State v. White

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
State of Nebraska, appellee, v.
Quan A. White, appellant.
___ N.W.3d ___
Filed March 20, 2026. 	No. S-24-722.
1. Trial: Joinder: Proof: Appeal and Error. A denial of a motion to sever
will be reversed only if an abuse of discretion is shown that caused the
defendant substantial prejudice amounting to a miscarriage of justice.
2. Trial: Evidence: Appeal and Error. An appellate court’s review con-
cerning the admissibility of physical evidence, including foundation and
chain of custody issues, is for an abuse of discretion.
3. ____: ____: ____. An appellate court reviews the trial court’s conclu-
sions with regard to evidentiary foundation and witness qualification for
an abuse of discretion.
4. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested jury instruction, an
appellant has the burden to show that (1) the tendered instruction is a
correct statement of the law, (2) the tendered instruction was warranted
by the evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction.
5. Criminal Law: Joinder: Presumptions. A clear presumption exists in
favor of a joinder of offenses and against severance.
6. Trial: Joinder: Appeal and Error. Whether offenses were properly
joined involves a two-stage analysis: (1) whether the offenses were suf-
ficiently related so as to be joinable and (2) whether the joinder was
prejudicial to the defendant.
7. Trial: Joinder. Whether offenses are sufficiently connected together or
part of a common scheme or plan involves consideration of the totality
of the circumstances weighed in light of broadly construing permissive
joinder to promote trial economy and judicial efficiency.
8. Criminal Law: Words and Phrases. To be part of a common scheme
or plan, it is not necessary that all the crimes were specifically con-
templated before any one of them was committed; it is sufficient if the
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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
related crimes developed as events unfolded and in furtherance of the
group’s objectives.
9. Joinder: Proof. A defendant opposing joinder must meet a high burden
of proving prejudice therefrom by showing compelling, specific, and
actual prejudice from the court’s refusal to grant a motion to sever.
10. Joinder: Evidence. Cross-admissibility of evidence pertaining to joined
charges is only one consideration in determining prejudice.
11. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or
acts may be admitted under Neb. Rev. Stat. § 27-404(3) (Cum. Supp.
2024) where the evidence is so related in time, place, and circumstances
to the offense charged as to have substantial probative value in deter-
mining the accused’s guilt of the offense in question.
12. ____: ____. Inextricably intertwined evidence is not subject to Neb.
Rev. Stat. § 27-404 (Cum. Supp. 2024).
13. Criminal Law: Evidence: Other Acts. Evidence that is inextricably
intertwined includes evidence that forms part of the factual setting of
the crime, is so blended or connected to the charged crime that proof
of the charged crime will necessarily require proof of the other crimes
or bad acts, or is necessary for the prosecution to present a coherent
picture of the charged crime.
14. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
to the contrary, it is presumed that a jury followed the instructions given
in arriving at its verdict.
15. Joinder. The same general principles governing joinder of charges gov-
ern joinder of defendants.
16. Trial: Joinder: Evidence: Jury Instructions. Even when the risk of
prejudice from the admission of evidence in a joint trial is high, less
drastic measures than severance, such as limiting instructions, often will
suffice to cure any risk of prejudice.
17. Rules of Evidence: Proof. A proponent of evidence is not required to
conclusively prove the genuineness of the evidence or to rule out all
possibilities inconsistent with authenticity. If the proponent’s showing
is sufficient to support a finding that the evidence is what it purports
to be, the proponent has satisfied the requirement of Neb. Rev. Stat.
§ 27-901(1) (Reissue 2016).
18. Criminal Law: Evidence. Important to questions of chain of custody
are the nature of the exhibit, the circumstances surrounding its preser-
vation and custody, and the likelihood of intermeddlers tampering with
the object.
19. ____: ____. It is enough that the State establish the reasonable prob-
ability that the evidence was not compromised; after that, deficiencies

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
in the chain of custody go to the weight, not the admissibility, of
the evidence.
20. Evidence: Testimony. The testimony establishing an evidentiary chain
of custody must be sufficiently complete so as to render it improb-
able that the original item has been exchanged, contaminated, or tam-
pered with.
21. Witnesses. The amount of a witness’ prior experience that is sufficient
for an adequate foundation is left to the discretion of the trial judge.
22. Trial: Testimony. Lay testimony should be excluded whenever the point
is reached at which the trier of fact is being told that which it is itself
entirely equipped to determine.
23. Jury Instructions: Appeal and Error. It is not error for a trial court to
refuse a requested instruction if the substance of the proposed instruc-
tion is contained in those instructions actually given.
24. Criminal Law: Jury Instructions. When there is an applicable instruc-
tion in the Nebraska Jury Instructions, the court should usually give that
instruction to the jury in a criminal case.
25. Jury Instructions. An instruction which does not correctly state the law
or which is likely to confuse or mislead the jury should not be given.
Appeal from the District Court for Douglas County: Todd
O. Engleman, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Mary
Mullin Dvorak, Megan E. Jeffrey, and Samuel A. Raybine for
appellant.
Michael 	T. 	Hilgers, 	Attorney 	General, 	and 	Jacob 	M.
Waggoner for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Freudenberg, J.
I. INTRODUCTION
The appellant was convicted of 11 counts, including first
degree murder. He argues on appeal that the district court erred
in denying his motion to sever robbery and theft charges from
the other charges involving murder, assault, use of a weapon,

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
and discharging a firearm and that the court erred by denying
his motion to sever his trial from that of his codefendant, who
fired the weapon that killed the victim. Further, he asserts the
court should have added to the aiding and abetting instruction
that mere presence is insufficient to support a guilty verdict.
Lastly, he argues the court erred by failing to exclude (1)
evidence found in the suspect vehicle after a break in police
custody and (2) police testimony identifying him in video sur-
veillance. We affirm.
II. BACKGROUND
1. Charges
In relation to a series of gang-related events over the
course of several days in June 2021, Quan A. White was
charged in the operative third amended information with 11
counts: one count of murder in the first degree; one count of
assault in the first degree; two counts of discharging a firearm
at an inhabited house, occupied building, or occupied vehicle;
one count of theft by receiving $5,000 or more; one count of
robbery; and five counts of use of a deadly weapon (firearm)
to commit a felony. In the prior information, the robbery
count was a theft-by-receiving count and there were only four
weapons charges.
The robbery was alleged to have occurred on June 13, 2021.
The theft was alleged to have occurred on June 17. All the
other crimes were alleged to have occurred on June 16.
The State alleged that White was with Mariano Flores
and Nowa Kawunda from June 13 through 17, 2021, and
that the three committed all 11 crimes together. At the time
of the crimes, White and Flores were both 15 years old and
Kawunda was 14 years old. The State alleged that, on June
13, these three stole a four-door white sedan, a Volkswagen
Jetta, at gunpoint. Then, on June 16, using the Jetta, the three
committed a driveby shooting, killing one victim and wound-
ing another. They immediately proceeded to a second loca-
tion, where they exited the vehicle and fired upon an occupied

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
vehicle in the parking lot, leaving its owner and the occupant
of a nearby apartment with minor injuries. The three fled in
the Jetta and eventually stole the second vehicle, a Toyota
Scion, on June 17, when its owner left it unlocked and running
at a gas station. All three were apprehended on June 17 after
the owner of the Scion tracked it to the defendants’ location.
2. White and Flores’ Joint Trial
The district court granted the State’s motion for a joint
jury trial of White, Flores, and Kawunda. The court found
that the three defendants participated in the same series of
acts or transactions constituting the offenses charged. It also
found the defendants had failed to show compelling prejudice
from the joinder, noting the factual allegations were relatively
straightforward and any prejudice could be cured through
jury instructions.
Before trial, Kawunda entered into a plea agreement under
which he agreed to testify. Thereafter, White’s counsel moved
for the court, in its discretion, to sever his trial from Flores’
trial. Counsel argued White would be prejudiced by, among
other things, the admission of evidence from Flores’ phone,
which White’s counsel claimed would not otherwise be admis-
sible. For the same reasons the court granted the State’s motion
for a joint trial, the court denied White’s motion to sever the
trial of his case from that of his codefendant Flores.
3. Motion to Sever Theft Charges
The court also denied White’s counsel’s pretrial motion to
sever two theft charges from the other nine charges, which
motion was filed and argued before one of those theft charges
was amended to a robbery charge. White had asserted that
the thefts were not part of the same transaction or a common
scheme or plan involving the murder, assault, and firearm
charges and that the joinder of the theft charges would preju-
dice him because of the alleged lack of cross-admissibility if
the charges were tried separately.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
4. Evidence at Trial
(a) Robbery of Jetta
At trial, the evidence showed that law enforcement was
called to the scene of a carjacking around 3:30 a.m. on
Sunday, June 13, 2021, at a park with a swimming pool in
Omaha, Nebraska. The vehicle was a 2013 white Jetta with no
license plates.
The victim of the carjacking, Emmanuel Jacinto Franco,
testified that, before the carjacking, in the early morning hours
of Sunday, June 13, 2021, he was “cruising” with his teenaged
friends, Antonio Chavez-Ursino and Andrea Molina, in his
recently purchased Jetta. The Jetta still had an in-transit sticker
in the back windshield.
They picked up a friend of Molina’s, Selena Baker. Then
Baker asked if they could pick up her friend, Alexa Villegas.
Jacinto Franco thought they were just picking up Villegas; how-
ever, when they showed up, she was with three people later
identified as White, Flores, and Kawunda. All eight individu-
als squeezed into the Jetta. Jacinto Franco testified he had a
bad feeling he was being set up.
They all decided to go to a local swimming pool, even
though it was closed. The group was able to get into the pool
area, with different accounts of how that was accomplished.
The females swam in the pool while the males “were chilling.”
After a while, Kawunda asked Jacinto Franco if he could bor-
row his phone charger that was in the Jetta. Kawunda walked
with Jacinto Franco to the Jetta. Jacinto Franco retrieved the
charger and, when he turned around, was confronted with
Kawunda pointing a gun at him and demanding, “[G]ive me all
your stuff before I blow your head up.” When Jacinto Franco
refused, Kawunda hit him in the face with the gun. Jacinto
Franco complied, giving Kawunda his wallet, two phones, and
car keys. Kawunda drove away in the Jetta, stopping briefly to
retrieve White and Flores.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
(b) Hanks 2.0 Bar Shooting
Three days later, around 2 a.m. on Wednesday, June 16,
2021, “ShotSpotter,” a network of acoustic sensors strategi-
cally positioned around Omaha, detected a shooting at the
parking lot outside of the “Hanks 2.0” bar (Hanks) near 40th
Street and Ames Avenue.
During the shooting, Timothy Washington suffered rifle-
type gunshot wounds to his head, trunk, and left shoulder. The
wound to Washington’s head was almost instantaneously fatal.
Danaija Hunter, who was standing near Washington, was
injured from a rifle-type wound to her arm. ShotSpotter iden-
tified there were at least eight shots initially fired in rapid
succession, followed by a slight pause, and then multiple addi-
tional shots indicating return fire.
Hunter and her sister, Dajua Liggens, were at that location
for a friend’s birthday party. There was a food truck and music
playing in the parking lot, which was occupied by approxi-
mately 20 to 40 people. Some of those people belonged to the
“Crips” gang.
Liggens testified she was waiting in Hunter’s vehicle a few
feet from Hunter when a red car sped up Ames Avenue, made
a U-turn, and drove by the Hanks parking lot while its occu-
pants shot in their direction. People in the group at the park-
ing lot fired back. Liggens said she saw one of Washington’s
friends take a gun from Washington’s hand after he died.
Hunter testified she had her back to Ames Avenue and did not
see the vehicle.
(c) Shooting at Spencer East Projects
Seventeen minutes after the shooting at the Hanks parking
lot, ShotSpotter picked up another shooting in the Spencer East
Projects (Spencer East), a nearby housing complex.
During the shooting, gunfire entered an apartment where
Jamiaha McKaufman lived with her boyfriend and three young
children. McKaufman testified she was in bed with two of
her children when she heard shots and saw what looked

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
like firecrackers outside the window. As bullets “were fly-
ing through [their] bedroom,” she jumped out of bed, and her
boyfriend flipped the bed over to protect them. McKaufman
suffered a graze wound to her forehead.
Another victim, Mack Johnson, was in his vehicle in the
parking lot of Spencer East. He heard about 20 shots in total
and described that they were coming at him from two different
directions. He was able to roll to the floor of the vehicle to
protect himself. Johnson suffered a bullet graze across his head
and small wounds from broken glass fragments.
According to the testimony of Omaha police Det. Matei
Jackson, both the Hanks and Spencer East shootings occurred
in “notable Crip neighborhoods.”
(d) Ammunition Casings at the Scenes
Ammunition casings, 9-mm, .40-caliber, and 7.62×39-mm,
were found at the scene of the Hanks shootings. Angela Harder,
a senior forensic technician and firearm and toolmark exam-
iner, determined from these casings that there were at least four
different guns involved in the Hanks shooting.
Law enforcement found .40-caliber casings at the corner
in Spencer East where Kawunda was shooting in Johnson’s
direction. Several 7.62×39-mm casings, consistent with a
high-caliber rifle, as well as .45-caliber casings, were found
elsewhere at the scene of the Spencer East shooting. Harder
determined from the casings that three firearms were used in
the Spencer East shooting. She determined the 7.62×39-mm
casings found at both the Hanks and Spencer East shootings
had distinctive characteristics demonstrating they were from
ammunition fired in the same weapon. She could not find any
match between the .40-caliber casings at the two shootings.
(e) Theft of Scion
The day after the shootings, in the early morning hours of
Thursday, June 17, 2021, there was an auto theft reported at
a gas station near 137th and Q Streets in Omaha. The stolen
vehicle was a 2008 purple Toyota Scion. The Scion’s owner,

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
Kyra Parker, was on her way home after a shift as a bartender
and had left the Scion running and its doors unlocked while
she went into the gas station to buy water and a snack. When
she came back out, her Scion was gone. Parker had left her
phone and her keys with a tracking device in the Scion.
Parker was able to look at the gas station’s video surveil-
lance footage of the incident. It showed someone exit a white
vehicle, get in her Scion, and drive it away. Around noon that
same day, Parker, her mother, her younger brother, and her
younger brother’s friend decided to track down her missing
Scion using the tracking device and phone location informa-
tion. They gave law enforcement the location of the Scion and
proceeded to the Southside Terrace area, which was where the
tracking device indicated the Scion might be found.
Jackson testified that the Southside Terrace is a “notoriously
Blood neighborhood” and that the Bloods and Crips are rival
gangs. Parker’s party found three people driving around the
Southside Terrace area in Parker’s Scion. They were in contact
with the police and continued to follow the Scion until the
police arrived.
(f) Apprehension of White,
Flores, and Kawunda
Officer Brian Seaton arrived at the scene and found the
three people described had exited the Scion and were stand-
ing with several juveniles a short distance away. When Seaton
approached, the juveniles started walking away. Seaton and his
partner split up, as did the rest of the group. Three members
of the group went one direction, and the rest went another.
A police helicopter unit had been monitoring the situation,
and Seaton obtained from Parker’s group a description of the
people she saw in her Scion. The main person she described,
whom she also recognized from the surveillance video at the
gas station, was Kawunda. The helicopter unit kept a lookout
for the party matching Kawunda’s description and advised
that he and two other suspects had “take[n ]off running.”

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
The helicopter unit next advised that the three had entered
a white sedan and were driving out of the Southside Terrace
parking lot. Seaton stopped in the middle of the street. The
white sedan clipped the front end of Seaton’s cruiser and
continued fleeing. As the white sedan traveled over a nearby
bridge, it struck another vehicle. White, Flores, and Kawunda
exited the sedan and began running again. With law enforce-
ment boxing them in at both ends of the bridge, they were
finally apprehended.
When White, Flores, and Kawunda were arrested at the
scene, law enforcement seized two cell phones, one that was
found in the possession of White and the other that was in
Kawunda’s possession. Kawunda later testified that he did not
have his phone with him during any of the events in question
and instead was using Flores’ phone. Law enforcement also
found a blue latex glove on White.
(g) Search of Jetta and Jetta
Chain of Custody
The white sedan that law enforcement had been in pursuit
of was a Jetta with a missing gas cap and a missing hubcap.
Over White’s counsel’s objection, the State adduced evidence
that 7.62×39-mm ammunition casings, as well as a blue latex
glove, were found in the trunk of the Jetta. White’s counsel’s
objection renewed a pretrial motion in limine on lack of foun-
dation due to an alleged break in the chain of custody.
White’s foundation objection revolved around the fact that
the Jetta had been released to a car dealership for 2 weeks
before being reimpounded to conduct the search that finally led
to the discovery of the casings and the glove. In overruling the
objection, the trial court reasoned that chain of custody went to
the weight of the evidence, rather than its admissibility.
At trial, Lt. Owen Gregg testified he responded on June
17, 2021, to a call about a stolen vehicle and was involved
in the apprehension of White, Flores, and Kawunda on the
bridge near Southside Terrace. Gregg testified he stayed with

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
the Jetta on the bridge until another officer could arrive to
complete the “hands off tow” of the Jetta. Gregg testified a
“hands off tow” “means officers are not supposed to touch
or disturb anything in the vehicle, and it’s held in a secure
facility until an investigating unit can do what they would
like with it.”
Initial searches of the Jetta did not find anything of sig-
nificant evidentiary value. Sgt. Zachary Petrick, who was
assigned to the robbery unit of the Omaha Police Department
in June 2021, testified over defense counsel’s continuing
chain of custody objection that, on June 18, 2021, he and
another officer went to the police impound lot, where the
Jetta had been towed, to search the Jetta. Petrick explained he
could not fully search the trunk because the battery was dead
and there was consequently no way to open the trunk without
damaging it. Kimberly VanDenAkker, a criminologist, testi-
fied she processed the Jetta on July 2 at the City of Omaha
impound lot, checking it for prints and DNA in relation to a
felony assault. The Jetta was in an outdoor fenced area that
was locked. She could not open the trunk.
Det. Jordan Brandt explained that during the first two
searches, law enforcement had not yet connected the Jetta
robbery or the Scion theft to the shootings and were inves-
tigating a carjacking. He expressed frustration with the lack
of communication between the different divisions of law
enforcement, which led to that error. A search of a car for a
stolen car investigation is treated differently from a search
for a homicide investigation. As a result of failing to identify
the Jetta as the subject of a homicide investigation, on July
2, 2021, the Jetta was released by the assault or robbery unit
and, on July 26, towed to the dealership that had repossessed
it from Jacinto Franco.
At the dealership, the Jetta stayed on a large lot that was
surrounded by fencing with a locked gate. The only exception
to the Jetta’s being housed on the dealership lot was the last
day it was in the dealership’s possession, August 9, 2021. On

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321 Nebraska Reports
STATE v. WHITE
Cite as 321 Neb. 1
August 9, the Jetta was towed to the dealership’s mechanic’s
shop. A mechanic took it for two test drives, one around 3 p.m.
and the other around 4 p.m. The Jetta then remained parked
in front of the mechanic’s shop until it was towed back to
the police impound lot at around 7 p.m. At the hearing on the
motion in limine, Brandt acknowledged he had not interviewed
two other employees who had access to the keys to the gate’s
lock. Nor had he discussed with the mechanic the procedures,
if any, for limiting key access to the locked lot.
With the Jetta finally identified as part of a homicide
investigation, on August 12, 2021, forensic technician William
Talacko searched the Jetta. Though the battery was still dead,
Talacko persevered in his attempts to open the trunk, where he
found the latex glove and four fired 7.62×39-mm rifle ammuni-
tion casings.
No weapons were ever found. However, ballistics analysis
determined the casings in the Jetta were from ammunition fired
in the same weapon as the 7.62×39-mm casings found at the
Spencer East shooting. DNA testing concluded that Kawunda
could not be excluded as a major contributor to the mixture
of two individuals’ DNA detected in the glove, but White and
Flores were excluded.
At trial, defense counsel cross-examined Brandt about the
Jetta’s being out of police custody for 2 weeks. Defense coun-
sel also emphasized at trial that, before the search following
reimpoundment, “there was a driver in that Jetta, driving
it around.”
(h) Surveillance Footage and
Objections to Police
Jackson testified at trial to lay foundation for the admission
of surveillance videos taken from security cameras near loca-
tions connected with the crimes between June 16 and 17, 2021.
He also identified the occupants and described certain moments
depicted in the videos. Much of the video footage was grainy
or taken at odd angles, making certain details hard to see.

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STATE v. WHITE
Cite as 321 Neb. 1
The videos were entered into evidence without objection
and played for the jury. Jackson explained that he and other
law enforcement officers had canvassed the areas of the
Hanks and Spencer East shootings to obtain any surveillance
video. Jackson testified, without objection, that video from the
Spencer East location at the time of that shooting indicated
that a white Jetta was a “suspect vehicle lead.”
(i) Hanks Location
In relation to footage from the Hanks location, Jackson
testified that law enforcement was looking for “any vehicle
fleeing down Ames [Avenue],” going at a “high rate of speed.”
Jackson testified, without objection, that he was able to iden-
tify a vehicle consistent with a white Jetta. No red vehicles
were identified as being at the scene of the first shooting; nor
was any red vehicle seen in the surveillance footage.
During pauses of the video footage that was played for
the jury, Jackson elaborated, without objection, on the loca-
tions being shown and where the surveillance cameras were
located. During such pauses, without objection, he also tes-
tified as to some observations of what the footage showed.
Thus, Jackson testified that, shortly before the Hanks shoot-
ing, a white Jetta was captured by surveillance cameras travel-
ing eastbound on Ames Avenue. Soon thereafter, it was shown
traveling westbound on Ames Avenue, passing by the Hanks
parking lot when shots were first detected. After those shots
were fired, the Jetta continued westbound, which is the direc-
tion of Spencer East.
(ii) Southside Terrace Location
Before Shootings
Jackson also laid foundation for the admission, without
objection, of video surveillance from Southside Terrace in
the early morning of June 16, 2021, before the shootings. He
explained their investigation focused on Southside Terrace
after they learned of the pursuit there on June 17 involving a

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STATE v. WHITE
Cite as 321 Neb. 1
white Jetta, which ultimately resulted in the arrest of White,
Flores, and Kawunda, who were in the Jetta. Jackson testified
without objection that the Jetta matched the “distinguishing
characteristics” of the suspect vehicle at Spencer East, noting
the missing gas cap and hubcap. Jackson testified that White
lived at Southside Terrace at that time.
The Southside Terrace videos were played for the jury.
During pauses, Jackson testified, without objection, that the
footage showed a vehicle that looked like a white Jetta with a
missing gas cap and two people eventually exiting the vehicle.
In none of the other videos were the occupants visible.
Before Jackson testified further to identify who exited
the vehicle, White’s counsel objected, renewing a motion in
limine concerning police testimony about surveillance vid-
eos, which motion the court had overruled. The motion had
asserted that officers who were not firsthand eyewitnesses to
the events depicted in the videos should not be able to explain
to the jury what they believed the videos depicted. It also
asked that the officers not be permitted to identify the indi-
viduals portrayed in the videos.
In the motion in limine, White’s counsel argued such tes-
timony was inadmissible lay testimony under Neb. Rev. Stat.
§ 27-701 (Reissue 2016) and more unfairly prejudicial than
probative under Neb. Rev. Stat. § 27-403 (Reissue 2016). The
State responded that the officers’ knowledge of the areas in
question would assist in the jury’s ability to understand what
was being depicted; further, the officers should be allowed
to identify the people depicted in the videos based on their
familiarity with their characteristics and what they were
wearing when arrested.
The court overruled the objection to Jackson’s testimony at
trial, which objection defense counsel asked to be continuing.
Jackson then testified that the two people seen on surveil-
lance footage exiting the Jetta in Southside Terrace before
the shootings were White and Flores. Jackson noted their
unique clothing that became important to law enforcement

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STATE v. WHITE
Cite as 321 Neb. 1
later in their investigation. Photographs on White’s phone,
time-stamped June 16 and June 17, 2021, and entered into
evidence at trial, showed White and Flores wearing the same
clothing they were wearing in the surveillance footage.
Jackson testified that the surveillance video in Southside
Terrace before the Hanks shooting next showed White and
Flores exiting a building. From there, White and Flores entered
a sports utility vehicle (SUV) with multiple individuals. White
and Flores were driven in the SUV the short distance to where
they had parked the Jetta. About 30 minutes before the Hanks
shooting, White and Flores got into the Jetta and drove away,
with the SUV following. Hanks was about 10 minutes away by
car, traveling at the speed limit.
(iii) Spencer East Location
During pauses while playing for the jury surveillance foot-
age from Spencer East near the time of the shooting, Jackson
testified that a white Jetta with a missing gas cap could be
seen driving through the parking lot of Spencer East, pass-
ing where Johnson was parked in his vehicle, and eventually
leaving the camera’s view. Another video from Spencer East
showed a person Jackson identified as Kawunda, along with
another individual, emerging from the corner of a building
adjacent to where Johnson was sitting in his vehicle in the
parking lot. Jackson testified that the video next captured
several muzzle flashes from Kawunda’s location. Jackson tes-
tified that Kawunda and the other individual appeared to be
shooting in Johnson’s direction.
(iv) Southside Terrace Location
After Shootings
More surveillance video recorded after the Spencer East
shootings and played for the jury showed that the Jetta returned
to Southside Terrace. As Jackson described, four occupants
exited the Jetta, leaving it to roll into another vehicle while
they ran toward a building. The four then ran back toward the

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Jetta with an additional person, and all five got into the Jetta.
Subsequently, the five individuals exited the Jetta, separated
into two groups, and eventually met back up on the other side
of a building. Among those five individuals, Jackson identi-
fied White, Flores, and Kawunda.
(v) Phone Location Data and Photographs
The location data from White’s phone was entered into evi-
dence at trial. It showed that, in the early morning hours of
June 16, 2021, White traveled near an apartment complex in
a Crips neighborhood before stopping at a known “Trip set”
gang member’s address. Brandt testified that Kawunda was
a known member of the Trip set gang, which he described as
a “sect[]” of the Bloods.
White then proceeded to Hanks, where his phone location
showed him to be when ShotSpotter detected gunfire. After
the Hanks shooting, White’s phone took a convoluted route
toward the Spencer East housing project. White’s phone was
at Spencer East when ShotSpotter detected the second shoot-
ing. White’s phone was also detected near the west Omaha gas
station when the Scion was stolen.
White’s and Flores’ phones contained photographs taken
between June 13 and 17, 2021, which were entered into evi-
dence at trial. Additionally, White’s phone contained relevant
videos and Flores’ phone contained text message conversations
that occurred during the relevant time period, which videos
and messages were entered into evidence.
In a short video recording on June 15, 2021, White was in
the front seat of the Jetta and Flores was in the back. White
says at the end of the video, “‘Fuck the ops.’” Brandt testi-
fied that, from his experience as a police officer, including in
the gang unit, “ops” are “[n]eighborhoods that [gangs or their
members] feud with, other groups that they feud with.”
Brandt stated that in one photograph from June 15, 2021,
found on White’s phone, White is in the front passenger seat
of the Jetta, displaying a gang sign. He is pictured wearing

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the same clothing he was wearing in the surveillance videos.
In a second photograph from that date on White’s phone,
Flores is pictured also “throwing up a gang sign.” Brandt
recognized from the background that Flores was in Southside
Terrace. A third photograph shows Kawunda in the driver’s
seat of the Jetta. Other pictures show Flores and Kawunda in
the Jetta.
White’s counsel objected on relevance and § 27-403 grounds
to the admission of photographs and text messages from
Flores’ phone. Counsel’s motion was in relation to the pretrial
motion to sever White’s trial from Flores’ trial, which the court
had denied. The court overruled the objection.
The 	text 	message 	conversation 	on 	Flores’ phone 	was
between Flores and his brother on June 14, 2021. The brother
asked Flores, “‘Where y’all at?’” Flores responded that he was
on his way. Close to 1 a.m. on June 16, the messages indicate
Flores was on his way to meet up with his brother, and at
around 1:30 a.m., Flores texted, “[The] Boys [are] haf,” indi-
cating, according to Brandt, that the “police are out.” He then
texted, “Can’t do it” before a series of further messages.
A video from Southside Terrace around that time showed the
Jetta with a police cruiser behind it. Later the same morning,
Flores sent a text message to his brother asking him to “[c]heck
[an] Omaha scanner.”
A photograph on Flores’ phone from June 17, 2021, shows
the Scion’s steering wheel. Another photograph from June 16
shows Flores in Southside Terrace. In the photographs, Flores
was wearing clothing consistent with that depicted in the sur-
veillance videos.
(i) Kawunda’s Testimony
In his testimony at trial pursuant to his plea agreement,
Kawunda confirmed the evidence demonstrating the series of
events that began with the robbery of the Jetta and ended with
White’s, Flores’, and Kawunda’s apprehension on a bridge
near Southside Terrace. Kawunda testified that he, White, and

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Flores were “always together” during the days between June
13 and 17, 2021. He described that they were on the run dur-
ing that period and slept in the Jetta. Kawunda confirmed that
throughout that period, they took pictures of one another on
White’s and Flores’ phones.
Kawunda testified that on June 13, 2021, at the swimming
pool, White told him to rob Jacinto Franco and then discreetly
handed Kawunda a gun. Kawunda described the gun as a
“1911, 45 caliber.” Kawunda confirmed that once they had
stolen the Jetta, they went back to Southside Terrace. Kawunda
identified White and Flores in the surveillance video exiting
the Jetta in Southside Terrace before the shootings.
Kawunda testified that he, White, and Flores drove from
Southside Terrace to Hanks. Kawunda was the driver and was
still carrying the 1911 gun. Kawunda explained they wanted to
shoot at Crips because Crips were their rivals.
Kawunda could not recall if White had a firearm but testi-
fied that Flores had a “7[.]62 rifle.” According to Kawunda,
another party was in the car and carried a .38-caliber revolver.
Kawunda explained that they passed Hanks going one direc-
tion, saw the group of people there, made a U-turn, and, com-
ing back the other direction, started to shoot. They were not
targeting any particular person, just Crips.
Kawunda witnessed someone being shot, who Kawunda
later discovered to be Washington. Kawunda testified that he,
White, Flores, and Marion Harris all claimed responsibility for
shooting Washington.
From Hanks they went to Spencer East, where a “known
crowd of Crips hang out.” They saw somebody in a parked
vehicle who they thought might be a Crips member. They
parked and exited the Jetta, and Kawunda and Harris went one
direction while White and Flores went another direction.
Kawunda testified that he and Harris took shelter along the
outside wall of a Spencer East apartment building and shot at
the vehicle with Johnson inside. Kawunda stated that White
and Flores were also going to shoot, but that he did not know

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if they did. Kawunda identified himself in the surveillance
video shooting at Johnson from the shelter of an exterior wall
of a nearby building.
Kawunda 	testified 	that, 	after 	the 	shooting 	at 	Spencer
East, the group drove back to Southside Terrace in the Jetta.
Regarding the incident captured by surveillance video in
Southside Terrace when the Jetta rolled into another parked
car after the occupants’ hasty exit, Kawunda explained they
thought they were being fired upon. Kawunda identified White
and Flores in surveillance video exiting the Jetta after they
again parked.
Kawunda testified that, in the early morning hours of June
17, 2021, he, White, and Flores traveled in the Jetta to west
Omaha, where they stole the Scion. Kawunda was the one
who got into the Scion and drove it away, while White was
driving the Jetta. Kawunda testified they went to that area
of the city because they considered it an easier place to steal
vehicles, stating, “[P]eople leave their cars running out west.”
Kawunda testified the idea of stealing the Scion was “[a]ll of
[theirs].” They wanted to have a second vehicle.
According to Kawunda, he, White, and Flores then pro-
ceeded back to Southside Terrace. Later that day, while driv-
ing around in Southside Terrace in the Scion, they noticed
they were being followed. When they saw law enforcement
arrive, the three of them ran to the Jetta and drove off.
Kawunda was driving. After running into a police cruiser,
they continued to the bridge, where they became trapped and
were apprehended.
5. Jury Instructions and Verdicts
The court gave the jury 28 instructions. The court instructed
the jury numerous times throughout its instructions that the
jury must “separately consider the 11 crimes charged.”
In instruction No. 16, the court told the jury it must also
separately determine White’s and Flores’ guilt. The court
instructed: “[T]wo defendants are on trial here, each charged

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with more than one crime. You must come to a separate deci-
sion regarding each crime. In the same manner, you must come
to a separate decision regarding each defendant.”
Instruction No. 15 described aiding and abetting for the jury
as follows:
[White] can be guilty of a crime even though he
personally did not commit every act involved in the crime
so long as he aided someone else to commit it. [White]
aided someone else if:
(1) [White] intentionally encouraged or intentionally
helped another person to commit the crime; and
(2) [White] intended that the crime be committed; or
[White] knew that the other person intended to commit
the crime; and
(3) The crime in fact was committed by that other
person.
The court refused White’s proposed jury instruction that
differed from instruction No. 15 by adding that “[e]vidence
of mere presence, acquiescence, or silence is not enough to
sustain the State’s burden of proving [White] guilty.” White’s
proposed instruction stated:
[White] can be guilty of a crime even though he
personally did not commit every act involved in the crime
so long as he aided someone else to commit it.
[White] aided someone else if:
1. [White] intentionally encouraged or intentionally
helped another person to commit the crime; and
2. [White] intended that the crime be committed; or
[White] knew or expected that the other person intended
to commit the crime; and
3. The crime in fact was committed by that other
person.
Evidence of mere presence, acquiescence, or silence
is not enough to sustain the State’s burden of proving
[White] guilty.

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The jury returned verdicts against White of guilty on all
11 counts.
III. ASSIGNMENTS OF ERROR
On appeal, White assigns that the district court erred by (1)
denying his motion to sever the theft charges from the other
charges, (2) denying his motion to sever his trial from the trial
of his codefendant Flores, (3) denying his motion in limine to
exclude evidence for which the State had failed to maintain a
chain of custody, (4) denying his motion to exclude improper
opinion evidence regarding the content of surveillance videos,
and (5) declining to adopt his proposed instruction that his
mere presence was inadequate to sustain a guilty verdict.
IV. STANDARD OF REVIEW
[1] A denial of a motion to sever will be reversed only if an
abuse of discretion is shown that caused the defendant substan-
tial prejudice amounting to a miscarriage of justice. 1
[2] Our review concerning the admissibility of physical evi-
dence, including foundation and chain of custody issues, is 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] To establish reversible error from a court’s refusal to
give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction. 4
1 See State v. Corral, 318 Neb. 940, 20 N.W.3d 372 (2025).
2 See In re Interest of Kane L. & Carter L., 299 Neb. 834, 910 N.W.2d 789
(2018).
3 State v. Anthony, 316 Neb. 308, 4 N.W.3d 393 (2024).
4 State v. Haynie, 317 Neb. 371, 9 N.W.3d 915 (2024).

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V. ANALYSIS
On direct appeal, White contends that the district court
erred by overruling his motions to sever the theft and robbery
charges from the other nine charges and to sever his trial from
the trial of his codefendant Flores. He also argues the court
erred by refusing to exclude the evidence found in the trunk
of the Jetta and Jackson’s testimony during the surveillance
videos. Lastly, White asserts the district court erred because
it did not add his requested language to the jury instruction
on aiding and abetting. We address each of these arguments
in turn.
1. Joinder of Offenses
[5,6] We find no error in the district court’s order denying
White’s motion to sever the theft and robbery charges from the
remaining nine charges against him. A clear presumption exists
in favor of a joinder of offenses and against severance. 5 The
joinder or severance of charges for trial is governed by Neb.
Rev. Stat. § 29-2002 (Reissue 2016), which expresses a rule of
liberal joinder of offenses to achieve judicial economy and is
construed broadly in favor of joinder. 6 Section 29-2002 states,
in relevant part:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors, or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together
or constituting parts of a common scheme or plan.
. . . .
(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint . . . the court may order
5 State v. Corral, supra note 1.
6 Id.

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an election for separate trials of counts, indictments,
informations, or complaints . . . or provide whatever other
relief justice requires.
Thus, whether offenses were properly joined involves a two-
stage analysis: (1) whether the offenses were sufficiently
related so as to be joinable and (2) whether the joinder was
prejudicial to the defendant. 7
(a) Properly Joinable
[7] The June 13, 2021, Jetta robbery and June 17 Scion
theft were properly joinable because they were connected
with the shootings and part of White, Flores, and Kawunda’s
common scheme or plan to shoot Crips. The terms “con-
nected together” or “part[] of a common scheme or plan” in
§ 29-2002(1) usually come into play when offenses are com-
mitted over a period of time and in some way reasonably con-
nected, with the “common scheme or plan” element focusing
more on the motivation behind the crimes and the “connected
together” element focusing more on the time-space relation-
ship. 8 Whether offenses are sufficiently connected together or
part of a common scheme or plan involves consideration of
the totality of the circumstances weighed in light of broadly
construing permissive joinder to promote trial economy and
judicial efficiency. 9
Recently, in State v. Sawyer, 10 we affirmed the joinder of
two charges against the defendant, each pertaining to a differ-
ent driveby shooting in the same general area of Omaha 3 days
apart. We observed similarities between the two shootings and
their common scheme or plan to avenge a murder. 11
7 See id.
8 See id.
9 See id.
10 State v. Sawyer, 319 Neb. 435, 22 N.W.3d 650 (2025).
11 See id.

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While we have not had occasion to address stolen vehicles
before or after a shooting, other jurisdictions have. In Ex Parte
Scott, 12 for instance, the court held that a getaway car stolen
shortly after a murder was part of a common scheme or plan
and that therefore, a theft charge was properly joined with
the murder charge. Similarly, in State v. Taylor, 13 a charge of
murder was properly joined with two robbery counts where the
murder occurred as part of a plan to steal the murder victim’s
vehicle for use in the subsequent robberies.
[8] White points to the lack of direct evidence that he,
Flores, and Kawunda discussed any intent to steal cars as part
of any overarching plan or scheme. But such direct evidence is
not necessary. To be part of a common scheme or plan, it is not
necessary that all the crimes were specifically contemplated
before any one of them was committed; it is sufficient if the
related crimes developed as events unfolded and in furtherance
of the group’s objectives. 14
Considering the totality of the circumstances, it is reason-
able to infer a meaningful relationship between the initial rob-
bery of the Jetta, the two subsequent shootings, and the theft
of the Scion. It would have been difficult to conduct the shoot-
ings without a vehicle. And procuring a different vehicle after
the shootings would facilitate a plan to flee or hide.
We reject White’s suggestion that the period from June
13 to June 17, 2021, was too great a separation in time or
that the locations of the robbery and theft were too far from
those of the shootings or each other to permit all 11 crimes
to be “connected together” as contemplated in § 29-2002(1).
As Kawunda testified, he, White, and Flores were “always
together” during the days between June 13 and June 17, when
they were on the run as part of their scheme to shoot Crips.
The crimes were joinable.
12 Ex Parte Scott, 728 So. 2d 172 (Ala. 1998).
13 State v. Taylor, 364 Or. 364, 434 P.3d 331 (2019).
14 See State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

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(b) Compelling, Specific, and
Actual Prejudice
[9] If two or more offenses are properly joinable, courts
must next determine whether joinder would be prejudicial
to the defendant. 15 Under § 29-2002(3), even if prejudice is
shown, the determination as to any remedy that may be neces-
sary is left to the sound discretion of the district courts. 16 A
defendant opposing joinder must meet a high burden of prov-
ing prejudice therefrom by showing compelling, specific, and
actual prejudice from the court’s refusal to grant the motion to
sever. 17 This is not merely a better chance of acquittal in sepa-
rate trials or spillover of evidence from one count to another,
but an appreciable chance that the defendant would have had
for an acquittal in a severed trial. 18
[10] While prejudice from joinder cannot be shown if the
evidence of one charge would have been admissible in a sepa-
rate trial of another charge, the converse is not true. 19 Cross-
admissibility of evidence pertaining to joined charges is only
one consideration in determining prejudice. 20 We also consider
whether, to the extent not cross-admissible, the evidence for
one charge is sufficiently distinct from the evidence of the
other charge so the jury can keep the evidence pertaining to
each separate, rather than combining evidence of both to find
guilt it would not have found in a separate trial. 21
[11-13] White argues he suffered compelling, specific, and
actual prejudice because, pursuant to Neb. Rev. Stat. § 27-404
(Cum. Supp. 2024), in separate trials on the charges related
15 State v. Sanders, 15 Neb. App. 554, 733 N.W.2d 197 (2007). See, also,
e.g., State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
16 State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
17 See id.
18 See State v. Corral, supra note 1.
19 See id.
20 See id.
21 See id.

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solely to the robbery of the Jetta or the theft of the Scion,
evidence of the shootings would not have been admissible
and, likewise, in a separate trial of the other nine charges,
the car robbery and car theft would not have been admissible.
Evidence of other crimes, wrongs, or acts may be admitted
under § 27-404(3) where the evidence is so related in time,
place, and circumstances to the offense charged as to have
substantial probative value in determining the accused’s guilt
of the offense in question. 22 But “inextricably intertwined
evidence” is not subject to § 27-404. 23 Evidence that is inex-
tricably intertwined includes evidence that forms part of the
factual setting of the crime, is so blended or connected to
the charged crime that proof of the charged crime will nec-
essarily require proof of the other crimes or bad acts, or is
necessary for the prosecution to present a coherent picture of
the charged crime. 24 For the same reasons that we found the
evidence sufficient to show the Jetta robbery and Scion theft
were connected or part of a common scheme or plan to shoot
Crips and escape apprehension, we conclude the acquisition
of the two vehicles was inextricably intertwined with the
other nine charges.
[14] Moreover, limiting instructions often will suffice to
cure any risk of prejudice, 25 and the district court instructed
the jury multiple times that it must “separately consider the 11
crimes charged” when rendering its separate verdict on each
of the crimes. Absent evidence to the contrary, it is presumed
that a jury followed the instructions given in arriving at its
verdict. 26 White points to no evidence, other than that he was
found guilty, that the jury did not follow its instructions.
22 State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992).
23 State v. Lee, 304 Neb. 252, 271, 934 N.W.2d 145, 160 (2019).
24 Id.
25 See id.
26 State v. Barnes, 317 Neb. 517, 10 N.W.3d 716 (2024).

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White has not demonstrated improper joinder of the 11
charges or compelling, specific, and actual prejudice resulting
from the joinder of the charges. We turn next to the joinder of
White’s trial with that of Flores.
2. Joinder of Defendants
[15] Joinder of defendants, like joinder of charges, is gov-
erned by § 29-2002, and the same general principles governing
joinder of charges govern joinder of defendants. 27 There is a
preference for joint trials, 28 and White does not deny that he
and Flores were properly joined as participants in the same
series of acts or transactions constituting the charged offenses.
Nevertheless, White argues he suffered compelling, specific,
and actual prejudice from the joint trial such that the district
court abused its discretion by denying his request that it order
separate trials. We disagree.
More specifically, White argues he was prejudiced by the
admission of the text messages and photographs on Flores’
phone and the “notable difference in culpability and the qual-
ity of the State’s evidence against Flores as opposed to the
quality of the State’s evidence against White.” 29 On this lat-
ter point, White highlights the evidence linking Flores to the
rifle used to kill Washington and wound Hunter, asserting
there was less evidence connecting White to a weapon, which
makes White liable more under an aiding and abetting theory,
rather than as the principal. Although White repeatedly asserts
in a conclusory manner that this evidence would not have
been admissible had the court granted his motion to sever his
trial from Flores’ trial, he does not set forth any legal author-
ity for that premise.
27 See State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).
28 See State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
29 Brief for appellant at 18.

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A similar argument was rejected by this court in State v.
Smith. 30 We reasoned in Smith that since the State’s theory
was that the defendant aided and abetted the shooter, simi-
lar evidence would have been admissible in separate trials.
Therefore, the defendant was not prejudiced by being joined in
a trial of the person who allegedly fired the shots in a deadly
gang shooting. 31
[16] We are unpersuaded that the joint trial with Flores per-
mitted the introduction of evidence inadmissible in a separate
trial against White, which introduction was of such a nature
as to deprive White of an appreciable chance for an acquit-
tal he would have otherwise had. 32 Furthermore, even when
the risk of prejudice is high, “‘less drastic measures, such
as limiting instructions, often will suffice to cure any risk
of prejudice.’” 33 And the district court clearly instructed the
jury in White’s trial that it “must come to a separate decision
regarding each defendant.”
White has failed to show compelling, specific, and actual
prejudice from the district court’s refusal to grant the motion to
sever his trial from Flores’ trial. We hold that the district court
did not abuse its discretion in denying White’s motion to sever
the defendants’ trials.
3. Nonrenewal of Motions to Sever
The State urges this court to adopt a waiver rule requiring
the renewal of motions to sever at the close of all the evidence
at trial. We accept the State’s invitation and now hold that
a defendant must renew, at the close of all the evidence, a
motion to sever defendants or charges in order to preserve that
motion for appellate review beyond plain error. However, we
30 State v. Smith, supra note 28.
31 See id.
32 See id.
33 Id. at 869, 839 N.W.2d at 348, quoting Zafiro v. United States, 506 U.S.
534, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993).

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adopt this rule prospectively and do not apply it against White
in this appeal.
As the State points out, in State v. Corral, 34 we observed
secondary authority stating that if a defendant believes there
has been a prejudicial joinder of charges, it is not enough for
the defendant to file a pretrial motion to sever; the defendant
must renew the objection at the close of all the evidence, since
the prejudice depends on the evidence presented. In Corral,
we did not decide the defendant’s assigned error based on
waiver, however. Similarly, in State v. Garcia, 35 we observed
as a historical fact that the defendant did not renew his motion
to sever charges, but we did not decide the severance question
on that ground. As already stated, the same general principles
governing joinder of charges govern joinder of defendants. 36
We agree with those jurisdictions that require renewal of
a motion to sever at the close of all the evidence to pre-
serve the error for appellate review. 37 Among other things,
this has the benefit that the trial court reevaluates possible
prejudice from the joinder in light of all the evidence actually
adduced and not just in light of the evidence anticipated to be
adduced when the pretrial motion is made. This rule applies
prospectively to trials commenced after the date of the release
of this opinion.
4. Jetta Chain of Custody
We next address White’s argument that the court erred by
refusing to exclude evidence from the Jetta’s trunk. White
does not take issue with the testimony that the ammunition
casings found in the trunk were of the calibers described.
He does not take issue with the fact that the 7.62×39-mm
34 State v. Corral, supra note 1.
35 State v. Garcia, supra note 27.
36 See id.
37 See, e.g., U.S. v. Chavis, 296 F.3d 450 (6th Cir. 2002). See, also, Annot.,
19 A.L.R.6th 115 (2006).

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casings in the trunk were from ammunition fired in the same
weapon as the 7.62×39-mm casings found at the Spencer East
shooting. Rather, he argues the evidence was insufficient to
establish that the casings and the glove were in the trunk of
the Jetta when it was towed from the bridge. White asserts the
dealership’s security measures were “insufficient to maintain
the chain of custody for two weeks” 38 and implies the cas-
ings could have been nefariously placed in the Jetta while it
was in the custody of the dealership. White also repeatedly
emphasizes the lack of an explanation as to how the dealer-
ship’s mechanic was able to test-drive the Jetta, which was
otherwise found to be inoperable. White does not explain how
this relates to chain of custody, however.
[17] Neb. Rev. Stat. § 27-901 (Reissue 2016) does not
impose a high hurdle for authentication or identification, 39 and
our review concerning the admissibility of physical evidence,
including foundation and chain of custody issues, is for an
abuse of discretion. 40 A proponent of evidence is not required
to conclusively prove the genuineness of the evidence or to
rule out all possibilities inconsistent with authenticity. 41 If
the proponent’s showing is sufficient to support a finding that
the evidence is what it purports to be, the proponent has satis-
fied the requirement of § 27-901(1). 42 Section 27-901(1) pro-
vides, “The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is
what its proponent claims” (emphasis supplied). Whether there
38 Brief for appellant at 21.
39 See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
40 In re Interest of Kane L. & Carter L., supra note 2. See, also, State v.
Green, 238 Neb. 492, 471 N.W.2d 413 (1991); State v. Weible, 211 Neb.
174, 317 N.W.2d 920 (1982).
41 State v. Draganescu, supra note 39.
42 Id.

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is sufficient foundation to admit physical evidence is deter-
mined on a case-by-case basis. 43
[18-20] Important to questions of chain of custody are the
nature of the exhibit, the circumstances surrounding its preser-
vation and custody, and the likelihood of intermeddlers tamper-
ing with the object. 44 Considering the dealership’s custody to
be a missing link, White relies on our proposition that
[w]here objects pass through several hands before being
produced in court, it is necessary to establish a complete
chain of evidence, tracing the possession of the object
or article to the final custodian; and if one link in the
chain is missing, the object may not be introduced in
evidence. 45
It does not follow that the links in the chain of evidence must
be perfect. We agree with legal authority stating it is enough
that the State establish the reasonable probability that the evi-
dence was not compromised; after that, deficiencies in the
chain of custody go to the weight, not the admissibility, of
the evidence:
[T]he chain of custody need not be absolutely perfect.
The item need not be continually watched, a hand-to-hand
showing is not required, and proof of the exclusion of
every possibility that the evidence has been disturbed is
not required. . . . Although the party offering the evidence
need not rule out all possibility of tampering, the evi-
dence must not leave to conjecture who had it and what
was done with it. The chain of custody must strongly
43 State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
44 See State v. Apker, 204 Neb. 577, 284 N.W.2d 14 (1979).
45 State v. Weathers, 304 Neb. 402, 427, 935 N.W.2d 185, 204 (2019).
Accord, In re Interest of Kane L. & Carter L., supra note 2; State v. Grant,
293 Neb. 163, 876 N.W.2d 639 (2016); State v. Henderson, 289 Neb.
271, 854 N.W.2d 616 (2014); State v. Glazebrook, supra note 43; State v.
Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004); Priest v. McConnell, 219
Neb. 328, 363 N.W.2d 173 (1985); State v. Stickelman, 207 Neb. 429, 299
N.W.2d 520 (1980); State v. Bobo, 198 Neb. 551, 253 N.W.2d 857 (1977).

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suggest the exact whereabouts of the exhibit at all times,
and there must be reasonable assurances that the evidence
remained in an undisturbed condition. An advocate for
evidence must demonstrate with reasonable probability
that no tampering or substitution has occurred.
. . . .
Where 	reasonable 	assurances 	of 	the 	evidence’s
identity and unchanged condition exist or once the exact
whereabouts of the evidence are strongly suggested, any
defect or imperfections go to the weight of the evidence,
not 	to 	its 	admissibility. 	Thus, 	even 	when 	evidence
vulnerable to tampering is involved, once the state has
established the probability that the evidence was not
compromised, and unless the defendant shows actual
evidence of tampering or substitution, deficiencies in the
chain of custody go to the weight, not the admissibility,
of the evidence. 46
This is consistent with our prior statement that the testimony
establishing the chain of custody must be “sufficiently com-
plete” so as to render it “improbable” that the original item has
been exchanged, contaminated, or tampered with. 47
Applying these principles, in State v. Bradley, 48 we held that
the court did not err in admitting a gun as the purported mur-
der weapon over the defendant’s foundation objection raising
concerns over its chain of custody. These concerns centered
around missing information about the gun’s location from the
time the defendant asked his associate to retrieve it, that asso-
ciate’s giving it to the defendant’s brother, and the gun’s recov-
ery by law enforcement. The ballistics expert was unable to
positively identify the gun as the murder weapon. We held that
the defendant’s challenge to the chain of custody “goes merely
46 32A C.J.S. Evidence § 1045 at 84-86 (2020).
47 State on behalf of Joseph F. v. Rial, 251 Neb. 1, 11, 554 N.W.2d 769, 776
(1996).
48 State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).

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to the weight to be given to the evidence presented rather than
to the admissibility of that evidence.” 49
In this case, each link in the chain tracing the possession
of the Jetta was established with a reasonable probability that
the evidence was not compromised. The Jetta was supervised
until it was towed to the police impound lot, where it stayed
until towed to the dealership’s lot, where it stayed until towed
to the dealership’s mechanic’s shop on the same day law
enforcement later had it towed back to the police impound-
ment lot. At the mechanic’s shop, the mechanic took the Jetta
for two test drives; otherwise, it was parked directly in front
of the shop.
As the district court noted, White’s criticism of the dealer-
ship’s security measures went to the weight of the evidence and
not its admissibility. Indeed, White’s counsel was able to point
out these issues at trial. The court did not abuse its discretion
in admitting into evidence the ammunition casings and the
glove found in the Jetta’s trunk.
5. Surveillance Video Testimony
We next address White’s argument that the district court
erred by denying his motion to exclude “improper opinion
evidence” 50 regarding the content of surveillance video. White
argues Jackson’s testimony describing highlighted moments
of the surveillance videos was improper opinion testimony
under § 27-701.
White’s argument focuses on Jackson’s identification of
White, Flores, and Kawunda when visible in the videos. He
suggests that because Jackson became familiar with White’s,
Flores’, and Kawunda’s appearances during his investigation,
rather than before the crimes, Jackson was no more likely than
the jury to correctly identify them, making Jackson’s identi-
fication inadmissible under § 27-701. White also argues such
49 Id. at 395, 461 N.W.2d at 541-42.
50 Brief for appellant at 23.

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testimony was more prejudicial than probative under § 27-403,
but did not specifically assign that the district court erred by
denying his motion in limine on § 27-403 grounds. Therefore,
we do not address that point. 51
[21] An appellate court reviews the trial court’s conclusions
with regard to evidentiary foundation and witness qualification
for an abuse of discretion. 52 The amount of a witness’ prior
experience that is sufficient for an adequate foundation is left
to the discretion of the trial judge. 53 Section 27-701 provides:
If the witness is not testifying as an expert, [the
witness’] testimony 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 [the witness’]
testimony or the determination of a fact in issue.
(Emphasis supplied.)
[22] We have accordingly held that lay testimony should
be excluded whenever the point is reached at which the trier
of fact is being told that which it is itself “entirely equipped”
to determine. 54 In such a case, the lay testimony is not help-
ful. Other courts have explained that for identification lay
testimony by a police officer to be admissible, there must be,
under the totality of the circumstances, some basis for find-
ing that the officer is more likely than the jury to correctly
identify the person or persons in surveillance video; how-
ever, no particular factor is necessarily decisive. 55 Thus, it is
not necessarily decisive whether the officer became familiar
51 See State v. Kruger, 320 Neb. 361, 27 N.W.3d 398 (2025).
52 State v. Anthony, supra note 3.
53 Id.
54 State v. Boppre, 234 Neb. 922, 952, 453 N.W.2d 406, 429 (1990).
55 See, U.S. v. Anderson, 783 F.3d 727 (8th Cir. 2015); U.S. v. Mendiola, 707
F.3d 735 (7th Cir. 2013); People v. Thompson, 2016 IL 118667, 49 N.E.3d
393 (2016), 401 Ill. Dec. 5. See, also, State v. Ramos, 319 Neb. 511, 23
N.W.3d 640 (2025).

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with the defendant before or at the time of the recording as
opposed to after. 56 Nor is identification testimony necessar-
ily limited to those instances either where the defendant’s
appearance has changed between the times of the recording
and trial or where the recording lacks clarity to render such
testimony admissible. 57
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. 58 We hold that
the district court did not abuse its discretion in determin-
ing that Jackson’s testimony identifying White, Flores, and
Kawunda was sufficiently helpful to the jury to be admissible.
Jackson was able to spend more time reviewing the videos,
which were difficult to decipher, and he was familiar with the
defendants’ clothing and other distinguishing characteristics
when they were arrested.
Even if this lay opinion testimony were not admissible,
Jackson’s identification was cumulative of Kawunda’s testi-
mony identifying White and Flores in the surveillance video
exiting the Jetta in Southside Terrace before the shootings, as
well as exiting the Jetta at Southside Terrace after the shoot-
ings, when it rolled into another vehicle.
To the extent White argues the district court erred in allowing
Jackson to describe the movements depicted in the videos, this
testimony was based on Jackson’s investigation of the crimes
and familiarity with the areas in question. Moreover, much of
that testimony occurred before defense counsel objected, and
thus, any argument under § 27-701 was forfeited. 59
56 People v. Thompson, supra note 55.
57 Id.
58 State v. Anthony, supra note 3.
59 See State v. Horne, 315 Neb. 766, 1 N.W.3d 457 (2024).

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6. Requested Instruction
on Mere Presence
[23-25] Lastly, we address White’s argument that the dis-
trict court erred by refusing to adopt his proposed instruction
on aiding and abetting, which added that mere presence is
inadequate to sustain a guilty verdict. To establish revers-
ible error from a court’s refusal to give a requested jury
instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2)
the tendered instruction was warranted by the evidence, and
(3) the appellant was prejudiced by the court’s failure to give
the requested instruction. 60 It is not error for a trial court to
refuse a requested instruction if the substance of the proposed
instruction is contained in those instructions actually given. 61
When there is an applicable instruction in the Nebraska Jury
Instructions, the court should usually give that instruction to
the jury in a criminal case. 62 An instruction which does not
correctly state the law or which is likely to confuse or mislead
the jury should not be given. 63
In State v. Haynie, 64 we recently addressed a virtually iden-
tical aiding and abetting instruction, which we explained is
based on NJI2d Crim. 3.8, and the defendant’s argument
that the court erred by denying his request to add the language
that “‘[e]vidence of mere presence, acquiescence, or silence
is not enough to sustain the State’s burden of proving guilt
beyond a reasonable doubt.’” 65 We held in Haynie that the
district court did not err in refusing the defendant’s requested
instruction, because the instruction given sufficiently informed
60 State v. Haynie, supra note 4.
61 First Nat. Bank North Platte v. Cardenas, 299 Neb. 497, 909 N.W.2d 79
(2018).
62 State v. Haynie, supra note 4.
63 Id.
64 Id. See, also, State v. Glantz, 251 Neb. 947, 560 N.W.2d 783 (1997).
65 State v. Haynie, supra note 4, 317 Neb. at 378, 9 N.W.3d at 921.

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the jury that an individual not at all involved in the crime yet
at the scene could not be found guilty of aiding and abetting.
Furthermore, adding the “‘mere presence’” language would
only confuse and mislead the jury. 66 We likewise hold here
that the district court did not err in refusing White’s suggested
addition to NJI2d Crim. 3.8.
VI. CONCLUSION
After considering the matter and concluding that we dis-
agree with White’s assignments of error, we affirm White’s
convictions and sentences.
Affirmed.
66 See id.