must establish a rational basis for the
opinion, and the testimony must be helpful to the trier of fact.
12. Witnesses: Intoxication. Adequate foundation of a witness’ personal
knowledge is especially important with respect to drug intoxication,
because the average person may have little or no experience with drugs,
and it thus falls outside the realm of common experience.
13. Witnesses. The amount of a witness’ prior experience that is suffi-
cient for an adequate foundation should be left to the discretion of the
trial judge.
14. Criminal Law: Appeal and Error. Harmless error jurisprudence recog-
nizes that not all trial errors entitle a criminal defendant to the reversal
of an adverse trial result.
15. Criminal Law: Trial: Evidence: Appeal and Error. An error in admit-
ting or excluding evidence in a criminal trial, whether of constitutional
magnitude or otherwise, is prejudicial unless the error was harmless
beyond a reasonable doubt.
16. Verdicts: Appeal and Error. The inquiry is not whether in a trial that
occurred without the error, a guilty verdict would surely have been
rendered, but whether the actual guilty verdict rendered was surely unat-
tributable to the error.
17. Trial: Convictions: Evidence: Appeal and Error. Where the evidence
is cumulative and there is other competent evidence to support the con-
viction, the improper admission or exclusion of evidence is harmless
beyond a reasonable doubt.
18. Evidence. Cumulative evidence means evidence tending to prove the
same point to which other evidence has been offered.
19. Self-Defense. An unconscious adversary does not pose an imminent
threat of death or serious bodily harm for purposes of a claim of self-
defense that could render a defendant not guilty.
20. Hearsay. 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.
21. ____. Whether a particular statement is hearsay will most often hinge on
the purpose for which it is offered.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
22. ____. Statements are not hearsay to the extent they are offered for
context and coherence of other admissible statements or to explain the
course of a series of events.
23. ____. Statements are not hearsay if the proponent offers them to
show their impact on the listener, and the listener’s knowledge, belief,
response, or state of mind after hearing the statement is relevant to an
issue in the case.
24. Hearsay: Police Officers and Sheriffs. Statements made to law enforce-
ment to explain the steps taken in an investigation of a defendant, rather
than to prove the truth of the matter asserted, are generally admissible as
nonhearsay so long as the probative value of the evidence’s nonhearsay
purpose is not substantially outweighed by the danger of unfair preju-
dice caused by an impermissible hearsay use of the statements.
25. Hearsay. Statements admitted for the purpose of showing the defend-
ant’s response and state of mind are generally admissible as nonhearsay
if relevant to the case and not unfairly prejudicial.
26. Trial: Rules of Evidence: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 27-103(1)(b) (Reissue 2016), error may not be predicated upon
a ruling that excludes evidence, unless a substantial right of the party
is affected and the substance of the evidence was made known to the
judge by offer or was apparent from the context within which questions
were asked.
27. Evidence: Proof: Appeal and Error. In the absence of an offer of
proof, an appellate court may still entertain a challenge to the exclusion
of evidence on appeal if the substance of the evidence was apparent
from the context within which the question was asked and the evidence
would have been material and competent.
28. Trial: Evidence: Proof. An offer of proof is frequently unnecessary
where a particular answer to a leading question permits, and examining
counsel obviously expects, an answer favorable to his client, or where
the cross-examiner expects an unfavorable response and obviously
intends to pursue a given line of inquiry.
29. Trial: Hearsay: Appeal and Error. A failure to object at trial to the
admission of evidence on the specific grounds of hearsay bars the appel-
lant from asserting hearsay as a ground for error by the trial court in
refusing to exclude the testimony.
30. Judgments: Appeal and Error. An appellate court may affirm a lower
court’s ruling that reaches the correct result—even if the reasoning on
appeal is different than the trial court’s reasoning.
31. Trial: Witnesses. A judge is not limited to sustaining an objection to a
witness’ testimony solely on the ground raised by a party’s objection.

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STATE v. ANTHONY
Cite as 316 Neb. 308
32. Judgments: Appeal and Error. Where the court’s ruling sustaining
an objection to the proffered evidence was legally correct, an appellate
court will not find reversible error simply because the basis for its ruling
was different than that asserted by the objecting party.
33. Confessions: Police Officers and Sheriffs. The test of voluntariness is
whether an examination of all the circumstances discloses that the con-
duct of law enforcement officials was such as to overbear the defendant’s
will to resist and bring about confessions not freely self-determined.
34. ____: ____. An officer’s telling a defendant that the officer believes
what the defendant has already told the officer is not probative of
whether law enforcement had overborn the defendant’s will to resist
making the statement.
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Affirmed.
Gerard 	A. 	Piccolo, 	Hall 	County 	Public 	Defender, 	for
appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
Following a jury trial, the defendant was convicted of first
degree murder, use of a deadly weapon to commit a felony,
and possession of a deadly weapon by a prohibited person. On
direct appeal, the defendant seeks reversal of his convictions
based on evidentiary rulings made by the district court during
trial. We affirm.
BACKGROUND
On February 15, 2022, law enforcement received a phone
call at 6:05 a.m. concerning an individual bleeding in an
apartment building at South Pine Street in Grand Island,
Nebraska (Pine Street Apartments). Shortly after arriving
at 6:07 a.m., law enforcement found the individual, later

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316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
identified as Said Farah, on a staircase landing with a lacera-
tion to his neck and a pool of blood underneath his body. He
was declared dead at 6:09 a.m.
Following an investigation, the State arrested and charged
Donald Gene Anthony with first degree murder, a Class I
felony; use of a deadly weapon to commit a felony, a Class
II felony; and possession of a deadly weapon by a prohibited
person, a Class III felony. The State subsequently added a
habitual criminal allegation.
Events Leading to Farah’s Death
At trial, the State called several witnesses who were in the
Pine Street Apartments at the time of Farah’s death.
Liep Biliew lived on the second floor. He testified that
several people were in his apartment in the early morning
hours of February 15, 2022. Around 2 a.m., Biliew woke up
and observed Farah sitting by himself on the interior stairs of
the apartment building. Biliew testified he let Farah into his
apartment, but that Farah left shortly thereafter.
Latifah Chandler was at Biliew’s apartment on February
14 and 15, 2022. Chandler stated that Farah “was acting dif-
ferent, kind of off, like strange” the evening of February 14.
Early in the morning on February 15, she heard people knock-
ing on Biliew’s door, people arguing in the hallway, and a
dog barking. She heard a “big, loud noise as if . . . somebody
had fallen off the balcony where the stairs are, maybe fallen
off the stairs.” She also heard the door on the east side of
the apartment building close. Chandler testified that she had
previously seen Marissa Stephens, Anthony’s girlfriend, with
her dog at Biliew’s apartment and that Anthony and Stephens
were in a relationship at that time.
Mohnad Hassan lived on the second floor. He testified that
around 6 a.m., he heard what sounded like fighting, a woman
yelling, and someone falling down the stairs. As Hassan was
leaving for work a few minutes later, he saw Farah on the
floor, struggling to breathe and bleeding. Hassan quickly called
the 911 emergency dispatch service.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
Video Surveillance
Video surveillance was obtained from areas surrounding
the Pine Street Apartments and entered into evidence at trial.
Around 6:08 p.m. on February 14, 2022, surveillance from
a duplex next door shows Anthony walking on the sidewalk
while wearing yellow construction boots, blue jeans, and a
yellow bandanna hanging out of the rear left pocket of his
jeans. About 2½ hours later, the footage shows a man and
woman with a light-colored, medium-sized dog. Law enforce-
ment identified the woman as Stephens walking with her dog.
Footage from a building across the street on February 15,
2022, at roughly 5:50 a.m. shows two individuals walking
with a light-colored, medium-sized dog on the sidewalk near
the Pine Street Apartments. At 5:57 a.m., the surveillance
shows the shadows of what appear to be two individuals
exiting the west entrance of the building. As they exited the
building, the surveillance shows a silhouette or shadow that
appeared in a window above the entrance. Officers determined
this to be another resident of the Pine Street Apartments who
entered the hallway around the same time the two individuals
left the building.
At approximately 6:07 a.m., footage shows law enforce-
ment arriving on the scene. At roughly 6:02 a.m., footage
from a nearby grocery store shows two individuals, whom
law enforcement believed to be Anthony and Stephens, walk-
ing with a dog across the street, away from the Pine Street
Apartments and toward the Blackstone Apartments. Other
evidence 	established 	that Anthony’s 	mother 	lived 	at 	the
Blackstone Apartments.
Investigation Into Anthony
and Stephens
After their initial investigation, law enforcement focused
on locating Anthony and Stephens. Officer Michael Nelson
spoke with Mary Hinds, Stephens’ mother, 2 days after Farah’s
death. Nelson testified that Hinds told him Anthony and

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
Stephens were at Hinds’ house in St. Paul, Nebraska. Defense
counsel objected to this testimony for hearsay reasons, but
the district court overruled the motion on the grounds that the
purpose of the testimony was to show its effect on Nelson,
the listener.
Based on this information, law enforcement traveled to St.
Paul to execute a search warrant on Hinds’ residence. Shortly
after law enforcement arrived, Stephens and another woman
exited the residence. Investigator Nicholas Bonney testified
that these women told law enforcement that Anthony was in an
attic crawl space in the residence. Anthony’s attorney objected
to this testimony for hearsay reasons, but the district court
overruled the objection, finding that the purpose of the state-
ment was to show its effect on the listener. Bonney testified,
without objection, that law enforcement entered the residence,
located Anthony in the attic crawl space, and placed him
under arrest. Law enforcement found a yellow bandanna while
searching the residence.
Stephens’ Testimony
Stephens shared her version of the events at trial. In February
2022, Stephens was pregnant and dating Anthony. She testified
that she had a dog at that time and that she took her dog every-
where she went. Stephens lived at Hinds’ house in St. Paul.
On February 14, 2022, Hinds drove Stephens, Stephens’ dog,
and Anthony to Anthony’s mother’s apartment in Grand Island.
Anthony and Stephens went to the Pine Street Apartments, spe-
cifically Biliew’s apartment, several times that day.
The second time visiting Biliew’s apartment, Farah opened
the back door to the building for them. According to Stephens,
as she came through the door, Farah commented to Anthony
that he was a “lucky guy” because of his relationship with
Stephens. In response, Anthony told Farah to “look away.”
On cross-examination, Stephens described, without objec-
tion, that Farah’s behavior was “weird” in the hours leading up
to his death. She elaborated that he was hiding behind doors,
walking back and forth, and looking through a small hole in

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
Biliew’s door, which door was located at the top of the stairs
in the Pine Street Apartments building.
Defense counsel asked Stephens whether, based on Farah’s
behavior, she thought he was under the influence. Before
Stephens could answer, the district court sustained an objec-
tion by the State based on lack of foundation, speculation, and
improper opinion. Stephens affirmed that she had seen people
under the influence before, “[m]ore than once,” responding,
“Most definitely.” But the State again objected when defense
counsel asked Stephens whether, based on this experience, she
concluded that Farah was under the influence. Following an
off-the-record discussion held at the bench, the court sustained
the State’s objection to the question based on foundation and
improper opinion. Anthony’s attorney made an offer of proof
that Stephens would have said she believed Farah was under
the influence of alcohol around the time of his death.
Stephens testified that as they were knocking on Biliew’s
apartment door, Anthony told Farah to “show his arm,” because
Farah had one of his arms covered. Anthony started taking
off his sweater and his backpack and saying he was “about
that life.”
Stephens 	testified 	that 	Farah 	then 	attempted 	to 	punch
Anthony and that Anthony responded by punching Farah in
the face and chest area several times. Farah fell over toward
the bottom of the stairs, and Anthony “kept going” by kicking
Farah in the head.
After Anthony kicked Farah in the head, Farah was “knocked
out” and had stopped moving. Stephens was standing at the top
of the stairs by Biliew’s apartment door. Her dog was bark-
ing and pulling on the leash, and she was yelling at Anthony
to stop and to leave Farah alone. Stephens then testified that
Anthony “was standing there with a knife to [Farah’s] eye
area and telling [Farah] that he was lucky that his baby girl
had stopped him because on his crown, he is about that life.”
During this time, Stephens described that she was “freaking
out” at Anthony.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
Stephens testified that she never saw the knife move from
Farah’s eye area. Anthony eventually stood up. Stephens
wanted to ensure “[Farah] was okay,” but Anthony ushered
her out of the building through the front door and away from
where Farah lay.
Stephens described that she and Anthony moved toward
the back of the building and through an alleyway and that
they then began walking toward the Blackstone Apartments.
Stephens explained that she and her dog were walking ahead
of Anthony while Anthony followed behind them, directed her
where to go, and repeatedly told her to “keep going.” Stephens
stated that they did not take a direct route to the Blackstone
Apartments and that it took an additional 10 minutes to
arrive there.
Stephens testified that when they arrived at the Blackstone
Apartments, Anthony told an individual named “Puma” that
a fight had broken out at the Pine Street Apartments where
their mutual acquaintance, Biliew, lived. Puma quickly left
and, shortly thereafter, sent a video to Anthony saying that
somebody had been stabbed at the Pine Street Apartments.
Anthony’s counsel objected, based on hearsay and “founda-
tion as to hearsay,” to the testimony about what Puma said in
the video. The district court overruled the objection.
Stephens testified that after receiving the video from Puma,
she and Anthony walked to the home of Anthony’s friend,
Martiniano Alcorta. Anthony changed his clothes, and after
some time, Anthony’s mother picked them up to drive them to
Hinds’ house in St. Paul. Anthony left the clothes he changed
out of and his backpack at Alcorta’s house.
At some point after the couple arrived at Hinds’ house,
the police arrived and surrounded it. Stephens testified that
while she complied with law enforcement’s request to exit the
house, Anthony stayed in the house in the attic crawl space.
Later, after Anthony was apprehended, Stephens assisted law
enforcement in locating Anthony’s personal items and a knife
that was “exactly like the one that [Anthony] had.”

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. ANTHONY
Cite as 316 Neb. 308
Interviews With Anthony
Law enforcement interviewed Anthony twice during their
investigation.
The first interview was the day after his arrest. The content
of this interview was introduced into evidence at trial through
the testimony of Investigator Ryan Sullivan, one of the offi-
cers who conducted Anthony’s first interview. Defense counsel
did not object to Sullivan’s testimony of what Anthony said
during the interview.
Anthony indicated that he went to the Pine Street Apartments
on two occasions around the time of Farah’s death. The second
time, he was accompanied by Stephens and her dog. Anthony
stated they entered through the east side of the apartment
building after a man they did not know, presumably Farah,
opened the door for them. Anthony told law enforcement that
Farah followed them up the stairs and stood near the other
door of Biliew’s apartment.
Anthony initially told law enforcement that Farah did not
say anything and that he and Stephens left after hearing a
“ruckus” inside Biliew’s apartment. However, later in the
interview, Anthony became emotional and said Farah threat-
ened him and asked him if he was “afraid to die” or “wanted
to die.”
Anthony told law enforcement that when Farah approached
him, Anthony punched him, and that Farah fell down the
stairs and hit his head on the doorframe, knocking Farah
unconscious. Anthony stated he went down to check Farah’s
jacket for a gun, but he did not find any weapons and he
moved Farah, still unconscious, further onto the staircase land-
ing. When asked whether he was angry with Farah, Anthony
responded, “[H]ell, yeah,” and then he became frustrated and
started to cry.
Though in reality, the murder weapon was never located,
officers asked Anthony what he would think if they “discov-
ered a . . . small black, folding knife with a short blade in
the area where he fled.” Anthony responded that the knife

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STATE v. ANTHONY
Cite as 316 Neb. 308
belonged to his acquaintance who lived in the Blackstone
Apartments and that the knife “was stolen,” although he did
not specify by whom or when. When asked whether Anthony’s
DNA would be found on the knife, Anthony indicated it would
because he had held that knife at one point.
When asked why the knife would be in the area between
the Pine Street Apartments and the Blackstone Apartments,
Anthony seemed to abandon the story that it had been stolen.
Instead, he said he took the knife off Farah. Then, Anthony
said the knife came from his own pocket. Later, Anthony said
the knife did not come from his own pocket. In any event,
Anthony acknowledged he possessed the knife and had thrown
it as he was leaving the building because “there was a lot
going on.”
Anthony also acknowledged that he might have killed Farah
after he punched Farah and caused him to fall and hit his head
on the doorframe. Anthony admitted that he had a bad habit
of kicking people when they fall to the ground, so he had
probably kicked Farah after he had fallen down the stairs. He
also admitted to kicking Farah in the stomach area and then
kicking or stomping on his face two or three times after he
had fallen.
After 	officers 	told Anthony 	that 	they 	had 	interviewed
Stephens, Anthony admitted he had placed the blade of a
knife to the right of Farah’s eyebrow, and Anthony’s other
statements indicated this was while Farah was unconscious.
Anthony described what is called “a buck fifty,” which is
a slang term for leaving a permanent scar on an individual.
Anthony confessed he “was going to open his shit up right
there.” Anthony said he wanted Farah to “remember every
day threatening him and his lady.” Anthony initially told the
officers he decided against it and walked away. Officers then
explored with Anthony whether the knife could have acciden-
tally slipped. Anthony initially said he did not think it was
possible, but later stated that the knife could have slipped
when he turned to look at Stephens or that Farah may have

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STATE v. ANTHONY
Cite as 316 Neb. 308
moved into the blade. When asked what crime he would
charge himself with, Anthony stated he would charge himself
with manslaughter, “because he didn’t mean to kill [Farah].”
During the interview, Anthony indicated that as a child, he
was initiated into the Bloods street gang and eventually joined
the Latin Kings gang. He said he spends time with the East
Side Locos, a “local Surenos-based gang.” Officers discussed
with Anthony how yellow bandannas are associated with the
Latin Kings. Anthony mentioned that, as a member of Latin
Kings, he carries a yellow bandanna.
Sullivan testified, without objection, on cross-examination
that he told Anthony in the first interview that he “didn’t think
[Anthony] was a killer.” He also told Anthony he could see
“remorse in his eyes.”
Defense 	counsel 	then 	asked 	Sullivan 	whether 	he 	told
Anthony that it would be “beneficial to him in the criminal
case” and that it would “be better in front of a jury or a judge”
if he were remorseful. The district court sustained objections
by the State based on relevance and hearsay, and Sullivan did
not answer the question.
Sullivan testified on cross-examination that Anthony never
admitted to intentionally cutting Farah and that Anthony said
several times he was trying to protect himself and Stephens.
Defense counsel then asked: “I think you said that you agreed
with him or you believed him?” The State objected to the
form of the question because it called for speculation. The
district court sustained the objection on hearsay grounds.
The second interview occurred at Anthony’s request on
March 4, 2022. The content of this interview was introduced
into evidence at trial through the testimony of Investigator
Bryce Collamore. Collamore testified that in Anthony’s sec-
ond interview, Anthony told law enforcement that he thought
an individual named “Chimmy” had killed Farah after he and
Stephens left the apartment building. Anthony explained that
his altercation with Farah occurred at 3 or 4 a.m. on February
15 and that the 911 call was made roughly 2 hours later.

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STATE v. ANTHONY
Cite as 316 Neb. 308
When law enforcement informed Anthony of video surveil-
lance showing only a 6-minute difference from when he and
Stephens left the Pine Street Apartments to when the 911 call
was made, Anthony acted surprised and eventually agreed
with law enforcement’s timeline. He also admitted during the
interview that he “knew that Chimmy did not do it.”
Anthony then repeated his original description of how
Anthony punched Farah, who fell down the stairs and was
knocked unconscious. Anthony stated that he moved the
unconscious Farah and that while Farah was lying face down
on the floor, Anthony placed the blade of the knife to Farah’s
right eyebrow. But Anthony changed his recollection of how
Farah was cut. Anthony said that after he put the knife up
to Farah’s eyebrow, Stephens “stopped him” and placed her
hand over Anthony’s and “grabbed his hand along with the
knife.” After Stephens pulled the knife down to Farah’s neck
region, Anthony stated he knew he cut at least two layers of
Farah’s clothing.
Autopsy and Cause of Death
Dr. Michelle Elieff, a general and forensic pathologist, testi-
fied at trial regarding the autopsy she performed on Farah’s
body shortly after his death. Dr. Elieff observed a 2½-inch
cut on the left side of the Farah’s neck. About 80 percent of
Farah’s jugular vein had been cut. She noted a sharp-edged
instrument or knife would have caused the injury due to the
lack of scuffing or scratches around the skin or soft tissue. She
explained that without medical intervention, this type of injury
can cause a person to bleed to death.
Dr. Elieff observed that there was more air in Farah’s
heart cavity than normal and that the right side of his heart
had “swelled outward,” which can be associated with a neck
injury. She testified that the jugular vein “feeds” the head and
pumps blood from the head and neck back into the heart. She
stated that the presence of air in the vascular system can cause
an abnormal heart rhythm and that a large amount of air going
to the heart can cause sudden death. According to Dr. Elieff,

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STATE v. ANTHONY
Cite as 316 Neb. 308
the underlying cause of death was an intracardiac air embo-
lism that resulted from the cutting injury on Farah’s neck,
which caused air to enter the vascular system and accumulate
in the heart. She estimated Farah died within a matter of sec-
onds to minutes after sustaining the cut.
Dr. Elieff observed several abrasions near the top of Farah’s
head that occurred around the time of his death. Near his right
cheek, Farah also had a bruise accompanied by an abrasion.
One injury in particular “had a semi-circular component to
it” and curved with a bruise and an abrasion on Farah’s right
upper cheek. According to Dr. Elieff, these injuries did not
contribute to Farah’s death.
Dr. Elieff noted that a toxicology report revealed amphet-
amine and methamphetamine in Farah’s body. She explained
that although these substances may have affected Farah’s
behavior prior to his death, they did not contribute to his death.
Theory of Defense
Defense counsel described in opening statements how Farah
had let Anthony and Stephens into the Pine Street Apartments
and was acting “weird.” Defense counsel told the jury, without
objection, that Farah’s behavior led Anthony and Stephens to
believe Farah was under the influence.
In 	both 	opening 	statements 	and 	at 	closing 	arguments,
defense counsel conceded there was an altercation between
Anthony and Farah. This began when Farah said things about
Stephens. Defense counsel argued in closing that Farah “threw
the first punch.”
Defense counsel described that the fight between Anthony
and Farah “end[ed] with . . . Farah lying on the floor in the cor-
ridor of the apartment building unconscious.” Defense counsel
described how, thereafter, Anthony held a knife to Farah’s eye-
brow. Defense counsel argued that Stephens then intervened
and stopped Anthony from stabbing Farah. Defense counsel
argued that Anthony and Stephens left Farah unconscious on
the corridor floor without doing him any further harm.

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STATE v. ANTHONY
Cite as 316 Neb. 308
The theory of the defense was that someone else killed
Farah after Anthony and Stephens left. At closing arguments,
defense counsel pointed out that Anthony and Stephens left
the Pine Street Apartments at 5:57 a.m., on February 15, 2022,
according to surveillance video. But because Hassan found
Farah still breathing when he opened the door for law enforce-
ment after calling 911 at 6:03 a.m.—and Dr. Elieff testified it
would have taken a matter of seconds to minutes for Farah to
die of his injuries—“[i]t doesn’t match up.” Defense counsel
reminded the jury that, in the surveillance video, a shadow
appeared in the window above the entrance about the same
time Anthony and Stephens left and reappeared 60 seconds
later. According to defense counsel, whoever that person was,
that person did not call the police and was the person who
killed Farah.
Convictions and Sentences
The State rested, and after electing not to present any evi-
dence, Anthony moved for a directed verdict. The district court
overruled the motion.
With respect to Farah’s death, the jury was instructed that it
could find Anthony either guilty of first degree murder, guilty
of second degree murder, guilty of manslaughter, or not guilty.
The jury found Anthony guilty of first degree murder, use
of a deadly weapon to commit a felony, and possession of a
deadly weapon.
At sentencing, the district court found the State had failed to
meet its burden that Anthony was a habitual criminal. It sen-
tenced Anthony to life in prison for first degree murder, 30 to
50 years’ imprisonment for use of a deadly weapon, and 3 to 4
years’ imprisonment for possession.
Anthony appeals his convictions.
ASSIGNMENTS OF ERROR
Anthony assigns, restated, that the district court erred by
(1) allowing into evidence statements made to law enforce-
ment regarding Anthony’s location in St. Paul and his location

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in the crawl space of the St. Paul residence, (2) allowing
Stephens to testify as to the contents of a video sent by Puma
to Anthony, (3) preventing Stephens from testifying about
whether Farah was under the influence of drugs during the
hours leading up to his death, and (4) excluding testimony
of law enforcement regarding statements made to Anthony in
his postarrest interview about his remorse and whether law
enforcement believed Anthony’s version of the facts.
STANDARD OF REVIEW
[1] In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility. 1
[2] Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. 2
[3] An appellate court reviews the trial court’s conclusions
with regard to evidentiary foundation and witness qualification
for an abuse of discretion. 3
[4] A judicial abuse of discretion exists only when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition. 4
[5] 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. 5
1 State v. Lorello, 314 Neb. 385, 991 N.W.2d 11 (2023).
2 Id.
3 State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).
4 State v. Greer, 312 Neb. 351, 979 N.W.2d 101 (2022).
5 State v. Vaughn, 314 Neb. 167, 989 N.W.2d 378 (2023).

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ANALYSIS
Anthony’s assignments of error all relate to evidentiary
rulings made by the district court at trial. Anthony argues on
appeal that the district court erred by preventing Stephens from
expressing her lay opinion that Farah was under the influence
of drugs during the altercation with Anthony. Anthony argues
the court erred in overruling his hearsay objections to state-
ments made to law enforcement that Anthony was at Hinds’
house and, more specifically, hiding in the crawl space. He
also argues the court erred in overruling his hearsay objec-
tion to Puma’s statement that someone had been stabbed at
the Pine Street Apartments. Finally, Anthony argues the dis-
trict court erred in excluding law enforcement’s statements
to Anthony in his postarrest interviews about remorse being
beneficial and whether law enforcement believed Anthony’s
version of the facts.
Excluding Stephens’ Opinion That
Farah Was Under Influence
We first address Anthony’s argument that the district court
erred by not allowing Stephens to testify about whether she
believed Farah was under the influence at the time of the
altercation. Anthony argues that lay witnesses with firsthand
knowledge are competent under Nebraska law to testify on
this topic. Thus, he claims the court should have overruled the
State’s objections based on speculation, improper opinion, and
foundation, and allowed Stephens to provide this testimony.
Neb. Rev. Stat. § 27-701 (Reissue 2016), provides:
If the witness is not testifying as an expert, his tes-
timony in the form of opinions or inferences is limited
to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a
clear understanding of his testimony or the determination
of a fact in issue.
[6-8] It is well established in Nebraska that a lay wit-
ness may give an opinion as to intoxication, at least where it
has been established that the witness had an opportunity to

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observe the person. 6 To be “under the influence” entails loss
to an appreciable degree of the normal control of one’s bodily
and mental faculties and to the extent that there is an impair-
ment of the capacity to think and act correctly and efficiently. 7
A lay witness can render an opinion regarding intoxication
provided the witness first details the facts upon which the
opinion is based. 8
[9-13] A witness is not permitted to render an opinion
based on obvious speculation or conjecture. 9 To the extent
reasonably feasible, the witness ought to attempt to convey
the concrete primary facts to the trier of fact. 10 Generally, the
lay witness’ opinion must be based on the witness’ perception,
foundation must establish a rational basis for the opinion,
and the testimony must be helpful to the trier of fact. 11 These
principles apply to alcohol, as well as to drug intoxication. 12
However, it has been said that adequate foundation of a wit-
ness’ personal knowledge is especially important with respect
to drug intoxication, because the average person may have
little or no experience with drugs, and it thus falls outside
the realm of common experience. 13 The amount of a witness’
prior experience that is sufficient for an adequate foundation
should be left to the discretion of the trial judge. 14
6 Hansen v. Hasenkamp, 192 Neb. 530, 223 N.W.2d 44 (1974).
7 See id. See, also, e.g., State v. Johnson, 215 Neb. 391, 338 N.W.2d 769
(1983); McCulley v. Anderson, 119 Neb. 105, 227 N.W. 321 (1929).
8 See State v. Johnson, supra note 7. See, also, State ex rel. City of St. Paul
v. Rutten, 177 Neb. 633, 130 N.W.2d 558 (1964).
9 State v. Johnson, supra note 7.
10 See 1 McCormick on Evidence § 11 (Robert M. Mosteller ed., 8th ed.
2020).
11 See 11 Minnesota Practice Series, Evidence § 701.02 (5th ed. 2023).
12 See 3 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal
Evidence § 12:8 (15th ed. 1999).
13 See U.S. v. Baraloto, 535 Fed. Appx. 263 (4th Cir. 2013) (Gregory, J.,
dissenting).
14 See Harris v. District of Columbia, 601 A.2d 21 (D.C. 1991).

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An appellate court reviews the trial court’s conclusions with
regard to evidentiary foundation and witness qualification for
an abuse of discretion. 15 A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right
and denying a just result in matters submitted for disposi-
tion. 16 On the record presented, the court’s ruling was not
clearly untenable.
Although Stephens had never met Farah before the morn-
ing of his death, she witnessed Farah’s behavior firsthand
before his altercation with Anthony. Though we agree with the
State that “weird” is not a concrete primary fact, 17 Stephens
elaborated that Farah was hiding behind doors, walking back
and forth, and looking through a small hole in Biliew’s door,
which door was located at the top of the stairs in the Pine
Street Apartments building.
However, the only foundation to establish a rational basis
for Stephens’ opinion that such behaviors exhibited drug
intoxication was Stephens’ vague affirmation that she had
seen people intoxicated before “[m]ore than once.” There was
little to show that Stephens’ lay opinion was not mere specu-
lation, especially when the behavior described by Stephens is
consistent with nervousness from a multitude of causes that
would not involve intoxication. It was not unreasonable for
the court to find inadequate foundation where the extent of
Stephens’ experience was unclear and there was no concrete
description of the types of behaviors that Stephens, in her past
experience, had seen exhibited by persons she knew to be
under the influence of drugs.
[14,15] Even if we assume the district court should have
allowed Stephens to provide her lay opinion that Farah was
under the influence, the error was harmless. Harmless error
15 State v. Henderson, supra note 3.
16 State v. Greer, supra note 4.
17 See People v. Cruz, 175 A.D.3d 1060, 108 N.Y.S.3d 620 (2019).

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jurisprudence recognizes that not all trial errors entitle a
criminal defendant to the reversal of an adverse trial result. 18
An error in admitting or excluding evidence in a criminal
trial, whether of constitutional magnitude or otherwise, is
prejudicial unless the error was harmless beyond a reason-
able doubt. 19
[16-18] The inquiry is not whether in a trial that occurred
without the error, a guilty verdict would surely have been
rendered, but whether the actual guilty verdict rendered was
surely unattributable to the error. 20 Where the evidence is
cumulative and there is other competent evidence to support
the conviction, the improper admission or exclusion of evi-
dence is harmless beyond a reasonable doubt. 21 Cumulative
evidence means evidence tending to prove the same point to
which other evidence has been offered. 22
Stephens’ excluded testimony that Farah was under the
influence would have been largely cumulative to other evi-
dence received at trial without objection. Dr. Elieff testified
that Farah had amphetamine and methamphetamine in his
system at the time of his death and that these substances may
have affected Farah’s behavior. Chandler testified at trial that
Farah “was acting different, kind of off, like strange” the
evening before Farah’s altercation with Anthony. Biliew testi-
fied that he woke up and observed Farah sitting by himself
on the interior stairs of the apartment building and that he
let Farah in, but Farah left shortly thereafter. Stephens testi-
fied that Farah was acting “weird” by hiding behind doors,
walking back and forth, and looking through a small hole in
Biliew’s door, which door was located at the top of the stairs
18 See State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).
19 State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017); State v. Matthews,
289 Neb. 184, 854 N.W.2d 576 (2014).
20 Id.
21 Id.; State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
22 State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).

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in the Pine Street Apartments building. Finally, although not
evidence, the jury was told in opening statements that Farah’s
strange behavior led Anthony and Stephens to conclude that he
was under the influence.
The testimony adduced at trial did not clearly connect wit-
nesses’ observations of Farah’s behavior to an opinion that
he was under the influence at the time of his death, but it
was clearly an inference the defense was asking to be drawn.
Furthermore, it was the behavior, rather than the drug con-
sumption per se, which was relevant to Anthony’s defense.
Anthony adduced evidence of Farah’s erratic and strange
behavior because it was consistent with Anthony’s contention
that Farah was the first aggressor.
But whether Farah was under the influence and was the
first aggressor were of minimal legal significance when the
evidence was overwhelming, even undisputed, that Farah was
stabbed while he was unconscious. Anthony admitted in post-
arrest interviews that he engaged in a physical altercation with
Farah that led to Farah’s being unconscious when Anthony
held a knife to Farah’s face. The basic events of the altercation
leading to Farah’s being unconscious before he was stabbed
were supported by video surveillance footage and the testi-
mony of several witnesses.
[19] An unconscious adversary does not pose an imminent
threat of death or serious bodily harm for purposes of a claim
of self-defense that could render a defendant not guilty. 23 And
the defense did not argue that Anthony killed Farah while still
in the heat of passion or without premeditation. The defense
argued Anthony did not kill Farah at all. Defense counsel
argued to the jury that Anthony left Farah unconscious and
that someone else killed Farah after Anthony and Stephens
left. Under this theory, it was irrelevant whether Farah was
23 See, also, e.g., State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989);
Kulhanek v. State, 560 S.W.3d 94 (Mo. App. 2018); Thomas v. State, 918
So. 2d 327 (Fla. App. 2005).

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under the influence. The court’s exclusion of Stephens’ lay
opinion that Farah was under the influence had little to no
import relative to the rest of the untainted, relevant evidence
pertaining to what was at issue at trial. The actual guilty ver-
dict rendered was surely unattributable to any error in exclud-
ing Stephens’ lay opinion that Farah was under the influence.
Hearsay
We next address Anthony’s arguments that the court erred
in admitting three statements he asserts were inadmissible
hearsay. These are Hinds’ statement to Nelson that Anthony
and Stephens were at her house in St. Paul, statements that
Anthony was hiding in the crawl space at Hinds’ house, and
Puma’s statement that someone had been stabbed at the Pine
Street Apartments. We agree with the State that these state-
ments were properly admitted for relevant nonhearsay pur-
poses related to their effect on the listener.
Neb. Rev. Stat. § 27-802 (Reissue 2016) provides that
“[h]earsay is not admissible except as provided by these
rules, by other rules adopted by the statutes of the State of
Nebraska, or by the discovery rules of the Supreme Court.”
Neb. Rev. Stat. § 27-803 (Cum. Supp. 2022) sets forth several
exceptions offered for the truth of the matter asserted, which
are not excluded by the hearsay rule. Anthony is correct that
none of those statutory exceptions are applicable to the sub-
ject statements.
[20,21] However, by definition, 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. 24 Neb. Rev. Stat.
§ 27-801(3) (Cum. Supp. 2022) defines hearsay as a state-
ment, 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. 25 Whether a particular statement is
24 State v. Vaughn, supra note 5.
25 See, also, id.

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hearsay “will most often hinge on the purpose for which it
is offered.” 26
[22,23] Accordingly, statements are not hearsay to the extent
they are offered for context and coherence of other admissible
statements 27 or to explain the course of a series of events. 28
Similarly, statements are not hearsay if the proponent offers
them to show their impact on the listener, and the listener’s
knowledge, belief, response, or state of mind after hearing the
statement is relevant to an issue in the case. 29
[24] Statements made to law enforcement to explain the
steps taken in an investigation of a defendant, rather than to
prove the truth of the matter asserted, are generally admissible
as nonhearsay so long as the probative value of the evidence’s
nonhearsay purpose is not substantially outweighed by the
danger of unfair prejudice caused by an impermissible hear-
say use of the statements. 30 For example, in State v. Vaughn, 31
we determined that an out-of-court statement specifying the
defendant’s location on a passenger train was admissible to
explain law enforcement’s actions in searching for the defend-
ant and did not fall within the definition of hearsay. In
Vaughn, during a scheduled stop, law enforcement searched
the train and found an unmarked duffelbag with several pack-
ages of marijuana inside. A train employee told officers the
bag belonged to the man in room No. 12. Law enforcement
26 U.S. v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998).
27 State v. Vaughn, supra note 5.
28 See State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008) (Gerrard, J.,
concurring) (and cases cited therein).
29 State v. Vaughn, supra note 5.
30 See, State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023); State v.
Vaughn, supra note 5. See, also, U.S. v. Ibarra-Diaz, 805 F.3d 908 (10th
Cir. 2015); U.S. v. Taylor, 569 F.3d 742 (7th Cir. 2009); U.S. v. Jiminez,
564 F.3d 1280 (11th Cir. 2009); U.S. v. Brown, 923 F.2d 109 (8th Cir.
1991); United States v. Levy, 904 F.2d 1026 (6th Cir. 1990); United States
v. Love, 767 F.2d 1052 (4th Cir. 1985).
31 State v. Vaughn, supra note 5.

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located the defendant in room No. 12 and discovered addi-
tional bags of marijuana. In an appeal from the defendant’s
convictions, we held the district court properly admitted the
train employee’s statement because it “bridged” the officer’s
statements at trial that he saw the unmarked duffelbag that
contained marijuana and later knocked on the door of room
No. 12 and asked the defendant whether he owned the duffel-
bag. 32 Put differently, the train employee’s statements provided
context and “showed why [the officer] went to [room No.]
12 to ask questions about the duffelbag and encountered [the
defendant].” 33
Hinds’ statements to Nelson that Anthony and Stephens were
at Hinds’ house in St. Paul similarly bridged the testimony
that Nelson spoke to Hinds and that law enforcement went to
Hinds’ house in St. Paul, providing context as to why Nelson
traveled to the residence in St. Paul. Likewise, the state-
ments to Bonney that Anthony was in the crawl space explain
why law enforcement entered the residence and searched for
Anthony in the attic.
[25] Statements admitted for the purpose of showing the
defendant’s response and state of mind are generally admis-
sible as nonhearsay if relevant to the case and not unfairly
prejudicial. Thus, in People v. Weatherspoon, 34 the defend-
ant’s statements that 3 days after the victim’s body was dis-
covered and he fled the state, he was threatened by the vic-
tim’s brother and friends, were admissible for the nonhearsay
purpose of proving the defendant did not flee because of a
consciousness of guilt but instead because he was threatened.
Puma’s statement that somebody had been stabbed was rel-
evant to determining Anthony’s state of mind when he went to
a friend’s house, changed his clothes, and left his belongings
32 Id. at 189, 989 N.W.2d at 396.
33 Id.
34 People v. Weatherspoon, 394 Ill. App. 3d 839, 915 N.E.2d 761, 333 Ill.
Dec. 690 (2009).

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there before fleeing to St. Paul. It was relevant to whether he
took those measures out of a consciousness of guilt.
Neither 	the 	statements 	to 	law 	enforcement 	regarding
Anthony’s location, nor Puma’s statement that someone had
been stabbed, were unfairly prejudicial. Indeed, Anthony
makes no argument as to how he was prejudiced by their
admission. The statements were entirely cumulative of other
evidence admitted at trial. Bonney ultimately testified, based
on his first-hand knowledge from entering the home and
conducting the search, that law enforcement located Anthony
hiding in the crawl space at Hinds’ house in St. Paul. There
was abundant evidence admitted, without objection, dem-
onstrating Farah had been stabbed, which was not a matter
disputed by either party.
The district court did not err in finding the statements
about Anthony’s location and that Farah had been stabbed
were admitted for the nonhearsay purposes of context and
coherence of other admissible statements and to explain the
course of a series of events and the listeners’ state of mind
after hearing the statements. The district court did not err in
implicitly finding these were facts relevant to issues in the
case and that, because of their cumulative nature, the proba-
tive value of the statements’ nonhearsay purposes was not sub-
stantially outweighed by the danger of unfair prejudice from
possible impermissible hearsay uses. For the same reason,
even if the court’s rulings were, hypothetically, in error, they
were harmless.
Statements Made by Law Enforcement During
Anthony’s Postarrest Interviews
Lastly, we address Anthony’s argument that the district
court erred by not allowing Sullivan to testify about whether
he told Anthony that he believed Anthony’s statements and
that it would be beneficial to Anthony in a criminal case if he
were remorseful.
[26-28] The State points out that Anthony failed to make
an offer of proof as to what Sullivan would have answered

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had he been allowed to ask whether he told Anthony that he
believed Anthony’s statements and that it would be beneficial
to Anthony in a criminal case if he were remorseful. Pursuant
to Neb. Rev. Stat. § 27-103(1)(b) (Reissue 2016), error may
not be predicated upon a ruling that excludes evidence, unless
a substantial right of the party is affected and the substance
of the evidence was made known to the judge by offer or
was apparent from the context within which questions were
asked. 35 Thus, in order to predicate error upon a ruling of the
court refusing to permit a witness to testify, or to answer a
specific question, the record must show an offer to prove the
facts sought to be elicited, and that offer of proof must be
made at trial. 36 In the absence of an offer of proof, however,
an appellate court may still entertain a challenge to the exclu-
sion of evidence on appeal if the substance of the evidence
was apparent from the context within which the question was
asked and the evidence would have been material and compe-
tent. 37 An offer of proof is frequently unnecessary “where a
particular answer to a leading question permits, and examining
counsel obviously expects, an answer favorable to his client,”
or “where the cross-examiner expects an unfavorable response
and obviously intends to pursue a given line of inquiry.” 38
In State v. Rodriguez, 39 for example, we determined an
offer of proof was not required for appellate review because
it was clear from the context of the questioning the defendant
was attempting to impeach a witness. In Rodriguez, a jury
convicted the defendant of five counts of first degree murder
for his involvement in a deadly bank robbery. During trial,
35 State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
36 See id.
37 See Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 253 Neb. 813,
572 N.W.2d 362 (1998).
38 1 Michael H. Graham, Winning Evidence Arguments: Advanced Evidence
for the Trial Attorney § 103:7 at 47 (2006).
39 State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).

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the defendant’s attorney sought to impeach a witness with a
prior inconsistent statement, but the trial court sustained an
objection raised by the State. Defense counsel failed to make
an offer of proof. We elected to review the error on appeal
because it was “apparent from the record that [the defense
counsel] was attempting to impeach [the witness].” 40 In other
words, we concluded that an offer of proof was not required
because the substance of the evidence was apparent from the
context in which the questions were asked. 41
In contrast, in an appeal from a conviction for second
degree murder and use of a weapon, the Nebraska Court
of Appeals in State v. Heng 42 held it was unable to address
the merits of the exclusion of a 911 recording because the
defendant failed to give an offer of proof at a trial. A resi-
dent, who called 911, claimed to have witnessed the shooting.
During cross-examination of the resident, the defense wished
to introduce into evidence the entirety of the 911 record-
ing. The trial court sustained the State’s objection after the
recording was played for the trial judge outside the presence
of the jury. The Court of Appeals explained, “Without know-
ing the specific contents of the complete recording, including
the exact language used by [the resident] or the tone of his
voice, we simply cannot say whether the district court erred
in sustaining the State’s objection.” 43 The Court of Appeals
also did not discuss whether the proffer of the 911 recording
was in response to any particular testimony, and it pointed to
several times the 911 call was utilized to effectively impeach
the witness.
40 Id. at 947, 726 N.W.2d at 173.
41 See, also, Sherman County Bank v. Kallhoff, 205 Neb. 392, 288 N.W.2d 24
(1980). But see, Talle v. Nebraska Dept. of Soc. Servs., 253 Neb. 823, 572
N.W.2d 790 (1998); Anderson/Couvillon v. Nebraska Dept. of Soc. Servs.,
supra note 37.
42 State v. Heng, 25 Neb. App. 317, 905 N.W.2d 279 (2017).
43 Id. at 337, 905 N.W.2d at 295.

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Like the facts presented in Rodriguez, it is apparent from
the context of the questions that Anthony sought to elicit
testimony from Sullivan that he told Anthony he believed
Anthony’s interview statements and that it would be beneficial
to Anthony in a criminal case if he were remorseful. Unlike
in Heng, we do not need to know the specific contents of the
complete interview to understand what defense counsel was
trying to adduce. Knowing that defense counsel sought to
elicit testimony that Sullivan told Anthony he believed him
and that it would be beneficial in front of a jury or a judge to
express remorse, we hold the court did not err in excluding
those statements.
First, the court did not err in excluding, as inadmissible
hearsay, Sullivan’s out-of-court statement that he believed
Anthony when he said he did not intend to hurt Farah and
was trying to protect himself and Stephens. We find no merit
to Anthony’s argument that we cannot affirm the court’s rul-
ing, even if correct, because the State did not object on hear-
say grounds.
[29] The State objected on the ground of speculation, and
Anthony alludes to our opinions stating that an objection on a
specific ground that was properly overruled does not preserve
a question of appellate review on any other ground. 44 Thus,
we have said that a failure to object at trial to the admission
of evidence on the specific grounds of hearsay bars the appel-
lant from asserting hearsay as a ground for error by the trial
court in refusing to exclude the testimony. 45
[30-32] However, it does not follow that a trial court errs
by excluding evidence on a legally correct ground differ-
ent from the ground raised in a party’s objection to the evi-
dence. We have often said that an appellate court may affirm
a lower court’s ruling that reaches the correct result—even
44 See Havlicek v. State, 101 Neb. 782, 165 N.W. 251 (1917). See, also, Ford
v. Estate of Clinton, 265 Neb. 285, 656 N.W.2d 606 (2003); Baucom v.
Drivers Mgmt., Inc., 12 Neb. App. 790, 686 N.W.2d 98 (2004).
45 See Carpenter v. Cullan, 254 Neb. 925, 581 N.W.2d 72 (1998).

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if the reasoning on appeal is different than the trial court’s
reasoning. 46 Akin to this rule, it has elsewhere been said that
a judge is not limited to sustaining an objection to a witness’
testimony solely on the ground raised by a party’s objection. 47
If a judge concludes that an objection is properly sustained on
a different ground, the judge may do so. 48 We agree. Where
the court’s ruling sustaining an objection to the proffered
evidence was legally correct, we will not find reversible error
simply because the basis for its ruling was different than that
asserted by the objecting party.
[33,34] It reasonably appeared that defense counsel wished
to adduce Sullivan’s statement that he believed Anthony for
the truth of the matter asserted, i.e., that Anthony lacked the
necessary intent to be guilty of first degree murder. We find
no merit to Anthony’s contention, made for the first time on
appeal, that Sullivan’s statement that he believed Anthony
was relevant for the nonhearsay purpose of demonstrating that
Anthony’s confession was not voluntary. We disagree with
Anthony’s argument that the statement by Sullivan that he
believed what Anthony had already said was an “inducement
or promise, however slight, entering into the totality of cir-
cumstances” of the “voluntariness matrix.” 49 The test of vol-
untariness is whether an examination of all the circumstances
discloses that the conduct of law enforcement officials was
such as to overbear the defendant’s will to resist and bring
about confessions not freely self-determined. 50 An officer’s
telling a defendant that the officer believes what the defend-
ant has already told the officer is not probative of whether
46 See, e.g., Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023).
47 See California Judges Benchbook: Civil Proceedings Before Trial § 5.33
(2022) (restricting method of examination).
48 See, id.; People v. Robinson, 47 Cal. App. 5th 1027, 261 Cal. Rptr. 3d 371
(2020).
49 Brief for appellant at 19.
50 State v. Melton, 239 Neb. 506, 476 N.W.2d 842 (1991).

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law enforcement had overborn the defendant’s will to resist
making the statement.
For similar reasons, we find no error in the court’s sustain-
ing, on relevancy and hearsay grounds, the State’s objection
to Anthony’s adducing Sullivan’s out-of-court statement to
the effect that if Anthony showed remorse “in front of a jury
or a judge,” it could help his court case. The only relevancy
of this statement argued by Anthony on appeal pertains to the
voluntariness of his interview statements, and the statement is
not relevant to voluntariness. His statements in the interview
were not in front of a jury or a judge. This generic advice
given by the officer to Anthony during the interview was not
sufficient to override Anthony’s will to resist making inculpa-
tory statements.
CONCLUSION
For the foregoing reasons, we affirm the judgment below.
Affirmed.