State v. Edwards

with directions to consider and decide whether the garnishment
proceeding is barred by any of the alternative defenses asserted
by EMC and Gas ’N Shop. This determination should be made
on the existing record, unless the parties agree that the record
may be reopened and expanded. We express no opinion as to
the merit of any of the defenses.
CONCLUSION
For the reasons discussed, we reverse the judgment of the
district court and remand for further proceedings as directed in
this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
WRight, J., participating on briefs.
connolly, J., not participating.
state of nebRaska , appellee , v.
chRistopheR a. edWaRds , appellant.
767 N.W.2d 784
Filed July 10, 2009. 	No. S-07-678.
1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact.
2. Convictions: Evidence: Appeal and Error. An appellate court will affirm a
criminal conviction absent prejudicial error, if the evidence admitted at trial,
viewed and construed most favorably to the State, is sufficient to support the
conviction.
3. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing for
sufficiency of the evidence to sustain a conviction, the relevant question for an
appellate court is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
4. Criminal Law: Words and Phrases. The corpus delicti is the body or substance
of the crime—the fact that a crime has been committed, without regard to the
identity of the person committing it.
5. ____: ____. Corpus delicti is composed of two elements: the fact or result
forming the basis of a charge and the existence of a criminal agency as the
cause thereof.
STATE v. EdWArdS 	55
Cite as 278 Neb. 55
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

6. Criminal Law: Circumstantial Evidence: Proof. While the corpus delicti must
be established by evidence beyond a reasonable doubt, it may be proved by either
direct or circumstantial evidence.
7. Criminal Law: Homicide: Proof. In a homicide case, corpus delicti is not estab-
lished until it is proved that a human being is dead and that the death occurred as
a result of the criminal agency of another.
8. ____: ____: ____. The body of a missing person is not required to prove the
corpus delicti for homicide.
9. Homicide: Circumstantial Evidence: Proof: Convictions. In the absence of a
body, confession, or other direct evidence of death, circumstantial evidence may
be sufficient to support a conviction for murder.
10. Proof of Death. Neb. rev. Stat. § 30-2207 (reissue 2008) sets forth the evidence
that can be used to prove the fact of death in proceedings under the Nebraska
Probate Code, not the Nebraska Criminal Code.
11. Proof of Death: Circumstantial Evidence: Limitations of Actions. Neb. rev.
Stat. § 30-2207 (reissue 2008) does not preclude the establishment of death by
circumstantial evidence before the expiration of the 5-year statutory period.
12. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
13. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
14. Jury Instructions: Appeal and Error. To establish reversible error from a
court’s refusal to give a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the law, (2) the tendered
instruction is warranted by the evidence, and (3) the appellant was prejudiced by
the court’s refusal to give the tendered instruction.
15. Statutes: Intent. Statutes which effect a change in the common law are to be
strictly construed.
16. Rules of Evidence: Proof of Death. The Uniform determination of death Act
does not establish a rule of evidence requiring that in all cases involving an
alleged decedent, the fact of death must be medically established.
17. Trial: Expert Witnesses. Under the Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), jurisprudence, the trial
court acts as a gatekeeper to ensure the evidentiary relevance and reliability
of an expert’s opinion. This gatekeeping function entails a preliminary assess-
ment whether the reasoning or methodology underlying the testimony is valid
and whether that reasoning or methodology properly can be applied to the facts
in issue.
18. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
19. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews the
record de novo to determine whether a trial court has abdicated its gatekeeping
function when admitting expert testimony.
20. Trial: Evidence: Expert Witnesses. To aid the court in its evaluation of the
relevance and reliability of an expert’s opinion, it may consider several factors,
56 	278 NEbrASkA rEPOrTS

including but not limited to whether the reasoning or methodology has been
tested and has general acceptance within the relevant scientific community.
21. ____: ____: ____. Once the reasoning or methodology of expert opinion testi-
mony has been found to be reliable, the court must determine whether the meth-
odology was properly applied to the facts in issue. In making this determination,
the court may examine evidence to determine whether the methodology was
properly applied and whether the protocols were followed to ensure that the tests
were performed properly.
22. Courts: Expert Witnesses. Whether a theory or technique has been subjected to
peer review is a factor a court may consider in making its gatekeeping determina-
tion whether expert opinion testimony is relevant and reliable.
23. ____: ____. A factor the court may consider in making its gatekeeping deter-
mination whether expert opinion testimony is relevant and reliable is whether a
particular theory or technique has a high known or potential rate of error.
24. Rules of the Supreme Court: Records: Appeal and Error. Neb. Ct. r. App.
P. § 2-109(d)(1)(f) and (g) requires that factual recitations be annotated to the
record, whether they appear in the statement of facts or argument section of a
brief. The failure to do so may result in an appellate court’s overlooking a fact
or otherwise treating the matter under review as if the represented fact does
not exist.
25. Expert Witnesses. While a “reasonable degree of professional certainty” is the
preferred form of an expert’s opinion, the testimony should be excluded only
where it gives rise to conflicting inferences of equal degree of probability such
that the choice between them is a matter of conjecture.
26. Expert Witnesses: Words and Phrases. Expert testimony need not be couched
in the magic words “reasonable certainty” or “reasonable probability,” but must
be sufficiently definite and relevant to provide a basis for the fact finder’s deter-
mination of an issue or question.
27. Expert Witnesses. An expert’s opinion is to be judged in view of the entirety of
the opinion, and it is not validated or invalidated solely on the presence or lack of
the words “reasonable degree of professional certainty.”
28. Criminal Law: Motions for Continuance: Appeal and Error. A decision
whether to grant a continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion.
29. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
30. Motions for Continuance: Appeal and Error. There is no abuse of discretion by
the court in denying a continuance unless it clearly appears that the party seeking
the continuance suffered prejudice as a result of that denial.
31. Trial: Motions for Continuance: Time. A trial court is vested with wide discre-
tion in disposing of a motion for continuance filed on the eve of trial.
32. Motions for Continuance: Appeal and Error. Where due diligence by the
moving party has not been shown, the ruling of the trial court overruling a
motion for a continuance for the purpose of securing additional evidence will not
be disturbed.
STATE v. EdWArdS 	57
Cite as 278 Neb. 55

33. 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 determin-
ing admissibility.
34. Judges: Appeal and Error. The exercise of judicial discretion is implicit in
determining the relevance of evidence, and a trial court’s decision regarding rele-
vance will not be reversed absent an abuse of discretion.
35. Trial: Evidence. The concept of “opening the door” is a rule of expanded rele-
vancy which authorizes admitting evidence which otherwise would have been
irrelevant in order to respond to (1) admissible evidence which generates an issue
or (2) inadmissible evidence admitted by the court over objection.
36. Trial: Rebuttal Evidence. The concept of “opening the door” is most often
applied to situations where evidence adduced or comments made by one party
make otherwise irrelevant evidence highly relevant or require some response
or rebuttal.
37. Trial: Evidence. “Opening the door” is simply a contention that competent
evidence which was previously irrelevant is now relevant through the opponent’s
admission of other evidence on the same issue.
38. Constitutional Law: Criminal Law. A criminal defendant has no constitutional
right to inquire into irrelevant matters.
Appeal from the district Court for douglas County: J Russell
deRR, Judge. Affirmed.
denise E. Frost, of Johnson & Mock, Steven J. Lefler, of
Lefler Law, and Matthew Higgins for appellant.
Jon bruning, Attorney General, and kimberly A. klein for
appellee.
heavican, 	c.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
geRRaRd, J.
I. NATUrE OF CASE
Jessica O’Grady was last seen on May 10, 2006, leaving
her apartment on her way to Christopher A. Edwards’ house.
O’Grady has not been heard from since, by friends or family,
and her body has never been found. but O’Grady’s blood was
found in Edwards’ bedroom, on the mattress and walls, and
on a weapon found in his closet. And O’Grady’s blood was
found in the trunk of Edwards’ car. Edwards was convicted
of second degree murder and use of a deadly weapon for kill-
ing O’Grady. The primary issue presented in this appeal is
58 	278 NEbrASkA rEPOrTS

whether the evidence was sufficient to prove that O’Grady
was murdered.
II. bACkGrOUNd
1. o’gRady’s life and disappeaRance
After graduating from high school in Omaha, Nebraska,
O’Grady moved into an apartment with her friends Holly
Stumme and Tracy Christianson, and at the time of her disap-
pearance, she was working at a steakhouse in west Omaha.
Shauna Stanzel, O’Grady’s aunt, testified that she and O’Grady
were very close and that O’Grady had lived with her for a time
as a child. Stanzel said she spoke with O’Grady on a daily
basis and agreed that it was “sort of a habit” that they “would
call each other daily.”
Stumme had been friends with O’Grady since they were
both in the fifth grade. O’Grady and Stumme socialized
together and talked and text-messaged “all the time.” They saw
each other every day and also spoke on the telephone often.
Stumme testified that Edwards worked at the same steakhouse
as O’Grady and that O’Grady spoke to her about Edwards
on a regular basis. Stumme and Christianson both described
a particular evening in April 2006 on which Edwards came
over to O’Grady, Stumme, and Christianson’s apartment, and
O’Grady and Edwards were “flirting.” Edwards was still there
when Stumme went to bed, and the next morning, his clothing
was still in the living room and his shoes were still by the door.
Stumme and Christianson also said that Edwards had been at
their apartment on May 9, 2006, the day before O’Grady was
last seen.
Stanzel last saw O’Grady on Wednesday, May 10, 2006, after
a softball game. Stumme and Christianson last saw O’Grady on
the evening of May 10, when they and some other friends met
at their apartment. O’Grady was using her cellular telephone
to send and receive text messages and had been talking about
Edwards throughout the evening. Then after O’Grady received
a telephone call, she took a shower, fixed her hair, put on
makeup, and left at about 11 or 11:15 p.m. As she left, she told
Stumme and Christianson “to wish her luck, she was going to
Chris’ [residence]” and would see them later.
STATE v. EdWArdS 	59
Cite as 278 Neb. 55

keri Peterson, another friend of O’Grady’s, said she and
O’Grady routinely spoke on the telephone a “[c]ouple times a
day.” It was “unusual” for the two of them not to talk to one
another in the course of a day. They last spoke at about 11:30
p.m. on the evening of May 10, 2006, when O’Grady called
Peterson. O’Grady told Peterson that she was in her car, on her
way to Edwards’ residence. Peterson received a text message
from O’Grady about an hour later that said, “No shenanigans
for Jessica.” Peterson explained that this was “code” for “no
sex for Jessica.” Peterson did not reply and was unable to reach
O’Grady the next day.
The next day, Stumme was also unable to reach O’Grady,
and by Friday, when O’Grady still had not come home, Stumme
became concerned. Stumme went and talked to Stanzel. Stanzel
had called O’Grady on Thursday and left a message, and she
tried again on Friday. After speaking to Stumme, Stanzel con-
tacted O’Grady’s mother to see if she had heard from O’Grady.
O’Grady’s mother had not heard from her, so Stanzel’s hus-
band called the police.
After O’Grady failed to show up for a Sunday softball
game, Stanzel met O’Grady’s friends at O’Grady, Stumme, and
Christianson’s apartment. All of O’Grady’s personal effects
were still there, as was her cat. Stumme described O’Grady
as very attached to her cat, explaining that O’Grady “would
feed [her cat] everyday [sic] and any time she went out of
town she would almost make me sign something saying that
I was going to take care of [her cat].” Christianson similarly
said that O’Grady held her cat all the time and called the cat
“her baby.”
Stanzel also went to the restaurant where O’Grady worked
and discovered that O’Grady had not picked up her last pay-
check. While she was there, Stanzel spoke to Edwards, who
said he had not heard from O’Grady since May 9, 2006.
Edwards said that he and O’Grady had planned to get together
on May 10, but that he had canceled those plans.
Stanzel never heard from O’Grady again. The last charge to
O’Grady’s bank account, other than a single regularly recur-
ring charge, occurred on May 10, 2006. O’Grady’s vehicle
was found in a parking lot across the street from the restaurant
60 	278 NEbrASkA rEPOrTS

where O’Grady worked, about a block and a half away.
O’Grady’s cellular telephone records reflect a pattern of mak-
ing and receiving several telephone calls each day, including
daily calls to and from Stumme and Peterson. Those records
show that O’Grady’s last two telephone calls occurred on the
evening of May 10: an 11:29 p.m. call to Peterson and an
11:48 p.m. call to Edwards. O’Grady made no telephone calls
after 11:48 p.m. on May 10. All the witnesses who testified
about calling O’Grady after May 10 reported that their calls
were immediately forwarded to O’Grady’s voice mail, and
O’Grady’s telephone records indicated that all the calls made
to O’Grady after May 10 were forwarded.
2. edWaRds’ activity befoRe o’gRady’s disappeaRance
Michelle Wilkin met Edwards while they were working at
the same restaurant in March 2005. They became friends, then
developed a romantic relationship. Wilkin became pregnant
with Edwards’ child in January 2006. Their romantic relation-
ship was purportedly exclusive. Wilkin recalled that on the
evening of May 8, she and Edwards had a serious conversation
about getting married. but later, when Wilkin became aware
that Edwards was being investigated with respect to O’Grady’s
disappearance, she asked him why the police were interested
in him. Edwards admitted to Wilkin that he and O’Grady had
slept together. Wilkin testified that Edwards had told her “at
some point that he had heard [O’Grady] was pregnant.” but
Wilkin said Edwards told her that after Wilkin and Edwards
had discussed marriage, he had met with O’Grady at his
house to tell O’Grady that he and O’Grady would no longer
be involved.
riley Wasserburger, a friend of Edwards since high school,
said that he, Edwards, and Alex Ehly played golf together dur-
ing the evening of May 10, 2006. Wasserburger said that during
the course of the game, Edwards said that “he made a mistake,
that he got a girl pregnant.” Wasserburger could not remember
the girl’s name. Ehly testified that Edwards had previously
told Ehly that he had gotten a girl named “Michelle” pregnant,
but admitted that he did not hear the conversation between
Edwards and Wasserburger. Then Wasserburger, Edwards, and
STATE v. EdWArdS 	61
Cite as 278 Neb. 55

some other friends went to a movie, which ended at about
11:30 p.m. There was some discussion of going to play poker,
but Edwards decided against it, and went to do something
else, alone.
3. investigation into o’gRady’s disappeaRance
Omaha police interviewed Edwards in the course of speak-
ing to anyone who had contact with O’Grady in the days
before her disappearance. The police obtained permission to
search Edwards’ bedroom at his aunt’s house, where he lived.
When an Omaha police detective began to approach the bed,
Edwards said he was “‘not sure’” he wanted police “‘checking
that area.’” Police suggested that O’Grady might have hidden
a note under the mattress, where Edwards would find it later.
Edwards said that “‘[made] sense’” to him and permitted the
search to continue.
Spattered blood was found on the nightstand, headboard,
clock radio, and ceiling above the bed. Edwards was asked to
explain the bloodstains on the headboard and clock, and replied
that “he had cut his wrist.” A small bloodstain was located on
the top of the mattress. Edwards was asked about the blood-
stain and replied that “he had intercourse with a girlfriend who
was menstruating.” but on further investigation, a very large,
damp bloodstain was found on the underside of the mattress,
covering most of the bottom side of the mattress. bloodstains
were later found on the bedding, a chair in the room, a book-
case, and laundry baskets. Luminol, a chemical used to locate
where blood has been cleaned up, was applied to the walls of
the room. The Luminol suggested blood on large areas of the
south and west walls. Stains that appeared to be blood were
found on the ceiling, covered up by white paint.
A short sword was found in Edwards’ closet. blood was
found on the sword. A shovel and a pair of garden shears were
found in Edwards’ vehicle. A bloodstain was found on the
handle of the garden shears. More bloodstains were found on
the trunk gasket of the car and on the underside of the trunk
lid. A black, plastic trash bag was found in the garage next to
the vehicle. The bag contained two bloodstained towels and
a receipt from a drugstore in west Omaha. Edwards had been
62 	278 NEbrASkA rEPOrTS

videotaped purchasing poster paint, white shoe polish, and cor-
rection fluid at that drugstore on May 11, 2006, at 7:41 p.m.
The poster paint was chemically identical to that found on
Edwards’ ceiling.
dNA profiles were recovered from blood on the headboard,
ceiling, walls, and sword, and from the trunk of Edwards’
car. The profile was consistent with O’Grady’s dNA profile.
Specifically, the chances of another unrelated Caucasian per-
son having the same dNA profile were 1 in 26.6 quintillion.
Edwards was excluded as a dNA contributor to nearly all of the
samples. dNA profiles were also recovered from blood found
on the mattress and were also consistent with O’Grady’s dNA
profile. The odds of another, unrelated Caucasian person hav-
ing the same dNA profiles ranged from 1 in 15.6 billion to 1 in
46.5 quintillion. A partial profile was obtained from blood on
the garden shears, also consistent with O’Grady’s dNA profile;
the chance of another, unrelated Caucasian contributor having
the same dNA profile was 1 in 3.81 trillion. dNA profiles
obtained from blood on the towels found in the garage next to
Edwards’ car were also consistent with O’Grady’s dNA profile;
the odds of another, unrelated Caucasian person contributing
the dNA found on one of the towels were 1 in 1.96 quintillion,
and for the other towel were 1 in 26.7 billion.
A laptop computer was seized from Edwards’ bedroom.
Forensic examination of the computer revealed that at 2:26
p.m. on May 9, 2006, someone had used that computer to
perform Internet research on the human body. Specifically, a
Google search had been performed for the term “arteries.” The
user had then viewed the first search result, a diagram of the
human arterial system.
Stuart James, a forensic consultant, performed an analysis
of the bloodstains found in the bedroom and car. James tes-
tified that the bloodstain on the mattress was a “saturation
stain,” meaning a volume of blood had been deposited on the
surface of the mattress and had soaked into the fabric. James
opined that a “significant bloodshed event” had occurred on or
close to the mattress. James also opined that the source of the
blood spattered on the headboard was over or close to the top
of the mattress. And James opined, from the pattern of blood
STATE v. EdWArdS 	63
Cite as 278 Neb. 55

spattered on the ceiling, that it was “cast-off” blood from seven
individual swings of an object wet with blood. The stains were
more consistent with a thin object, such as the sword found
in Edwards’ closet, than with a broad object. James opined
that the bloodstains in the trunk of Edwards’ car, on the gar-
den shears found in Edwards’ car, and on the towels found in
the garage were transfer stains, produced by contact with a
bloody surface.
4. edWaRds is chaRged and convicted
Edwards was charged by information with murder in the
second degree and use of a deadly weapon to commit a felony.1
Edwards was convicted, pursuant to jury verdict, of both
charges. He was sentenced to a term of 80 years’ to life impris-
onment for second degree murder and a term of 20 to 20 years’
imprisonment on the deadly weapon conviction, sentences to
be served consecutively.2 Edwards appeals.
III. ASSIGNMENTS OF ErrOr
Edwards assigns, consolidated and restated, that the trial
court erred in (1) not dismissing the charges because the evi-
dence was insufficient; (2) refusing his proffered jury instruc-
tion defining “death”; (3) admitting testimony from the State’s
experts regarding dNA evidence; (4) overruling his motion to
continue trial; and (5) refusing to permit him to adduce evi-
dence of a nearly empty package of birth control pills found
in O’Grady’s car, a relationship with another man in which
O’Grady allegedly became pregnant and induced a miscar-
riage with birth control pills, and testimony that O’Grady
was pregnant by another man but “wanted” Edwards to be
the father.
IV. ANALySIS
1. sufficiency of evidence
[1-3] Edwards assigns that the court erred in not dismissing
the charges because the evidence was insufficient. In reviewing
1 See Neb. rev. Stat. §§ 28-304 and 28-1205 (reissue 2008).
2 See, id.; Neb. rev. Stat. § 28-105 (Cum. Supp. 1998).
64 	278 NEbrASkA rEPOrTS

a sufficiency of the evidence claim, whether the evidence is
direct, circumstantial, or a combination thereof, the standard is
the same: An appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the
evidence; such matters are for the finder of fact.3 An appellate
court will affirm a criminal conviction absent prejudicial error,
if the evidence admitted at trial, viewed and construed most
favorably to the State, is sufficient to support the conviction.4
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.5
[4-6] Edwards’ argument is that the evidence failed to
establish the corpus delicti of homicide. The corpus delicti is
the body or substance of the crime—the fact that a crime has
been committed, without regard to the identity of the person
committing it.6 Corpus delicti is composed of two elements:
the fact or result forming the basis of a charge and the exis-
tence of a criminal agency as the cause thereof.7 And while
the corpus delicti must be established by evidence beyond a
reasonable doubt, it may be proved by either direct or circum-
stantial evidence.8
[7] In other words, in arguing that the State did not prove
the corpus delicti, Edwards is not arguing that the evidence is
insufficient to establish that he murdered O’Grady—rather, he
is arguing that the evidence was insufficient to establish that
O’Grady was murdered at all. In a homicide case, corpus delicti
is not established until it is proved that a human being is dead
and that the death occurred as a result of the criminal agency of
3 State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009).
4 Id.
5 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
6 See, State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991); State v.
Payne, 205 Neb. 522, 289 N.W.2d 173 (1980).
7 Gallegos v. State, 152 Neb. 831, 43 N.W.2d 1 (1950), affirmed 342 U.S.
55, 72 S. Ct. 141, 96 L. Ed. 86 (1951).
8 See, Morley, supra note 6; State v. Casper, 192 Neb. 120, 219 N.W.2d 226
(1974).
STATE v. EdWArdS 	65
Cite as 278 Neb. 55

another.9 Thus, we must determine whether the State’s evidence
was sufficient to prove that O’Grady is dead and that her death
was the result of a criminal act.10
[8] To begin with, it is well recognized that the body of a
missing person is not required to prove the corpus delicti for
homicide.11 To require that the victim’s body be discovered
would be unreasonable; it would mean that a murderer could
escape punishment by successfully disposing of the body, no
matter how complete and convincing the other evidence of
guilt.12 Instead, the fact that a missing person’s body has not
been recovered does not mean that death cannot be proved
by circumstantial evidence and may tend to prove the cor-
pus delicti:
The fact that [the victim’s] body was never recovered
would justify an inference by the jury that death was
caused by a criminal agency. It is highly unlikely that
a person who dies from natural causes will successfully
dispose of his own body. Although such a result may be a
theoretical possibility, it is contrary to the normal course
of human affairs.
The fact that a murderer may successfully dispose
of the body of the victim does not entitle him to an
9 See, Payne, supra note 6; Gallegos, supra note 7; Reyes v. State, 151 Neb.
636, 38 N.W.2d 539 (1949).
10 See Reyes, supra note 9.
11 See, e.g., Government of Virgin Islands v. Harris, 938 F.2d 401 (3d Cir.
1991); Crain v. State, 894 So. 2d 59 (Fla. 2004); State v. Hall, 204 Ariz.
442, 65 P.3d 90 (2003); Fisher v. State, 851 S.W.2d 298 (Tex. Crim. App.
1993); State v. Nicely, 39 Ohio St. 3d 147, 529 N.E.2d 1236 (1988);
Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982); State v.
Pyle, 216 kan. 423, 532 P.2d 1309 (1975); State v. Lung, 70 Wash. 2d
365, 423 P.2d 72 (1967); People v. Cullen, 37 Cal. 2d 614, 234 P.2d 1
(1951); Bruner v. People, 113 Colo. 194, 156 P.2d 111 (1945), abrogated
on other grounds, Deeds v. People, 747 P.2d 1266 (Colo. 1987); Warmke v.
Commonwealth, 297 ky. 649, 180 S.W.2d 872 (1944). Cf. Gallegos, supra
note 7.
12 See, Harris, supra note 11; Nicely, supra note 11; Lung, supra note 11;
Cullen, supra note 11; People v. Scott, 176 Cal. App. 2d 458, 1 Cal. rptr.
600 (1959).
66 	278 NEbrASkA rEPOrTS

acquittal. That is one form of success for which society
has no reward.13
And in this case, we are satisfied that the evidence presented
was sufficient to establish the corpus delicti of homicide.
Courts have generally held, under circumstances comparable
to these, that the circumstantial evidence associated with the
alleged victim’s disappearance was sufficient to establish the
corpus delicti.14
In particular, the evidence detailed O’Grady’s habits and
relationships and how they were abruptly severed without
explanation on May 10, 2006. Proof of such personal connec-
tions, and the unlikelihood of such a voluntary, sudden disap-
pearance, is often held to be persuasive circumstantial evidence
of death resulting from foul play.15 O’Grady’s car was left in a
parking lot, and all of her personal effects, including her cat,
were abandoned in her apartment, which also suggests that her
disappearance was not voluntary.16 Nor did O’Grady pick up
her last paycheck or take any money from her bank account
after her disappearance, which would be unlikely if she had left
of her own volition.17
And obviously, the fact that significant amounts of what was
almost certainly O’Grady’s blood were found in Edwards’ bed-
room and the trunk of his automobile is highly suggestive of
an unlawful killing. Such bloodstains have often been held to
provide circumstantial evidence of the missing person’s death
13 People v. Manson, 71 Cal. App. 3d 1, 42, 139 Cal. rptr. 275, 298 (1977).
Accord, Harris, supra note 11; Epperly, supra note 11.
14 See, generally, Harris, supra note 11 (collecting cases).
15 See, e.g., State v. Weston, 367 S.C. 279, 625 S.E.2d 641 (2006); Meyers
v. State, 704 So. 2d 1368 (Fla. 1997); Fisher, supra note 11; State v.
Grissom, 251 kan. 851, 840 P.2d 1142 (1992); State v. Brown, 310 Or.
347, 800 P.2d 259 (1990); Nicely, supra note 11; Epperly, supra note 11;
Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981); Cullen, supra note
11; State v. Head, 79 N.C. App. 1, 338 S.E.2d 908 (1986).
16 See, e.g., Meyers, supra note 15; Grissom, supra note 15; Brown, supra
note 15; Nicely, supra note 11; Lung, supra note 11; Head, supra note 15;
Scott, supra note 12.
17 See, e.g., Brown, supra note 15; Scott, supra note 12.
STATE v. EdWArdS 	67
Cite as 278 Neb. 55

and that it was caused by a criminal act.18 Courts have also
relied upon a suspect’s apparent attempts, such as Edwards’, to
conceal the victim’s disappearance, or evidence of the crime.19
The fact that such evidence also bears on who is guilty does
not detract from its efficacy at establishing the corpus delicti.20
And it does not take much imagination to see how bloodstains
on a weapon, garden shears, towels, and the trunk of a car sug-
gest both criminal activity and an explanation for the absence
of the victim’s body.
[9] Edwards notes that in many of the cases cited above,
the conviction was supported with a confession or admission
by the defendant. but that is not an unprecedented argument
either, and in other cases, circumstances such as those pre-
sented here have been sufficient to prove the corpus delicti
and support the conviction, without a confession.21 The law is
clear that in the absence of a body, confession, or other direct
evidence of death, circumstantial evidence may be sufficient to
support a conviction for murder.22 There is no reason to treat
the crime of murder differently from other crimes when con-
sidering the use of circumstantial evidence to establish their
commission, and “[t]he presence or absence of a particular
item of evidence is not controlling. The question is whether
from all of the evidence it can reasonably be inferred that death
occurred and that it was caused by a criminal agency.”23 The
presence of a confession, admission, or incriminating statement
18 See, e.g., Weston, supra note 15; Crain, supra note 11; Hall, supra note
11; Fisher, supra note 11; Grissom, supra note 15; Nicely, supra note 11;
Epperly, supra note 11; Lung, supra note 11; Cullen, supra note 11.
19 See, e.g., Weston, supra note 15; Crain, supra note 11; Fisher, supra note
11; Nicely, supra note 11; Bruner, supra note 11; Warmke, supra note 11;
Scott, supra note 12.
20 See Pyle, supra note 11.
21 See, e.g., Crain, supra note 11; Nicely, supra note 11; Scott, supra note
12.
22 See Nicely, supra note 11.
23 See People v. Bolinski, 260 Cal. App. 2d 705, 716, 67 Cal. rptr. 347, 354
(1968). Accord Harris, supra note 11. See, also, Draganescu, supra note
5; Scott, supra note 12.
68 	278 NEbrASkA rEPOrTS

is a distinction without a difference.24 And, as explained above,
the circumstantial evidence presented in this case is easily suf-
ficient to support the conviction.
Edwards also argues that the State’s evidence failed to prove
O’Grady’s death under the standards set forth in the Nebraska
Probate Code25 or the Nebraska Uniform determination of
death Act (UddA).26 Edwards’ UddA argument is also pre-
sented as a jury instruction argument, and we will discuss it
more completely in that context; at this point, it suffices to say
that we do not find the UddA applicable under these circum-
stances. Nor is the Nebraska Probate Code pertinent. Edwards
relies on § 30-2207, which provides:
In proceedings under this code the rules of evidence
in courts of general jurisdiction, including any relating to
simultaneous deaths, are applicable unless specifically dis-
placed by the code. In addition, the following rules relat-
ing to determination of death and status are applicable:
(1) a certified or authenticated copy of a death certifi-
cate purporting to be issued by an official or agency of
the place where the death purportedly occurred is prima
facie proof of the fact, place, date and time of death and
the identity of the decedent;
(2) a certified or authenticated copy of any record or
report of a governmental agency, domestic or foreign, that
a person is missing, detained, dead, or alive is prima facie
evidence of the status and of the dates, circumstances and
places disclosed by the record or report;
(3) a person who is absent for a continuous period of
five years, during which he has not been heard from, and
whose absence is not satisfactorily explained after dili-
gent search or inquiry is presumed to be dead. His death
is presumed to have occurred at the end of the period
unless there is sufficient evidence for determining that
death occurred earlier.
(Emphasis supplied.)
24 See Nicely, supra note 11.
25 See Neb. rev. Stat. §§ 30-2201 to 30-2902 (reissue 2008).
26 Neb. rev. Stat. §§ 71-7201 to 71-7203 (reissue 2003).
STATE v. EdWArdS 	69
Cite as 278 Neb. 55

[10,11] Edwards’ argument fails for two reasons. First, as
the statutory language suggests, § 30-2207 sets forth the evi-
dence that can be used to prove the fact of death in proceedings
under the Nebraska Probate Code, not the Nebraska Criminal
Code.27 but beyond that, even if applicable, § 30-2207 does
not require that any of those particular methods of proof be
used to establish the fact of death—it simply provides that an
official death certificate, government report, or 5-year absence
support a presumption of death. The statute does not preclude
the establishment of death by circumstantial evidence before
the expiration of the 5-year period.28 In fact, by presuming the
fact of death from an unexplained 5-year absence, § 30-2207
arguably sets a lower bar for establishing the fact of death than
is required in a criminal proceeding.29 The statutory presump-
tion of death created by § 30-2207 simply has no place in the
law of homicide.30 but in any event, even if § 30-2207 applied
here, it was satisfied by the evidence establishing the fact of
O’Grady’s death.
In short, we find sufficient evidence in the record to support
the jury’s conclusion that O’Grady was dead and that Edwards
killed her. Edwards’ first assignment of error is without merit.
2. JuRy instRuction on deteRmination of death
The jury was instructed that in order to convict Edwards of
murder in the second degree, it must find beyond a reasonable
doubt that Edwards, “on or about May 10, 2006, did kill Jessica
J. O’Grady”; that he “did so in douglas County, Nebraska”;
and that he “did so intentionally, but without premeditation.”
Edwards proposed an instruction that “[o]nly an individual who
has sustained either (1) irreversible cessation of circulatory
and respiratory functions, or (2) irreversible cessation of all
27 See Neb. rev. Stat. §§ 28-101 to 28-1350 (reissue 2008).
28 See Woods v. Estate of Woods, 681 So. 2d 903 (Fla. App. 1996). See, also,
Wells v. Equitable Life Assurance Society, 130 Neb. 722, 266 N.W. 597
(1936); Munson v. New England Mutual Life Ins. Co., 126 Neb. 775, 254
N.W. 496 (1934).
29 Cf. In re Estate of Krumwiede, 264 Neb. 378, 647 N.W.2d 625 (2002).
30 See Scott, supra note 12.
70 	278 NEbrASkA rEPOrTS

functions of the entire brain, including the brain stem, is dead.
A determination of death must be made in accordance with
accepted medical standards.” At the jury instruction confer-
ence, the court sustained the State’s objection to the instruction
and refused to give it.
[12-14] Edwards assigns the refusal of his proposed instruc-
tion as error. Whether jury instructions given by a trial court
are correct is a question of law.31 When dispositive issues on
appeal present questions of law, an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision of the court below.32 And to establish reversible
error from a court’s refusal to give a requested instruction,
an appellant has the burden to show that (1) the tendered
instruction is a correct statement of the law, (2) the tendered
instruction is warranted by the evidence, and (3) the appel-
lant was prejudiced by the court’s refusal to give the ten-
dered instruction.33
Edwards’ proposed instruction was based on the UddA
and quoted § 71-7202 verbatim. So, there is little ques-
tion that it was a correct statement of the law, at least in
the abstract. but it was not warranted by the evidence pre-
sented in this case, because § 71-7202 was not implicated by
these circumstances.
Traditionally, at common law, death was defined by the
cessation of the circulatory and respiratory systems.34 but the
development of medical technology, and a better appreciation
of human physiology, cast that standard into doubt.35 Now, a
person’s respiration and circulation may be artificially sup-
ported after all brain functions cease irreversibly, and the
medical profession has developed techniques for determining
the loss of brain functions while cardiorespiratory support is
31 State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007).
32 Id.
33 State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009).
34 See State v. Meints, 212 Neb. 410, 322 N.W.2d 809 (1982). See, also, State
v. Guess, 244 Conn. 761, 715 A.2d 643 (1998); State v. Olson, 435 N.W.2d
530 (Minn. 1989).
35 See, Meints, supra note 34; Guess, supra note 34; Olson, supra note 34.
STATE v. EdWArdS 	71
Cite as 278 Neb. 55

administered.36 The UddA was drafted and enacted to address
those advances in lifesaving technology.37 It codifies the tradi-
tional common-law standard for determining death and extends
it to include the new procedures for the determination of death
based upon irreversible loss of all brain functions.38 And by
providing that the determination of death “be made in accord-
ance with accepted medical standards,”39 the UddA leaves
the medical profession “free to formulate acceptable medical
practices and to utilize new biomedical knowledge, diagnostic
tests, and equipment.”40
In this case, the distinction between cardiorespiratory death
and brain death is irrelevant. Under Nebraska law, either would
be sufficient to prove the victim’s death in a homicide case.41
Presumably, Edwards is concerned with that part of § 71-7202
requiring a determination of death to “be made in accordance
with accepted medical standards.” Obviously, there was no
evidence in this case that would support such a finding. but
there is no indication that the UddA was intended to supplant
the settled common-law rule, discussed at length above, that
the fact of death can be proved by circumstantial evidence. To
require that death be medically established would amount to
requiring direct evidence of death in every homicide, contrary
to well-established law. And for that matter, Edwards’ expan-
sive reading of § 71-7202 would place it in direct conflict with
§ 30-2207, set forth above.
[15,16] Generally, statutes which effect a change in the
common law are to be strictly construed.42 We do not read the
UddA as establishing a rule of evidence requiring that in all
36 See Unif. determination of death Act, prefatory note, 12A U.L.A. 778
(2008).
37 See id.
38 See id.
39 Unif. determination of death Act, supra note 36, § 1, 12A U.L.A. at
781.
40 Id., prefatory note, 12A U.L.A. at 779.
41 See Meints, supra note 34.
42 Nelson v. Nelson, 267 Neb. 362, 674 N.W.2d 473 (2004).
72 	278 NEbrASkA rEPOrTS

cases involving an alleged decedent, the fact of death must be
medically established. Granted, there may be cases in which
the UddA’s medical standards are implicated, when there is a
question as to the cause or time of an alleged death, or where
there is conflicting medical evidence about the alleged dece-
dent’s condition.43 but in this case, there was no such question.
The jury was entitled to conclude from the evidence presented,
under any standard, that O’Grady was dead.
In short, the court’s instructions correctly set forth the ele-
ments of the offense and what the jury needed to find for
Edwards to be guilty. Edwards’ proposed instruction was not
warranted by the evidence, because O’Grady’s death was not in
medical dispute. His assignment of error is without merit.
3. dna evidence
Edwards 	argues, 	generally, 	that 	the 	court 	should 	have
excluded the testimony of witnesses the State presented to
explain the dNA evidence adduced at trial. Most of Edwards’
arguments are based on the framework set out in Daubert
v. Merrell Dow Pharmaceuticals, Inc., and Schafersman v.
Agland Coop.44 before discussing the specific facts relevant to
this issue, it will be helpful to review a few of the basic propo-
sitions governing this inquiry.
[17-19] Under the Daubert and Schafersman jurisprudence,
the trial court acts as a gatekeeper to ensure the evidentiary
relevance and reliability of an expert’s opinion. This gatekeep-
ing function entails a preliminary assessment whether the rea-
soning or methodology underlying the testimony is valid and
whether that reasoning or methodology properly can be applied
to the facts in issue.45 The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion,46 although
43 See, e.g., Meints, supra note 34; People v. Selwa, 214 Mich. App. 451, 543
N.W.2d 321 (1995).
44 See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001).
45 State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
46 Id.
STATE v. EdWArdS 	73
Cite as 278 Neb. 55

we review the record de novo to determine whether a trial
court has abdicated its gatekeeping function when admitting
expert testimony.47
[20,21] To aid the court in its evaluation of the relevance
and reliability of an expert’s opinion, it may consider several
factors, including but not limited to whether the reasoning
or methodology has been tested and has general acceptance
within the relevant scientific community.48 Once the reasoning
or methodology of expert opinion testimony has been found
to be reliable, the court must determine whether the method-
ology was properly applied to the facts in issue. In making this
determination, the court may examine evidence to determine
whether the methodology was properly applied and whether
the protocols were followed to ensure that the tests were per-
formed properly.49
(a) background
The testing at issue in this case, the results of which were
described above, was performed at the University of Nebraska
Medical Center (UNMC). The methodology used at UNMC is
generally accepted within the relevant scientific community.
The standard procedures and protocols used by UNMC are cer-
tified by the American Society of Crime Laboratory directors
(ASCLd), which is associated with the Federal bureau of
Investigation, 	and 	other 	outside 	agencies 	that 	inspect 	the
UNMC laboratory. dr. James Wisecarver, UNMC’s laboratory
medical director, explained that the procedures, protocols, and
equipment used by UNMC were audited and accredited by the
ASCLd. Wisecarver testified that the hardware and software
used by UNMC were “used by virtually every crime laboratory
in the country” and that their “accuracy and authenticity ha[d]
been established just through peer review of records by labo-
ratories that have submitted profiles in testing and in serious
casework where it’s been reviewed.” Wisecarver was not aware
47 See Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
48 See State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
49 See id.
74 	278 NEbrASkA rEPOrTS

of any margin of error in the software or any studies establish-
ing a margin of error.
Mellissa Helligso, a forensic dNA analyst at UNMC, tes-
tified that to ensure that the testing equipment is working
correctly and is not contaminated, the equipment is tested
with control samples provided by the equipment manufacturer.
Edwards objected to Helligso’s testimony on foundational
grounds, arguing that a technician was required to testify that
the dNA testing equipment she used was operating properly.
The objection was overruled, as was a similar objection made
to Wisecarver’s testimony. Edwards cross-examined Helligso
with respect to how many unacceptable test runs had to occur
in a row before it was necessary “to shut down and start over.”
Helligso replied that there were no standards for such an event.
Wisecarver simply explained that successful control runs were
necessary before the testing could proceed.
disclaimers on UNMC’s equipment state that it is “[f]or
research use only” and “[n]ot for use in diagnostic systems.”
Helligso was unable to explain what the manufacturer might
have meant by “research” and “diagnostic” use. After her testi-
mony was completed, Edwards made a motion to strike it on the
basis that Helligso had used the testing equipment in a manner
inconsistent with how it is intended to be used. The motion was
overruled. Later, Wisecarver explained that the disclaimer was
there because it was required for any equipment that was not
submitted to the federal Food and drug Administration (FdA)
for validation. Wisecarver explained that the cost of submitting
some products for FdA approval was prohibitive, but that the
products could be approved for general use with appropriate in-
house validation studies. And Wisecarver testified that UNMC
had done the appropriate validation studies to confirm that the
processes and machines were valid.
Helligso also testified about a genetic mutation found in
O’Grady’s dNA profile, which produced some aberrant results.
Helligso consulted with the testing equipment manufacturer
and was assured that O’Grady’s mutation was a documented
mutation that had been seen in tests across the country.
After Wisecarver testified, Edwards made a motion to strike
his testimony, because he was unable to testify about the margin
STATE v. EdWArdS 	75
Cite as 278 Neb. 55

of error and because the testing equipment may not have been
calibrated properly. Edwards claimed that there was no evi-
dence of the reliability or accuracy of the testing hardware and
software. And Edwards contended that Wisecarver’s opinions
were not stated “with a reasonable degree of professional cer-
tainty.” Edwards argued that while “the case law is that it has
to be probability not . . . certainty” and “that may not in and
of itself be decisive of this motion to strike his testimony,” the
degree of certainty should be considered “cumulatively with
everything else” in deciding the motion to strike.
The court reasoned that most of the information on which
the motion was based was available pretrial, through deposi-
tions, and that the objection could have been “taken care of
. . . a long time ago.” before trial, Edwards had moved for a
Daubert/Schafersman order with respect to the State’s blood
spatter evidence, but not with respect to the dNA evidence.
However, regardless of timeliness, the court also concluded that
there was sufficient foundation for the witnesses’ testimony,
opinion or otherwise. So, Edwards’ motion was overruled.
(b) Analysis
Edwards’ argument, stated generally, is that the court should
have stricken the testimony of Helligso and Wisecarver, thus
excluding the State’s evidence that the blood found in Edwards’
home and car was almost certainly O’Grady’s. In support of
that argument, Edwards calls our attention to several claimed
inadequacies in their testimony. He does not appear to contend
that any one of those purported defects, standing alone, would
suffice to support exclusion of the testimony. rather, he seems
to rely on their cumulative effect. but it is simpler for us to
address each claim in turn.
Edwards complains that Helligso and Wisecarver did not
testify about how, when, or by whom their testing apparatus
had last been calibrated, although at trial, his objection was
directed at the fact that the equipment’s technician had not
been called to lay that foundation. but Helligso testified spe-
cifically about how she used control samples to verify that the
testing apparatus was functioning properly. The record estab-
lishes that Helligso was qualified to use the apparatus, run the
76 	278 NEbrASkA rEPOrTS

control tests, and interpret the results, and Edwards does not
claim otherwise. This was sufficient foundation for the proper
functioning of the testing apparatus.50
Edwards claims that UNMC’s instruments should not have
been used because they were intended for research purposes,
not diagnostics. but Wisecarver testified that the research use
disclaimer simply meant the equipment had not been submit-
ted for FdA approval, and there is no suggestion in the record
that the equipment was less reliable because it was not FdA-
approved. Wisecarver explained that it was appropriate to use
equipment approved for research purposes if its accuracy had
been verified through an appropriate validation process, as
UNMC’s equipment had been. In other words, the “in-house”
validation substitutes for FdA approval. Edwards’ argument is,
essentially, another way of framing an attack on the reliability
of the equipment. but enough foundation was laid to show that
the equipment was operating reliably.51
In a related argument, Edwards claims that “[c]ontrary to
federal standards and its own protocol, UNMC did not have an
outside laboratory or ‘gold standard’ professional peer review
the tests and conclusions about which Helligso and Wisecarver
testified.”52 This is an apparent reference to Wisecarver’s tes-
timony regarding the validation process mentioned above, in
which the equipment is validated by testing part of a sample,
sending the rest of the sample to an accredited “gold standard”
laboratory, then comparing the results. It is not disputed that
the dNA evidence tested in this case was not provided to
another laboratory for verification. but Edwards has miscon-
strued Wisecarver’s testimony. Wisecarver explained how a
particular testing instrument can be validated as reliable for
future use, not a process that must be repeated every time the
instrument is used.
[22] In other words, Wisecarver explained that once a
research instrument passes the “gold standard” validation, its
50 See State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).
51 See id.
52 brief for appellant at 52.
STATE v. EdWArdS 	77
Cite as 278 Neb. 55

reliability has been established and it can be used without an
ongoing need to compare its results to those from other labora-
tories. There was no need to verify the results in this case with
other laboratories, provided that foundation for the reliable
functioning of the equipment was laid, which it was. Whether a
theory or technique has been subjected to peer review is a fac-
tor a court may consider in making its gatekeeping determina-
tion.53 but peer review of the testing performed on the evidence
in this case was not necessary, given the undisputed fact that
the methods and techniques of dNA testing used by UNMC
are accepted and practiced by others in the field.54
[23] Edwards also complains that Helligso and Wisecarver
did not testify to the margin of error associated with the
software for the testing equipment. Another factor the court
may consider in making its gatekeeping determination whether
expert opinion testimony is relevant and reliable is whether a
particular theory or technique has a high known or potential
rate of error.55 but here, the rate of error associated with the
theory or technique was not at issue. Instead, Edwards is again
questioning the reliability of the testing equipment, which was
well established.
Edwards further challenges the reliability of the equipment
by noting Helligso’s testimony that ASCLd has not established
a protocol for how many “unacceptable” control tests can
be performed before the equipment must be shut down and
restarted. And Wisecarver testified that he was not aware of
how many unacceptable tests had been performed before the
testing upon which his opinions in this case were based. but
Helligso also testified that in this case, in general, there was no
problem running any of the controls. The only evidence in the
record of repeated unsuccessful tests was explained by Helligso
as being the result of a mutation in O’Grady’s genetic code,
and Edwards does not explain how those results undermine
53 See State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004).
54 See King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762
N.W.2d 24 (2009).
55 See Fernando-Granados, supra note 53.
78 	278 NEbrASkA rEPOrTS

the general reliability of the testing or the equipment used to
perform it.
Edwards also claims that “UNMC does not maintain a mas-
ter log of testing errors or problems to compare from case to
case.”56 It is not clear that this is the case. UNMC’s laboratory
performs both forensic testing, as in this case, and clinical
medical work for the UNMC hospital. Edwards’ citation to
the record for his claim directs us to Helligso’s testimony that
reported errors in hospital clinical work are logged into the
clinical laboratory computer system, but that forensic results
are not reported into the hospital clinical system. Helligso did
not say that errors in forensic cases were not logged elsewhere.
And later in the record, testimony from Wisecarver (to which
Edwards did not direct us) suggests that every mistake or error
is logged in the laboratory notes.
[24] Our court rules require that factual recitations be anno-
tated to the record, whether they appear in the statement of
facts or argument section of a brief.57 The failure to do so may
result in our overlooking a fact or otherwise treating the matter
under review as if the represented fact does not exist.58 While
Edwards has provided us with an annotation to the record, it
does not support his claim, and other evidence in the record
appears to contradict him. In any event, Edwards does not
explain how the absence of a master log would affect the reli-
ability of the testing performed in this case.
[25-27] 	Finally, 	Edwards 	complains 	that 	Helligso 	and
Wisecarver did not express their opinions in terms of a “rea-
sonable degree of professional certainty.”59 but while that is
the preferred form of an expert’s opinion, the testimony should
be excluded only where it gives rise to conflicting inferences
of equal degree of probability such that the choice between
56 brief for appellant at 52.
57 See Neb. Ct. r. App. P. § 2-109(d)(1)(f) and (g).
58 Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008).
59 brief for appellant at 52.
STATE v. EdWArdS 	79
Cite as 278 Neb. 55

them is a matter of conjecture.60 Expert testimony need not be
couched in the magic words “reasonable certainty” or “reason-
able probability,” but must be sufficiently definite and relevant
to provide a basis for the fact finder’s determination of an issue
or question.61 In short, an expert’s opinion is to be judged in
view of the entirety of the opinion, and it is not validated or
invalidated solely on the presence or lack of the words “reason-
able degree of professional certainty.”62
based on our review of the record, we find that Helligso and
Wisecarver testified with sufficient certainty for their opinions
to be relevant and helpful to the trier of fact.63 We find, on our
de novo review of the record, that the trial court did not abdi-
cate its gatekeeping responsibility.64 And, after considering all
of Edwards’ claimed deficiencies in the dNA evidence, we find
that the district court did not abuse its discretion in permitting
Helligso and Wisecarver to testify.65 Edwards’ assignment of
error to the contrary is without merit.
4. motion to continue
[28-30] Edwards assigns that the district court erred in over-
ruling a motion he made for a continuance. A decision whether
to grant a continuance in a criminal case is within the discre-
tion of the trial court and will not be disturbed on appeal absent
an abuse of discretion.66 An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are unten-
able or unreasonable or if its action is clearly against justice
or conscience, reason, and evidence.67 And there is no abuse
of discretion by the court in denying a continuance unless it
60 See State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
61 See id.
62 See id.
63 See id.
64 See Fickle, supra note 47.
65 See Schreiner, supra note 45.
66 State v. Thurman, 273 Neb. 518, 730 N.W.2d 805 (2007).
67 State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
80 	278 NEbrASkA rEPOrTS

clearly appears that the party seeking the continuance suffered
prejudice as a result of that denial.68
(a) background
Trial was scheduled to begin on a Monday morning. On
the preceding Friday, Edwards filed a motion to continue,
claiming that it was necessary to continue trial because of
evidence that had only been disclosed by the State the day
before. The evidence was a police report of an interview with
Chayse bates, in which bates suggested that O’Grady had, at
some point in the past, become pregnant but miscarried. bates
said that O’Grady had claimed to be pregnant, but a home
pregnancy test had been negative. Nonetheless, O’Grady told
bates that she had seen a doctor who told her she was preg-
nant. but sometime after bates and O’Grady moved into an
apartment together, O’Grady “advised [bates] that she had had
a miscarriage, apparently because she was still taking birth
control pills.”
Edwards contended that the evidence was material, because
a nearly depleted package of birth control pills had been found
in O’Grady’s car and a miscarriage could have explained the
blood found on Edwards’ mattress. Thus, Edwards asserted that
the police report was evidence of a “habit” of pregnancy and
induced miscarriage. Edwards’ counsel claimed that a continu-
ance was necessary so that she could confer with her client and
bring in an expert witness to testify whether birth control pills
can be used to induce miscarriage.
The court, however, credited the State’s argument that
the police report did not provide any information to support
Edwards’ miscarriage theory that had not already been known
to the defense. The possibility that O’Grady had been preg-
nant, and miscarried, had already been suggested. The court
also noted that Edwards had three attorneys, one of whom
could work part time on getting expert testimony during the
expected 2 weeks of trial. The court overruled the motion
to continue.
68 Thurman, supra note 66.
STATE v. EdWArdS 	81
Cite as 278 Neb. 55

(b) Analysis
[31] Edwards argues that the court abused its discretion in
denying the continuance, because it would have been difficult
for counsel to try to “find an expert medical witness by night,
while trying a highly publicized murder case during the day.”69
but it is also difficult for a trial court to administer its docket
if a highly publicized murder case is delayed immediately
before trial—particularly when that case involves a volume of
evidence that requires 2 weeks to present. That is why a trial
court is vested with wide discretion in disposing of a motion
for continuance filed on the eve of trial.
[32] And more importantly, there is no explanation in the
record or the briefs why the expert testimony sought by
Edwards had not been procured earlier. We have said that
where due diligence by the moving party has not been shown,
the ruling of the trial court overruling a motion for a continu-
ance for the purpose of securing additional evidence will not
be disturbed.70 The record of the pretrial proceedings in this
case makes clear that Edwards was aware of the birth control
package found in O’Grady’s car and the theory that she might
have induced a miscarriage. The police report might have
provided some marginal support for that theory, but did not
originate it.
In short, Edwards sought to continue a complicated case on
the eve of trial in order to procure an expert witness to support
a theory that had been present in the case throughout the pre-
trial proceedings. We find no merit to Edwards’ claim that the
court abused its discretion in overruling his motion.
5. evidence of o’gRady’s sexual histoRy
[33,34] Finally, Edwards assigns that the court erred in
excluding certain evidence as irrelevant. In proceedings where
the Nebraska Evidence rules apply, the admissibility of evi-
dence is controlled by the Nebraska Evidence rules; judicial
discretion is involved only when the rules make discretion a
69 brief for appellant at 59.
70 State v. Broomhall, 221 Neb. 27, 374 N.W.2d 845 (1985). See, also,
Thurman, supra note 66.
82 	278 NEbrASkA rEPOrTS

factor in determining admissibility.71 The exercise of judicial
discretion is implicit in determining the relevance of evidence,
and a trial court’s decision regarding relevance will not be
reversed absent an abuse of discretion.72
(a) background
before trial, Edwards moved for an order permitting him to
introduce evidence of O’Grady’s sexual history; specifically,
her relationship with Chris McClanathan. The State countered
with a motion in limine seeking to preclude such evidence,
with respect to McClanathan and bates, under Nebraska’s rape
shield law.73 While the court found that the rape shield law was
inapplicable, the court concluded that the evidence at issue
should be excluded because it was irrelevant and because it
was inadmissible character evidence.
When O’Grady’s friend Peterson testified, she said that
bates was O’Grady’s “ex-boyfriend.” On cross-examination,
Edwards’ counsel was not permitted to ask Peterson why bates
and O’Grady’s relationship had ended. Edwards’ counsel also
made an offer of proof that Stumme and Peterson would, if
asked, testify that O’Grady had a sexual relationship with
McClanathan. Counsel also proffered that Stumme would have
testified that O’Grady told her that O’Grady had a miscarriage
in October 2005. And counsel proffered that Peterson would
have testified that O’Grady might have been pregnant in a
previous relationship and may have had a miscarriage. The
State objected to the evidence on the grounds of hearsay, rel-
evance, and the motion in limine, and the offers of proof were
overruled.
Later, Edwards offered birth control pills found in O’Grady’s
car into evidence. Edwards made an offer of proof that if bates
were allowed to testify, he would testify that O’Grady had
told bates that she was pregnant with his child, but had had a
miscarriage because she took some birth control pills. Edwards
also offered to prove that
71 Draganescu, supra note 5.
72 Id.
73 Neb. rev. Stat. § 28-321 (reissue 2008).
STATE v. EdWArdS 	83
Cite as 278 Neb. 55

if Teresa Peterson, keri Peterson’s mother, were allowed to
testify, she would testify that Jessica O’Grady had on May
8th of 2006 told Teresa Peterson that she, Ms. O’Grady,
was pregnant even though she, Ms. O’Grady, never saw
the pregnancy test. That Ms. O’Grady originally said that
Ms. O’Grady thought Chris Edwards was the father, but
when Ms. Teresa Peterson and Ms. O’Grady talked about
her sexual contact with Chris McClanathan and then Chris
Edwards, Chris McClanathan’s sexual encounter with Ms.
O’Grady preceded that of Mr. Edwards.
When Ms. Peterson did the math and went backwards,
. . . Ms. Peterson came to the conclusion, based on the
information that Ms. O’Grady provided her, that Mr.
McClanathan would be the father of the child; if, in fact,
Ms. O’Grady was pregnant. And that Ms. Peterson would
further say that Ms. O’Grady really wanted Chris Edwards
to be the father of the child.
Those offers of proof were also overruled.
(b) Analysis
Edwards argues that the evidence he proffered was relevant
and admissible. relevant evidence means evidence having any
tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence.74 Evidence
which is not relevant is not admissible.75
It should be noted, to begin with, that Edwards’ appellate
brief is devoted to explaining how his proffered evidence was
supposedly relevant. This overlooks the fact that the objections
sustained by the court were based on relevance and hearsay,76
and the court’s ruling on the motion in limine also concluded
that the evidence was inadmissible character evidence.77 Much
of the evidence Edwards sought to adduce was based on
74 Neb. Evid. r. 401, Neb. rev. Stat. § 27-401 (reissue 2008).
75 Neb. Evid. r. 402, Neb. rev. Stat. § 27-402 (reissue 2008).
76 See Neb. Evid. r. 801 and 802, Neb. rev. Stat. §§ 27-801 and 27-802
(reissue 2008).
77 See Neb. Evid. r. 404(2), Neb. rev. Stat. § 27-404(2) (reissue 2008).
84 	278 NEbrASkA rEPOrTS

hearsay statements allegedly made by O’Grady. And the theory
on which Edwards relies to explain its relevance is essen-
tially that O’Grady purportedly committed a previous act and
may have acted in conformity with that act in this instance.78
Edwards’ brief does not explain how his proffered evidence,
even if relevant, overcame the State’s other objections.
but beyond that, the court did not abuse its discretion
in concluding that the evidence was irrelevant. Taken at
face value, the evidence simply would have established that
O’Grady may have used birth control pills and may have pre-
viously had a miscarriage. Edwards’ theory is that the same
thing may have happened again—explaining the blood on his
mattress—but the evidence he proffered was insufficient to
establish that theory. Evidence is relevant when it tends to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence, and Edwards did not
proffer evidence tending to establish that a previous miscar-
riage, or the use of birth control pills, made it more likely
that the blood on Edwards’ mattress was the result of another
miscarriage. When the relevancy of evidence depends upon
the fulfillment of a condition of fact, the judge shall admit
it upon, or subject to, the introduction of evidence sufficient
to support a finding of the fulfillment of the condition.79 but
here, there was not sufficient evidence to support the condi-
tion of fact upon which the relevance of Edwards’ proffered
evidence depended.
Edwards suggests that the evidence was admissible under
Neb. Evid. r. 406, as “[e]vidence of the habit of a person . . .
relevant to prove that the conduct of the person . . . on a par-
ticular occasion was in conformity with the habit . . . .”80 but
even if Edwards’ evidence proved the single incident that he
claims, it would be an insufficient showing of a “routine” or
“habit,” both because the single incident would not establish a
78 See id.
79 Neb. Evid. r. 104(2), Neb. rev. Stat. § 27-104(2) (reissue 2008).
80 Neb. Evid. r. 406(1), Neb. rev. Stat. § 27-406(1) (reissue 2008).
STATE v. EdWArdS 	85
Cite as 278 Neb. 55

“routine,”81 and because the relevance of the evidence depends
on Edwards’ claim that O’Grady engaged in a deliberate voli-
tional act, not a “habit.”82
[35-37] And Edwards also suggests that the State “opened
the door” to his proffered evidence by suggesting, at trial, that
Edwards may have been motivated to kill O’Grady because she
was pregnant.83 The concept of “opening the door” is a rule of
expanded relevancy which authorizes admitting evidence which
otherwise would have been irrelevant in order to respond to (1)
admissible evidence which generates an issue or (2) inadmis-
sible evidence admitted by the court over objection.84 The rule
is most often applied to situations where evidence adduced
or comments made by one party make otherwise irrelevant
evidence highly relevant or require some response or rebut-
tal.85 “Opening the door” is simply a contention that compe-
tent evidence which was previously irrelevant is now relevant
through the opponent’s admission of other evidence on the
same issue.86
The State did not open the door to the proffered evidence.
Edwards’ motive to commit the crime for which he was on trial
was obviously at issue throughout the case, and the evidence he
proffered was not responsive to the State’s argument. Edwards’
proffered evidence was irrelevant, for the reasons explained
above, and the State’s theory of Edwards’ motive did not make
his evidence relevant.
[38] In short, Edwards’ brief does not address all of the
reasons the court found his proffered evidence to be inadmis-
sible, and we are unpersuaded by the argument that he makes.
81 See, e.g., Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994); Jones v.
Southern Pacific R.R., 962 F.2d 447 (5th Cir. 1992); United States v. Pinto,
755 F.2d 150 (10th Cir. 1985); Wilson v. Volkswagen of America, Inc., 561
F.2d 494 (4th Cir. 1977).
82 See, e.g., U.S. v. Troutman, 814 F.2d 1428 (10th Cir. 1987); United States
v. Sampol, 636 F.2d 621 (d.C. Cir. 1980).
83 reply brief for appellant at 13.
84 Sturzenegger, supra note 58.
85 Id.
86 See id.
86 	278 NEbrASkA rEPOrTS

The court did not abuse its discretion in concluding that the
evidence was irrelevant. Edwards also argues, briefly, that the
court’s exclusion of this evidence violated his constitutional
right to present a complete defense. but this argument is also
without merit, as a criminal defendant has no constitutional
right to inquire into irrelevant matters.87
V. CONCLUSION
The evidence was sufficient to support the corpus delicti of
homicide and Edwards’ convictions. We find no error in the
district court’s refusal of Edwards’ proposed jury instruction,
denial of his motion for continuance, or rejection of his prof-
fered evidence. To the extent that Edwards also suggests that
the court committed cumulative error, his argument is without
merit. Therefore, the court’s judgment is affirmed.
affiRmed.
87 See State v. Schenck, 222 Neb. 523, 384 N.W.2d 642 (1986).
LACEy v. STATE 	87
Cite as 278 Neb. 87
andRea lacey, appellee , v. state of nebRaska ,
acting thRough the nebRaska depaRtment
of coRRectional seRvices , appellant.
768 N.W.2d 132
Filed July 10, 2009. 	No. S-08-626.
1. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
2. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.
3. Judgments: Verdicts. To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law and may do so only
when the facts are such that reasonable minds can draw but one conclusion.
4. Employer and Employee: Discrimination. An employer cannot raise a defense
under Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662
(1998), if a supervisor’s harassment results in the discharge, demotion, or unde-
sirable reassignment of the harassed employee.