State v. Logan

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LOGAN
Cite as 320 Neb. 554
State of Nebraska, appellee, v.
Elijah E. Logan, appellant.
___ N.W.3d ___
Filed December 19, 2025. 	No. S-24-813.
1. Rules of Evidence: Other Acts. An appellate court will review for
abuse of discretion a trial court’s evidentiary rulings on the admissibility
of a defendant’s other crimes or bad acts under Neb. Evid. R. 404(2),
Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2024), or under the inextrica-
bly intertwined exception to the rule.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
4. Trial: Witnesses. The exclusion or sequestration of a witness is within
the discretion of the trial court.
5. Double Jeopardy: Convictions: Appeal and Error. Whether two con-
victions result in multiple punishments for the same offense for double
jeopardy purposes presents a question of law, on which an appellate
court reaches a conclusion independent of the court below.
6. Appeal and Error. Consideration of plain error occurs at the discretion
of an appellate court.
7. Rules of Evidence: Other Acts. Under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2024), evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to
show that he or she acted in conformity therewith.
8. ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum.
Supp. 2024), does not apply to evidence of a defendant’s other
crimes or bad acts if the evidence is inextricably intertwined with the
charged crime.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 01:01 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LOGAN
Cite as 320 Neb. 554
9. ____: ____. Inextricably intertwined evidence includes evidence that
forms part of the factual setting of the crime and evidence that 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.
Evidence of other crimes or bad acts is also inextricably intertwined
with the charged crime if the other crimes or bad acts are necessary for
the prosecution to present a coherent picture of the charged crime.
10. Jury Instructions: Appeal and Error. The failure to provide a limiting
instruction absent a request is not reversible error.
11. Criminal Law: Trial: Evidence: Appeal and Error. An error in admit-
ting or excluding evidence in a criminal trial, whether of constitutional
magnitude or otherwise, is prejudicial unless it can be said that the error
was harmless beyond a reasonable doubt.
12. Verdicts: Juries: Appeal and Error. Harmless error review looks
to the basis on which the trier of fact actually rested its verdict; the
inquiry is not whether in a trial that occurred without the error a guilty
verdict would surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unattributable
to the error.
13. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant 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.
14. Self-Defense: Evidence: Proof. Justifications for the use of force in
self-defense are statutorily defined, and the defendant bears the initial
burden to produce evidence which supports a claim of self-defense.
15. Self-Defense: Jury Instructions. A trial court is required to give a
self-defense instruction where there is any evidence in support of
a legally cognizable theory of self-defense.
16. ____: ____. Only where the jury could reasonably find that the defen-
dant’s use of force was justified should the trial court instruct the jury
on self-defense.
17. Self-Defense: Jury Instructions: Evidence. To instruct on self-defense,
it is not enough that the defendant subjectively believed in the need to
use force for self-protection; the defendant must produce evidence that
this subjective belief was also objectively reasonable.
18. Self-Defense. If a defendant has unjustifiably placed himself or herself
in harm’s way, a court may properly find that such facts do not support
a lawful claim of self-defense.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LOGAN
Cite as 320 Neb. 554
19. Trial: Witnesses: Testimony. Generally speaking, a request for seques-
tration of witnesses is a request that they be excluded from the court-
room until called to testify.
20. Trial: Witnesses. Sequestration is based on the belief that not hearing
other witnesses’ testimony tends to better elicit the truth and promote the
ends of justice.
21. Trial: Witnesses: Rules of Evidence. For purposes of Neb. Evid. R.
615(3), Neb. Rev. Stat. § 27-615(3) (Reissue 2016), a victim in a crimi-
nal case may be qualified as an essential person.
22. Trial: Witnesses: Appeal and Error. The denial of a sequestration
motion will not be overturned absent evidence of prejudice to the
defendant.
23. Double Jeopardy. The respective Double Jeopardy Clauses of the U.S.
and Nebraska Constitutions protect against three distinct abuses: (1) a
second prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple pun-
ishments for the same offense.
24. Homicide: Double Jeopardy. Where a defendant is alternately charged
with both premeditated murder and felony murder and the record is not
clear under which theory the jury found the defendant guilty, then the
defendant cannot be sentenced for both the murder and the predicate
felony for felony murder.
25. Sentences: Weapons. Neb. Rev. Stat. § 28-1205 (Reissue 2016) man-
dates that a sentence for the use of a deadly weapon in the commission
of a felony be served consecutively to any other sentence imposed and
concurrent with no other sentence.
Appeal from the District Court for Washington County:
Bryan C. Meismer, Judge. Convictions affirmed, all sentences
vacated, and cause remanded for resentencing.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.
Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ., and Riedmann, Chief Judge.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LOGAN
Cite as 320 Neb. 554
Cassel, J.
INTRODUCTION
In this direct appeal, Elijah E. Logan challenges the district
court’s admitting evidence of his prior uncharged assaults
against S.E. under the inextricably intertwined doctrine, refus-
ing to instruct the jury on self-defense, and not sequestering
S.E. Finding no error in those respects, we affirm his con-
victions. Logan also asserts error with respect to sentencing.
Because it was error to impose sentences for both felony mur-
der and its predicate felony and to order that certain sentences
run concurrently, we vacate the sentences and remand the
cause for resentencing.
BACKGROUND
To orient a reader, we begin with a summary of the ulti-
mate events. We follow with a summary of the proceedings
regarding earlier incidents. We then detail the trial evidence.
Finally, we set forth the verdicts and the sentences imposed.
In the analysis section, we touch on the trial proceedings
regarding sequestration.
Events Leading to Charges
We briefly summarize the events of May 12, 2023, which
led to criminal charges against Logan. On that day, Logan
kicked in the door of the house where S.E., the mother of
his infant child, was staying. Logan entered S.E.’s bedroom
and punched her in the mouth. When S.E.’s brother, Jordan
E., tried to open the door to the bedroom while armed with a
gun, Logan repeatedly shot him, thereby killing him. Logan
then shot S.E.’s left leg. After S.E. hopped to the child’s
crib and picked him up, Logan shot her other leg while
she was holding their child. S.E. survived, and the child
was uninjured.
As a result of these events, the State charged Logan with
eight felony offenses. Count 1 charged murder in the first
degree. It alleged: Logan “purposely and with deliberate and
premeditated malice kill[ed] J[ordan] in violation of Neb.

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STATE v. LOGAN
Cite as 320 Neb. 554
Rev. Stat.[]§ 28-303(1)(2) a Class 1A Felony. Furthermore,
the intentional killing was committed during the course of
a felony to wit: burglary.” Counts 2 through 4 alleged use
of a deadly weapon—a 9-mm handgun—to commit a felony.
Count 2 corresponded to the murder felony, while counts 3 and
4 corresponded to the respective felonies of domestic assault
in the first degree and child abuse. Count 5 charged posses-
sion of a deadly weapon to commit the felony of burglary.
Count 6 charged domestic assault in the first degree. Count 7
charged Logan with burglary. Finally, count 8 charged inten-
tional child abuse with no serious bodily injury.
Motion to Admit Uncharged
Conduct
Prior to trial, the State filed two motions to admit evidence
of Logan’s prior uncharged acts of domestic violence against
S.E. One motion sought admission under Neb. Evid. R. 404(2),
Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2024). The other
motion sought admission of such evidence as inextricably
intertwined evidence. The latter motion also sought to admit
evidence of Logan’s threats to and against S.E.
During a hearing on the motions, the prosecutor informed
the court of his view that prior acts of domestic violence and
text messages containing threats were intertwined evidence.
However, he added that if the court disagreed, then the State
would seek to introduce that evidence through rule 404(2).
Logan’s counsel stated that the defense had no objection to the
admission of text messages between Logan and S.E. “under
inextricably intertwined.”
S.E. then testified about four episodes of domestic violence
by Logan. The first occurred in late January or early February
2023 in their shared bedroom. S.E. refused to give Logan the
password to her cell phone, so Logan grabbed the phone and
cracked it against a window. Logan pinned S.E.’s hands above
her head while sitting on top of her, screamed in her face that
she should unlock the phone, and pulled her head back by her

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Nebraska Supreme Court Advance Sheets
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STATE v. LOGAN
Cite as 320 Neb. 554
hair. That night, Logan did not allow S.E. to leave the bed-
room. He “left that window AC blasting, and he left [S.E.] no
blanket [or] pillow.”
The second episode occurred toward the end of February
2023 in Logan’s vehicle. S.E. testified that Logan was driving
and tried to push her out of the moving vehicle onto an inter-
state highway. At some point after he stopped the vehicle, he
pushed S.E. out, and she sustained “a whole bunch of bruises.”
The third episode occurred on April 16, 2023. It involved
S.E.’s being upset that Logan would not open a social media
application on his phone. They argued, and S.E. threatened to
break Logan’s video gaming system. S.E. stated that she tried
to force her way into his bedroom to grab her belongings, but
he pushed her back.
On cross-examination, S.E. testified about a fourth episode
that occurred in the kitchen of Logan’s residence. During an
argument, Logan put his hands around S.E.’s throat.
The court subsequently entered an order on the State’s
motions to admit evidence. It believed that the prior interac-
tions between Logan and S.E. and the nature of their relation-
ship were “necessary for the prosecution to present a coherent
picture of the charged crime.” The court also stated that the
relevance of the testimony was not outweighed by the potential
danger of unfair prejudice or of a confused or misled jury.
Trial Evidence
At trial, S.E. testified about her relationship with Logan.
They 	became 	acquainted 	through 	a 	social 	media 	site 	in
September 2021 and quickly commenced a dating relationship.
At the start, they were compatible and had no issues.
In January 2022, Logan and S.E. began arguing more. The
arguments were typically over social media use. S.E. would
be irritated or jealous that Logan was following other females
on social media sites. Amid these ongoing issues, S.E. learned
in March that she was pregnant with Logan’s child. The preg-
nancy caused more stress in the relationship because Logan

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Nebraska Supreme Court Advance Sheets
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STATE v. LOGAN
Cite as 320 Neb. 554
did not want to be a parent. In June, S.E. began staying “full
time” at Logan’s residence.
S.E. testified that after the child’s birth in October 2022, the
way that Logan treated her changed. According to S.E., Logan’s
anger “shifted,” which she explained meant that he “was get-
ting in [her] face” when they argued. Logan’s counsel objected
to “reraise our 404 objection that was already litigated,” and
the court granted counsel’s request for a continuing objection.
S.E. testified that Logan was getting more aggressive every
time they argued. She then provided testimony about two inci-
dents that she described during the pretrial hearing—the cold
bedroom event and the kitchen choking event.
In mid-April 2023, S.E. moved out of Logan’s residence fol-
lowing a “big argument.” She and the child moved into one of
the bedrooms on the main floor of her father’s house in Blair,
Nebraska. Jordan occupied a bedroom in the basement of the
same house.
On May 5, 2023, S.E. asked Logan to watch their child so
that S.E. could have a “night out.” He refused, but S.E. found
a family member to provide care. That evening and continuing
through the early morning hours of May 6, Logan called S.E.’s
phone and sent her numerous text messages. A multitude of the
text messages threatened to kill her. As just one example, he
sent a message saying, “[T]ell me where you’re at right now
and I’ll come kill you right now.”
Late in the evening of May 6, 2023, Logan sent another
threatening text message. It stated:
Proving my point not to play with me [expletive] that’s
what you wanted to play and test me bud so you’re
gonna [expletive] find out. I am going to kill you I’m just
gonna hurt you real [expletive] bad and make you suffer
for the rest of your life stupid [expletive] Since that’s
what you want me to do[.]
He followed up with the message “Ain’t even *,” which we
interpret to be a substitute for “am” (before “going to kill you”)
in the earlier message.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LOGAN
Cite as 320 Neb. 554
After exchanging a few more text messages, S.E. sent one
stating that she “blocked” Logan “on everything” and was
going to “block [his] number as well.” Despite this message,
Logan and S.E. continued exchanging messages throughout
the early morning hours of the following day and continuing
through May 11, 2023. The last text message from S.E., sent
on the afternoon of May 11, stated:
Here’s how this is gonna go the lady is going to come
over & whatever happens w that then so be it but I am
going after child support & full custody since you don’t
want to actively be there for your son. You wanna see
your son then you can take me to court otherwise you
won’t be seeing him. Please stop calling & texting me.
On the day of the killing, Logan left his residence in
Council Bluffs, Iowa, at around 6 a.m. and headed to the home
of S.E.’s father. Logan did so because he wanted to figure out
what he and S.E. were going to do about their relationship and
child, but he was unable to communicate with S.E. through any
social media sites.
On that morning, Logan had a gun in his waistband and 30
to 31 rounds of live ammunition. But Logan testified that he
had no intention of using the gun. He explained that he carried
a gun every day “[j]ust for protection” and usually carried two
extra magazines of ammunition.
Logan parked his vehicle behind the house of S.E.’s father.
He did so because he “knew that [he and S.E.] were fighting
heavily and she had probably told her dad and brother about
it and they’re obviously in cahoots about keeping [the child]
away from [Logan].” He kicked in the front door and walked
into S.E.’s bedroom. S.E. heard somebody enter her bedroom
and close the bedroom door. She put on her glasses and saw
that Logan was by her door. Logan asked S.E., “‘How are
you going to do this to me?’” As S.E. tried to leave the bed-
room, Logan punched her in the mouth. The injury she sus-
tained to her lip required four or five stitches. A doctor would

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STATE v. LOGAN
Cite as 320 Neb. 554
later testify that if the lip injury were left untreated, it could
possibly scar and cause issues with eating or speaking.
The punch spun S.E. around, and she put her face into her
bed and protected her head from further punches. Logan then
hit her in the side. When S.E. tried to walk past Logan, he
pushed her backward.
S.E. testified that she heard Jordan “jiggle” the bedroom
doorknob. But the door was locked, so Jordan could not enter
the bedroom. S.E. testified that Logan then opened the door
while pulling a gun out of his waistband. When Logan opened
the door, S.E. could see that Jordan was holding a gun. Logan
immediately fired his gun at Jordan, and Jordan fell to the
ground. S.E. testified that Logan fired his gun five times.
Logan’s version of events differed somewhat. He testified
that he “heard a very loud, clear, distinctive cocking of a pis-
tol” from “the other side of that door.” He turned around and
drew his firearm. According to Logan, the door “fl[ew] open”
and he shot his gun “from the hip . . . at an upward angle.”
Logan testified that when he pulled his firearm, he made the
decision to defend himself.
Logan then turned to S.E. and fired three times at her left
leg. S.E. hopped on one leg to the child’s crib. S.E. testified
that after she had picked up the child, Logan went to Jordan
and shot him twice in the head. Logan denied ever shooting
downward at Jordan’s body. Logan then shot S.E.’s right thigh
twice while she was holding their child. S.E. testified that she
immediately dropped to the ground. After shooting S.E., Logan
changed the magazine. He then tossed the gun under the bed,
threw S.E.’s cell phone on the bed, and said, “‘That’s what you
get, [expletive].’” Logan then left in his vehicle.
S.E. was able to reach her phone and called the 911 emer-
gency dispatch service at 6:30 a.m. S.E. reported that she and
her brother had been shot by Logan. A patrol sergeant arrived
on scene and applied a tourniquet to each of S.E.’s legs. S.E.
was transported to a hospital, where she remained for nearly
a month.

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Nebraska Supreme Court Advance Sheets
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STATE v. LOGAN
Cite as 320 Neb. 554
Meanwhile, law enforcement searched for Logan and his
vehicle. They took several measures to locate Logan but were
unsuccessful. On May 15, 2023, Logan’s vehicle was recov-
ered in a rural area. That evening, after arrangements were
made, Logan turned himself in to law enforcement.
Jury Verdicts and Sentencing
The jury returned verdicts finding Logan guilty of all eight
counts. The court accepted the verdicts.
Logan waived his right to physically appear for sentencing.
The court imposed the following sentences of imprisonment:
count 1, first degree murder, life to life; count 2, use of a deadly
weapon to commit a felony, 40 to 50 years; count 3, use of a
deadly weapon to commit a felony, 20 to 40 years; count 4, use
of a deadly weapon to commit a felony, 5 to 10 years; count
5, possession of a deadly weapon to commit a felony, 5 to 10
years; count 6, first degree domestic assault, 10 to 20 years;
count 7, burglary, 5 to 10 years; and count 8, intentional child
abuse with no serious bodily injury, 2 to 3 years. It ordered
the sentence in count 1 to be served consecutive to counts 2
through 8; the sentence in count 2 to be served consecutive to
count 1 and counts 3 through 8; the sentences in counts 3 and 6
to be served concurrent to each other but consecutive to counts
1, 2, 4, 5, 7, and 8; the sentences in counts 4 and 8 to be served
concurrent to each other but consecutive to counts 1 through 3
and counts 5 through 7; and the sentences in counts 5 and 7 to
be served concurrent to each other but consecutive to counts 1
through 4 and counts 6 and 8.
Logan filed a timely appeal. Because of the life sentence
imposed, the appeal was docketed with this court. 1
ASSIGNMENTS OF ERROR
Logan assigns that the court erred in (1) admitting evidence
of prior uncharged assaults against S.E. under the inextrica-
bly intertwined doctrine, (2) refusing to instruct the jury on
1 See Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2024).

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Nebraska Supreme Court Advance Sheets
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STATE v. LOGAN
Cite as 320 Neb. 554
self-defense, (3) failing to sequester S.E., and (4) imposing
sentences for both first degree murder and burglary.
STANDARD OF REVIEW
[1,2] An appellate court will review for abuse of discre-
tion a trial court’s evidentiary rulings on the admissibility of
a defendant’s other crimes or bad acts under rule 404(2), or
under the inextricably intertwined exception to the rule. 2 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. 3
[3] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. 4
[4] The exclusion or sequestration of a witness is within the
discretion of the trial court. 5
[5] Whether two convictions result in multiple punishments
for the same offense for double jeopardy purposes presents a
question of law, on which an appellate court reaches a conclu-
sion independent of the court below. 6
[6] Consideration of plain error occurs at the discretion of
an appellate court. 7
ANALYSIS
Evidence of Prior Assaults Was
Inextricably Intertwined
The bulk of Logan’s briefing on appeal focuses on his
contention that the court abused its discretion by allowing
2 State v. Boswell, 316 Neb. 542, 5 N.W.3d 747 (2024).
3 State v. Dawn, ante p. 342, 27 N.W.3d 9 (2025).
4 State v. Case, 304 Neb. 829, 937 N.W.2d 216 (2020).
5 State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).
6 State v. Lewis, 319 Neb. 847, 25 N.W.3d 421 (2025).
7 State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023), cert. denied
___ U.S. ___, 144 S. Ct. 1073, 218 L. Ed. 2d 249 (2024).

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STATE v. LOGAN
Cite as 320 Neb. 554
evidence of Logan’s prior uncharged assaults on S.E. The
district court allowed such evidence, stating that “the prior
interactions between [S.E.] and [Logan] and the nature of
their relationship are necessary for the prosecution to present
a coherent picture of the charged crime.” Logan asks that we
revisit our jurisprudence on the inextricably intertwined excep-
tion to rule 404. We decline to do so.
[7,8] Under rule 404(2), evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person
in order to show that he or she acted in conformity there-
with. 8 However, rule 404(2) does not apply to evidence of a
defendant’s other crimes or bad acts if the evidence is inextri-
cably intertwined with the charged crime. 9
[9] We have explained that inextricably intertwined evi-
dence includes evidence that forms part of the factual setting
of the crime and evidence that is so blended or connected to
the charged crime that proof of the charged crime will neces-
sarily require proof of the other crimes or bad acts. 10 Evidence
of other crimes or bad acts is also inextricably intertwined
with the charged crime if the other crimes or bad acts are nec-
essary for the prosecution to present a coherent picture of the
charged crime. 11
Here, evidence about the nature of Logan and S.E.’s relation-
ship, including Logan’s prior assaults on S.E., supplied context
for the crimes. The evidence helped explain the deterioration
of their relationship from a loving one leading to a child to
one filled with vitriol and death threats and culminating in
Logan’s shooting S.E.’s legs in the presence of their child and
killing S.E.’s brother as he came to S.E.’s aid. Because the tes-
timony was inextricably intertwined with the charged crimes,
8 Id.
9 See id.
10 Id.
11 Id.

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we cannot say that it was clearly untenable for the district court
to admit it.
[10] Logan also contends that the evidence should not have
been admitted because his prior assaultive behavior toward
S.E. had no bearing on the charges that he killed Jordan or that
he abused the child. Even if we were inclined to agree with
Logan, he is not entitled to any relief because he did not ask
the court to limit the jury’s consideration of such evidence to
the charges relating to S.E. The failure to provide a limiting
instruction absent a request is not reversible error. 12
[11,12] Moreover, even if the district court had erred in
admitting evidence of Logan’s prior assaultive behavior toward
S.E., the error would have been harmless. An error in admitting
or excluding evidence in a criminal trial, whether of constitu-
tional magnitude or otherwise, is prejudicial unless it can be
said that the error was harmless beyond a reasonable doubt. 13
Harmless error review looks to the basis on which the trier of
fact actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error a guilty verdict would
surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unat-
tributable to the error. 14 Here, the error was harmless because
Logan admitted shooting S.E., including while she held their
child, and admitted shooting Jordan. The only real issue was
whether Logan shot Jordan in self-defense. We address his
self-defense argument next.
Self-Defense Instruction
Not Warranted
[13] Logan argues that the court erred by refusing to give
his tendered jury instruction on self-defense. To establish
reversible error from a court’s refusal to give a requested
12 State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).
13 State v. Torres Aquino, 318 Neb. 771, 19 N.W.3d 222 (2025).
14 Id.

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STATE v. LOGAN
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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
The State does not contend that the proposed instruction
was an incorrect statement of the law; rather, the State asserts
that the evidence did not warrant a self-defense instruction. To
determine whether the State is correct, we start with our law
concerning self-defense.
[14] Justifications for the use of force in self-defense are
statutorily defined, and the defendant bears the initial burden
to produce evidence which supports a claim of self-defense. 16
Neb. Rev. Stat. § 28-1409(1) (Reissue 2016) provides, in
part, that “the use of force upon or toward another person is
justifiable when the actor believes that such force is immedi-
ately necessary for the purpose of protecting himself against
the use of unlawful force by such other person on the pres-
ent occasion.” A subsection addressing the use of deadly
force provides:
The use of deadly force shall not be justifiable under this
section unless the actor believes that such force is neces-
sary to protect himself against death, serious bodily harm,
kidnapping or sexual intercourse compelled by force or
threat, nor is it justifiable if:
(a) The actor, with the purpose of causing death or
serious bodily harm, provoked the use of force against
himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by
surrendering possession of a thing to a person asserting
a claim of right thereto or by complying with a demand
15 State v. Johnson, 314 Neb. 20, 988 N.W.2d 159 (2023).
16 State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).

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that he abstain from any action which he has no duty to
take . . . . 17
[15-18] A trial court is required to give a self-defense
instruction where there is any evidence in support of a legally
cognizable theory of self-defense. 18 Only where the jury could
reasonably find that the defendant’s use of force was justified
should the trial court instruct the jury on self-defense. 19 To
instruct on self-defense, it is not enough that the defendant sub-
jectively believed in the need to use force for self-protection;
the defendant must produce evidence that this subjective belief
was also objectively reasonable. 20 Further, if a defendant has
unjustifiably placed himself or herself in harm’s way, a court
may properly find that such facts do not support a lawful claim
of self-defense. 21
Applying this law to the facts of this case demonstrates that
a self-defense instruction was not warranted. The undisputed
evidence established that Logan, armed with a gun, kicked in
the front door of another person’s dwelling and entered. By
these actions, Logan placed himself in harm’s way without jus-
tification for doing so. For that reason, the court did not err in
refusing to instruct the jury on self-defense.
No Abuse of Discretion in
Failing to Sequester S.E.
Logan next argues that he was denied due process and a fair
trial when the court lifted its sequestration order as to S.E. He
asserts that “it is impossible to know how she may have tai-
lored her testimony in response to what she heard, especially
17 § 28-1409(4).
18 State v. Case, supra note 4.
19 State v. Johnson, supra note 15.
20 Id.
21 State v. Case, supra note 4; State v. Urbano, supra note 16.

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given the detailed opening statement of the prosecutor which
forecasted exactly what she was expected to say.” 22
The record is not entirely clear regarding sequestration
of S.E. We assume, without deciding, that the district court
expressly allowed S.E. to remain in the courtroom throughout
the trial, including during opening statements and witnesses’
testimony adduced before S.E. testified. Logan sufficiently
objected to S.E.’s presence during opening statements and
thereafter until she testified.
[19,20] Generally speaking, a request for sequestration of
witnesses is a request that they be excluded from the court-
room until called to testify. 23 Sequestration is based on the
belief that not hearing other witnesses’ testimony tends to
better elicit the truth and promote the ends of justice. 24 As a
federal circuit court has explained, “Scrupulous adherence to
[the sequestration rule] is particularly necessary in those cases
in which the outcome depends on the relative credibility of the
parties’ witnesses.” 25
[21] Sequestration is governed by a statute that recog-
nizes exceptions, including one applicable here. Neb. Evid.
R. 615, Neb. Rev. Stat. § 27-615 (Reissue 2016), provides
that at a party’s request or sua sponte by the court, “the
judge shall order witnesses excluded so that they cannot hear
the testimony of other witnesses.” Rule 615 provides three
exemptions. Under the circumstances of this case, we are
concerned with the third, which exempts from exclusion “a
person whose presence is shown by a party to be essential to
the presentation of his cause.” 26 For purposes of rule 615(3),
a victim in a criminal case may be qualified as an essential
22 Brief for appellant at 51.
23 State v. Trail, supra note 5.
24 State v. Johnson, supra note 15.
25 United States v. Farnham, 791 F.2d 331, 335 (4th Cir. 1986).
26 Rule 615(3).

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person. 27 Here, because S.E. was Logan’s victim, rule 615
permitted the district court to exercise discretion and allow
her to remain in the courtroom.
[22] The question thus becomes whether the district court
abused its discretion. The denial of a sequestration motion
will not be overturned absent evidence of prejudice to the
defendant. 28
To demonstrate prejudice, Logan contends that S.E. “was
able to craft her testimony” 29 after hearing a “detailed road
map” 30 during opening statements, as well as during the testi-
mony of her father, a 911 communications supervisor, a patrol
sergeant, and a detective.
But prior to trial, S.E. had been interviewed by law enforce-
ment and had given a deposition while under oath. If S.E.
changed her previous statements to match what she heard dur-
ing trial, Logan had the opportunity to bring up any discrep-
ancy during cross-examination.
Logan has failed to establish prejudice. Thus, we conclude
that the court did not abuse its discretion.
Double Jeopardy Error
in Sentencing
The State charged Logan under an alternative theory of
both purposeful murder and felony murder, with burglary as
the predicate felony. It also charged Logan with burglary. The
court convicted and sentenced Logan for both offenses. Logan
assigns, and the State agrees, that the imposition of sentences
for both first degree murder and burglary subjected Logan to
double jeopardy. We also agree.
27 See, State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977); State v.
Embree, 31 Neb. App. 609, 987 N.W.2d 297 (2023).
28 State v. Trail, supra note 5.
29 Brief for appellant at 51.
30 Id.

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[23] Both this court and the U.S. Supreme Court have
recognized that the respective Double Jeopardy Clauses of
the U.S. and Nebraska Constitutions protect against three
distinct 	abuses: 	(1) 	a 	second 	prosecution 	for 	the 	same
offense 	after 	acquittal, 	(2) 	a 	second 	prosecution 	for 	the
same offense after conviction, and (3) multiple punishments
for the same offense. 31
[24] In State v. Nissen, 32 we determined that where a defen-
dant is alternately charged with both premeditated murder and
felony murder and the record is not clear under which theory
the jury found the defendant guilty, then the defendant cannot
be sentenced for both the murder and the predicate felony for
felony murder. That is the situation here. Thus, as we did in
Nissen, we vacate the sentence on count 7 for burglary. But
the burglary conviction will stand.
Plain Error in Sentencing
The State asserted in its brief, and Logan’s counsel forth-
rightly conceded during oral argument, that the court erred
in directing that some of the sentences for use of a deadly
weapon convictions be served concurrent to other counts. We
agree that the court erred.
The district court ordered that counts 3 and 6 be served
concurrent to each other, but consecutive to all other counts.
Similarly, it ordered that counts 4 and 8 be served con-
current to each other, but consecutive to all other counts.
However, counts 3 and 4 charged use of a deadly weapon to
commit a felony in violation of Neb. Rev. Stat. § 28-1205
(Reissue 2016).
[25] Section 28-1205 mandates that a sentence for the use
of a deadly weapon in the commission of a felony be served
consecutively to any other sentence imposed and concurrent
31 State v. Lewis, supra note 6.
32 State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

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with no other sentence. 33 Thus, a sentencing court does not
have authority to order that sentences for the conviction of use
of a deadly weapon to commit a felony run concurrently with
the other sentences. 34 And we have found plain error where a
court ordered a sentence for use of a weapon to run concur-
rently to other felony sentences imposed. 35 Here, it was plain
error to order counts 3 and 4 to run concurrent to another fel-
ony sentence. Because the sentencing error may have affected
the other sentences imposed, we vacate the sentences and
remand the cause for resentencing.
We are somewhat puzzled by an articulation that a sentence
on one count is consecutive to another count and that the sen-
tence on the other count is consecutive to the first count. To the
extent that the language merely conveys that the two sentences
are not to be served concurrently, there is no harm. But if the
order in which the sentences are to be served makes a differ-
ence, such an articulation introduces uncertainty.
CONCLUSION
For the reasons provided above, we conclude the following:
• Because evidence of Logan’s prior uncharged assaults on S.E.
provided context for his crimes, the court did not abuse its
discretion in admitting it as inextricably intertwined evidence.
• Logan was not entitled to an instruction on self-defense,
because he unjustifiably placed himself in harm’s way.
• The court did not abuse its discretion by not sequestering
S.E., one of Logan’s victims, and Logan has failed to demon-
strate that he suffered any prejudice by S.E.’s presence during
the trial.
• Because the State charged Logan alternately with both premed-
itated murder and felony murder, and it is not clear upon which
theory the jury found him guilty, it violates double jeopardy to
33 See State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
34 See id.
35 Id.

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impose a sentence for both the murder and the predicate felony
of burglary.
• The court erred in ordering two sentences for use of a deadly
weapon to commit a felony to run concurrently with another
sentence.
Accordingly, we affirm all of Logan’s convictions but vacate
the sentences. We remand the cause to the sentencing court for
resentencing on all counts except count 7.
Convictions affirmed, all sentences vacated,
and cause remanded for resentencing.