State v. Scott

STATE v. SCOTT 	703
Cite as 284 Neb. 703
CONCLUSION
The record is insufficient to review on direct appeal Ramirez’
claim of ineffective assistance of counsel, and accordingly, we
decline to address it. The district court did not abuse its discre-
tion in sentencing Ramirez to 25 to 30 years’ imprisonment for
first degree sexual assault. The judgment of the district court
is affirmed.
A ffirmed.
StAte of NebrASkA, Appellee, v.
SteveN d. S cott, AppellANt.
824 N.W.2d 668
Filed November 30, 2012. 	No. S-11-894.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitu-
tionality and construction of a statute are questions of law, regarding which the
Nebraska Supreme Court is obligated to reach conclusions independent of those
reached by the court below.
2. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
3. 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 such discretion a factor in deter-
mining admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
5. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
6. Judges: Evidence: Appeal and Error. 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.
7. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court will review for clear error the
factual findings underpinning a trial court’s hearsay ruling and review de novo
the court’s ultimate determination whether the court admitted evidence over a
hearsay objection or excluded evidence on hearsay grounds.
8. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

704 	284 NEBRASKA REPORTS
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
9. Convictions: Evidence: Appeal and Error. When reviewing a criminal con-
viction 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. In reviewing a crimi-
nal conviction, an appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence. Those matters are for the
finder of fact.
10. 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.
11. 	Constitutional Law: Statutes: Presumptions. A statute is presumed to be con-
stitutional, and all reasonable doubts will be resolved in favor of constitutionality.
12. Constitutional Law: Statutes: Appeal and Error. As a general rule, in a chal-
lenge to the overbreadth and vagueness of a law, a court’s first task is to ana-
lyze overbreadth.
13. Constitutional Law: Statutes. A statute is unconstitutionally overbroad and
thus offends the First Amendment if, in addition to forbidding speech or conduct
which is not constitutionally protected, it also prohibits the exercise of constitu-
tionally protected speech. A statute may be invalidated on its face, however, only
if its overbreadth is “substantial,” i.e., when the statute is unconstitutional in a
substantial portion of cases to which it applies. Stated another way, in order to
prevail upon a First Amendment facial attack to the constitutionality of a statute,
the challenger must show either that every application of the statute creates an
impermissible risk of suppression of ideas or that the statute is “substantially”
overbroad, which requires the court to find a realistic danger that the statute itself
will significantly compromise recognized First Amendment protections of parties
not before the court.
14. Criminal Law: Intent. Mens rea should apply to each of the statutory elements
which criminalize otherwise innocent conduct.
15. ____: ____. Neb. Rev. Stat. § 28-1351 (Cum. Supp. 2012) requires that at the
time of an alleged violation, the defendant had actual knowledge that members
of a group engage in or have engaged in any of the specified criminal activities
for the benefit of, at the direction of, or on behalf of the organization, group,
enterprise, or association or any of its members.
16. Constitutional Law: Criminal Law: Statutes. Neb. Rev. Stat. § 28-1351
(Cum. Supp. 2012) is not so overbroad as to infringe First Amendment rights
of association.
17. ____: ____: ____. The void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.
18. Constitutional Law: Statutes: Standing. To have standing to assert a claim of
vagueness, a defendant must not have engaged in conduct which is clearly pro-
hibited by the questioned statute and furthermore cannot maintain that the statute

STATE v. SCOTT 	705
Cite as 284 Neb. 703
is vague when applied to the conduct of others. A court will not examine the
vagueness of the law as it might apply to the conduct of persons not before the
court. The test for standing to assert a vagueness challenge is the same whether
the challenge asserted is facial or as applied.
19. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error. Error can-
not ordinarily be predicated on the failure to grant a mistrial if an objection or
motion to strike the improper material is sustained and the jury is admonished to
disregard such material. The defendant must prove that the alleged error actually
prejudiced him or her, rather than created only the possibility of prejudice.
20. Trial: Due Process: Evidence. Suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or bad
faith or the prosecution.
21. Evidence: Words and Phrases. Relevant evidence is that which has any tend-
ency to make the existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it would be without
the evidence.
22. Trial: Evidence: Juries: Appeal and Error. Evidentiary error is harmless when
improper admission of evidence did not materially influence the jury to reach a
verdict adverse to substantial rights of the defendant.
23. 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.
24. Judges: Trial. As a general rule, a judge is required to be present at all stages
of a trial.
25. ____: ____. The temporary absence of the trial judge is not reversible error
unless the defendant shows prejudice resulting from the absence.
26. Appeal and Error. An appellate court always reserves the right to note plain
error which was not complained of at trial or on appeal.
27. Appeal and Error: Words and Phrases. Plain error is error of such a nature
that to leave it uncorrected would result in damage to the integrity, reputation, or
fairness of the judicial process.
Appeal from the District Court for Douglas County: W.
mArk AShford, Judge. Affirmed in part, and in part vacated
and remanded with directions for resentencing.
Steve Lefler, of Lefler & Kuehl Law, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
heAvicAN, c.J., Wright, coNNolly, StephAN, mccormAck,
miller-lermAN, and cASSel, JJ.

706 	284 NEBRASKA REPORTS
miller-lermAN, J.
NATURE OF CASE
Steven D. Scott appeals his convictions for second degree
assault, use of a deadly weapon to commit a felony, and unlaw-
ful membership recruitment into an organization or associa-
tion, a Class IV felony under Neb. Rev. Stat. § 28-1351 (Cum.
Supp. 2012). Scott claims that the district court for Douglas
County erred with respect to numerous evidentiary and other
trial rulings and when it rejected his constitutional challenges
to § 28-1351. We affirm Scott’s convictions. We reject Scott’s
argument that the district court imposed excessive sentences,
but we note plain error in Scott’s sentencing, wherein the
sentencing court erroneously ordered the sentence for use of
a deadly weapon to be served concurrently with the sentence
for unlawful recruitment. We therefore vacate Scott’s sentences
and remand the cause to the district court to resentence so that
the sentence for use of a deadly weapon is ordered to run con-
secutively to the other sentences imposed.
STATEMENT OF FACTS
The charges against Scott arose from allegations that he
assaulted Samuel Kelley on November 20, 2010. Kelley tes-
tified at trial that he met Scott when they were both middle
school students. Kelley and Scott were friends through middle
school and high school.
Kelley testified that he was “kicked out” of his parents’
house in October or November 2009 when he was 20 years old.
Scott offered to let Kelley stay at his apartment. Kelley knew
that in high school, Scott and three of his friends called them-
selves “the White Rider Clique.” Scott was still involved with
the group when Kelley moved into Scott’s apartment in 2009.
While staying with Scott, Kelley came to realize that the group
was involved in criminal activities. Scott referred to the group
as the “family,” and the group would have “family meetings”
where they would “talk about family business.” Scott was one
of the “bosses,” and Scott described the group to Kelley as a
criminal organization whose hierarchy was based on the char-
acters from the television series the “Sopranos.” The goals of
the group were to “start small and get big and recruit.” Scott

STATE v. SCOTT 	707
Cite as 284 Neb. 703
told Kelley that if he were to become part of the group, he
“would need to watch a good amount of the Sopranos’ seasons
so [he] could get a better feel for what the family was like by
watching the TV show.”
Kelley testified that Scott asked Kelley to sell marijuana
for him. Kelley agreed to do so because he was short on cash.
Their arrangement was that Scott would front Kelley an ounce
of marijuana and that Kelley would pay Scott $90 after he had
sold the ounce, keeping any additional money from the sale.
Scott obtained the marijuana from one of the other members
of the “family.” Kelley sold marijuana for Scott three or four
times during the month that he lived with Scott.
Kelley testified that Scott also asked him to get close to two
known drug dealers they had met at a party in order to deter-
mine their whereabouts so that Kelley and Scott “could jump
them and steal their drugs or cash or whatever they had on
them.” Kelley said “yes” to Scott, but instead of carrying out
the plan, Kelley warned the targets of Scott’s intent.
On November 20, 2009, Kelley signed up to join the U.S.
Army Reserve. Kelley told Scott that because he had joined
the Army, he would no longer sell marijuana. Scott told Kelley
that he still had to sell one last ounce that Scott had obtained
for him but that whether or not he sold the ounce, he still owed
Scott $90. Kelley moved back to his parents’ home and left
the ounce of marijuana at Scott’s apartment. Kelley did not
answer Scott’s calls over the next 2 weeks because he knew
Scott wanted him to sell the ounce of marijuana. Scott and
another member of the “family” came to see Kelley at his
parents’ house. Scott told Kelley that because he did not join
the “family,” in addition to the $90 Kelley owed for the ounce
of marijuana, he owed Scott rent for the time he stayed in the
apartment. Scott told Kelley to pay $300 “or bad things are
going to happen.” Kelley did not pay, and he avoided contact
with Scott until he left for basic training in South Carolina in
February 2010.
Kelley returned to Omaha in August 2010. Kelley did not
see Scott again until a night in November when he was leav-
ing a party at his friend Nate Chalupa’s house and, as he got
into his car, Scott “ran up behind [Kelley], hit [him] with a

708 	284 NEBRASKA REPORTS
hammer a couple of times.” Kelley testified that when getting
into his car, he dropped his key. As he reached down for the
key, he heard a voice say, “what the fuck is up?” Kelley rec-
ognized the voice as Scott’s and said the phrase was one that
Scott commonly used. Kelley was hit in the head two or three
times before he turned around and grabbed the wrist of the
person hitting him. The person was wearing black clothes and
a black ski mask and was holding a small ball peen hammer.
Jacob Novacek, a friend of Kelley’s, tackled the attacker to the
ground. As Kelley kicked the attacker, the ski mask was pulled
off and Kelley recognized him as Scott. Kelley and Novacek
backed off. Scott got up and came after Kelley with the ham-
mer and hit him in the forehead and once or twice in the head.
Chalupa had come out of his house and punched Scott once or
twice before Scott ran off. As he was running, Scott stopped
and said to Kelley, “don’t get the cops involved, your family is
next.” Novacek ran after Scott but did not catch him. Friends
took Kelley to a hospital where he got six stitches in his fore-
head and four staples in the top of his head.
The State charged Scott with second degree assault, use of
a deadly weapon to commit a felony, and terroristic threats.
The State amended the information to add a count of unlawful
membership recruitment into an organization or association in
violation of § 28-1351. Scott filed a motion to quash in which
he asserted that § 28-1351 was unconstitutional because it was
unconstitutionally vague and overbroad and violated his rights
of free speech and assembly. After a hearing, the court rejected
Scott’s constitutional challenges to § 28-1351, finding that the
statute was not vague or overbroad and did not infringe Scott’s
rights to free speech and assembly, because it did not crimi-
nalize his association with a group but instead criminalized
unlawful recruitment of others into the group through prohib-
ited means.
At trial, the State presented Kelley’s testimony as described
above. During Kelley’s testimony, the State asked about the
police investigation of his allegations against Scott. Kelley
testified that after he talked to police at the hospital, officers
came to his house to question him about the assault. The State
asked, “And did they show you a photo line-up?” to which

STATE v. SCOTT 	709
Cite as 284 Neb. 703
Kelley replied, “They did.” The State then asked, “And were
you able to pick someone out of that photo line-up?” to which
Kelley replied, “I was.” At that point, Scott objected based on
hearsay, and after the court overruled the objection, Scott’s
counsel approached the bench and moved for a mistrial based
on testimony regarding an out-of-court identification by use of
a photographic array. The court did not immediately rule on the
motion and recessed the trial for the day.
The next day, outside the presence of the jury, the court
stated that it would sustain Scott’s hearsay objection to the
questioning 	regarding 	the 	photographic 	identification 	and
would instruct the jury to disregard it. The court overruled the
motion for a mistrial, reasoning that the witness had already
identified the defendant and that an instruction to the jury to
disregard the questioning would be adequate.
When the jury returned to the courtroom, the court instructed
as follows: “Yesterday right when we finished, there was a
back and forth about a photo array and an objection was made
regarding that exchange. The objection is sustained, and you
will please disregard the exchange having to do with the photo
array.” The State continued its direct examination of Kelley.
The court did not give, and Scott did not request, a written
instruction on the matter.
Later in the trial, the State called Novacek, the friend
who was with Kelley at the time of the assault, as a witness.
During Novacek’s direct examination, the State asked Novacek
whether he recognized anyone in the courtroom as the person
who assaulted Kelley, and Novacek identified Scott. The court
overruled Scott’s objection based on foundation and improper
discovery. The State twice asked Novacek whether police had
asked him to identify the assailant or had shown him a pho-
tographic lineup. The court twice overruled an objection by
Scott, and Novacek twice replied, “No.”
After Novacek’s testimony, the court called a recess, during
which Scott moved for a mistrial on the basis that the State
had not disclosed prior to trial that Novacek would identify
Scott as the assailant. Scott’s counsel stated that he had been
told that Kelley and Chalupa were the only witnesses who
would identify Scott. Scott’s counsel argued that if he had

710 	284 NEBRASKA REPORTS
known Novacek would identify Scott, he would have deposed
Novacek in order to more effectively cross-examine him at
trial. The State argued in response that it had provided all the
evidence it was required to provide Scott prior to trial but that
the State itself did not know prior to Novacek’s testimony that
he was able to identify Scott. The court denied Scott’s motion
for mistrial.
During the State’s redirect examination of one of the police
detectives, the State asked the detective whether photographic
lineups, if they had been done, would have been done by
other detectives. The court overruled Scott’s objection, and the
detective replied that if lineups were done, they would have
been done by others.
At the beginning of the trial, Scott filed a motion in limine
to prevent admission of evidence that the police had found
firearms during searches of Scott’s vehicle and his home. The
court reserved ruling on the motion in order to consider the
evidence in the context in which it was offered. An officer
who searched Scott’s home and vehicle testified at trial that
he found an assault rifle in Scott’s home and firearms in the
glove box and trunk of his vehicle. The court overruled Scott’s
relevance objections.
In his defense, Scott presented testimony of witnesses,
including Grant Arbaugh, who testified that he was at the party
the night Kelley was assaulted. Arbaugh witnessed the assault
and saw the attacker after the ski mask came off. Arbaugh
stated that he knew Scott and that the attacker was not Scott.
During cross-examination, the State asked Arbaugh where on
his body he had tattoos. The court overruled Scott’s objection
based on relevance. Arbaugh testified that he had tattoos on his
knees and back and in response to further questioning testified
that the tattoo on his back said “Family above all.” On redirect
examination by Scott, Arbaugh testified that the tattoo referred
to his actual family rather than to his friends.
After deliberations, the jury found Scott guilty of second
degree assault, use of a deadly weapon to commit a felony,
and unlawful membership recruitment into an organization or
association. The jury found him not guilty of terroristic threats.
The court entered judgment based on the verdicts.

STATE v. SCOTT 	711
Cite as 284 Neb. 703
Scott filed a motion for new trial or to vacate the judg-
ment on various bases. He amended the motion to include an
assertion that the trial judge “repeatedly left the courtroom
during testimony.” The judge who had presided over the
trial retired after the judgment was entered, and the motion
was randomly assigned to a new judge. At a hearing on the
motion, the court received into evidence five affidavits offered
by Scott. The affidavits were of friends and family of Scott
who had attended the trial. Each affiant stated that he or she
“was present for the entirety” of the trial and “saw the Trial
Court repeatedly leave the courtroom during various phases
of the trial.” Scott’s counsel stated at the hearing that four of
the affiants were present and could testify further if the court
wished. The State told the court that it could obtain and pro-
vide affidavits of the judge who presided over the trial, the
bailiff, and another person who was present at the trial “to
further delineate the allegations of the judge leaving the court-
room.” Scott’s counsel conceded that the judge’s absences
were not made a part of the record and stated that he did not
think that the judge had absented himself during objections
or anything counsel “would consider to be important to the
unfolding of the trial.” Scott’s counsel further stated that the
judge left the bench “four or five times,” that the “longest
period of time [the judge] would have been gone was . . .
two or three minutes,” and that most times “would have been
shorter than that.” The State’s counsel said that the judge “got
up and left the bench . . . four or five times” but had gone out
a door 15 feet from the bench and returned after being gone
“a few seconds at most.” The court overruled Scott’s motion
for new trial.
The court sentenced Scott to imprisonment for 4 to 5 years
for second degree assault, 4 to 5 years for use of a deadly
weapon, and 1 to 2 years for unlawful membership recruit-
ment. The court ordered the sentences on the assault and use
of a deadly weapon convictions to be served consecutively
to one another and ordered the sentence on the unlawful
recruitment conviction to be served concurrently to the other
two sentences.
Scott appeals his convictions and sentences.

712 	284 NEBRASKA REPORTS
ASSIGNMENTS OF ERROR
Scott claims that the court erred when it (1) rejected his
constitutional 	challenges 	to 	§ 	28-1351, 	(2) 	overruled 	his
motion for mistrial based on Kelley’s testimony regarding an
out-of-court identification based on a photographic array, (3)
allowed Novacek’s identification of Scott at trial, (4) over-
ruled his objections to evidence regarding firearms found dur-
ing searches of his home and vehicle, (5) overruled various
hearsay objections, (6) allowed evidence regarding Arbaugh’s
tattoo, and (7) overruled his motion for new trial based on the
trial judge’s absences from the courtroom. Scott also asserts
that there was not sufficient evidence to find that he was part
of a “gang,” that the cumulative errors resulted in an unfair
trial, that the court erred when it overruled his motion for new
trial based on various issues, and that the court imposed exces-
sive sentences.
STANDARDS OF REVIEW
[1] The constitutionality and construction of a statute are
questions of law, regarding which we are obligated to reach
conclusions independent of those reached by the court below.
State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).
[2] The decision whether to grant a motion for mistrial is
within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion. State v.
Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
[3-5] 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 such discretion a factor in determining
admissibility. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687
(2012). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discre-
tion. State v. Vigil, supra. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right
and denying a just result in matters submitted for disposition.
State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).

STATE v. SCOTT 	713
Cite as 284 Neb. 703
[6] The exercise of judicial discretion is implicit in deter-
mining the relevance of evidence, and a trial court’s decision
regarding relevance will not be reversed absent an abuse of
discretion. State v. Glazebrook, 282 Neb. 412, 803 N.W.2d
767 (2011).
[7] Apart from rulings under the residual hearsay exception,
we will review for clear error the factual findings underpinning
a trial court’s hearsay ruling and review de novo the court’s
ultimate determination whether the court admitted evidence
over a hearsay objection or excluded evidence on hearsay
grounds. State v. Vigil, supra.
[8] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not
be disturbed. State v. Williams, 282 Neb. 182, 802 N.W.2d
421 (2011).
[9] 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. Nolan, 283 Neb. 50, 807
N.W.2d 520 (2012). And in our review, we do not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Those matters are for the finder of
fact. Id.
[10] Sentences within statutory limits will be disturbed by
an appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Howard, 282 Neb. 352,
803 N.W.2d 450 (2011).
ANALYSIS
The District Court Did Not Err When It Rejected
Scott’s Claim That § 28-1351 Is Constitutionally
Vague or Overbroad or That It Violates
First Amendment Rights.
Scott first claims that the district court erred when it rejected
his constitutional challenges to § 28-1351. Scott asserts that
the statute is unconstitutionally vague and overbroad because

714 	284 NEBRASKA REPORTS
it violates the First Amendment by infringing his rights of free
association. The First Amendment in part prohibits laws that
“abridg[e] the freedom of speech . . . or the right of the people
peaceably to assemble.” We conclude that the district court
did not err when it rejected Scott’s constitutional challenges to
§ 28-1351.
The statute challenged by Scott, § 28-1351(1), provides
in part:
A person commits the offense of unlawful membership
recruitment into an organization or association when he
or she knowingly and intentionally coerces, intimidates,
threatens, or inflicts bodily harm upon another person
in order to entice that other person to join or prevent
that other person from leaving any organization, group,
enterprise, or association whose members, individually
or collectively, engage in or have engaged in any of the
following criminal acts for the benefit of, at the direction
of, or on behalf of the organization, group, enterprise, or
association or any of its members[.]
The statute thereafter lists various criminal acts, including,
inter alia, robbery, assault, theft, and violations of the Uniform
Controlled Substances Act involving possession with intent
to deliver, distribution, delivery, or manufacture of a con-
trolled substance.
[11] We note first that a statute is presumed to be consti-
tutional, and all reasonable doubts will be resolved in favor
of 	constitutionality. 	Sarpy 	Cty. 	Farm 	Bureau 	v. 	Learning
Community, 283 Neb. 212, 808 N.W.2d 598 (2012). We further
note that the wisdom of a statute is not at issue in a constitu-
tional challenge and that it is not this court’s duty to determine
whether the statute should have been enacted. See Nebraska
Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 545-46,
731 N.W.2d 164, 176 (2007) (this court “‘does not sit as a
superlegislature to review the wisdom of legislative acts’”)
(quoting Gourley v. Nebraska Methodist Health Sys., 265 Neb.
918, 663 N.W.2d 43 (2003)).
Scott’s First Amendment arguments are interwoven with his
overbreadth arguments. In effect, he argues that § 28-1351 is
overbroad because it punishes conduct that is protected by the

STATE v. SCOTT 	715
Cite as 284 Neb. 703
First Amendment. Therefore, Scott’s First Amendment chal-
lenge will be analyzed in connection with his argument that
§ 28-1351 is overbroad.
[12,13] As a general rule, in a challenge to the overbreadth
and vagueness of a law, a court’s first task is to analyze over-
breadth. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).
A statute is unconstitutionally overbroad and thus offends the
First Amendment if, in addition to forbidding speech or con-
duct which is not constitutionally protected, it also prohibits
the exercise of constitutionally protected speech. Id. A statute
may be invalidated on its face, however, only if its overbreadth
is “substantial,” i.e., when the statute is unconstitutional in
a substantial portion of cases to which it applies. Id. Stated
another way, in order to prevail upon a First Amendment facial
attack to the constitutionality of a statute, the challenger must
show either that every application of the statute creates an
impermissible risk of suppression of ideas or that the statute
is “substantially” overbroad, which requires the court to find
a realistic danger that the statute itself will significantly com-
promise recognized First Amendment protections of parties not
before the court. See id.
As support for his argument that § 28-1351 is overbroad
and infringes First Amendment rights, Scott refers us to State
v. Manzanares, 152 Idaho 410, 272 P.3d 382 (2012), in which
the Idaho Supreme Court rejected a constitutional challenge
to a statute criminalizing recruitment into a “criminal gang.”
See Idaho Code Ann. § 18-8504(1)(a) (Cum. Supp. 2009).
Scott maintains that the reasoning of the partial dissent in
that case was more persuasive than that of the majority. The
dissent in Manzanares reasoned that the statute’s definition
of “criminal gang” was broad enough to include intimate or
expressive associations that were entitled to First Amendment
protection and, in addition, that the statute required no intent
on the part of the defendant that the recruit engage in criminal
activity. Id. (Horton, J., specially concurring in part, and in
part dissenting).
We do not believe the rationale of the partial dissent in
Manzanares controls the outcome of the current challenge.
As an initial matter, the Idaho statute at issue in Manzanares

716 	284 NEBRASKA REPORTS
differs from § 28-1351 in significant respects. The Idaho stat-
ute makes it a crime merely to recruit a member regardless
of the methods used and, at least in the view of the dissent,
regardless of whether the defendant intends for the recruit to
engage in criminal activity. Nebraska’s statute, however, does
not criminalize every method a person might use to recruit or
retain members; instead, it is a crime only when the accused
“coerces, intimidates, threatens, or inflicts bodily harm” on the
target. The focus of § 28-1351 is on the methods used to recruit
or retain members.
Furthermore, § 28-1351 does not use the problematic “crimi-
nal gang” language of the Idaho statute; instead, it refers to an
“organization, group, enterprise, or association whose mem-
bers, individually or collectively, engage in or have engaged
in any of” the specific listed criminal acts “for the benefit of,
at the direction of, or on behalf of the organization, group,
enterprise, or association or any of its members.” The Nebraska
statute defines the type of associations at issue as being limited
to those whose members engage in criminal activity, which
activity is at least part of the purpose of the association. Such
definition narrows the statute such that it is not so broad as to
encompass constitutionally protected association.
[14,15] We further note that § 28-1351 includes a require-
ment that the defendant “knowingly and intentionally” commit
the act. Such mens rea should be applied to all the elements of
the crime. See State v. Ryan, 249 Neb. 218, 226, 543 N.W.2d
128, 137 (1996) (“[m]ens rea should apply to each of the
statutory elements which criminalize otherwise innocent con-
duct”), overruled on other grounds, State v. Burlison, 255 Neb.
190, 583 N.W.2d 31 (1998). As we read the statute, in order
to convict a person charged with violating § 28-1351(1), the
State must prove that at the time of the alleged violation, the
defendant had actual knowledge that members of the group
“engage in or have engaged in” any of the specified criminal
activities “for the benefit of, at the direction of, or on behalf
of the organization, group, enterprise, or association or any of
its members.”
[16] With this reading of the statute, we conclude that
§ 28-1351 is not so overbroad as to infringe First Amendment

STATE v. SCOTT 	717
Cite as 284 Neb. 703
rights of association. It does not criminalize mere recruitment
by any means; instead, it criminalizes specific behaviors used
to recruit or retain members. Simply asking or peacefully
encouraging a person to join a group would not constitute
coercion, intimidation, threats, or the infliction of bodily harm.
Furthermore, the statute does not target intimate or expres-
sive associations but instead focuses on associations for which
members engage in specified criminal activities, and the statute
requires that an individual charged under the statute must be
aware of such activities.
[17,18] With regard to Scott’s vagueness challenge, we note
that the void-for-vagueness doctrine requires that a penal stat-
ute define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and discrimina-
tory enforcement. See State v. Rung, 278 Neb. 855, 774 N.W.2d
621 (2009). To have standing to assert a claim of vagueness, a
defendant must not have engaged in conduct which is clearly
prohibited by the questioned statute and furthermore cannot
maintain that the statute is vague when applied to the conduct
of others. Id. A court will not examine the vagueness of the
law as it might apply to the conduct of persons not before
the court. Id. The test for standing to assert a vagueness chal-
lenge is the same whether the challenge asserted is facial or as
applied. Id.
Scott’s argument with regard to vagueness is not entirely
clear. He argues that the statute does not clearly define a
“criminal gang.” However, § 28-1351 does not use the words
“criminal gang” and instead refers to recruitment into an
“organization, group, enterprise, or association whose mem-
bers, individually or collectively, engage in or have engaged
in” specific criminal acts “for the benefit of, at the direction
of, or on behalf of the organization, group, enterprise, or asso-
ciation or any of its members.” The acts for which Scott was
charged were clearly prohibited by the statute. He was accused
of using coercion, intimidation, threats, and the infliction of
bodily harm to prevent Kelley from discontinuing his relation-
ship with the “family,” at least until Kelley completed the final
marijuana sale by paying Scott. Scott knew of the criminal acts

718 	284 NEBRASKA REPORTS
of the group. Because the acts for which Scott was charged
clearly fall within the prohibition of § 28-1351, we conclude
that he does not have standing to assert a claim of unconstitu-
tional vagueness.
Having concluded that Scott has not shown that § 28-1351
is unconstitutionally vague, overbroad, or violative of First
Amendment rights, we find no merit to his claim that the dis-
trict court erred when it rejected his challenges.
Testimony Regarding Photographic Array
Identification Did Not Merit a Mistrial.
Scott claims that the district court erred when it overruled
his motion for mistrial based on Kelley’s testimony that the
police had shown him a photographic array and that he was
able to pick someone out of the array. We conclude that such
testimony did not warrant a mistrial.
Although we have held that testimony regarding an out-
of-court identification is hearsay, see State v. Salamon, 241
Neb. 878, 491 N.W.2d 690 (1992), in this case, Kelley did not
testify that he identified Scott in a photographic lineup, only
that he was shown the lineup and that he was able to identify
“someone.” To the extent it could be inferred that he identified
Scott, we note that the trial court ruled the testimony inadmis-
sible and instructed the jury to disregard it. Furthermore, the
instructions at the end of the trial included an instruction that
the jury was not to consider any evidence the judge had told
them to disregard.
[19] The decision whether to grant a motion for mistrial
is within the trial court’s discretion and will not be disturbed
on appeal in the absence of an abuse of discretion. State v.
Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). Error cannot
ordinarily be predicated on the failure to grant a mistrial if an
objection or motion to strike the improper material is sustained
and the jury is admonished to disregard such material. Id. The
defendant must prove that the alleged error actually prejudiced
him or her, rather than created only the possibility of preju-
dice. Id.
Scott argues that despite the court’s instruction, there was
prejudice because the State “reintroduced” the evidence when

STATE v. SCOTT 	719
Cite as 284 Neb. 703
it asked other witnesses about photographic lineups. Brief for
appellant at 32. However, in the incidents to which Scott refers,
no witness testified that anyone had identified Scott in a photo-
graphic lineup. Instead, Novacek testified that he had not been
shown a photographic lineup, and a police detective testified
that if a photographic lineup had been conducted in this case,
it would have been conducted by another detective. Nothing
in these exchanges would have caused the jury to consider the
evidence in connection with Kelley’s photographic lineup testi-
mony that the court had told the jury to disregard.
We conclude that the district court did not abuse its discre-
tion when it overruled Scott’s motion for mistrial based on
testimony related to any photographic array.
The District Court Did Not Err When It Allowed
Novacek to Identify Scott at Trial.
Scott claims that the district court erred when it rejected his
challenge based on Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963), to Novacek’s in-court identifi-
cation of Scott. He asserts that the State had not told him prior
to trial that Novacek would identify him. Scott argues that if he
had known Novacek was going to identify him, he would have
prepared differently for his cross-examination of Novacek and
would have deposed Novacek prior to trial. We conclude that
Brady was not applicable to this evidence and that the court did
not err when it allowed the evidence.
[20] In Brady, the U.S. Supreme Court held that “suppres-
sion by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is mate-
rial either to guilt or to punishment, irrespective of the good
faith or bad faith or the prosecution.” 373 U.S. at 87. We have
stated that there are three components of a true Brady viola-
tion: “‘The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.’”
State v. McGee, 282 Neb. 387, 394, 803 N.W.2d 497, 504
(2011) (quoting Strickler v. Greene, 527 U.S. 263, 119 S. Ct.
1936, 144 L. Ed. 2d 286 (1999)).

720 	284 NEBRASKA REPORTS
We determine that there was not a Brady violation in this
instance and that this assignment of error is without merit. The
testimony at issue is Novacek’s identification of Scott as the
person who attacked Kelley. This evidence was not favorable
or exculpatory to Scott but was instead inculpatory. It is not the
type of evidence to which Brady is directed. For completeness,
we note that to the extent Scott’s argument is that the State
acted improperly in some other way, the record shows the State
informed the district court that it did not know prior to trial
that Novacek could identify Scott and therefore could not have
taken steps to suppress such evidence.
We conclude that there was not a Brady violation, because
the evidence was not exculpatory. The district court did not err
when it rejected Scott’s challenge to the testimony.
The District Court Did Not Err When
It Admitted Evidence That Firearms
Were Found During Searches of
Scott’s Home and Vehicle.
Scott claims that the district court erred when it overruled
his objections to evidence that police found firearms when they
searched his home and his vehicle. We conclude that the court
did not err.
Scott argues that his ownership of guns was not relevant to
the charges against him because he was not accused of using
a firearm to assault Kelley. He asserts that unfair prejudice
outweighed the probative value of the evidence. As the State
notes, Scott’s objection at trial was based only on relevance.
He did not assert an objection based on Neb. Evid. R. 403,
which generally provides for the exclusion of evidence where
the risk of prejudice outweighs its probative value.
[21] Relevant evidence is that which has any tendency 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. State v. Glazebrook,
282 Neb. 412, 803 N.W.2d 767 (2011). 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. Id.

STATE v. SCOTT 	721
Cite as 284 Neb. 703
We determine that the evidence was relevant to the unlawful
recruitment charge under § 28-1351 in that the jury could see
it as further circumstantial evidence that Scott and the “family”
were involved in one or more of the criminal activities listed in
the statute, which might be accomplished by use of firearms.
The firearms would support Kelley’s testimony that the group
members saw themselves as a “Sopranos”-style group, and not
as an innocent association of individuals.
We conclude that the trial court did not abuse its discretion
when it determined that the firearms evidence was relevant and
allowed its admission.
The District Court Did Not Commit
Reversible Error When It Rejected
Scott’s Hearsay Objections.
Scott claims that the district court erred when it overruled
his hearsay objections to various pieces of testimony. We con-
clude that such instances either were not error or were harmless
error. Furthermore, the admission of such items of evidence did
not deny Scott due process.
Scott notes various points in the trial when he raised a
hearsay objection to testimony and the court overruled the
objection. He makes little argument regarding any specific
evidence. An example of the evidence claimed to have been
prejudicial was the admission of Kelley’s testimony regard-
ing Scott’s efforts to find Kelley after he moved out of Scott’s
apartment by asking Kelley’s friends. Scott argues that he was
denied due process because the court overruled numerous hear-
say objections.
[22,23] Having reviewed the objections noted by Scott, we
conclude that to the extent the court’s overruling any of the
objections was error, it was harmless error. Evidentiary error is
harmless when improper admission of evidence did not materi-
ally influence the jury to reach a verdict adverse to substantial
rights of the defendant. State v. Freemont, ante p. 179, 817
N.W.2d 277 (2012). 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

722 	284 NEBRASKA REPORTS
the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error. Id.
The pieces of testimony noted by Scott were not of great
import in the context of the trial and in light of other evidence
supporting the charges against Scott. A rational trier of fact
would not have accorded much weight to the items com-
plained of, and the outcome was surely not attributable to their
admission. To the extent any of the testimony cited by Scott
was inadmissible hearsay, we conclude that its admission was
harmless error. Scott was not denied due process.
The District Court Did Not Err When
It Admitted Evidence Regarding
Grant Arbaugh’s Tattoos.
Scott claims that the district court erred when it overruled
his relevance objections to questions during the State’s cross-
examination of Arbaugh. We reject this argument.
Arbaugh 	was 	a 	witness 	for 	the 	defense. 	In 	its 	cross-
examination of Arbaugh, the State asked questions regarding
Arbaugh’s tattoos, which included a tattoo that read “Family
Above All.” Scott argues the testimony was unfairly preju-
dicial because it indicated that Arbaugh was in a gang with
Scott and that it was improperly used to damage Arbaugh’s
credibility.
The testimony was only that Arbaugh had the tattoo and
what it said. There was no testimony to the effect that the tat-
too meant he was part of a gang, and to the contrary, Arbaugh
testified on redirect that it referred to his actual family, not to
his group of friends. To the extent the State was asking the
questions in an attempt to show that Arbaugh was a member of
the “family” about which Kelley testified, such evidence was
relevant to the jury’s assessment of Arbaugh’s credibility. Such
evidence would show the nature of his association with Scott.
Any prejudice which might result was not unfair prejudice,
because it was relevant and Scott had the opportunity on redi-
rect to let Arbaugh explain the meaning of the tattoo.
We conclude that the district court did not abuse its discre-
tion by allowing this evidence, and we reject this assignment
of error.

STATE v. SCOTT 	723
Cite as 284 Neb. 703
Scott Has Not Shown Prejudice as a Result of the
Judge’s Absences During Trial, and the District
Court Did Not Err When It Denied the
Motion for New Trial on This Basis.
Scott claims that the district court erred when it overruled
his motion for new trial based on several brief instances in
which the trial judge absented himself from the courtroom.
Although we disapprove of the judge’s practice, we conclude
that Scott did not establish prejudice resulting from the judge’s
absences and that the district court did not err when it over-
ruled the motion for new trial on this basis.
[24,25] In State v. Smith, 256 Neb. 705, 710, 592 N.W.2d
143, 147 (1999), we stated that “[a]s a general rule, a judge
is required to be present at all stages of a trial.” However,
we have recognized that “the absence of the trial judge from
the courtroom is not always prejudicial.” Id. In both Smith
and Shaffer v. State, 124 Neb. 7, 244 N.W. 921 (1932), this
court concluded that under the circumstances of those par-
ticular cases, the record did not show that any prejudicial error
resulted from the temporary absence of the judge and that
therefore, the absence did not amount to reversible error. In
Smith, we cited with favor cases from other jurisdictions hold-
ing that the temporary absence of the trial judge is not revers-
ible error unless the defendant shows prejudice resulting from
the absence.
In the present case, Scott has not shown prejudice resulting
from the trial judge’s conduct. He argues that the absences sent
a message to the jury that those portions of the trial when the
judge left were not important. However, Scott made no objec-
tion to the judge’s absences during the trial and made no record
of such absences or how such absences correlated to particular
testimony. The affidavits that Scott submitted in support of his
motion for new trial were not specific regarding the number of
absences or the points in the trial when such absences occurred.
Scott has not shown with any specificity the number, duration,
or timing of the absences and has not shown any prejudice that
resulted from the absences.
As we noted in the above-cited cases, we again emphasize
that a judge should be present at all stages of the trial and

724 	284 NEBRASKA REPORTS
should avoid absences for any length of time while proceedings
are underway. However, because Scott did not show prejudice
resulting from the judge’s admittedly brief absences, we con-
clude that the district court did not abuse its discretion when it
rejected these assertions as a basis for a new trial.
There Was Sufficient Evidence To Support Scott’s
Conviction for Violating § 28-1351.
Scott asserts that there was insufficient evidence to establish
that Scott was part of a “gang” under § 28-1351. We note that
“gang” is not an element of § 28-1351, and we conclude that
there was sufficient evidence to support the conviction under
§ 28-1351 as written.
Scott’s 	argument 	regarding 	sufficiency 	of 	the 	evidence
relates only to his conviction under § 28-1351; he asserts that
other than Kelley’s testimony regarding the “family,” there was
no evidence to establish that Scott was in a “gang.” However,
§ 28-1351 does not refer to a “gang,” and therefore, the State
was not required to prove that Scott was in a “gang.” Instead,
the statute refers to an “organization, group, enterprise, or asso-
ciation whose members, individually or collectively, engage
in or have engaged in” specific criminal acts “for the benefit
of, at the direction of, or on behalf of the organization, group,
enterprise, or association or any of its members.” Kelley’s testi-
mony in itself was sufficient to show that Scott and his friends
were an “organization, group, enterprise, or association.” He
testified that Scott described the group as a criminal organiza-
tion that styled itself after the “Sopranos.” His testimony also
established that Scott involved Kelley in selling marijuana, a
violation of the Uniform Controlled Substances Act, which is
one of the criminal acts listed in § 28-1351. Kelley’s testimony
also indicated that Scott at least planned to carry out a theft
of drugs, another crime. Kelley testified that at least one other
member of the group provided marijuana for Scott and Kelley
to sell, and it therefore can be inferred that the crimes in which
Scott got Kelley involved were for the benefit of the group.
The evidence was sufficient to establish the required elements
of § 28-1351.

STATE v. SCOTT 	725
Cite as 284 Neb. 703
Given the language of § 28-1351, we also consider whether
there was sufficient evidence that Scott’s actions were intended
to entice Kelley to join or prevent him from leaving the asso-
ciation. There is no direct evidence of Scott’s intent, but cir-
cumstantial evidence can be sufficient to infer intent. See In re
Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007)
(perpetrator’s state of mind is question of fact, and such fact
may be proved by circumstantial evidence).
We acknowledge first that the assault on November 20,
2010, might not be evidence to support the conviction under
§ 28-1351 because, by that time, it is probable that Scott no
longer intended to recruit Kelley or keep him in the orga-
nization, and it is more probable that the motive for the
assault was to carry through on earlier threats. However, the
charge under § 28-1351 in the information and the court’s
instruction to the jury regarding the charge referred to events
occurring from November 1, 2009, through November 20,
2010. Actions by Scott during that timeframe, particularly in
the early part of the timeframe, could reasonably have been
found to be intended to recruit or retain Kelley as a member
of the “family.” There was evidence that in November or
December 2009, Scott told Kelley that he had to pay for the
last ounce of marijuana that Scott had obtained for Kelley
to sell “or bad things are going to happen.” Scott also told
Kelley that he owed Scott money for rent because Kelley
did not join or wish to retain membership in the family. To
the extent that the sale of marijuana was part of the activ-
ity of the “family,” Scott’s threats to Kelley could be seen
by the jury as an attempt to keep Kelley in the “family,” at
least to the extent of completing one final sale. In the words
of § 28-1351, Scott’s actions in late 2009 could be seen as
coercing, intimidating, or threatening Kelley with the intent
to entice him to join or to prevent him from leaving the orga-
nization. This evidence was sufficient to support the convic-
tion under § 28-1351.
We conclude that there was sufficient evidence to support
Scott’s conviction under § 28-1351.

726 	284 NEBRASKA REPORTS
Scott Was Not Denied a Fair Trial, and
the District Court Did Not Err When
It Denied His Motion for New Trial.
Scott asserts that the cumulative impact of all errors of
which he complains resulted in an unfair trial. He also claims
that the district court erred when it overruled his motion for
new trial based on various errors during trial. Scott’s argu-
ment in this regard is dependent upon the arguments we
have already rejected with respect to his other assignments of
error. Therefore, we also find these assignments of error to be
without merit. See State v. Daly, 278 Neb. 903, 775 N.W.2d
47 (2009).
The District Court Did Not Impose
Excessive Sentences.
Finally, Scott asserts that the district court imposed excessive
sentences. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were
an abuse of judicial discretion. State v. Howard, 282 Neb. 352,
803 N.W.2d 450 (2011). Although we conclude below that the
district court committed plain error when it failed to make the
use of a deadly weapon sentence consecutive to all other sen-
tences, we conclude that the length of the sentences as to each
count was not an abuse of discretion.
In the sentencing order filed October 17, 2011, the dis-
trict court ordered the following sentences: assault count, 4
to 5 years, consecutive to the use of a deadly weapon count
and concurrent with the unlawful recruitment count; use of a
deadly weapon count, 4 to 5 years, consecutive to the assault
count and concurrent with the unlawful recruitment count;
and unlawful recruitment count, 1 to 2 years, concurrent
to the assault count and concurrent to the use of a deadly
weapon count.
Scott acknowledges that the sentences were within statutory
limits, but he argues that they were “excessive and dispropor-
tionate to the severity of the offense when considered with his
background and lack of prior record.” Brief for appellant at
43. He notes that for the three convictions, he was sentenced
to imprisonment for a total of 8 to 10 years. Scott gives little

STATE v. SCOTT 	727
Cite as 284 Neb. 703
specific argument to support the assertion that the sentences
were excessive.
The State refers us to the record where the sentencing court
stated that the crime was a serious crime of violence with no
rational motivation. The State notes the violent nature of the
offense, Scott’s unwillingness to take responsibility, and the
probation officer’s recommendation for substantial periods of
incarceration. The State concedes Scott’s lack of criminal his-
tory, but notes that he scored in the very high risk range for
procriminal attitude/orientation and the high risk range for
antisocial behavior.
In light of the considerations noted by the sentencing court
and the State, we conclude that Scott has not shown that the
sentencing court abused its discretion with respect to the
amount of time imposed on each count. We reject Scott’s argu-
ment that the court imposed excessive sentences.
The District Court Committed Plain Error When
It Failed to Order That Scott’s Sentence
for Use of a Deadly Weapon Be Served
Consecutively to All Other Sentences.
Although we reject Scott’s argument that the district court
imposed excessive sentences, we note plain error because the
court explicitly ordered Scott’s sentence for use of a deadly
weapon to be served concurrently with his sentence for unlaw-
ful recruitment. The sentence for use of a deadly weapon
should have been ordered to run consecutively to any other
sentence imposed. We therefore vacate that portion of the
sentence and remand the cause to the district court with direc-
tions to enter a new sentencing order in which the sentence for
use of a deadly weapon is ordered served consecutively to all
other sentences.
[26,27] An appellate court always reserves the right to note
plain error which was not complained of at trial or on appeal.
State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009). Plain
error is error of such a nature that to leave it uncorrected
would result in damage to the integrity, reputation, or fairness
of the judicial process. State v. Huff, 282 Neb. 78, 802 N.W.2d
77 (2011).

728 	284 NEBRASKA REPORTS
Under Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2012), the
sentence for a conviction for use of a deadly weapon “shall
be consecutive to any other sentence imposed.” Our appellate
courts have accorded plain meaning to this statute and have
held that a sentence for use of a deadly weapon must be served
consecutively to other sentences and not concurrently with
any sentence. State v. Al-Sayagh, 268 Neb. 913, 689 N.W.2d
587 (2004); State v. Russell, 248 Neb. 723, 539 N.W.2d 8
(1995); State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137
(2009). Therefore, in the instant case, the district court com-
mitted plain error when it explicitly ordered that the sentence
for use of a deadly weapon would run concurrently with the
sentence for unlawful recruitment. Instead, the court should
have ordered that the sentence for use of a deadly weapon
should run consecutively to both the sentence for assault and
the sentence for unlawful recruitment and that the sentence for
use of a deadly weapon not be served concurrently with any
other sentence.
Furthermore, by making the use of deadly weapon sentence
concurrent with the unlawful recruitment sentence, which in
turn was ordered to run concurrently with the assault sentence,
the court also implicitly ordered the use of a deadly weapon
sentence to run concurrently with the assault sentence. Such
result would also violate § 28-1205(3) and would be inconsist-
ent with the court’s proper order that the assault sentence and
the use of a deadly weapon sentence be served consecutively
to one another. The order that the use of a deadly weapon
sentence and the unlawful recruitment sentence be concurrent
was plain error, and a new order wherein the use of a deadly
weapon sentence and the unlawful recruitment sentence be
consecutive will resolve this sentencing issue.
We therefore vacate the portion of the sentencing order in
which the court stated that Scott’s sentence for use of a deadly
weapon should run concurrently with his sentence for unlaw-
ful recruitment. We remand the cause to the district court with
directions to enter a new sentencing order in which the sentence
for use of a deadly weapon is ordered to run consecutively to
both the sentence for assault and the sentence for unlawful
recruitment. The sentence for use of a deadly weapon shall not

KRZYCKI v. KRZYCKI 	729
Cite as 284 Neb. 729
be ordered to run concurrently with any other sentence, either
explicitly or implicitly.
CONCLUSION
We conclude that the district court did not err when it
rejected the constitutional challenges to § 28-1351. We further
reject Scott’s remaining assignments of error. We therefore
affirm Scott’s convictions. However, we note plain error in that
the court ordered the sentence for use of a deadly weapon to
run concurrently with the sentence for unlawful recruitment.
We vacate the sentences because the sentence for use of a
deadly weapon was erroneously ordered to run concurrently
with the sentence for unlawful recruitment, and we remand the
cause to the district court with directions to resentence so that
the sentence for use of a deadly weapon shall run consecutively
to all other sentences imposed.
A ffirmed iN pArt, ANd iN pArt vAcAted ANd remANded
With directioNS for reSeNteNciNg.
greg krzycki, AS truStee of the Shirley
m. krzycki truSt, Appellee, v.
robiN krzycki, AppellANt.
824 N.W.2d 659
Filed November 30, 2012. 	No. S-11-1080.
1. Decedents’ Estates: Banks and Banking. All personal accounts in Nebraska are
subject to Neb. Rev. Stat. §§ 30-2715 through 30-2746 (Reissue 2008), concern-
ing nonprobate transfers of accounts.
2. Decedents’ Estates: Banks and Banking: Contracts. Pursuant to Neb. Rev.
Stat. § 30-2719(a) (Reissue 2008), a contract of deposit that contains provi-
sions in substantially the form provided in this subsection establishes the type
of account provided, and the account is governed by the provisions of Neb.
Rev. Stat. §§ 30-2716 to 30-2733 (Reissue 2008) applicable to an account of
that type.
3. Decedents’ Estates: Banks and Banking: Contracts: Evidence: Intent. Only
if a contract of deposit does not conform to the statutory forms provided in Neb.
Rev. Stat. § 30-2719(a) (Reissue 2008) may evidence be presented on the issue
of the intent of the depositor.
4. Decedents’ Estates: Banks and Banking: Contracts: Intent. Neb. Rev. Stat.
§ 30-2719(b) (Reissue 2008) provides that when a contract of deposit does