            Decisions      of the    Nebraska Court of Appeals
	                                    STATE v. COX	757
	                               Cite as 21 Neb. App. 757

                      VI. CONCLUSION
   The district court did not abuse its discretion in limiting
the testimony of one of the expert witnesses and did not err in
refusing to give separate jury instructions on the negligence or
implied warranty theories of recovery.
                                                     Affirmed.


                      State of Nebraska, appellee, v.
                        Patrick L. Cox, appellant.
                                     ___ N.W.2d ___

                       Filed February 11, 2014.      No. A-13-137.

 1.	 Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
      sibility of expert testimony is abuse of discretion.
 2.	 Rules of Evidence: Expert Witnesses. A trial judge acts as a gatekeeper for
      expert scientific testimony, and must determine (1) whether the expert will testify
      to scientific evidence and (2) if that testimony will be helpful to the trier of fact.
      This entails a preliminary assessment whether the reasoning or methodology
      underlying the testimony is scientifically valid and whether that reasoning or
      methodology may properly be applied to the facts in issue.
 3.	 Trial: Expert Witnesses. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
      U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), does not create a special
      analysis for answering questions about the admissibility of all expert testimony.
  4.	 ____: ____. If a witness is not offering opinion testimony, that witness’ testimony
      is not subject to an inquiry pursuant to Daubert v. Merrell Dow Pharmaceuticals,
      Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
 5.	 Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
      admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
      discretion is involved only when the rules make discretion a factor in determin-
      ing admissibility.
 6.	 Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
      commit the evidentiary question at issue to the discretion of the trial court, an
      appellate court reviews the admissibility of evidence for an abuse of discretion.

   Appeal from the District Court for Buffalo County: John P.
Icenogle, Judge. Affirmed.
 John H. Marsh, of Knapp, Fangmeyer, Aschwege, Besse &
Marsh, P.C., for appellant.
  Jon Bruning, Attorney General, and George R. Love for
appellee.
   Decisions of the Nebraska Court of Appeals
758	21 NEBRASKA APPELLATE REPORTS



  Inbody, Chief Judge, and Moore and Riedmann, Judges.

   Inbody, Chief Judge.
                        INTRODUCTION
   Patrick L. Cox was charged in Buffalo County District
Court with strangulation and third degree domestic assault.
After a trial on the matter, a jury found Cox guilty on both
counts. The district court sentenced Cox to 4 years’ probation
for the strangulation conviction and to 1 year’s imprisonment
for the third degree domestic assault conviction, with 7 days’
credit for time served. On appeal to this court, Cox assigns
error to the district court’s determinations regarding expert
testimony given by a registered nurse. As such, we limit our
review of the facts to those relevant to the assignments of error
raised by Cox.

                   STATEMENT OF FACTS
   Cox and Laura Conner had been in a romantic relationship
that lasted approximately 18 months. During that relationship,
Cox briefly resided with Conner and her two children from a
previous marriage in Conner’s home, but Cox moved out of
the home when the relationship ended in November 2011. On
February 24, 2012, Conner was home with her children when
Cox came to her home between 10:30 and 11 p.m. According
to Conner, Cox was angry and began yelling at her because
she had added male friends to her “Facebook” account and
he demanded that she give him her cell phone. Cox lunged
at Conner, who was in her bedroom, and she grabbed her
cell phone and jumped off of the bed. Cox continued coming
toward her with a knife that had been sitting on the kitchen
table. Conner grabbed a different knife, which had been in her
bedroom next to her cell phone, in reaction to Cox’s coming
toward her with a knife. Cox attempted to stab at her with
the knife he held, which attempts she tried to stop with her
cell phone. Conner testified that Cox then grabbed her and
threw her against the doorframe, after which he grabbed her
throat, slammed her into the bathroom floor, and strangled her
until she became unconscious. When Conner regained con-
sciousness, Cox was sitting on the edge of the bathtub “going
        Decisions   of the  Nebraska Court of Appeals
	                           STATE v. COX	759
	                      Cite as 21 Neb. App. 757

through [her cell] phone,” reading text messages and her
“Facebook” account.
   Eventually, the police arrived, and the next day, Conner was
taken to a hospital. Several photographs that had been taken
by the police on the night of February 24, 2012, were received
into evidence. Those photographs show significant red marks,
bruising, and cuts on Conner’s body. Police and hospital per-
sonnel testified to observing red marks, bruising, and cuts on
Conner, including redness around her neck.
   An emergency physician at the hospital examined Conner
on February 25, 2012, and testified that Conner had “super-
ficial injuries,” but nothing more serious. The doctor testified
that Conner told him that she had been “choked,” but that she
most likely meant that she had been strangled. He observed
some “faint redness across the mid to anterior neck,” but
testified that she did not exhibit other symptoms which he
would look for in a patient who had been strangled, such as
injury to the airway, sore throat, or subconjunctival hemor-
rhaging. He testified, to a reasonable degree of medical cer-
tainty, that Conner’s injuries “possibly could have been due
to strangulation.”
   At trial, Conner explained that on January 3, 2012, a prior
incident occurred between herself and Cox, when Cox arrived
at her home angry, took her cell phone, and threatened to
call her ex-husband to come take her children away. Conner
explained that because she could not get her cell phone back
from Cox, she opened a pocketknife and threatened to commit
suicide in order to get the cell phone back. Conner explained
she did not know what else to do in order to get her cell phone
back from Cox. Conner testified that once Cox gave Conner
her cell phone back, he grabbed her arm, jerked it behind her
back, and slammed her face and shoulder into the floor. Conner
testified that she believed Cox took those actions to get the
knife away from her. Conner further testified that she had been
in an abusive relationship with her ex-husband and continued
to go to counseling to work on fear, posttraumatic stress disor-
der, and relationships.
   At trial, the State sought to introduce Sue Michalski to
the stand as an expert witness, to which Cox objected and
   Decisions of the Nebraska Court of Appeals
760	21 NEBRASKA APPELLATE REPORTS



requested a Daubert hearing. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993). At the Daubert hearing, Michalski testified
that she is a licensed registered nurse who is self-employed in
providing expert testimony in domestic assault, strangulation,
custody, and sexual assault cases. For 30 years, Michalski had
also been the training and education director for a domestic
violence coordinating council in Omaha, Nebraska. Michalski
was employed as a registered nurse in health and hospice work
and “tele-health,” as well as a staff nurse in a long-term acute
care center. Michalski testified that she had received various
types of specialized training related to critical care, strangula-
tion, and domestic violence. As an educator, Michalski had
given training sessions and symposiums regarding domestic
violence, specifically the dynamics of intimate partner violence
from a noninjury perspective to identifying domestic violence
injuries. Michalski also testified that she provides training
for law enforcement and fire departments, medical students,
and hospital personnel in the Omaha and surrounding areas.
Michalski testified that through her work, she had articles pub-
lished twice, had worked with a researcher at a university, and
had interviewed over the past 30 years approximately 8,000 to
10,000 victims of domestic violence.
   Michalski testified that there were particular characteris-
tics that define victims of interpersonal or domestic violence,
including minimization and denial of being in such a rela-
tionship, feelings of being trapped, and methodic isolation.
Michalski also testified that there are often characteristics of
offenders as well, such as getting involved intimately very
early on in the relationship, engaging the partner to make them
feel good and safe, minimizing and denying accountability
for behaviors, exhibiting signs of entitlement such that the
offender is actually looking out for the victim, and exhibit-
ing control.
   Michalski testified that her methods were accepted within
the scientific community, which in her case included “the
medical community, the American Medical Association, and
International Association of Forensic Nurses, the American
Nursing Association, [and] ALSOVER.” Michalski further
        Decisions   of the  Nebraska Court of Appeals
	                           STATE v. COX	761
	                      Cite as 21 Neb. App. 757

testified that making a medical diagnosis was not in the scope
of her practice as a registered nurse.
   Michalski testified that she had neither met with nor inter-
viewed Conner or Cox, but had reviewed police reports and
photographs relating to them. Based solely on her review of
those materials, Michalski testified that she could not form an
opinion as to whether Conner had been the victim of domes-
tic violence by Cox. However, Michalski testified that the
pictures of Conner received into evidence did allow her to
make an opinion that Conner had been strangled and that it
was significant because, in a situation where there is any kind
of neck compression, it becomes an immediately potentially
lethal situation.
   The district court found that Michalski was qualified as an
expert, such that
      we had the issue before the Court as to the nature and
      extent of . . . Michalski’s testimony, primarily concerning
      the general issues involved in domestic violence. It would
      appear — Counsel for [Cox] has advised the Court that
      they will be seeking both a self-defense and a lesser-harm
      instruction concerning the incident in question.
          It would appear to the Court that the testimony of
      . . . Michalski would be of benefit to the jurors to decide
      whether or not a domestic abuse relationship existed, and
      to utilize that determination in determining the intent of
      [Cox] or the nature of the aggressions between the two
      parties, both of which are important issues in the self-
      defense instructions.
   In Michalski’s trial testimony before the jury, she reiter-
ated all of the educational training and background mentioned
above, in addition to discussing the characteristics of both
parties involved in domestic violence relationships. At that
time, Cox renewed the objection to her testimony made pre-
viously at the Daubert hearing, which was overruled by the
court. Michalski indicated that the scope of her licenses do
not include diagnosing medical injuries or making psychiatric
or psychological diagnoses. Michalski explained that domestic
violence involves the power, control, and balance found within
an intimate relationship, indicating that the core issues are
   Decisions of the Nebraska Court of Appeals
762	21 NEBRASKA APPELLATE REPORTS



power, control, and methodic isolation. Michalski testified that
there is a wide range in the types of control exhibited which
often progress to more threatening tactics. Michalski testi-
fied that the physical level of controlling behavior most often
occurs “when the person offending [sic] the other person feels
like their power is being taken away from them.”
    Michalski testified that initially, offenders will present in
the relationship as being very kind, nice, and entertaining, and
that as the relationship progresses, the offender discovers what
is important to the victim and isolates the victim from those
things, which often include family, children, faith, finances,
and even animals. Michalski testified that victims often feel
powerless, let down, and to blame, while the offenders often
feel as though they “can do no wrong,” such that they are
the “center of the universe and everything revolves around
[them].” Michalski also testified that there is often a “public
[and] private face” and that the offender will often cast him-
self or herself as a victim in order to put the offender in a
positive light.
    Michalski further testified about strangulation and how the
act of strangulation is generally carried out. Michalski testi-
fied that the medical signs and symptoms of strangulation
varied depending on the condition, size, and age of the victim.
Michalski testified that initially there is not a lot of outward
appearance, but that there could be “redness,” “petechial hem-
orrhage,” loss of consciousness, “pain in [the] neck area,”
headache, difficulty swallowing or speaking, vomiting, or the
occurrence of urination or a bowel movement, and that stran-
gulation is potentially lethal. Michalski testified that many
times, victims will not report to having been strangled, because
they do not feel as though they have sustained a type of injury
requiring diagnosis, and that due to the loss of oxygen, vic-
tims can sometimes suffer from a loss of memory. Michalski
testified that she had not met or interviewed either Cox or
Conner and did not have any opinion specifically with regard
to their circumstances.
    Cox testified in his own behalf, indicating, as did Conner,
that the two were involved in a romantic relationship. Cox tes-
tified that the relationship began to have issues when he had
        Decisions   of the  Nebraska Court of Appeals
	                           STATE v. COX	763
	                      Cite as 21 Neb. App. 757

been gone frequently to complete “training with the National
Guard.” In November 2011, Cox moved out of the home
which he and Conner had been residing in. Cox testified that
Conner’s father told him the relationship was over, but that
he continued to correspond with Conner and moved back into
the home in late December through January 2012. Cox testi-
fied that he decided to give Conner some time to get through
her divorce from her ex-husband, paid her rent for February,
continued to support her and her children, but rented his own
apartment as well. Cox testified that he continued to help
Conner by fixing dinner for her and her children and by wash-
ing dishes. Cox testified that on January 30, he and Conner
got into a fight because he was “hanging out with [another]
girl” and he then accused her of cheating and asked to see her
cell phone. Cox testified that she gave him her cell phone, he
began to “look[] through it,” and Conner got mad and began
to “throw a temper tantrum.” Cox testified that he had previ-
ously given Conner a “cold-steel knife” he had purchased on
his last deployment to Iraq and that she pulled it out of her
purse, threatened to hurt him, and then threatened to kill her-
self. Cox testified that he immediately ran at Conner, pulled
the knife away from her neck, and threw her to the ground.
Cox testified that he was trained “in the Marine Corps” on
how to take knives away from people. Cox testified that after
that incident, he no longer stayed with Conner, although he
retained a key to her home so that he could go there when she
was not home.
   Cox testified that earlier in the day on February 24, 2012,
he and Conner had been text messaging back and forth and he
had asked her about “all the guys she had on Facebook.” Cox
testified that Conner got defensive about one of those men and
that he became curious. Cox testified that because Conner had
never specifically ended the relationship, he wanted to know
if he had any reason to stay around as Conner’s boyfriend and
continue to pay her rent.
   Cox testified that at approximately 10:30 p.m. on February
24, 2012, he went to Conner’s home and unlocked the door
with his key, but that he did not knock or ring the doorbell
because her children were sleeping. Cox testified that he
   Decisions of the Nebraska Court of Appeals
764	21 NEBRASKA APPELLATE REPORTS



went to the home to apologize, but that he raised the issue of
the other men again with Conner. Cox asked to see her cell
phone to make sure there was nothing going on with another
man, and Conner became upset. Cox testified that there was
a knife on the headboard of the bed and that he was going to
place it on the dresser, when he saw Conner in the bathroom
holding a knife. Cox testified that he had previously taught
Conner how to defend herself with a knife, so he moved
toward her, grabbed her knife hand, and pushed her through
the bathroom door so that he could pull the knife away from
her. Cox testified that he tossed his knife into the bathtub
after he grabbed Conner’s hand. Cox testified that Conner
was trying to “slash at [his] face and [his] throat and [his]
organs” with the knife.
   Cox testified that he pushed Conner to the bathroom floor
and straddled her while trying to get the knife away from her.
Cox testified that Conner was “clawing at [him]” with her free
arm, that he tried to pin that arm down with his leg, and that he
then put his right hand on her throat and applied pressure for
about 4 seconds until she started to “black out.” Cox testified
that when she began to “black out,” he “ripped the knife out of
her hands” and threw it into the bathtub with the other knife.
Cox testified that he grabbed Conner’s throat because she was
going to hurt him. Cox testified that once Conner regained
consciousness, he continued to restrain her, although she was
screaming and trying to get him off of her. Cox testified that he
did not want Conner to wake up the children, so he continued
to pin her arms down with his legs and applied pressure to her
throat again, this time with both hands. Cox testified that he
“choked her out again.” Cox explained, “I applied just enough
pressure so that she would pass out, but not to kill her. And
I applied just enough pressure so that I wouldn’t crack her
trachea, I wouldn’t completely cut off the blood flow to her
brain.” Cox testified that when she regained consciousness a
second time, she began crying and asked for her inhaler, so he
got off of her, and that she immediately apologized to him and
told him she loved him.
   On cross-examination, Cox testified that he “deemed it
necessary” to strangle her twice, even though she weighed
        Decisions   of the  Nebraska Court of Appeals
	                           STATE v. COX	765
	                      Cite as 21 Neb. App. 757

approximately 115 pounds and he was “a 219-pound U.S.
Marine,” and that although she had previously on one occasion
threatened suicide, she did not do so on this evening.
   The matter was submitted to the jury, which returned
unanimous guilty verdicts on both counts. The district court
later sentenced Cox to 4 years’ probation for the strangu-
lation conviction and 1 year’s imprisonment for the third
degree domestic assault conviction, with 7 days’ credit for
time served.
                 ASSIGNMENTS OF ERROR
   Cox assigns that the district court erred by admitting the
testimony of the State’s expert witness, Michalski; by over-
ruling his Daubert objection, see Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993); and by overruling his objection based on
Neb. Rev. Stat. § 27-403 (Reissue 2008).
                          ANALYSIS
   All three of Cox’s assigned errors revolve around the tes-
timony given by Michalski regarding domestic violence. Cox
argues that her testimony should have been excluded under the
principles of Daubert and that her testimony regarding strangu-
lation should have been excluded under § 27-403.
   [1] The standard for reviewing the admissibility of expert
testimony is abuse of discretion. State v. McClain, 285 Neb.
537, 827 N.W.2d 814 (2013); State v. Bauldwin, 283 Neb. 678,
811 N.W.2d 267 (2012).
Daubert Hearing.
   Cox argues that Michalski’s testimony should have been
excluded because it does not meet the requirements of Daubert
v. Merrell Dow Pharmaceuticals, Inc., supra, which standards
were adopted by the Nebraska Supreme Court in Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
   [2] A trial judge acts as a gatekeeper for expert scientific
testimony, and must determine (1) whether the expert will
testify to scientific evidence and (2) if that testimony will be
helpful to the trier of fact. See id. This entails a preliminary
assessment whether the reasoning or methodology underlying
   Decisions of the Nebraska Court of Appeals
766	21 NEBRASKA APPELLATE REPORTS



the testimony is scientifically valid and whether that reason-
ing or methodology may properly be applied to the facts in
issue. See id.
   Cox argues that Michalski’s testimony fails to meet the stan-
dards required by Daubert because her theory unfairly cast Cox
as the abuser and deprived him of a just result. We disagree
with Cox’s argument.
   [3,4] The Nebraska Supreme Court has found that Daubert
does not create a special analysis for answering questions
about the admissibility of all expert testimony. See State v.
Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008). If a witness
is not offering opinion testimony, that witness’ testimony is not
subject to an inquiry pursuant to Daubert. State v. Schreiner,
supra; State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006),
abrogated on other grounds, State v. Thorpe, 280 Neb. 11, 783
N.W.2d 749 (2010).
   In State v. Schreiner, supra, the defendant sought, through a
Daubert argument, to exclude the expert witness testimony of
a sexual assault nurse examiner who performed an examination
of the victim, but did not offer any specific opinion as to what
caused the injuries observed during the examination. The court
found that the witness testified regarding observations about
the victim and that although she was qualified to offer expert
testimony, she testified to matters within her personal knowl-
edge. Id. The court concluded that “this is simply not the sort
of expert testimony that demands a Daubert inquiry.” State v.
Schreiner, 276 Neb. at 405, 754 N.W.2d at 754. See, also, State
v. Robinson, supra; Sedlak Aerial Spray v. Miller, 251 Neb. 45,
555 N.W.2d 32 (1996) (“expert witness” who testified about
flying was testifying not as to opinions based upon his exper-
tise, but as to personal knowledge).
   Although State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197
(1992), was decided prior to the Daubert/Schafersman line of
cases, it is also instructive. In State v. Roenfeldt, supra, the
defendant objected to the expert testimony of a physician who
testified to the symptoms, behavior, and feelings generally
exhibited by children who had been sexually abused. That
expert testimony was not premised upon an examination of
the victim, and the expert did not testify as to whether the
         Decisions   of the  Nebraska Court of Appeals
	                            STATE v. COX	767
	                       Cite as 21 Neb. App. 757

victim had been sexually abused. The Nebraska Supreme
Court found that the testimony was admissible because it
assisted the trier of fact in understanding and determining the
issues related to the case. Id.
   Assuming without specifically deciding whether Michalski’s
testimony necessitates a Daubert analysis, we find that the
nature of Michalski’s testimony regarding domestic abuse rela-
tionships and common characteristics of both abusers and vic-
tims was helpful to the jury because it assisted them in under-
standing and determining the issues closely related to the case.
See State v. Roenfeldt, supra. Therefore, the trial court did not
abuse its discretion by overruling Cox’s motion to exclude
Michalski’s testimony.

Objection Under § 27-403 and
Strangulation Testimony.
   Cox argues that Michalski’s specific testimony regard-
ing strangulation should have been excluded under § 27-403
because her testimony of the definition of strangulation dif-
fered from the definition set forth under Nebraska laws. The
State contends that, at trial, the § 27-403 objection was not
raised regarding strangulation, but only later when Michalski
was questioned as to why a victim may threaten self-harm.
   [5,6] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appel-
late court reviews the admissibility of evidence for an abuse of
discretion. State v. Kibbee, supra.
   The record indicates that, contrary to Cox’s assertion in his
brief that a § 27-403 objection was made at the Daubert hear-
ing, no specific § 27-403 objection was made until Michalski’s
trial testimony in front of the jury and was regarding a victim’s
threat of self-harm as follows:
          [The State:] Michalski, let me paint a hypothetical pic-
       ture for you. If a domestic violence victim had just been
   Decisions of the Nebraska Court of Appeals
768	21 NEBRASKA APPELLATE REPORTS



      — if her telephone, if her cell phone had just been taken
      from her and she wanted it back, and the offender refused
      to give it back, and the victim, in response, threatened to
      harm herself, what do you make of that?
         [Cox’s counsel]: Object on relevancy and [§ 27-]403.
         THE COURT: Sustained.
         [The State:] If a victim threatened self-harm under a
      crisis-type situation, or something she perceived as a cri-
      sis, could you explain her rationale for doing so?
         [Cox’s counsel]: I’d make the same objection, Judge;
      [§ 27-]403.
         THE COURT: Overruled. You may answer.
   With regard to testimony given regarding strangulation, the
following colloquy occurred between the State and Michalski
at trial, before the above-mentioned testimony and specific
§ 27-403 objections:
         Q . . . Michalski, I’m going to switch gears now and
      ask you about strangulation.
         A Okay.
         Q Can you define strangulation for us?
         A Yes. Strangulation is pressure placed on the vessels
      of the neck and the airway.
         [Cox’s counsel]: I’m going to pose an objection. I
      believe that strangulation is a defined term under
      Nebraska law.
         [Michalski]: Yes, it is.
         THE COURT: Overruled. You may proceed.
         A It’s — by pressure, what that pressure does is it
      impedes or blocks the blood flow and the air flow to and
      from the brain, the heart and the rest of the system.
   As indicated in the excerpts from Michalski’s trial testi-
mony, Cox did not specifically object to the strangulation
testimony under § 27-403. However, even though Cox did not
explicitly identify § 27-403 as his objection, his reference to
strangulation as a legally defined term is sufficient for us to
address the assignment of error under § 27-403.
   Section 27-403 provides that “[a]lthough relevant, evi-
dence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
        Decisions   of the  Nebraska Court of Appeals
	                           STATE v. COX	769
	                      Cite as 21 Neb. App. 757

the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumu-
lative evidence.”
   Neb. Rev. Stat. § 28-310.01(1) (Reissue 2008) provides that
“[a] person commits the offense of strangulation if the person
knowingly or intentionally impedes the normal breathing or
circulation of the blood of another person by applying pressure
on the throat or neck of the other person.” Michalski started to
define strangulation as “pressure placed on the vessels of the
neck and the airway,” during which Cox interposed an objec-
tion. Once the objection was overruled, Michalski continued
with her definition, explaining that “[i]t’s — by pressure, what
that pressure does is it impedes or blocks the blood flow and
the air flow to and from the brain, the heart and the rest of
the system.”
   Michalski’s complete definition of strangulation is almost
identical to the statutory definition set forth in § 28-310.01,
and its probative value is not substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or mislead-
ing the jury. Therefore, we conclude that the district court
did not abuse its discretion by overruling Cox’s objection to
Michalski’s testimony regarding strangulation.
   For completeness in addressing Cox’s arguments contained
within this assignment of error, we also note that Cox briefly
alleges that Michalski’s testimony improperly character-
ized him as an offender. The record indicates that Michalski,
throughout her testimony at both the Daubert hearing and
testimony before the jury, specifically referred to the abuser
in a domestic violence relationship as an offender and to the
person receiving the abuse as a victim, with not one objection
as to that characterization. Specifically, before the jury, the
State indicated to Michalski that “for simplicity, we will call
those people victims, and the opposite party, offenders. Fair
enough?” Michalski replied, “Yes.”
   No objection was ever made regarding the terminology used
by Michalski, and therefore, Cox has waived any objection to
its use. See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372
(2012) (failure to make timely objection waives right to assert
prejudicial error on appeal).
   Decisions of the Nebraska Court of Appeals
770	21 NEBRASKA APPELLATE REPORTS



                        CONCLUSION
   In conclusion, we find that the trial court did not abuse its
discretion by allowing Michalski to testify as an expert over
Cox’s objection and allowing her testimony regarding strangu-
lation over his objection. Therefore, we affirm.
                                                    Affirmed.



              Mark J.,      appellee, v. Darla B., formerly
                      known as      Darla J., appellant.
                                   ___ N.W.2d ___

                      Filed February 11, 2014.    No. A-13-394.

 1.	 Modification of Decree: Appeal and Error. Modification of a dissolution decree
     is a matter entrusted to the discretion of the trial court, whose order is reviewed
     de novo on the record, and which will be affirmed absent an abuse of discretion
     by the trial court.
 2.	 Divorce: Modification of Decree: Visitation. Visitation rights established by a
     marital dissolution decree may be modified upon a showing of a material change
     of circumstances affecting the best interests of the children.
 3.	 Modification of Decree: Words and Phrases. A material change in circum-
     stances means the occurrence of something which, had it been known to the dis-
     solution court at the time of the initial decree, would have persuaded the court to
     decree differently.
 4.	 Visitation. The party seeking to modify visitation has the burden to show a mate-
     rial change in circumstances affecting the best interests of the child.
 5.	 Visitation: Parent and Child. Visitation relates to continuing and fostering the
     normal parental relationship of the noncustodial parent with the minor children of
     a marriage which has been legally dissolved.
 6.	 Visitation. The best interests of the children are primary and paramount consid-
     erations in determining and modifying visitation rights.
 7.	 Evidence: Appeal and Error. When the evidence is in conflict, an appel-
     late court considers, and may give weight to, the fact that the trial judge
     heard and observed the witnesses and accepted one version of the facts rather
     than another.
 8.	 Courts: Child Custody: Visitation. It is the responsibility of the trial court to
     determine questions of custody and visitation of minor children according to their
     best interests, which is an independent responsibility and cannot be controlled by
     the agreement or stipulation of the parties or by third parties.

   Appeal from the District Court for Garfield County: Karin
L. Noakes, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
