State v. Hilding

State of NebraSka , appellee , v.
bart G. H ildiNG, appellaNt.
769 N.W.2d 326
Filed July 17, 2009. 	No. S-08-585.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a confession based on the
claimed involuntariness of the statement, including claims that it was procured in
violation of the safeguards established by the U.S. Supreme Court in Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court
applies a two-part standard of review. With regard to historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those facts suf-
fice to meet the constitutional standards, however, is a question of law, which an
appellate court reviews independently of the trial court’s determination.
2. Trial: Jurors. The retention or rejection of a juror is a matter of discretion for the
trial court. This rule applies both to the issue of whether a venireperson should be
removed for cause and to the situation involving the retention of a juror after the
commencement of trial.
3. Trial: Joinder: Appeal and Error. Severance is not a matter of right, and a rul-
ing of the trial court with regard thereto will not be disturbed on appeal absent a
showing of prejudice to the defendant.
4. Statutes: Judgments: Appeal and Error. Statutory interpretation presents a
question of law. When reviewing questions of law, an appellate court has an obli-
gation to resolve the questions independently of the conclusion reached by the
trial court.
5. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the 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 elements of the crime beyond a reasonable doubt.
6. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appellate court, in review-
ing a criminal conviction, does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence.
7. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
8. Miranda Rights: Police Officers and Sheriffs. Once Miranda warnings have
been given, an individual has the right to cut off questioning by invoking his or
her Miranda rights, and once an individual has invoked the right to cut off ques-
tioning, the police are restricted to scrupulously honoring that right. However,
before the police are under such a duty, the invocation of the right to cut off
questioning must be unambiguous and unequivocal.
9. Trial: Juries. Under Neb. Rev. Stat. § 29-2004 (Reissue 2008), a court may
discharge a regular juror because of sickness and replace him or her with an
alternate juror.
STaTE v. HILdINg 	115
Cite as 278 Neb. 115
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

10. Trial: Joinder. Whether offenses are properly joined involves a two-stage analy-
sis in which it is determined first, whether the offenses are related and properly
joinable under Neb. Rev. Stat. § 29-2002 (Reissue 2008), and second, whether an
otherwise proper joinder was prejudicial to the defendant.
11. Convicted Sex Offender: Pleas: Presentence Reports: Sentences. a sentencing
judge need not consider only the elements of an offense in determining whether
an aggravated offense as defined in Neb. Rev. Stat. § 29-4005(4)(a) (Reissue
2008) has been committed. Instead, the court may make this determination based
upon information contained in the record, including the factual basis for a plea-
based conviction and information contained in the presentence report.
appeal from the district Court for Lancaster County: Jeffre
CHeuvroNt, Judge. affirmed.
dennis R. Keefe, Lancaster County Public defender, and
Matthew g. graff for appellant.
Jon Bruning, attorney general, and Erin E. Leuenberger for
appellee.
H eaviCaN, C.J., C oNNolly, G errard, StepHaN, MCC orMaCk,
and M iller-lerMaN, JJ.
M iller-lerMaN, J.
NaTURE OF CaSE
Bart g. Hilding appeals his convictions and sentences for
two counts of first degree sexual assault and one count of
stalking. Hilding asserts, inter alia, that the district court for
Lancaster County erred in overruling his motion to suppress
statements he made in a police interview, overruling his motion
to sever the stalking charge from the sexual assault charges
for purposes of trial, and finding that the sexual assaults were
aggravated offenses and therefore ordering him to be subject
to lifetime registration and lifetime supervision. We affirm
Hilding’s convictions and sentences.
STaTEMENT OF FaCTS
Hilding and M.S. began a relationship in 2005. The two lived
together for a time, but Hilding moved out after difficulties
arose. The relationship continued for some time thereafter, but
according to M.S., the sexual relationship ended and became
more of a friendship by January 2007.
116 	278 NEBRaSKa REPORTS

at approximately 4:30 a.m. on april 27, 2007, M.S. reported
to police that Hilding had sexually assaulted her in her apart-
ment. M.S. later reported that Hilding had also sexually
assaulted her on april 6 and that he had been harassing her
in the months since they had broken up. as part of their
investigation of the reported assaults, police officers provided
M.S. with equipment to record her subsequent telephone calls
with Hilding. The State later charged Hilding with two counts
of first degree sexual assault in violation of Neb. Rev. Stat.
§ 28-319 (Reissue 2008) and one count of stalking in violation
of Neb. Rev. Stat. § 28-311.03 (Reissue 2008).
Hilding was arrested on May 5, 2007. He was taken to the
Lincoln Police department and placed in an interview room.
Hilding was given Miranda warnings by Sgt. Robert Farber,
and Hilding signed a “Miranda Warning and Waiver” form in
which he acknowledged that he understood his rights and that
he was willing to answer questions or make a statement. Farber
questioned Hilding about his relationship with M.S. and his
recent contacts with her. at one point during the questioning,
Hilding said, “I don’t know exactly what you’re leading up
[to], and I’m telling you I probably shouldn’t be answering
any of these questions.” However, Hilding continued to answer
Farber’s questions. Later in the interview, after Farber told
Hilding that M.S. had “a completely different version of this
story” regarding the april 27 incident, Hilding said, “Okay.
See and this is why I probably shouldn’t be talking about this.
I probably should have an attorney.” Farber continued the inter-
view, and Hilding again continued to answer questions until
Farber ended the interview.
Prior to trial, Hilding filed a motion to suppress the state-
ments he made to police. The court overruled the motion with
respect to Hilding’s May 5, 2007, interview with Farber. The
court found that Hilding had been informed of his Miranda
rights; that his waiver of such rights was made knowingly,
intelligently, and freely; and that his statements were made
knowingly, voluntarily, and intelligently and were not induced
by promises or obtained as a result of force, fear, oppression,
or coercion. The court also found that Hilding “never requested
to be permitted to talk to an attorney, never indicated that he
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Cite as 278 Neb. 115

did not want to continue with the interview and never raised
this issue again.” The court specifically found that Hilding’s
comments that he “probably shouldn’t be talking about this”
and “probably should have an attorney” were not requests to
cease the interview or requests for an attorney. a video record-
ing and a transcript of the May 5 interview were admitted into
evidence at trial over Hilding’s objection.
also prior to trial, Hilding filed a motion to sever the charge
of stalking from the sexual assault charges for purposes of trial.
The court overruled the motion to sever.
a jury trial was held February 20 through 27, 2008.
The court recessed the trial for the weekend on Friday,
February 22, after the State had begun presenting its evi-
dence. When the trial resumed on Monday, February 25, the
court announced that one of the jurors was ill with the flu
and had a sinus infection. Hilding requested a recess until
the next day to see if the juror’s condition would improve;
however, the court determined that it was best to continue the
trial with an alternate juror replacing the juror who was ill.
Hilding did not thereafter object to the court’s decision, and
the trial resumed.
at trial, the State’s main witness was M.S. She testified that
she began dating Hilding in March 2005 and that they moved
in together in March 2006. The two began having problems in
their relationship, and Hilding moved out in august. However,
they continued to work on the relationship and continued a
sexual relationship for some months afterward.
When M.S. learned in december 2006 that Hilding was
dating another woman, she decided that her relationship with
Hilding was over. She communicated this to Hilding, but
between January and March 2007, Hilding continued to make
frequent telephone calls to her. She thought his purpose was
to keep tabs on her and to find out whether she was dating
other men. M.S. testified that she was determined to continue a
friendship with Hilding “because it was easier to stay his friend
and to take his phone calls than to not take his phone calls.”
during that period, M.S. met socially with Hilding in public
places, but she did not want to be alone with him because she
did not want to feel pressure to have sex with him.
118 	278 NEBRaSKa REPORTS

On the evening of april 5, 2007, M.S. worked the closing
shift as a bartender at a sports bar. at approximately 10 p.m.,
Hilding came to the bar with flowers for her. Hilding stayed
at the bar, and M.S. served him drinks. after some time, M.S.
determined that Hilding had had enough to drink; she and
Hilding argued because he wanted more drinks. at closing
time, M.S. told Hilding he needed to leave the bar. He tried to
stay to talk to her, but he eventually left. When M.S. took trash
outside, Hilding was at the side of the bar wanting to talk to
her. She told him he needed to leave, and she went back into
the bar.
When M.S. finished work, she went to her car and noticed
that there was some damage to the vehicle and that some cash
had been left on the windshield. M.S. suspected that Hilding
had caused the damage and had left the cash, because earlier
in the evening, he had talked about damaging her car so that
she could collect insurance money. He had also told her that
he had cash he could use to pay money he owed her. M.S.
called Hilding to ask whether he had hit her car. He denied
hitting her car but admitted that he had left the money on
her windshield.
after reporting the damage to her car to police, M.S. returned
home between 1 and 2 a.m. on april 6, 2007. When she pulled
into the parking lot for her apartment, Hilding approached her
car and said he wanted to inspect the damage. He again denied
that he had hit her car. M.S. told Hilding she was mad at him
and wanted him to go home. Hilding asked whether he could
come up to her apartment to charge his cellular telephone. M.S.
refused, but Hilding insisted that they go up to the apartment,
and he grabbed her coat and pushed and prodded her to her
apartment door.
When they got inside the apartment, Hilding told her to go
to the bedroom. She initially refused but eventually complied
because she was scared of what he might do. When they reached
the bedroom, he told her to take off her shirt. She again refused
but eventually complied out of fear. She continued to tell him
that he needed to leave, and she threatened to call the police.
Hilding grabbed her cellular telephone, snapped it in half and
threw it across the room. Hilding insisted that M.S. retrieve his
STaTE v. HILdINg 	119
Cite as 278 Neb. 115

cellular telephone charger; in the course of his so insisting and
M.S.’ retrieving the charger, Hilding hit M.S.’ arm and kicked
her in the lower back. Hilding told M.S. to take off her pants
and said that they were going to have sex. She was crying and
told him she did not want to, but he took off her jeans and
underwear and pushed her onto the bed. Hilding forced M.S.
to have sexual intercourse with him, forced her to perform oral
sex on him, and performed oral sex on her. at times, Hilding
told M.S. to be quiet and used his hands or a pillow to muffle
her because she was crying and telling him to stop. Hilding
eventually stopped and fell asleep, but M.S. could not leave
because he was on top of her.
When M.S.’ alarm clock went off at 6:30 a.m., she woke
Hilding and told him he needed to leave because she needed to
go to her daytime job at a radio station. While they were get-
ting ready to leave, Hilding said he hoped M.S. was not mad
at him, that he did not want to hurt her, and that he hoped she
would not “turn him in.” Hilding left the apartment when M.S.
left for work. as they parted, M.S. told Hilding that she did
not want to ever talk to him again. M.S. did not call the police
after the april 6, 2007, incident because she was embarrassed
and scared and thought that Hilding would leave her alone.
approximately a week later, Hilding again began making fre-
quent telephone calls to M.S. although M.S. told Hilding she
was mad about what had happened and did not want to talk to
him anymore, Hilding would not discuss the incident and acted
as if it had not happened.
On the evening of april 26, 2007, M.S. finished work at the
bar at approximately 9 p.m. Hilding had called M.S. earlier that
day to see what she was doing that night, and she told him she
was working all night. after she left work, she went to other
bars with friends. after the bars closed, M.S. went to the home
of a male friend, and they had consensual sex. She did not
stay the night with him but instead returned to her apartment
because she had to work the next day.
When M.S. arrived home at approximately 2:30 a.m. on
april 27, 2007, she parked her car and, while she was walking
toward her apartment building, saw Hilding in the parking lot.
She ran to her apartment to try to get inside and avoid him.
120 	278 NEBRaSKa REPORTS

Hilding ran after her and caught up to her just as she entered
her apartment. Hilding kept her from closing the door and
forced his way into the apartment. He asked M.S. what she had
done that night and whether she had had sex with anyone. She
denied that she had. Hilding pushed her to the floor and took
down her pants and underwear and said that he wanted to smell
her vagina to determine whether she had had sex with another
man. He did so and then told her that they were going to have
sex and that she should choose whether she wanted to do it
in the bed or in the shower. She told him she did not want to
have sex, but he insisted that she choose the bed or the shower.
She told him she had to use the bathroom and he followed her
there. He eventually coerced her to undress and get into the
shower where he forced her to engage in sexual intercourse.
M.S. cried throughout the incident and told Hilding she did not
want to have sex.
after they got out of the shower, Hilding made comments to
M.S. indicating that he had seen her at a bar earlier that eve-
ning, but she had not seen him there. Hilding told M.S. to give
him her cellular telephone because he wanted to delete voice
mails he had left for her. He forced M.S. to tell him the code to
delete the voice mails by threatening to kill her cat if she did
not tell him. as Hilding looked through the list of incoming
calls, he questioned M.S. regarding calls she had received from
other men, and he wrote down the men’s telephone numbers.
Hilding left the apartment at approximately 4:30 a.m., and
M.S. called the police to report the assault. She also called
some of the men whose telephone numbers Hilding had written
down because she was afraid he might contact the men and try
to harm them.
Police officers came to M.S.’ apartment to interview her
and to take her to a hospital for an examination. as part of the
investigation, the police gave M.S. equipment to record the
telephone calls with Hilding and conducted a controlled call
from M.S. to Hilding a few days after the assault. a recording
and a transcript of the conversation were entered into evidence
at trial.
In the telephone conversation, M.S. confronted Hilding about
his showing up uninvited at her apartment in the early hours of
STaTE v. HILdINg 	121
Cite as 278 Neb. 115

april 27, 2007, and at other times and about his actions after
forcing himself into her apartment on april 27. Hilding admit-
ted being at her apartment and having sex with her, but denied
that he had forced her to do so. despite such denial, Hilding
told M.S., “I’m sorry for whatever I did that hurt you. I’m
sorry for whatever, whatever, whatever.”
during the days after the controlled call, Hilding made
several more calls to M.S. Recordings and transcripts of the
calls were entered into evidence at trial. In the calls, Hilding
questioned M.S. about her sexual activity with other men and
told her that he thought she had a sexually transmitted disease.
Hilding eventually threatened that he would “tell everybody”
that M.S. had a sexually transmitted disease. Hilding threat-
ened M.S., saying, “I will fuckin seriously fuck you over so
hard you won’t even fuckin get it.” Hilding also threatened that
if M.S. did not agree to meet with him, he would “be over at
your house kicking your fucking door in” and that he would
“go over to [a male friend of M.S.’] house or I’ll kick your
fuckin brother in his god damn chest.” Hilding stated:
and then I will go out of my way to seriously fuck every-
body that you come in regular contact with. You will not
only lose your fuckin job at the bar you will probably
lose your job at the radio station. I am not in the mood to
fuckin play anymore.
In connection with M.S.’ testimony, the court, over Hilding’s
objection, admitted into evidence and published to the jury
printed copies of more than 20 e-mails that Hilding sent to
M.S. from april 27 through May 4, 2007. The content of
the e-mails included apologies for how Hilding had treated
M.S., accusations that M.S. had lied to him and that she had
contracted a sexually transmitted disease, and threats that he
would “tell everybody your little secret.” On the printed copy
of one of the e-mails in which Hilding asserted that M.S. had
contracted a sexually transmitted disease, M.S. made nota-
tions to indicate that other addresses to which Hilding had
sent the e-mails were addresses that belonged to her friends
and relatives. also included was Hilding’s e-mail that he had
sent to M.S.’ brother accusing her brother of “screwing up”
the relationship between Hilding and M.S. although the court
122 	278 NEBRaSKa REPORTS

overruled Hilding’s objection, the court differentiated between
the telephone calls and the e-mails and instructed the jury that
the e-mail evidence was received solely in regard to the stalk-
ing charge and that the jury was not to consider the e-mails in
regard to the sexual assault charges.
Hilding testified at trial in his own defense. He admitted that
he had sexual relations with M.S. on april 6 and 27, 2007, but
he testified that M.S. consented to such relations. With regard
to the april 6 incident, Hilding testified that M.S. invited him
up to her apartment and that he did not push or pull her to the
apartment. Hilding testified that it was her suggestion that they
go to bed together and that she asked him to stay the night.
Hilding denied purposefully breaking M.S.’ cellular telephone
and testified that either he broke it accidentally or it was
already broken when he touched it.
With regard to the april 27, 2007, incident, Hilding testified
that during the day on april 26, he and M.S. had made plans
to meet that night. Hilding spent most of the evening with his
girlfriend, but after leaving his girlfriend at her home, he went
to M.S.’ apartment building. M.S. arrived shortly after he did.
Hilding denied chasing M.S. to her apartment and forcing his
way into her apartment. He testified instead that she willingly
allowed him into the apartment. Hilding testified that M.S.
initiated sexual contact by undressing him and leading him
to the shower where they engaged in consensual intercourse.
They continued to the bedroom, but Hilding eventually left
because he realized he should not have been with M.S. and
instead should have been with his girlfriend. Hilding testified
that M.S. became upset with him when she realized that he
was leaving and that prior to that time, she had not been upset
or crying.
With regard to his telephone conversations with M.S. after
the april 27, 2007, incident, Hilding testified that he was
surprised by M.S.’ accusations regarding the april 6 and 27
incidents and was suspicious of her purpose in making the
accusations. He testified that he accused M.S. of having a
sexually transmitted disease, not because he believed she did
but because she was making accusations against him and
he wanted to respond in kind. Hilding admitted that he was
STaTE v. HILdINg 	123
Cite as 278 Neb. 115

“being an asshole,” but described his behavior as a reaction to
M.S.’ accusations.
The jury found Hilding guilty of both counts of first degree
sexual assault and the count of stalking. The court sentenced
Hilding to imprisonment for 10 to 16 years on each of his
convictions for first degree sexual assault and for 1 year
on his conviction for stalking. The court ordered that all
three sentences be served consecutive to one another. For pur-
poses of Nebraska’s Sex Offender Registration act, the court
found that both convictions for first degree sexual assault were
“aggravated offenses” as defined in Neb. Rev. Stat. § 29-4005
(Reissue 2008), and the court therefore ordered that Hilding
would be subject to lifetime registration. The court further
ordered that pursuant to Neb. Rev. Stat. § 83-174.03(1)(c)
(Reissue 2008), Hilding would be subject to lifetime commu-
nity supervision by the Office of Parole administration upon
release from imprisonment.
Hilding appeals his convictions and sentences.
aSSIgNMENTS OF ERROR
Hilding asserts that the district court erred in (1) overruling
his motion to suppress his statements to Farber in the May 5,
2007, interview and admitting the statements into evidence, (2)
discharging the juror who became ill, (3) overruling his motion
to sever the stalking charge from the sexual assault charges for
trial, and (4) finding that he committed aggravated offenses
and therefore ordering that he be subject to lifetime registration
and lifetime supervision. Hilding also asserts that there was not
sufficient evidence to support his convictions and that the court
had imposed excessive sentences.
STaNdaRdS OF REVIEW
[1] In reviewing a motion to suppress a confession based on
the claimed involuntariness of the statement, including claims
that it was procured in violation of the safeguards established
by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we apply a
two-part standard of review. With regard to historical facts, we
review the trial court’s findings for clear error. Whether those
facts suffice to meet the constitutional standards, however,
124 	278 NEBRaSKa REPORTS

is a question of law, which we review independently of the
trial court’s determination. State v. Rogers, 277 Neb. 37, 760
N.W.2d 35 (2009).
[2] The retention or rejection of a juror is a matter of discre-
tion for the trial court. See State v. Robinson, 272 Neb. 582,
724 N.W.2d 35 (2006). This rule applies both to the issue of
whether a venireperson should be removed for cause and to the
situation involving the retention of a juror after the commence-
ment of trial. See id.
[3] Severance is not a matter of right, and a ruling of the trial
court with regard thereto will not be disturbed on appeal absent
a showing of prejudice to the defendant. State v. Mowell, 267
Neb. 83, 672 N.W.2d 389 (2003).
[4] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. State v. Hamilton, 277 Neb. 593, 763
N.W.2d 731 (2009).
[5,6] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the 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 elements of the crime
beyond a reasonable doubt. State v. Branch, 277 Neb. 738,
764 N.W.2d 867 (2009). Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appel-
late court, in reviewing a criminal conviction, does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Id.
[7] Sentences within statutory limits will be disturbed by an
appellate court only if the sentences complained of were an
abuse of judicial discretion. Id.
aNaLYSIS
The District Court Did Not Err in Overruling the Motion
to Suppress Because Hilding Did Not Unambiguously
and Unequivocally Invoke His Miranda Rights
During the Police Interview.
Hilding first claims that the district court erred when it over-
ruled his motion to suppress the statements he made to Farber
STaTE v. HILdINg 	125
Cite as 278 Neb. 115

in the May 5, 2007, interview and in allowing such statements
into evidence at trial. We conclude that the statements were
made after Hilding waived his Miranda rights; that Hilding
did not thereafter unambiguously and unequivocally invoke his
Miranda rights; and that therefore, the court did not err in over-
ruling his motion to suppress such statements and in allowing
such statements into evidence.
Hilding directs our attention to two statements and argues
that these statements were clear and unambiguous invocations
of both his right to remain silent and his right to counsel and
that Farber did not scrupulously honor such invocations. In its
ruling on the motion to suppress, the court found that in the
May 5, 2007, interview, Farber properly informed Hilding of
his Miranda rights and that Hilding waived such rights. The
court found that Hilding did not make a request to cease the
interview or a request for an attorney when he said that he
“probably shouldn’t be talking about this” and that he “prob-
ably should have an attorney.”
[8] In order to counter the pressures of a custodial interroga-
tion, the U.S. Supreme Court in Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), “established the
familiar Miranda advisements of the right to remain silent and
to have an attorney present at questioning.” State v. Rogers,
277 Neb. 37, 51, 760 N.W.2d 35, 50 (2009). Once Miranda
warnings have been given, an individual has the right to cut off
questioning by invoking his or her Miranda rights, and once
an individual has invoked the right to cut off questioning, the
police are restricted to scrupulously honoring that right. See id.
However, before the police are under such a duty, the invoca-
tion of the right to cut off questioning must be unambiguous
and unequivocal. See id.
In the present case, there is no dispute that Hilding was in
custody at the time of the questioning and was therefore enti-
tled to Miranda protections. Compare Montejo v. Louisiana,
556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009) (over-
ruling Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404,
89 L. Ed. 2d 631 (1986) (concerning invocation of right to
counsel at arraignment). Further, there is no dispute that he was
given proper Miranda warnings and that he initially waived his
126 	278 NEBRaSKa REPORTS

Miranda rights. The sole issue is whether Hilding invoked his
right to cut off questioning, thereby requiring Farber to scrupu-
lously honor that right.
as noted above, invocation of the right to cut off question-
ing must be unambiguous and unequivocal. In Davis v. United
States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362
(1994), the U.S. Supreme Court held that in order to require
police to cease questioning until counsel is present, “the sus-
pect must unambiguously request counsel,” meaning that he or
she “must articulate his [or her] desire to have counsel pres-
ent sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request
for an attorney.” However, the Court further stated that “if a
suspect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the circum-
stances would have understood only that the suspect might be
invoking the right to counsel, our precedents do not require the
cessation of questioning.” Id. In Davis, the Court affirmed the
trial court’s finding that the defendant’s statement, “‘Maybe I
should talk to a lawyer,’” was not a request for counsel and that
therefore, law enforcement officers were not required to stop
questioning. 512 U.S. at 462.
In the present case, Hilding’s only references to cutting
off the interview were when he said, “I probably shouldn’t
be answering any of these questions,” and when he later said,
“I probably shouldn’t be talking about this.” His only refer-
ence to counsel during the interview was when he stated that
he “probably should have an attorney.” These statements are
not unambiguous and unequivocal invocations of Miranda
rights. Hilding’s statements that he “probably shouldn’t be
talking about this” or answering questions were ambigu-
ous and equivocal in and of themselves, and their equivocal
nature was perpetuated when Hilding continued to talk and
answer questions immediately after making such statements.
Hilding’s statement that he “probably should have an attor-
ney” was similar to the defendant’s statement in Davis that
“‘[m]aybe I should talk to a lawyer.’” See 512 U.S. at 462.
Because Hilding’s statement was ambiguous and equivocal,
a reasonable officer under the circumstances would have
STaTE v. HILdINg 	127
Cite as 278 Neb. 115

understood only that Hilding was considering invoking his
right to counsel.
Hilding did not unambiguously and unequivocally invoke
his right to cut off questioning, and Farber was not required to
cease questioning. We therefore conclude that the district court
did not err when it overruled Hilding’s motion to suppress his
statements made in the interview.
The District Court Did Not Err in Discharging
a Juror Who Became Ill and Replacing Her
With an Alternate Juror.
Hilding asserts that the district court erred when it dis-
charged a juror who became ill after the State began presenting
evidence. We conclude that the court did not abuse its discre-
tion by discharging the juror and replacing her with an alter-
nate juror.
after a juror became ill with the flu and a sinus infection,
the court decided to continue the trial with an alternate juror.
The court stated:
Well, I guess one of the concerns is if we don’t recess,
then if we lose another juror, we’ve got a mistrial and we
start all over again and I’m of the position, I’m not an
expert but I guess it is probably — it may not even be a
50/50 chance that [the juror] will be back tomorrow and
we lose a day. We’ve already lost a half hour so I think
it is best that we excuse her and just go ahead and see if
we can complete matters this week with the 12 remaining
jurors. I guess we’ll do that.
Hilding 	acknowledges 	on 	appeal 	that 	Neb. 	Rev. 	Stat.
§ 29-2004(2) (Reissue 2008) provides that “[i]f, before the
final submission of the cause a regular juror dies or is dis-
charged, the court shall order the alternate juror . . . to take
his or her place in the jury box.” However, Hilding argues that
“discharged” as used in § 29-2004 should be read as referring
to cause pursuant to the jury challenge statute, Neb. Rev. Stat.
§ 29-2006 (Reissue 2008), and that illness is not considered
cause for discharge under § 29-2006.
We find nothing which indicates that “discharged” as it
is used in § 29-2004(2) refers only to a discharge for one of
128 	278 NEBRaSKa REPORTS

the causes set forth in § 29-2006. We note in this regard that
§ 29-2006 does not refer to the “discharge” of a juror, but
instead sets forth “good causes for challenge to any person
called as a juror or alternate juror.” Section 29-2006 deals
with challenges to a potential juror, whereas § 29-2004 refers
to the discharge of one who has already been chosen as
a juror.
[9] Section 29-2004 does not specify the reasons for which
a regular juror might be discharged, requiring replacement
by an alternate juror. We note, however, that Neb. Rev. Stat.
§ 29-2023 (Reissue 2008) refers to cases in which the “jury
shall be discharged on account of sickness of a juror.” We
also note that Neb. Rev. Stat. § 25-1117 (Reissue 2008)
refers to discharge of the jury “on account of the sickness
of a juror.” We note further that Neb. Rev. Stat. § 29-1413
(Reissue 2008) provides that “[i]n case of the sickness . . .
of any grand juror, after the grand jury shall be affirmed or
sworn, it shall be lawful for the court, at its discretion to
cause another to be sworn or affirmed in his stead.” Long
ago, in Catron v. State, 52 Neb. 389, 72 N.W. 354 (1897),
this court determined that there was no prejudicial error when
a juror was excused because of a sickness in his family and
was replaced by a new juror. By reference to other statutes
and case law, we logically conclude that a sensible reading of
§ 29-2004 indicates that a court may discharge a regular juror
because of sickness and replace him or her with an alternate
juror. See Wooden v. County of Douglas, 275 Neb. 971, 751
N.W.2d 151 (2008) (court will construe statutes relating to
same subject matter together so as to maintain consistent and
sensible scheme).
The court in this case did not abuse its discretion when it
discharged the juror. The court considered a recess until the
juror’s health improved, but based on the nature of her illness
and the potential that an extended recess would cause hard-
ships for other jurors, the court concluded that it was the better
course to excuse the juror and continue the trial with the alter-
nate juror. Such decision was within the court’s discretion, and
we find no merit to Hilding’s assignment of error.
STaTE v. HILdINg 	129
Cite as 278 Neb. 115

The District Court Did Not Err in Overruling Hilding’s
Motion to Sever Because the Stalking Charge Was
Properly Joined With the Sexual Assault Charges
and Joinder Did Not Prejudice Hilding.
Hilding next claims that the district court erred when it
overruled his motion to sever the stalking charge from the first
degree sexual assault charges for purposes of trial. We con-
clude that the charges were properly joined and that the court
did not err when it overruled the motion to sever.
In moving to sever the stalking charge from the sexual
assault charges, Hilding asserted that the charges were not
related and argued that the inclusion of the stalking charge in
the trial for the sexual assaults would expose the jury to irrele-
vant and unduly prejudicial evidence. The court reasoned that
in light of the expected theories of the case, most of the evi-
dence related to the stalking charge would be admissible with
regard to the issue of consent in the sexual assault charges and
that there was no prejudice in trying all counts together. In this
regard, the court stated that Hilding refused “to accept the end
of the relationship [with M.S.] and his numerous phone calls,
phone messages, etc. are highly relevant to show that he may
have been inclined to ‘take’ what may no longer be permissibly
bestowed.” For completeness, we note that although the court
indicated that the evidence of the telephone calls was relevant
to both the stalking charge and the sexual assault charges, the
court determined that evidence of the e-mails Hilding sent to
M.S. related only to the stalking charge and that the court gave
the jury a limiting instruction to that effect at trial.
[10] Offenses may be joined pursuant to Neb. Rev. Stat.
§ 29-2002 (Reissue 2008), which provides:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors, or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
. . . .
130 	278 NEBRaSKa REPORTS

(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint or by such joinder of offenses
in separate indictments, informations, or complaints for
trial together, the court may order an election for separate
trials of counts, indictments, informations, or complaints,
grant a severance of defendants, or provide whatever
other relief justice requires.
We have set forth a two-stage analysis in which it is deter-
mined first, whether the offenses are related and properly join-
able under § 29-2002, and second, whether an otherwise proper
joinder was prejudicial to the defendant. See State v. Mowell,
267 Neb. 83, 672 N.W.2d 389 (2003).
Offenses are properly joinable under § 29-2002 if they “are
of the same or similar character or are based on the same act
or transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan.”
We determine that the stalking charge and the sexual assault
charges are sufficiently related for purposes of joinder. The
sexual assaults, as well as the series of telephone calls relat-
ing thereto which support the stalking charge, form a series
of connected transactions. The april 6 and 27, 2007, incidents
were a frequent topic of the telephone calls that occurred after
april 27. Hilding admitted that the threats he made in the
calls were a response to M.S.’ allegations that he had sexually
assaulted her.
We further determine that joinder was not prejudicial to
Hilding, because the facts generally related to the stalking
charge would have been admissible in a trial of the sexual
assault charges. See Mowell, supra. The evidence of the tele-
phone calls between Hilding and M.S. after the april 27, 2007,
incident supports the stalking charge but is also relevant to the
issue of consent in connection with the sexual assault charges.
Hilding and M.S. discussed the april 6 and 27 incidents in the
calls, and the calls demonstrate the nature of the relationship
between Hilding and M.S. and would provide some evidence
for the jury to determine whether or not M.S. consented to
sexual activity with Hilding.
STaTE v. HILdINg 	131
Cite as 278 Neb. 115

We conclude that the stalking charge and the sexual assault
charges were properly joined and that joinder did not prejudice
Hilding. The district court therefore did not err when it over-
ruled Hilding’s motion to sever the stalking charge from the
sexual assault charges.
There Was Sufficient Evidence to Support Hilding’s
Convictions for Sexual Assault and Stalking.
Hilding asserts that there was insufficient evidence to support
his convictions for stalking and for sexual assault. We conclude
that the evidence was sufficient to support the convictions.
With regard to the stalking charge, Hilding was convicted
of a violation of § 28-311.03, which provides that a person is
guilty of stalking if he or she “willfully harasses another per-
son or a family or household member of such person with the
intent to injure, terrify, threaten, or intimidate.” Hilding notes
that many of the calls between himself and M.S. were initiated
by M.S. and that some were made at the request of the police.
He asserts that his statements were responses to allegations
made by M.S. and were invited by the controlled calls initiated
by the police.
The evidence in this case included evidence of numerous
telephone calls initiated by Hilding to M.S. and of numerous
e-mails Hilding sent to M.S. Most of these communications
were initiated by Hilding rather than by M.S., and at least some
of the communications by M.S. were responding to messages
from Hilding. Furthermore, the stalking charge was supported
by numerous statements Hilding made to M.S. in the telephone
calls and e-mails, and such statements could rationally support
a conviction regardless of which party initiated the communi-
cations. Hilding made numerous statements to the effect that he
would tell people, including M.S.’ family, friends, and cowork-
ers, that M.S. had a sexually transmitted disease. He also made
numerous threats of physical harm to M.S., to her brother, and
to the men that M.S. dated. The jury reasonably could have
found that Hilding’s harassing communications were intended
“to injure, terrify, threaten, or intimidate” M.S. and amounted
to stalking. See § 28-311.03.
132 	278 NEBRaSKa REPORTS

With regard to the sexual assault charges, Hilding was con-
victed of two violations of § 28-319, which provides that a per-
son is guilty of first degree sexual assault if he or she “subjects
another person to sexual penetration . . . without the consent of
the victim.” In Neb. Rev. Stat. § 28-318(8)(a) (Reissue 2008),
“[w]ithout consent” is defined to mean, inter alia, that “[t]he
victim was compelled to submit due to the use of force or
threat of force or coercion, or . . . the victim expressed a lack
of consent through words.”
Hilding concedes that at trial, he admitted to sexual inter-
course with M.S. on the days charged and states that the only
issue at trial was whether M.S. consented. He also acknowl-
edges that the issue is “largely one of witness credibility,”
but he argues that M.S.’ testimony was “so conflicting and
her conduct so implausible” that her testimony stating she did
not consent is unbelievable and could not as a matter of law
constitute proof beyond a reasonable doubt. Brief for appellant
at 24-25.
The testimony of M.S., if believed by the jury, could estab-
lish that the sexual penetration was “without consent” as
defined in § 28-318(8)(a). She testified that Hilding used force,
the threat of force, or coercion to compel her to submit to
sexual penetration and, additionally, that she expressed her lack
of consent through words by telling him she did not want to
have sex. Hilding’s sole argument is that M.S.’ testimony was
not credible; however, the jury, as the fact finder, found her
testimony to be credible. When reviewing a criminal convic-
tion for sufficiency of the evidence, we, as an appellate court,
do not pass on the credibility of witnesses, see State v. Branch,
277 Neb. 738, 764 N.W.2d 867 (2009), and because the jury as
the trier of fact could have found the essential elements of first
degree sexual assault beyond a reasonable doubt based on M.S.’
testimony, the evidence was sufficient to support Hilding’s two
convictions for first degree sexual assault.
We conclude that the evidence was sufficient to support
Hilding’s convictions for stalking and two counts of first
degree sexual assault.
STaTE v. HILdINg 	133
Cite as 278 Neb. 115

The Facts of the Case Were Properly Examined to Determine
Whether Hilding Committed Aggravated Offenses and
Was Therefore Subject to Lifetime Registration
and Lifetime Supervision.
Under Nebraska statutes, a defendant is subject to lifetime
registration and lifetime supervision when he or she has com-
mitted certain “aggravated offenses.” Hilding asserts that the
district court erred when it found, “[u]nder the facts of this
case,” that he committed “aggravated offenses” as defined by
§ 29-4005(4) which resulted in the court’s ordering that he
be subject to lifetime registration pursuant to § 29-4005(2)
and that he be subject to lifetime supervision pursuant to
§ 83-174.03(1)(c). as his sole argument in his brief on appeal,
Hilding claims that it was improper to look at the facts of his
case to determine that he committed aggravated offenses rather
than looking solely to the statutory elements of the offenses of
which he stands convicted. We find this assignment of error to
be without merit.
Hilding notes that § 29-4005(4)(a) requires that to be an
aggravated offense, an offense involving a victim age 12 years
or older must involve the use of force or the threat of serious
violence. Hilding argues that the finding based on the record
that the sexual assaults in this case were “aggravated offenses”
was erroneous, because under the first degree sexual assault
statute, § 28-319, under which Hilding was convicted, the use
of force or the threat of serious violence is not a necessary ele-
ment. He argues that in making the determination of whether
an offense is an aggravated offense, only statutory elements of
the offense should be considered.
[11] We recently rejected the same argument in State v.
Hamilton, 277 Neb. 593, 763 N.W.2d 731 (2009). In Hamilton,
we held that
a sentencing judge need not consider only the elements of
an offense in determining whether an aggravated offense
as defined in § 29-4005(4)(a) has been committed. Instead,
the court may make this determination based upon infor-
mation contained in the record, including the factual basis
for a plea-based conviction and information contained in
the presentence report.
277 Neb. at 602, 763 N.W.2d at 738.
134 	278 NEBRaSKa REPORTS

In the present case, it was determined from the record that
the sexual assaults for which Hilding was convicted were aggra-
vated offenses. Information contained in the record includes
the evidence at trial, and the evidence in this case supported
a finding that the sexual assaults involved the use of force or
the threat of serious violence and were therefore aggravated
offenses. See § 29-4005(4)(a). as noted above, in connection
with sufficiency of the evidence, testimony by M.S. supported
a finding that Hilding used force or the threat of serious vio-
lence to carry out the sexual assaults on M.S. Such information
supports a finding that the offenses were aggravated offenses,
thereby subjecting Hilding to lifetime registration and lifetime
supervision. We therefore reject Hilding’s argument that the
determination of “aggravated offenses” is limited to an exami-
nation of the statutory elements.
at oral argument, for the first time, Hilding made additional
arguments that were not briefed regarding the orders for lifetime
supervision and lifetime registration. an appellate court always
reserves the right to note plain error which was not complained
of at trial or on appeal. State v. Robinson, 271 Neb. 698, 715
N.W.2d 531 (2006). However, we have examined the record,
and we find no plain error with regard to such orders.
The Sentences Imposed by the District Court
Were Not Excessive.
Finally, Hilding asserts that the district court imposed exces-
sive sentences for all three convictions. We conclude that
Hilding’s sentences were not excessive.
We note first that Hilding’s sentences were within statutory
limits. Hilding was convicted of two counts of first degree sex-
ual assault, which is a Class II felony pursuant to § 28-319(2),
and one count of stalking, which is a Class I misdemeanor
pursuant to Neb. Rev. Stat. § 28-311.04(1) (Reissue 2008). The
court sentenced Hilding to imprisonment for 10 to 16 years on
each of his convictions for first degree sexual assault, which
sentences were within the limits for a Class II felony of impris-
onment for a minimum of 1 year and a maximum of 50 years
pursuant to Neb. Rev. Stat. § 28-105(1) (Reissue 2008). The
court sentenced Hilding to imprisonment for 1 year on his con-
viction for stalking, which sentence was within the limits for
STaTE v. HILdINg 	135
Cite as 278 Neb. 115

a Class I misdemeanor of a maximum of imprisonment for 1
year pursuant to Neb. Rev. Stat. § 28-106 (Reissue 2008). The
sentences were ordered to be served consecutively.
Hilding asserts that the sentences of imprisonment were an
abuse of discretion, both in the length of the sentences and in
the fact that he was sentenced to imprisonment rather than pro-
bation. He argues that the record does not establish that M.S.
suffered or was threatened with serious physical or emotional
harm. He also argues that he is unlikely to commit another
crime and that he would likely respond affirmatively to proba-
tionary treatment.
Hilding points to nothing in the record of the sentencing
which would indicate an improper basis for the sentences.
although the record does not indicate that M.S. suffered seri-
ous physical harm, the evidence indicates that Hilding used
force and threats in perpetrating the sexual assaults. The record
does not contain evidence to support Hilding’s suggestion that
M.S. did not suffer emotional harm. Further, Hilding’s criminal
history dating from 1992 refutes his assertion that he is unlikely
to commit another crime and would respond well to probation.
His criminal history included convictions for assault and third
degree assault, three convictions for destroying property, two
convictions for violating a protection order, two convictions
for harassing telephone calls, and various convictions for traf-
fic offenses. Hilding’s criminal history also included various
arrests on charges such as disturbing the peace, criminal mis-
chief, and trespassing.
In light of the seriousness of the offenses in this case and
Hilding’s criminal history, we find no abuse of discretion in
the sentencing. We reject Hilding’s claim that his sentences
were excessive.
CONCLUSION
Having rejected each of Hilding’s assignments of error, we
affirm his convictions and sentences for two counts of first
degree sexual assault and one count of stalking.
affirMed.
WriGHt, J., participating on briefs.
136 	278 NEBRaSKa REPORTS