                         Nebraska Advance Sheets
	                                   STATE v. ELY	147
	                                Cite as 287 Neb. 147

                      State of Nebraska, appellee, v.
                        Nicholas J. Ely, appellant.
                                    ___ N.W.2d ___

                       Filed January 3, 2014.     No. S-12-1228.

 1.	 Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
     ficiency of the evidence claim, whether the evidence is direct, circumstantial,
     or a combination thereof, the standard is the same: An appellate court does not
     resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
     the evidence; such matters are for the finder of fact. The relevant question for an
     appellate court is whether, after viewing the evidence in the light most favorable
     to the prosecution, any rational trier of fact could have found the essential ele-
     ments of the crime beyond a reasonable doubt.
 2.	 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.
 3.	 Evidence. Determining the relevancy of evidence is a matter entrusted to the
     discretion of the trial court.
 4.	 Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
     of the trial court to determine relevancy and admissibility of evidence of other
     wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
     (Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial court’s decision
     will not be reversed on appeal absent an abuse of discretion.
 5.	 Jury Instructions. Whether jury instructions given by a trial court are correct is
     a question of law.
 6.	 Judgments: Appeal and Error. When dispositive issues on appeal present ques-
     tions of law, an appellate court has an obligation to reach an independent conclu-
     sion irrespective of the decision of the court below.
 7.	 Homicide: Intent: Presumptions. The critical difference between felony murder
     and premeditated first degree murder is that the underlying felony takes the place
     of the intent to kill, or premeditated malice, and the purpose to kill is conclu-
     sively presumed from the criminal intent required for the underlying felony.
 8.	 Homicide: Intent. A specific intent to kill is not required to constitute felony
     murder, only the intent to do the act which constitutes the felony in question.
 9.	 Appeal and Error. An alleged error must be both specifically assigned and spe-
     cifically argued in the brief of the party asserting the error to be considered by an
     appellate court.
10.	 Evidence: Words and Phrases. Relevant evidence means evidence having any
     tendency to make the existence of any fact that is of consequence to the deter-
     mination of the action more probable or less probable than it would be without
     the evidence.
11.	 Homicide: Sentences. When a defendant is sentenced to life imprisonment for
     first degree murder, the defendant is not entitled to credit for time served in
     custodial detention pending trial and sentence; however, when the defendant
     receives a sentence consecutive to the life sentence that has maximum and
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     minimum terms, the defendant is entitled to receive credit for time served against
     the consecutive sentence.
12.	 Sentences. A sentencing judge must separately determine, state, and grant the
     amount of credit on the defendant’s sentence to which the defendant is entitled.

  Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed as modified.
  Mary C. Gryva, of Frank & Gryva, P.C., L.L.O., and Alan G.
Stoler, P.C., L.L.O., for appellant.
  Jon Bruning, Attorney General, and George R. Love for
appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
   Stephan, J.
   Nicholas J. Ely was convicted by a jury of first degree mur-
der and use of a deadly weapon to commit a felony. He was
sentenced to life in prison on the murder conviction and to a
consecutive prison term of 5 to 5 years on the weapon convic-
tion. This is his direct appeal, which we hear pursuant to Neb.
Rev. Stat. § 24-1106(1) (Reissue 2008). We find no error and
therefore affirm.
                             FACTS
    Around noon on July 6, 2011, a group of friends gathered at
Ely’s home. The group consisted of Ely, Marqus Patton, Ryan
Elseman, and Emily G. Emily was 15 or 16 years old.
    The group decided to obtain some marijuana and then go
swimming at Patton’s residence. Ely called Drake Northrop
and asked him for a ride. Northrop picked up Ely, Emily,
Patton, and Elseman, and Ely told Northrop they wanted to get
some marijuana. Emily had previously purchased marijuana
from Kristopher Winters, and she suggested they could obtain
it from him. Emily directed Northrop to Winters’ house.
    En route to Winters’ house, Northrop heard Elseman, Emily,
and Ely discuss “going to go hit a lick,” which is a street term
for committing a robbery. Northrop agreed to take part. The
three people in the back seat, Ely, Elseman, and Emily, said
                  Nebraska Advance Sheets
	                          STATE v. ELY	149
	                       Cite as 287 Neb. 147

they thought it would be an “easy lick” because Winters would
not fight back.
   Northrop parked near Winters’ house, and everyone walked
to the house. Initially, they planned to kick in the door, but
because it was daylight, Emily said she would get them into the
house in another manner. Northrop, Ely, Elseman, and Patton
returned to the vehicle to wait for Emily to gain entry. The only
objection made by anyone was Northrop, who suggested they
should return when it was darker, but Patton and Ely said they
should proceed.
   Eric Brusha, a friend of Winters, arrived at Winters’ house
around noon and found Emily waiting in the driveway. Brusha
did not know Emily. Brusha telephoned Winters to tell him
Brusha was outside. Winters let Brusha into the house, and
Emily followed him. Winters asked Emily what she wanted to
purchase, and because Brusha knew Winters was a marijuana
dealer, Brusha did not think the conversation was unusual.
   Within 5 minutes, Emily sent a text message to Elseman
informing him that she was inside Winters’ house, that there
were two other people there, and that the doors were unlocked.
Northrop, Ely, Elseman, and Patton then went to Winters’
house. They entered the basement of the house through a
garage door. Elseman and Patton displayed weapons. Elseman
entered first, followed by Patton, Ely, and then Northrop.
Brusha did not recognize any of them as they entered, but he
noticed that two of them were carrying black revolvers.
   When Northrop, Ely, Elseman, and Patton entered, Winters
and Brusha stood up. Elseman pointed a gun at Winters and
said “you know what it is.” Winters rushed at Elseman. A
struggle ensued. During the struggle, Patton hit Winters in the
head with the butt of a handgun, causing Winters to stumble
backward. Winters then grabbed a chair and pushed Patton
into a wall with it. Patton told Elseman to shoot Winters,
and he did so, causing Winters to fall onto the steps lead-
ing upstairs. Winters then grabbed a stool or similar object
and was approaching his assailants when he was shot a sec-
ond time.
   Winters’ mother, Kellie Winters, was upstairs and heard a
sound she thought was Winters’ banging on the furnace, so
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she went to the top of the stairs leading to the basement and
called out to him. Kellie then went down the stairs where
she found Winters holding his neck and Brusha yelling that
Winters was hurt. Kellie ran outside and saw three males run-
ning away. She also saw a “young small girl,” whom she did
not recognize, standing in the driveway. This person was later
determined to be Emily. Kellie yelled at Emily for not calling
the 911 emergency dispatch service, and then Kellie struck
Emily, knocking her down. Kellie then returned to the base-
ment of the home where she found Winters, who was bleed-
ing. Winters died before help arrived.
   Northrop, Ely, Elseman, and Patton ran from the house to
their vehicle immediately after the shooting. Emily left the
area on foot. While fleeing, she received a text message from
Elseman telling her to go to a nearby restaurant where Nicholas
Palma would pick her up.
   Brusha stayed at Winters’ home and talked to the police. He
then agreed to go to police headquarters for an interview and
rode there with an officer. While riding with the officer, Brusha
saw Emily walking on the street, and he identified her as the
female who was in Winters’ house at the time of the shooting.
Police then apprehended Emily.
   Meanwhile, Northrop dropped off Ely, Elseman, and Patton
at Patton’s residence. Patton told the others that he had been
grazed by a bullet. When Palma could not find Emily, he
called Ely, who told Palma to come to Patton’s residence. Ely
told Palma that they had tried to commit a robbery, but that
things went wrong and a man was shot in the neck. Some
days later, Ely called Palma and said he was leaving for Sioux
City, Iowa. On July 11, 2011, Ely called Palma and asked him
to pick him up in Sioux City and drive him back to Omaha,
which Palma did.
   Ely contacted two friends in Sioux City on July 9, 2011.
Jacy Steiner said Ely called and said he was in town and
needed to talk to someone because a robbery “went bad” in
Omaha. Steiner met with Ely, and Ely said Emily had gone to
the house to ask to use the telephone, and as Winters answered
the door, people ran in, Winters fought back, and “somebody
got shot.” Ely told Steiner he had been in the vehicle, but he
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	                           STATE v. ELY	151
	                        Cite as 287 Neb. 147

did not say if he had gone into the house. Another friend of
Ely’s, Jacob Wilde, testified that he also met Ely in Sioux City
on July 9. Ely told Wilde that he was in some trouble because
he and some friends had gone into a house to rob someone,
someone yelled “shoot,” a shot went off, and then they all ran.
Ely told Wilde that a girl had set up the robbery and that the
person they were trying to rob was shot because he had put
up a fight.
   On the day before the robbery, a text message was sent
from Ely’s cell phone indicating that the sender was “‘broke’”
and had bills to pay. The message further stated, “‘I ain’t try-
ing to go to prison for robbing but I feel like there ain’t many
other choices.’” Later the same day, another text message
sent from Ely’s cell phone stated: “‘Wsup wita lick bro.’”
A subsequent text in the same conversation, sent from Ely’s
cell phone, indicated that the sender needed money. And a
text message from the same cell phone sent on the day of the
homicide indicated that it was from “‘Lunny,’” which was
Ely’s nickname, and that he was with Elseman, Emily, and
two other persons.
   An autopsy disclosed that one bullet went through Winters’
neck, hitting the carotid artery on the right side. The pathologist
who performed the autopsy testified that the cause of Winters’
death was a gunshot wound to the neck which partially severed
the carotid artery and led to a fatal hemorrhage.

                 ASSIGNMENTS OF ERROR
   Ely assigns three errors. They are, restated, (1) that the
evidence was insufficient to sustain the guilty verdicts, (2)
that the district court erred in sustaining the State’s motion
in limine and excluding evidence of prior illegal conduct by
Emily, and (3) that the district court erred in giving a flight
instruction to the jury.

                   STANDARD OF REVIEW
   [1] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
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152	287 NEBRASKA REPORTS



witnesses, or reweigh the evidence; such matters are for the
finder of fact.1 The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.2
   [2-4] 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.3 Determining the relevancy of evidence is a matter
entrusted to the discretion of the trial court.4 Likewise, it is
within the discretion of the trial court to determine relevancy
and admissibility of evidence of other wrongs or acts under
Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
(Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial
court’s decision will not be reversed on appeal absent an abuse
of discretion.5
   [5,6] Whether jury instructions given by a trial court are
correct is a question of law.6 When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below.7
                          ANALYSIS
                    Sufficiency of Evidence
   [7,8] The State prosecuted Ely under the theory of murder
in the first degree, commonly known as felony murder. It is
defined by statute as the killing of another “in the perpetration

 1	
      State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).
 2	
      Id.
 3	
      State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
 4	
      State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).
 5	
      State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013); State v. Payne-
      McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).
 6	
      State v. Valverde, supra note 3.
 7	
      Id.
                        Nebraska Advance Sheets
	                                STATE v. ELY	153
	                             Cite as 287 Neb. 147

of or attempt to perpetrate any sexual assault in the first degree,
arson, robbery, kidnapping, hijacking of any public or private
means of transportation, or burglary.”8 The critical difference
between felony murder and premeditated first degree murder is
that the underlying felony takes the place of the intent to kill,
or premeditated malice, and the purpose to kill is conclusively
presumed from the criminal intent required for the underlying
felony.9 A specific intent to kill is not required to constitute
felony murder, only the intent to do the act which constitutes
the felony in question.10
   It is undisputed that Winters was killed in the perpetration
of a robbery and that Ely was present at all times during the
robbery. But Ely argues on appeal that the evidence was insuf-
ficient to establish that he formed an intent to commit the rob-
bery during which the killing occurred. Viewing the evidence
in the light most favorable to the prosecution, as our standard
of review requires,11 we conclude that a rational trier of fact
could have concluded beyond a reasonable doubt that Ely
formed the intent to commit the robbery.
   The text messages sent from Ely’s cell phone the day
before the homicide indicated the sender needed money and
was considering robbery. Emily testified that while the group
was on its way to Winters’ house, they devised a plan to rob
him. Northrop testified that he heard Ely say from the rear
seat that they were “going to go hit a lick” and that Ely or
one of the other rear seat passengers also said that the rob-
bery would be easy because Winters would not fight back.
Northrop also testified that when Emily signaled Elseman that
she had entered Winters’ house, he suggested that they should
wait until dark before going in, but that Ely and Patton said
they should go ahead. After the failed robbery attempt, Ely
made statements to Palma and others indicating that he had

 8	
      Neb. Rev. Stat. § 28-303(2) (Reissue 2008).
 9	
      State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on
      other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
10	
      See State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006).
11	
      See State v. Eagle Bull, supra note 1.
    Nebraska Advance Sheets
154	287 NEBRASKA REPORTS



been involved in a robbery attempt which “went bad” because
someone was shot.
   From this evidence, a rational finder of fact could find
beyond a reasonable doubt that Ely needed money and was
contemplating robbery as a means of addressing this problem.
A rational finder of fact could also conclude that en route to
Winters’ house with his companions, Ely was an active par-
ticipant in the plan to “hit a lick,” i.e., rob Winters during the
purported drug transaction. Likewise, a finder of fact could
conclude that Ely was an active and willing participant in the
implementation of the plan which ultimately led to the fatal
shooting. There is no evidence that Ely raised any objections
to the robbery plan or attempted to extricate himself from its
implementation by, for example, remaining in the car. Although
Ely argues that the testimony of Emily and Northrop lacked
credibility because they hoped for, but were not promised,
leniency with respect to pending charges against them arising
from the same incident, our standard of review precludes us
from passing on the credibility of witnesses or reweighing the
evidence.12 Whatever the motive Emily and Northrop had for
testifying, it was for the jury to determine their credibility. And
we note that the jury was specifically instructed that because
Emily and Northrop were claimed accomplices of Ely, their
testimony should be examined closely “for any possible motive
he or she might have to testify falsely.” Accordingly, we con-
clude that the evidence was sufficient to support the verdict of
guilty on the charge of felony murder.
   [9] We note that while Ely’s first assignment of error is
worded broadly enough to challenge the sufficiency of the
evidence to support his convictions on both the murder and
weapons charges, he makes no argument specific to the latter.
An alleged error must be both specifically assigned and specif-
ically argued in the brief of the party asserting the error to be
considered by an appellate court.13 Because the sufficiency of
the evidence to support Ely’s conviction on the weapon charge
is not preserved for our review, we do not address it.

12	
      See id.
13	
      Id.; State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
                  Nebraska Advance Sheets
	                          STATE v. ELY	155
	                       Cite as 287 Neb. 147

                 Exclusion of Evidence of P rior
                       Unlawful Conduct
   Before trial, the State filed a motion in limine seeking
to prevent Ely from adducing evidence that prior to July 6,
2011, Emily and Elseman had engaged in criminal conduct,
specifically, robbing individuals who were selling marijuana.
The State argued that the evidence would be improper charac-
ter evidence in violation of § 27-404(1) and was not relevant
under § 27-404(2). The State also asserted that the evidence
did not comport with the statutory requirements for proving
character evidence of a witness under Neb. Evid. R. 608, Neb.
Rev. Stat. § 27-608 (Reissue 2008). Over Ely’s objection, the
district court sustained the motion. When Ely sought to elicit
testimony from Emily at trial regarding prior illegal acts she
had committed at the behest of Elseman, the court sustained
the State’s objection. We construe Ely’s second assignment of
error to encompass this ruling.
   Ely argues on appeal, as he did below, that Emily’s prior
robberies were relevant and admissible under Neb. Evid. R.
401, Neb. Rev. Stat. § 27-401 (Reissue 2008), and § 27-404(2),
because they were committed without his knowledge or
involvement. He contends that Emily’s prior unlawful conduct
is relevant to motive, opportunity, and planning of the intended
robbery of Winters, and that therefore, the evidence should
have been admissible under § 27-404(2).
   [10] We need not examine the admissibility of the proffered
evidence under § 27-404(2), because we conclude that the fact
that Emily and Elseman may have committed prior robberies
without the knowledge or participation of Ely is irrelevant
to any issue in this case. Relevant evidence means evidence
having any tendency to make the existence of any fact that is
of consequence to the determination of the action more prob-
able or less probable than it would be without the evidence.14
The fact that Ely was not involved in prior unlawful conduct
has no bearing, one way or another, on the issue of whether
he committed the crimes he was charged with in this case.
The district court did not abuse its discretion in sustaining

14	
      § 27-401.
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the State’s motion in limine and its objection to Ely’s attempt
to elicit testimony from Emily regarding her prior unlaw-
ful conduct.
                         Flight Instruction
   Lastly, Ely assigns error with respect to the following jury
instruction given over his objection:
         You are instructed that the voluntary flight of a person
      immediately or soon after the occurrence of a crime is a
      circumstance, not sufficient of itself to establish guilt, but
      a circumstance nevertheless which the jury may consider
      in connection with all the other evidence in the case to aid
      you in determining the question of the guilt or innocence
      of such person.
He contends the instruction was prejudicial and prevented him
from receiving a fair trial.
   We first note that, in Ely’s brief, while he objects to the
entire instruction, he highlights certain language related to the
timing of a defendant’s voluntary flight. The record shows that
the instruction given did not include that language. Nor does
the record indicate that Ely objected to that specific language
during the instruction conference.
   We addressed the factual basis for a flight instruction in
State v. Pullens,15 stating:
      [F]or departure to take on the legal significance of flight,
      there must be circumstances present and unexplained
      which, in conjunction with the leaving, reasonably justify
      an inference that it was done with a consciousness of guilt
      and pursuant to an effort to avoid apprehension or pros-
      ecution based on that guilt.
In Pullens, the defendant declined to give police a detailed
statement because he said he was drunk. Although he was
taken to the police station for blood and DNA samples, he was
not placed under arrest. Instead, the defendant was taken to
a motel by a police officer, who said he would return in the
morning to discuss the facts of the victim’s death. But when
the officer returned, the defendant was not in the motel. The

15	
      State v. Pullens, 281 Neb. 828, 862, 800 N.W.2d 202, 230 (2011).
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	                                 STATE v. ELY	157
	                              Cite as 287 Neb. 147

defendant admitted that he knew he was a suspect when he
fled, but claimed he left the motel to try to talk with a lawyer
before speaking further with the police. We found no error in
the trial court’s giving the jury a flight instruction.
   The record reflects that at some point after July 6, 2011,
Ely went to Sioux City. While there, Ely talked to two friends
about a robbery and said he was in trouble because of a shoot-
ing. This evidence supports a reasonable inference that Ely had
a consciousness of guilt and was attempting to avoid apprehen-
sion. It was for the jury to determine whether Ely’s actions
demonstrated his guilt or innocence. We find no error in the
giving of a flight instruction based on this record.
                    Credit for Time Served
   [11,12] Finally, we find plain error in the allocation of
credit for time served. Ely was sentenced to life in prison for
the first degree murder conviction and to a period of 5 to 5
years in prison for the use of a deadly weapon conviction, to
run consecutively to the life sentence. Ely was given credit
for time served of 531 days against the sentence for first
degree murder. When a defendant is sentenced to life impris-
onment for first degree murder, the defendant is not entitled
to credit for time served in custodial detention pending trial
and sentence; however, when the defendant receives a sen-
tence consecutive to the life sentence that has maximum and
minimum terms, the defendant is entitled to receive credit for
time served against the consecutive sentence.16 A sentencing
judge must separately determine, state, and grant the amount
of credit on the defend­ nt’s sentence to which the defendant
                        a
is entitled.17
   Ely is entitled to receive credit for 531 days served, but
the credit should be applied against the sentence for use of a
deadly weapon rather than against the sentence for first degree
murder. We therefore modify Ely’s sentences by ordering that
the credit for time served be applied against the sentence for
use of a deadly weapon.

16	
      State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
17	
      Id.
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                        CONCLUSION
   For the reasons discussed, we find no merit in any of
Ely’s assignments of error. However, we conclude that the
district court incorrectly granted Ely credit for time served
against his life sentence. We therefore modify the credit for
time served by applying it to the sentence for use of a deadly
weapon. In all other respects, we affirm the judgment of the
district court.
                                       Affirmed as modified.
