                          Nebraska Advance Sheets
	                               STATE v. CASTANEDA	289
	                                Cite as 287 Neb. 289

defendant’s prior conviction may be used for purposes of sen-
tence enhancement.
   Thus, although our reasoning differs somewhat from that of
the district court, we agree with its conclusion that collateral
estoppel did not bar the use of Bruckner’s 1999 and 2001 DUI
convictions as two of the three prior convictions necessary to
enhance his 2012 conviction to fourth offense.
                         CONCLUSION
   For the reasons discussed, we affirm the judgment of the
district court.
                                                Affirmed.
   Wright, J., participating on briefs.


                      State of Nebraska, appellee, v.
                      Juan E. Castaneda, appellant.
                                    ___ N.W.2d ___

                        Filed February 7, 2014.     No. S-11-023.

 1.	 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.
 2.	 Judgments: Appeal and Error. In making the determination as to factual ques-
     tions, an appellate court does not reweigh the evidence or resolve conflicts in the
     evidence, but, rather, recognizes the trial court as the finder of fact and takes into
     consideration that it observed the witnesses.
 3.	 Trial: Judges: Evidence. Trial judges are allowed to exclude evidence if its
     probative value is outweighed by unfair prejudice, confusion of the issues, or
     potential to mislead the jury.
 4.	 Criminal Law: Trial: Rules of Evidence: Polygraph Tests. An evidentiary rule
     categorically excluding polygraph results is not arbitrary, because state and fed-
     eral governments have broad latitude to establish rules excluding evidence from
     criminal trials.
 5.	 Trial: Juries: Witnesses: Testimony. A fundamental principle of the justice sys-
     tem is that the jury is the lie detector, determining the weight and credibility of
     witness testimony.
 6.	 Polygraph Tests: Prejudicial Statements. Polygraph results are generally inad-
     missible as unduly prejudicial.
 7.	 Rules of Evidence: Hearsay. The foundation of trustworthiness required by
     the business records exception to the hearsay rule is sufficient to satisfy the
     authentication requirement of Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901
     (Reissue 2008).
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 8.	 Trial: Evidence: Appeal and Error. An appellate court reviews a trial court’s
     ruling on authentication for an abuse of discretion.
 9.	 Trial: Rules of Evidence: Appeal and Error. Under Neb. Evid. R. 103, Neb.
     Rev. Stat. § 27-103 (Reissue 2008), error may not be predicated upon a rul-
     ing which admits or excludes evidence unless a substantial right of the party is
     affected and, in case the ruling is one excluding evidence, the substance of the
     evidence was made known to the judge by offer or was apparent from the context
     within which questions were asked.
10.	 Constitutional Law: Appeal and Error. The Nebraska Supreme Court ordinar-
     ily construes Nebraska’s ex post facto clause to provide no greater protections
     than those guaranteed by the federal Constitution.
11.	 Constitutional Law: Statutes: Sentences. A law which purports to apply to
     events that occurred before the law’s enactment, and which disadvantages a
     defendant by creating or enhancing penalties that did not exist when the offense
     was committed, is an ex post facto law and will not be endorsed by the courts.
12.	 Criminal Law: Statutes: Legislature: Sentences. Where a criminal statute is
     amended by mitigating the punishment, after the commission of a prohibited act
     but before final judgment, the punishment is that provided by the amendatory act
     unless the Legislature has specifically provided otherwise.

  Appeal from the District Court for Douglas County: John
D. Hartigan, Jr., Judge. Convictions affirmed, all sentences
vacated, and cause remanded for resentencing.
  Thomas C. Riley, Douglas County Public Defender, for
appellant.
  Jon Bruning, Attorney General, James D. Smith, and Stacy
M. Foust for appellee.
  Marsha Levick, Deputy Director and Chief Counsel, and
Emily Keller and Lauren Fine for amicus curiae Juvenile
Law Center.
  Amy A. Miller, for amicus curiae American Civil Liberties
Union Foundation of Nebraska.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
   Heavican, C.J.
                    I. INTRODUCTION
   Juan E. Castaneda was convicted of several charges arising
from three shootings that occurred in Omaha, Nebraska, on
                  Nebraska Advance Sheets
	                      STATE v. CASTANEDA	291
	                       Cite as 287 Neb. 289

November 12, 2008. We affirm Castaneda’s convictions in all
respects, but conclude that the sentences of life imprisonment
without the possibility of parole imposed upon Castaneda were
unconstitutional. Accordingly, we vacate those sentences and
remand the cause for resentencing.
                      II. BACKGROUND
   Castaneda was convicted by a jury of two counts of first
degree felony murder, one count of attempted second degree
murder, one count of attempted robbery, three counts of use of
a deadly weapon to commit a felony, and one count of criminal
conspiracy. He was sentenced to two terms of life imprison-
ment without the possibility of parole for first degree murder,
10 to 20 years in prison for attempted second degree murder,
10 to 15 years in prison for attempted robbery, 10 to 15 years
in prison for criminal conspiracy, and 10 to 15 years in prison
for each of the weapons convictions. At the time of the shoot-
ings, Castaneda was 15 years old.
                          1. Shootings
   The victim of the first shooting was found at approximately
10:45 p.m. on November 12, 2008. Luis Silva, who lived on
Dorcas Street in Omaha, was found outside his home by his
cousin, Jose Hernandez. Hernandez testified that when he heard
a car horn and other sounds, he went outside and saw Silva on
the ground with two individuals standing over him. One of the
individuals near Silva was holding a gun. He pointed the gun
at Hernandez and, in Spanish, demanded money. Hernandez
returned to the house, and the second individual said “let’s go,”
in English.
   Silva had been shot twice. One bullet grazed the left side
of Silva’s head, and the second entered his chest under his
left arm. Silva was declared dead upon his arrival at an
Omaha hospital.
   Hernandez described the two assailants. One was wearing
black pants and a gray, hooded sweatshirt, and the other wore
black pants and a black, hooded sweatshirt with the hood
pulled over his head. Hernandez identified both as appearing
to be “Latin,” but when counsel for the State asked Hernandez
    Nebraska Advance Sheets
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about their ability to speak Spanish, he answered, “Not very
well. Like they were born here.”
   Shortly before Silva was shot, two brothers, Mark and
Charles McCormick, were visiting their cousin at his residence
near 13th and Dorcas Streets. As the McCormicks were leaving
the residence at about 10:30 p.m., two men, one holding a gun,
approached and demanded money. Mark replied that he had no
money, and when he and Charles threatened the two men with
a “piece of wood” or “tree stump,” the men started “backing
away.” Mark described the first man, who was holding the gun,
as wearing a gray, hooded sweatshirt. The second man was
wearing a dark-colored, hooded sweatshirt.
   At approximately 11 p.m., Charles Denton and Hilary Nelsen
drove to a walkup automatic teller machine (ATM) in the 50th
Street and Underwood Avenue area, where Denton parked the
vehicle and got out to use the ATM. Denton observed two men
walking through the parking lot, and he thought they looked
out of place. After Denton returned to the vehicle and started
to drive away, the two men ran toward Denton’s vehicle. One
of the men approached the driver’s-side window and demanded
money. The man fired a gun at the vehicle, and the driver’s-
side window shattered. Denton drove away and called the 911
emergency dispatch service. When he was about 1 mile away,
Denton stopped the vehicle because he realized he had been
shot. Denton sustained a bullet wound through his bicep and a
graze on his chest.
   Nelsen testified that the men were wearing baggy jeans and
hooded sweatshirts. Nelsen also testified that one of the sweat-
shirts was dark and one was white and that both men had the
hoods pulled over their heads. Denton also said one sweatshirt
was lighter and the other was darker. Nelsen said the men were
young and were either “Mexican” or “African-American,” but
not white. Denton stated that although he did not get a good
look at the men’s faces, both were “Hispanic.”
   Shortly after 11 p.m., a passerby saw a car with its engine
running and lights on in front of a gas station at 52d and
Leavenworth Streets. The witness stopped because there were
no lights on in the parking lot. The car door was open, and its
interior lights were on. The witness saw a person lying on the
                 Nebraska Advance Sheets
	                     STATE v. CASTANEDA	293
	                      Cite as 287 Neb. 289

ground nearby and called 911. The victim was identified as
Tari Glinsmann, who worked at the gas station and had just
finished her shift. The car was a green Ford Taurus Glinsmann
had borrowed from a friend that night. Glinsmann was dead
when rescue workers arrived on the scene.

                2. Cervantes’ Version of Events
   The State entered into an agreement with Edgar Cervantes
to dismiss murder charges against him in exchange for his tes-
timony. Cervantes testified that on November 12, 2008, he was
living with Santiago Jacobo and his family. Cervantes agreed
to transport Jacobo’s children to and from school in exchange
for the use of Jacobo’s Chevrolet Cavalier.
   According to Cervantes, he needed money so he called
Eric Ramirez on November 12, 2008, and asked if Ramirez
wanted “to go rob some people.” Later that day, Cervantes
met Ramirez at the home of a female friend who lived near
24th and L Streets. Cervantes stated that he had a beer and
used cocaine while at the friend’s house. Other people at the
house included Jacob Shantz and Castaneda. Ramirez ulti-
mately requested that Cervantes give Shantz a ride home, and
Cervantes agreed. Castaneda accompanied them.
   Cervantes testified that he and Ramirez were wearing black
pants and gray, hooded sweatshirts and that Castaneda was
wearing black pants and a black coat with fur trim. Ramirez
was in the front passenger seat, and Castaneda and Shantz were
sitting in the back seat.
   Cervantes stated that as he was driving to Shantz’ home,
Ramirez asked to see the gun that Cervantes had recently pur-
chased. The gun was under the driver’s seat, wrapped in a blue
bandanna. Cervantes said he handed the gun to Ramirez, and
Ramirez placed the gun under his seat. After they dropped off
Shantz, Cervantes, Ramirez, and Castaneda drove to 13th and
Dorcas Streets where they saw two men getting out of a truck.
Cervantes stated that Ramirez and Castaneda got out of the car
and that he heard a gunshot shortly thereafter. Cervantes said
Ramirez and Castaneda ran back to the car and stated that they
had attempted to rob two white men, but that the men did not
have any money and had “started getting crazy.”
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   Cervantes testified that he then drove to 16th and Dorcas
Streets, where he pointed out Silva as “the Mexican guy in
the Blazer.” Once again, Cervantes waited in the car while
Ramirez and Castaneda got out. Cervantes said he heard
two gunshots about a minute later. Cervantes stated that
Ramirez later said that when Silva began blowing the car
horn, Castaneda dragged Silva out of his vehicle and Ramirez
shot him.
   Cervantes testified that after the robbery and shoot-
ing of Silva, Cervantes drove to an area near 50th Street
and Underwood Avenue, where they saw a man at an ATM.
Cervantes said he waited on the other side of the street as
Ramirez and Castaneda got out of the car. Cervantes said he
heard two gunshots and then Ramirez and Castaneda came
back to the car. Cervantes then drove south until they reached
52d and Leavenworth Streets.
   Cervantes stated that Ramirez asked Cervantes to stop
when Ramirez saw Glinsmann at the gas station. Ramirez and
Castaneda got out of the car, and Cervantes parked in a nearby
lot. Cervantes said he heard a gunshot and then Ramirez and
Castaneda came back to the car and got in.
   Cervantes stated that he drove back to the female friend’s
house near 24th and L Streets. On the way, Ramirez told
Cervantes that Glinsmann had no money, that Castaneda pulled
her out of the car, and that Ramirez shot her. Cervantes said he
told Ramirez to keep the gun. After drinking beer and smok-
ing marijuana for a short time, Cervantes returned to Jacobo’s
house. Cervantes testified that he stayed up most of the night
smoking marijuana and finally went to bed in the early morn-
ing hours.
   When Jacobo woke Cervantes the next morning, Cervantes
said Jacobo appeared nervous. Jacobo asked Cervantes about
the night before, because Jacobo noticed a number of police
officers in the area. Cervantes said he told Jacobo about the
robberies and told Jacobo that Ramirez “kind of went crazy
with the gun.” Jacobo told Cervantes to leave the home.
Cervantes then went to his parents’ house and stayed there.
   Cervantes got a ride from Roberto Hidalgo to his par-
ents’ home after Jacobo asked him to leave. Hidalgo testified
                  Nebraska Advance Sheets
	                     STATE v. CASTANEDA	295
	                      Cite as 287 Neb. 289

that Cervantes said that “he [Cervantes] shot the guy and
[Ramirez] did the rest.” When police contacted Hidalgo shortly
after the shootings, Hidalgo denied any knowledge of the
crimes. Hidalgo later gave a statement to police and stated that
Cervantes never mentioned Castaneda’s involvement.
   Five days after the shootings, the police contacted Cervantes
and Cervantes denied all involvement. During a second inter-
view on November 22, 2008, Cervantes admitted that he had
been the driver of the car involved in the shootings and that
Ramirez and Castaneda were also involved. Cervantes testified
that he was tired of lying and that he was not initially com-
pletely truthful.
   During cross-examination, Cervantes admitted that he lied
to police on multiple occasions and that, in fact, he could not
remember his lies. The trial court sustained the State’s motion
in limine to exclude all testimony regarding two polygraph
examinations taken by Cervantes. Cervantes insisted that he
was the driver of the vehicle, that Castaneda pulled Silva and
Glinsmann out of their respective vehicles, and that Ramirez
shot Silva, Denton, and Glinsmann.

                       3. Search Warrants
   Castaneda’s palmprint was found on the hood of Glinsmann’s
vehicle, the Ford Taurus she had borrowed, and a search
warrant was issued for his residence. Items removed from
Castaneda’s bedroom included a dark-colored, hooded jacket,
a disposable camera, a pair of shoes, an identification card,
bandannas, and a blue spiral notebook.
   During the initial search, an Omaha police officer observed
a black jacket with a fur-lined hood. The jacket was not seized
because it did not match any descriptions given by witnesses.
However, the officer later viewed surveillance footage from
the gas station where Glinsmann was shot and saw that one
assailant was wearing a dark-colored, hooded jacket with
fur trim.
   An amended search warrant was executed on November 17,
2008, to look for the hooded jacket. Although the jacket was
not found, a photograph taken with a disposable camera shows
the fur-lined jacket in the background in Castaneda’s bedroom.
    Nebraska Advance Sheets
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An officer with the Omaha Police Department’s gang unit also
took a photograph of Castaneda in which he was wearing a
black jacket with fur trim.
                      4. Forensic Evidence
   A crime scene technician with a specialty in firearms and
ammunition testified that to a reasonable degree of scientific
certainty, all of the recovered bullets from all of the crime
scenes were fired from the same weapon.
   The Chevrolet Cavalier used in the commission of the
crimes was searched. Among the items found were a gray,
hooded sweatshirt and a brown leather wallet containing
Silva’s identification. Castaneda could not be excluded as a
donor for the DNA swab of the outside of the right sleeve
or the outside of the left sleeve of the sweatshirt. Castaneda
also could not be excluded as the donor for the swabs taken
of the side of the right seat and the back seat levers of the
car, nor could Castaneda be excluded as a donor for DNA
swabbed from a sports drink bottle found in the back seat of
the Cavalier.
                      5. Alibi Evidence
   Castaneda offered alibi evidence from John Orduna and
Castaneda’s stepmother, who both testified that Castaneda was
at home the night of November 12, 2008. Orduna, who lived
in the same apartment building as Castaneda and his family,
testified that he saw Castaneda that night between 9:30 and
10 p.m., but certainly before 11 p.m. Orduna stated that he
and his wife often sat on the porch of the apartment build-
ing drinking beer until 1:30 or 2 a.m. and that on November
12, Castaneda came out and spoke with them. Orduna said
that Castaneda was alone, that Castaneda went back inside
of the apartment building, and that Orduna and his wife were
on the porch until late that night. On rebuttal, however, the
State called the manager from the restaurant where Orduna’s
wife had been employed. Employment records indicated that
Orduna’s wife had not clocked out until nearly 1 a.m. on
November 13.
   Castaneda’s stepmother testified that on November 12, 2008,
Castaneda went to school and arrived home around 3:30 p.m.
                         Nebraska Advance Sheets
	                             STATE v. CASTANEDA	297
	                              Cite as 287 Neb. 289

Castaneda left the apartment with his father at approximately
6 p.m. to pick up Castaneda’s girlfriend, and they took the
girlfriend back home around 8:30 p.m. Castaneda and his
father were home by 9 p.m., and Castaneda did not leave the
apartment again that evening. Castaneda’s stepmother testified
that she was awake until 11 p.m. On cross-examination, how-
ever, she said that she was a sound sleeper and that she would
not have awakened if Castaneda had left the apartment. She
also stated that she did not recall seeing Orduna on the porch
that day.
   The jury found Castaneda guilty on all counts, and he
appeals.

                III. ASSIGNMENTS OF ERROR
   Castaneda assigns that the trial court erred when it (1)
allowed the jury to review an exhibit during its deliberations,
(2) precluded him from offering evidence that Cervantes had
failed a polygraph examination, (3) allowed cell phone records
into evidence, (4) allowed the State to present fingerprint evi-
dence, and (5) sustained the State’s hearsay objection to an
Internet news report. Castaneda also assigns that the accumula-
tion of errors constitutes reversible error, even if any one error
does not. In addition, he argues that the trial court erred when
it unconstitutionally sentenced Castaneda to life in prison with-
out the possibility of parole.
   The State argues that the trial court committed plain error
when it did not make the sentences for use of a deadly weapon
consecutive to all convictions.

                IV. STANDARD OF REVIEW
  [1] 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
admissibility.1
  [2] In making the determination as to factual questions,
an appellate court does not reweigh the evidence or resolve

 1	
      State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
    Nebraska Advance Sheets
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conflicts in the evidence, but, rather, recognizes the trial court
as the finder of fact and takes into consideration that it
observed the witnesses.2

                         V. ANALYSIS
   Castaneda’s assignments of error generally fall into two
categories: whether the trial court erred when it admitted or
excluded certain evidence and whether it is unconstitutional to
sentence a juvenile to life without the possibility of parole. We
address the evidentiary issues first.

                      1. Evidentiary Issues
              (a) Exhibit 201—Crime Scene Video
   William Henningsen, a criminalist and expert in digital
images and forensic video with the Omaha Police Department,
removed the entire surveillance system from the gas station
where Glinsmann was shot. The cameras were motion sensi-
tive, and Henningsen was able to make a frame-by-frame copy
of the video and to clarify and enlarge the images. Exhibit
201 was one of those enhanced copies, and it included yellow
notes and arrows pointing to Glinsmann and “Subject #1” and
“Subject #2.”
   During deliberations, the jury requested that it be allowed to
review the complete video presentation created by Henningsen.
The defense objected, asserting that it gave improper emphasis
on Henningsen’s testimony. The jury indicated that it wanted
to review the gas station video in slow motion or frame-by-
frame. The only exhibit that allowed for such a review was
exhibit 201. With counsel present in the courtroom, the court
allowed limited review of portions of exhibit 201, as requested
by the jury. The jury was not allowed to take the exhibit to the
jury room.
   Castaneda claims it was error to allow the jury to
review the exhibit because it was testimonial evidence that


 2	
      State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
                        Nebraska Advance Sheets
	                            STATE v. CASTANEDA	299
	                             Cite as 287 Neb. 289

improperly emphasized Henningsen’s testimony and not that of
the other witnesses.
   Conversely, the State argues that the video was substantive
evidence of the Glinsmann murder and that Henningsen’s notes
did no more than indicate portions of the video that the mem-
bers of the jury could view for themselves.
   This court has previously noted that, generally, a trial court
does not have discretion to submit testimony materials to
the jury for unsupervised review, but that the trial court has
broad discretion to submit to the jury nontestimonial exhibits,
in particular, those constituting substantive evidence of the
defendant’s guilt.3 And in this instance, the video to which
Castaneda objects is substantive evidence of the crimes for
which Castaneda was charged. The images from that video
were proof that Castaneda was, in fact, one of the perpetrators
of the charged murders.
   Henningsen’s testimony at trial provided an explanation of
the techniques used to retrieve the video surveillance from the
gas station and the steps he followed to organize the video for
presentation for trial. But his notes to exhibit 201 were not part
of that testimony; rather, the notes were merely intended to
facilitate the jury’s viewing of the exhibit.
   And in any case, the trial court followed the procedure
adopted by this court for use in determining when a jury
should be permitted to view evidence after the parties rest. We
have noted:
      When a jury makes a request to rehear certain evidence,
      the common-law rule requires that a trial court discover
      the exact nature of the jury’s difficulty, isolate the pre-
      cise testimony which can solve it, and weigh the proba-
      tive value of the testimony against the danger of undue
      emphasis. If, after this careful exercise of discretion,
      the court decides to allow some repetition of the tape-
      recorded evidence for the jury, it can do so in open court


 3	
      State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009).
    Nebraska Advance Sheets
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      in the presence of the parties or their counsel or under
      other strictly controlled procedures of which the parties
      have been notified.4
   During deliberations, the jury asked to be allowed to watch
the surveillance video in slow motion or frame-by-frame. After
inquiring as to the specific testimony that would resolve the
jury’s question, the trial court determined that exhibit 201
was the only exhibit that would meet the jury’s request. With
counsel present in the courtroom, the court allowed the jury to
review the exhibit. The trial court did not abuse its discretion
in allowing the jury to review the video in the courtroom in the
presence of counsel.

                   (b) Polygraph Examinations
   Cervantes was given two polygraph examinations. The first
was administered on April 16, 2010, after a jailhouse inform­
ant told police Cervantes had admitted that he shot Silva and
that Ramirez shot Glinsmann. Cervantes was asked whether
he had fired the shots that resulted in the deaths of Silva and
Glinsmann. The officer administering the test determined that
Cervantes was being deceptive in his answers to the questions
about Silva. The test was inconclusive as to the questions
about Glinsmann.
   Cervantes was told by police that he failed the test. He was
interviewed by police a second time, during which Cervantes
explained that he believed he failed the first polygraph exami-
nation based on his guilt at having pointed out Silva to Ramirez
and Castaneda. Cervantes was then asked to provide a written
statement about the events of November 12, 2008, after which
he was given a second polygraph examination. It consisted
only of questions about whether the written statement was true.
Cervantes was told he passed the second test.
   The State made a motion in limine, seeking to bar the
defense from mentioning the polygraph examinations or their
results. The trial court sustained the motion, and in an offer of

 4	
      State v. Dixon, 259 Neb. 976, 987, 614 N.W.2d 288, 297 (2000),
      disapproved on other grounds, State v. Smith, 284 Neb. 636, 822 N.W.2d
      401 (2012).
                         Nebraska Advance Sheets
	                             STATE v. CASTANEDA	301
	                              Cite as 287 Neb. 289

proof, the defense showed generally that in the first polygraph
examination given on April 16, 2010, Cervantes had been
deceptive regarding his role in Silva’s death and had denied
telling the jailhouse informant he shot Silva.
   Castaneda argues that he should have been allowed to cross-
examine Cervantes regarding his failure of the first polygraph
examination and that the failure to allow this questioning pre-
vented him from presenting a complete defense as provided in
Holmes v. South Carolina.5
   In Holmes, the defendant sought to introduce evidence of a
third party’s guilt in order to raise doubt about his own guilt.6
South Carolina rules of evidence prohibited admission of evi-
dence relating to a third party’s guilt if it “‘“cast[s] a bare sus-
picion upon another”’” or “‘“raise[s] a conjectural inference
as to the commission of the crime by another.”’”7 The South
Carolina Supreme Court held that because there was strong
forensic evidence against the defendant, he could not introduce
evidence of a third party’s guilt simply to raise the inference of
his own innocence.8
   [3] The U.S. Supreme Court stated that while state courts
have broad latitude to establish rules excluding evidence from
criminal trials, that latitude has limits. “‘Whether rooted directly
in the Due Process Clause of the Fourteenth Amendment or in
the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants
“a meaningful opportunity to present a complete defense.”’”9
But the Supreme Court also noted that
      well-established rules of evidence permit trial judges to
      exclude evidence if its probative value is outweighed by
      certain other factors such as unfair prejudice, confusion

 5	
      Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d
      503 (2006).
 6	
      Id.
 7	
      Id., 547 U.S. at 324, quoting State v. Gregory, 198 S.C. 98, 16 S.E.2d 532
      (1941).
 8	
      Id.
 9	
      Id., 547 U.S. at 324, quoting Crane v. Kentucky, 476 U.S. 683, 106 S. Ct.
      2142, 90 L. Ed. 2d 636 (1986).
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      of the issues, or potential to mislead the jury. . . . Plainly
      referring to rules of this type, we have stated that the
      Constitution permits judges “to exclude evidence that is
      ‘repetitive . . . , only marginally relevant’ or poses an
      undue risk of ‘harassment, prejudice, [or] confusion of
      the issues.’”10
   Castaneda relies on cases from other jurisdictions to sug-
gest that the evidence of polygraph examinations should have
been admitted. However, we do not find the cases supportive
of Castaneda’s position. In State v. McDonough,11 after the
State’s main witness to a robbery was told that he had failed a
polygraph examination, he changed his testimony and identi-
fied the defendant as the robber. At trial, the witness admitted
that he first attempted to change his testimony out of fear of
retaliation by the defendant or his family. The defendant sought
to impeach the witness with the polygraph evidence, seeking
to demonstrate that the test was instrumental in procuring the
witness’ identification of the defendant at trial.12 Under those
circumstances, the court concluded, the polygraph examination
was more probative than prejudicial. The court held that the
admission of polygraph results was not unduly prejudicial to
the defendant, but it cautioned that polygraph results are gener-
ally not admissible.
   In State v. Green,13 on cross-examination, the State referred
to a polygraph examination taken by a witness who alleg-
edly overheard a conversation that would have supported the
defend­ nt’s claim of self-defense. On appeal, the State asserted
        a
that it referred to the polygraph to show that the witness
“used facts he could not have known at the time of taking the
polygraph examination to explain to police officers why he
had failed the polygraph examination.”14 The appellate court
held that statements made during a polygraph examination

10	
      Id., 547 U.S. at 326-27, quoting Crane, supra note 9.
11	
      State v. McDonough, 350 A.2d 556 (Me. 1976).
12	
      Id.
13	
      State v. Green, 245 Kan. 398, 781 P.2d 678 (1989).
14	
      Id. at 406, 781 P.2d at 685.
                         Nebraska Advance Sheets
	                             STATE v. CASTANEDA	303
	                              Cite as 287 Neb. 289

are admissible to demonstrate a lack of credibility but that the
results of a polygraph examination are excluded because of
their unreliability.15
   Factually similar to the case at bar, in U.S. v. Pitner,16
an informant was given a polygraph examination and gave
answers that indicated deception. After the informant was
confronted with the results of the examination, he changed
his story. The federal district court ultimately admitted the
evidence that the witness changed his story, but excluded the
results of the examination itself.
   [4,5] In the case at bar, Castaneda is seeking to admit the
results of the polygraph examinations. In United States v.
Scheffer,17 the U.S. Supreme Court has held that an evidentiary
rule categorically excluding polygraph results is not arbitrary,
because state and federal governments have broad latitude to
establish rules excluding evidence from criminal trials. There
is no consensus that polygraph evidence is reliable, and a fun-
damental principle of the justice system is that the jury is the
lie detector, determining the weight and credibility of witness
testimony.18 The Holmes Court cited Scheffer with approval
as a case involving an evidentiary rule that was not arbitrary
or unreasonable.19
   [6] In Nebraska, we have held that polygraph results are
generally inadmissible as unduly prejudicial.20 However, in
State v. Riley,21 where the mere mention that a witness had
taken a polygraph examination and presumably passed it bol-
stered the witness’ credibility, we concluded that the trial court
abused its discretion when it overruled the defendant’s motion
for a mistrial based on the polygraph reference. Implicit in our

15	
      Id.
16	
      U.S. v. Pitner, 969 F. Supp. 1246 (W.D. Wash. 1997).
17	
      United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413
      (1998).
18	
      Id.
19	
      Holmes, supra note 5.
20	
      See State v. Riley, 281 Neb. 394, 796 N.W.2d 371 (2011).
21	
      Id.
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holding was the proposition that it was the jury’s responsibility
to determine the credibility of witnesses.
   Castaneda claims that he wanted to be able to confront
Cervantes with the fact that he had changed his version of
events after he was told he failed the first polygraph examina-
tion. But ultimately, Castaneda is seeking to admit the results
of the polygraph to cast doubt on Cervantes’ credibility as a
witness—something that the jury, as fact finder, is charged
with determining. Similar to Riley, in which the mention of
a polygraph examination bolstered a witness’ testimony, the
mention of Cervantes’ failed polygraph examination in this
case would cast doubt on his credibility.
   Furthermore, Castaneda had the opportunity to rigorously
cross-examine Cervantes regarding the conflicting statements
he made to police. Castaneda also cross-examined the police
officer who reinterviewed Cervantes and asked the officer’s
opinion as to whether Cervantes lied about his role in the
shootings. The following exchange occurred during the recross-
examination of the officer:
         [Defense counsel:] And when you say you wanted to
      see if [Cervantes] was telling the truth, you mean you
      would challenge him with statements of other people?
         [Officer:] Correct.
         Q. And you told him flat out he was lying to you,
      didn’t you?
         A. Yes, I did.
         Q. And you had reason to believe that he was lying to
      you, didn’t you?
         A. With the change of information, yes.
         Q. Is that the only reason? Just yes or no.
         A. Is that the only reason?
         Q. That you had reason to believe he wasn’t telling
      the truth?
         A. No.
   The officer ultimately testified that Cervantes changed some
details but that overall, Cervantes’ version of the events of
November 12, 2008, did not change. The jury also heard testi-
mony from the person who gave Cervantes a ride the day after
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the shooting and from the jailhouse informant who claimed
that Cervantes had admitted to killing Silva. While the par-
ticulars of Cervantes’ story changed, he never wavered in his
statements to police that he was the driver of the vehicle on the
night of the shootings, that Castaneda was involved, and that
Ramirez shot Silva and Glinsmann.
   Castaneda was able to thoroughly cross-examine Cervantes
regarding the conflicting statements he made to police and
was able to systematically develop his defense by showing
that Cervantes lied to police and that Cervantes changed his
story when he was confronted with his lies. Without being told
of the polygraph examinations or their results, the jury was
made aware that police had reason to believe that Cervantes
was lying. It was not necessary to actually ask Cervantes if he
failed the first polygraph examination.
   As the U.S. Supreme Court noted, the jury acts as a lie
detector, and as the finder of fact, the jury was responsible
for determining whether Cervantes was a credible witness.22
The trial court did not err in sustaining the State’s motion in
limine excluding the results of the polygraph examinations.
Castaneda’s second assignment of error is without merit.

                     (c) Cell Phone Records
   Castaneda next assigns that the trial court erred by admitting
the records of cell phone calls and text messages.
   The operations coordinator for a cell phone company in
Nebraska testified as a custodian of records for that company.
Records of cell phone calls and texts are each stored in dif-
ferent servers for 6 months. Data are recorded at the time a
call is made or a text is sent. A subpoena was issued for the
cell phone numbers registered to Castaneda’s stepmother and
to Ramirez. The records showed no calls on Castaneda’s cell
phone between 9:50 p.m. and 11:44 p.m. on November 12,
2008. Cell phone activity resumed at 11:44 p.m. and continued
until 12:25 a.m.

22	
      See Scheffer, supra note 17.
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   Castaneda argues that computer-generated records which
are manually entered are not assertions of a declarant and
should be scrutinized for admissibility under rule 901,23 which
provides the requirements for authentication or identification
of evidence.
   [7] We recently addressed a similar argument in State v.
Taylor.24 We stated that “[i]f the proponent’s showing is suf-
ficient to support a finding that the evidence is what it pur-
ports to be, the proponent has satisfied the requirement of rule
901(1).”25 “The foundation of trustworthiness required by the
business records exception is sufficient to satisfy the authen-
tication requirement of rule 901.”26 In Taylor, the cell phone
records at issue were authenticated by the same employee who
testified in the case at bar. The employee’s testimony in Taylor
was sufficient to authenticate the cell phone records, and it is
also sufficient in this case.
   Our opinion in Taylor was released after Castaneda submit-
ted his briefs. Castaneda conceded at oral argument that Taylor
resolved the issue. This assignment of error is therefore with-
out merit.

                    (d) Fingerprint Evidence
   At trial, the court received into evidence the surveillance
footage from the gas station where Glinsmann was shot and a
latent palmprint lifted from the hood of Glinsmann’s vehicle,
the Ford Taurus she had borrowed. Glinsmann’s vehicle was
towed to the police garage at the impound lot for processing.
Because the vehicle was dirty, areas where dirt had been dis-
turbed were visible and crime scene technicians were able to
check for latent prints on those areas. Video surveillance from
the gas station also showed the assailants pass near the hood
of the vehicle.
   A crime scene technician with a specialty in finger-
print identification testified that she dusted the exterior of

23	
      Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2008).
24	
      State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
25	
      Id. at 315, 803 N.W.2d at 760.
26	
      Id. at 315, 803 N.W.2d at 761.
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Glinsmann’s vehicle for fingerprints, concentrating on areas
where it appeared that the dust and dirt on the vehicle had been
smudged. The fingerprint specialist lifted three latent prints
from the vehicle: one from above the driver’s-side door handle,
which print belonged to Glinsmann, and two on the hood of the
vehicle on the passenger side, which prints appeared to be two
parts of a left palmprint. That palmprint was later identified as
belonging to Castaneda.
   Castaneda argues that the trial court committed reversible
error when it allowed the State to present testimony regarding
fingerprint identification through the use of the “Automated
Fingerprint Identification System” (AFIS), a database of prints
on file from Nebraska. Castaneda claims that because the fin-
gerprint specialist did not know when Castaneda’s prints were
scanned into AFIS, any testimony regarding AFIS was hearsay.
Castaneda suggests that testimony should have been elicited
to show the process used to enter his fingerprints into AFIS.
Without such testimony, Castaneda claims there was insuffi-
cient foundation.
   [8] An appellate court reviews a trial court’s ruling on
authentication for an abuse of discretion.27 We note that
although Castaneda attacked the scientific validity and reliabil-
ity of fingerprint identification at trial, he does not raise that
issue on appeal.
   In support of his argument, Castaneda cites a North
Carolina case in which an officer compared the latent fin-
gerprint to a “master file,” and then compared fingerprints
taken by the officer to latent prints found at the scene of the
crime.28 The North Carolina court determined that testimony
regarding the master file fingerprint violated the hearsay rule
and should have been excluded. If the conviction rested on
the fingerprint evidence, it could not stand. However, the
court found that the “evidence as to the common origin of
[the] defendant’s known fingerprint and the latent print . . .
is so overwhelming, and the prejudicial effect of the incom-
petent testimony concerning the master file fingerprint is so

27	
      See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
28	
      See State v. Foster, 284 N.C. 259, 263, 200 S.E.2d 782, 786 (1973).
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insignificant by comparison, that the incompetent evidence
was harmless beyond a reasonable doubt.”29 Exclusion of the
evidence concerning the master file fingerprint would not
have produced a different result.30
   We find Foster persuasive but unhelpful to Castaneda’s
arguments. The technician in Foster used virtually the same
procedure used by the technicians in the case at bar. After
using a “master file” or AFIS to make a preliminary identifi-
cation, a new set of inked prints was taken from the subject.
Those prints were then compared to the latent prints found at
the crime scene. Therefore, even if testimony regarding the
“master file” prints, or the prints found in AFIS, could be con-
sidered inadmissible hearsay, the error was harmless, because
the actual identification was made from the inked prints that
the technician personally obtained from Castaneda.
   In addition, Castaneda was able to cross-examine the finger-
print specialist thoroughly on her credentials and training, as
well as on the fact that she did not know any details concern-
ing the date Castaneda’s prints were scanned into AFIS or the
identity of the person who completed the scan. As pointed out
by the State, whether the known prints in AFIS belonged to
Castaneda went to the weight of the evidence, which is deter-
mined by a jury.31 The trial court did not abuse its discretion
by allowing the testimony. This assignment of error is also
without merit.
                    (e) Internet News Report
   Castaneda offered into evidence a printout of an Internet
news story that indicated Castaneda’s palmprint had been found
on the hood of the Glinsmann vehicle at 52d and Leavenworth
Streets. The trial court refused to allow it, finding that it was
inadmissible hearsay.
   Castaneda argues that the story was not offered for the truth
of the matter asserted, but, rather, was offered to demonstrate
that it was public knowledge that Castaneda had been arrested,

29	
      Id. at 274, 200 S.E.2d at 793.
30	
      Id.
31	
      See State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011).
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	                          STATE v. CASTANEDA	309
	                           Cite as 287 Neb. 289

that his palmprint was found at the scene, and that Cervantes
named Castaneda, who had been arrested, to turn suspicion
away from himself.
   [9] Under evidence rule 10332:
          (1) Error may not be predicated upon a ruling which
       admits or excludes evidence unless a substantial right of
       the party is affected, and:
          ....
          (b) In case the ruling is one excluding evidence, the
       substance of the evidence was made known to the judge
       by offer or was apparent from the context within which
       questions were asked.
   When Castaneda sought to introduce the news story during
trial, he did not argue that the story would demonstrate that
fingerprint evidence linking Castaneda to the crime was public
knowledge. Castaneda argued only that the story was not being
offered for the truth of the matter. He failed to establish the
news story’s relevance, and we find no error in the trial court’s
refusal to admit it into evidence.

                    (f) Cumulative Errors
   Also without merit is Castaneda’s assignment of error that
the cumulative errors require reversal and a new trial. Because
we find no merit to any of Castaneda’s assignments of error,
there are no cumulative errors, and we accordingly reject
this argument.

                        2. Sentences
                  (a) Arguments on Appeal
   Castaneda argues that the district court erred in sentencing
him to life imprisonment without the possibility of parole.
The basis of Castaneda’s argument at the time this case was
originally argued was that the U.S. Supreme Court’s decision
in Graham v. Florida33 categorically prohibited a sentence
of life imprisonment without the possibility of parole for

32	
      Neb. Evid. R. 103, Neb. Rev. Stat. § 27-103 (Reissue 2008).
33	
      Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
      (2010).
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juvenile offenders. In Graham, a juvenile who participated
in an armed robbery was charged as an adult and sentenced
to life imprisonment without the possibility of parole. The
Supreme Court ruled that sentencing a juvenile to life impris-
onment without parole for a nonhomicide crime was a viola-
tion of the Eighth Amendment prohibition against cruel and
unusual punishment.
                    (b) Miller v. Alabama
   Following the submission of Castaneda’s appeal to this
court, the U.S. Supreme Court decided Miller v. Alabama.34
Miller held it is unconstitutional to sentence a juvenile con-
victed of a homicide to a mandatory sentence of life imprison-
ment without the possibility of parole.
                     (c) Further Argument
   This court ordered further argument on the impact of Miller
on Castaneda’s sentence. During those arguments, the State
argued that Castaneda’s sentences are unaffected by Miller
because they were not sentences without the possibility of
parole. Rather, upon commutation to a term of years, parole
would be available to Castaneda. The State further argued
that if Miller did apply, Castaneda’s current sentences of
life imprisonment without the possibility of parole should be
vacated and the cause remanded for resentencing in light of the
sentencing factors discussed in Miller.
   Conversely, Castaneda argued that the sentences imposed
upon him were without the possibility of parole and that thus,
Miller was applicable. Castaneda further argued that as a result
of Miller, he could not be charged with a Class IA felony,
because the only allowable sentence for such a felony would
be life imprisonment. Castaneda instead asserted that he should
be sentenced for second degree murder, a Class IB felony,
because it is the “most serious degree of homicide for which
he may be prosecuted” and thus provides the sentencing court

34	
      Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407
      (2012).
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	                            STATE v. CASTANEDA	311
	                             Cite as 287 Neb. 289

with the individualized sentencing options required by Graham
and Miller.35

                 (d) Life Imprisonment Without
                      Possibility of Parole
   We first address the State’s contention that Miller is inap-
plicable because Castaneda was not sentenced to life imprison-
ment without the possibility of parole.
   At the time Castaneda was sentenced, Nebraska’s statutes
provided that a juvenile convicted of first degree murder was
subject to mandatory life imprisonment. The statutes did not
expressly contain the qualifier “without parole.”36 However,
according to Neb. Rev. Stat. § 83-1,110 (Reissue 2008), a
committed offender becomes eligible for parole in Nebraska
after serving “one-half the minimum term of his or her sen-
tence.” Because there is no way to compute “one-half” of a
life sentence, an offender sentenced to life imprisonment in
Nebraska for first degree murder is not eligible for parole.37
Instead, although such an offender has his record reviewed by
the Board of Parole every 10 years, he or she is not eligible
for parole until the “sentence is commuted.”38 If commutation
occurs, the offender’s record is reviewed annually when he or
she is within 5 years of parole eligibility.39
   In the State’s supplemental brief, it argues that Miller barred
only those sentences denying any “‘possibility of parole.’”40 It
contends that Nebraska’s scheme does not fall within this cat-
egory, because parole is possible in Nebraska if the sentence
is commuted to a term of years. Specifically, Neb. Const. art.
IV, § 13, authorizes the Board of Pardons, a group composed

35	
      Supplemental brief for appellant at 20.
36	
      See Neb. Rev. Stat. §§ 28-105 and 28-105.01 (Reissue 2008).
37	
      Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008). See State v.
      Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
38	
      Neb. Rev. Stat. § 83-192(1)(f)(v) (Reissue 2008).
39	
      Id.
40	
      Supplemental brief for appellee at 2, quoting Graham, supra note 33.
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of the Governor, the Attorney General, and the Secretary of
State,41 to commute the sentence in “all cases of conviction,”
which includes sentences of life imprisonment.42 Once the
sentence is so commuted, the Board of Parole can review
the sentence and release an inmate on parole.43 According to
the State, under Nebraska law, Castaneda therefore has some
possibility of being paroled, and thus his sentences do not
violate Miller.
   But the mere existence of a remote possibility of parole does
not keep Nebraska’s sentencing scheme from falling within
the dictates of Miller. Miller requires the sentencing scheme
to provide “‘some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.’”44 Miller
cited the scheme in Graham as coming within its dictates.
And the scheme at issue in Graham, like Nebraska’s, did not
expressly provide that the life sentence was “without parole.”
Nevertheless, the Court held in Graham that because Florida
had abolished its parole system, the sentence effectively gave
the defendant no possibility of release “unless he is granted
executive clemency.”45
   Similarly, in Bonilla v. State,46 the Iowa Supreme Court
addressed whether Graham applied to a juvenile defendant
convicted of a nonhomicide offense. Iowa’s statute provided
that the defendant’s sentence was for life and that he “‘shall
not be released on parole unless the governor commutes the
sentence to a term of years.’”47 The Iowa court held that the
fact that the defendant could “theoretically” receive a com-
mutation was too much of a “‘remote possibility’” to support

41	
      Neb. Rev. Stat. § 83-1,126 (Reissue 2008).
42	
      See, Poindexter, supra note 37; Otey v. State, 240 Neb. 813, 485 N.W.2d
      153 (1992).
43	
      § 83-192(1)(f)(v).
44	
      Miller, supra note 34, 132 S. Ct. at 2469 (emphasis supplied), quoting
      Graham, supra note 33.
45	
      Graham, supra note 33, 560 U.S. at 57.
46	
      Bonilla v. State, 791 N.W.2d 697 (Iowa 2010).
47	
      Id. at 700, quoting Iowa Code Ann. § 902.1 (West 2003).
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an argument that the defendant’s sentence was not with-
out parole.48
   And in State v. Dyer,49 a Louisiana court found that defend­
ants sentenced to life imprisonment were effectively sentenced
to life without parole when they could not be eligible for
parole “‘until [the] life sentence has been commuted to a fixed
term of years.’” Noting that in Louisiana, the governor had
complete discretion regarding whether to commute a sentence,
Dyer held that the sentences were effectively without parole
and fell under the dictates of Graham.50
   In addition, the U.S. Supreme Court itself has opined on the
substantial difference between executive commutation power
and parole.51 According to the Court, parole and commutation
are different concepts as a matter of law, because parole is “a
regular part of the rehabilitative process,”52 while commutation
is “an ad hoc exercise of executive clemency.”53
   Nebraska’s parole system has absolutely no application to
Castaneda unless and until executive clemency in the form
of sentence commutation is granted. And in Nebraska, execu-
tive clemency is a “‘free gift from the supreme authority,’”
“‘to be bestowed according to his own discretion.’”54 The
Board of Pardons thus has the unfettered discretion to grant or
deny a commutation for any reason or for no reason at all.55
The sentencing scheme here and the availability of executive
clemency under only a standard of unfettered discretion is
remarkably similar to Florida, Iowa, and Louisiana. We find
that Nebraska’s sentence of life imprisonment is effectively
life imprisonment without parole under the rationale of Miller

48	
      Id. at 700 n.2.
49	
      State v. Dyer, 77 So. 3d 928, 929 (La. 2011).
50	
      Id.
51	
      Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983).
52	
      Id., 463 U.S. at 300.
53	
      Id., 463 U.S. at 301.
54	
      Otey, supra note 42, 240 Neb. at 824, 485 N.W.2d at 163 (emphasis in
      original), quoting Pleuler v. State, 11 Neb. 547, 10 N.W. 481 (1881).
55	
      Poindexter, supra note 37.
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and Graham, because it provides no meaningful opportunity
to obtain release. As such, we reject the State’s argument that
Miller is inapplicable because Castaneda was not sentenced to
life imprisonment without the possibility of parole.

                     (e) Griffith v. Kentucky
   Other than arguing that Miller was inapplicable for the
reasons detailed and rejected above, the State concedes that
Miller, as a new rule of law, would be applicable to any case
on direct review. Castaneda concurs, and we agree. In Griffith
v. Kentucky,56 the U.S. Supreme Court held that “a new rule
for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct
review or not yet final, with no exception for cases in which
the new rule constitutes a ‘clear break’ with the past.” Because
this case is currently on direct appeal, Miller is applicable
to Castaneda.

                  (f) L.B. 44 and §§ 28-105.02
                         and 83-1,110.04
   Since we heard further arguments, the Nebraska Legislature
passed, and the Governor approved, 2013 Neb. Laws, L.B. 44,
which amended state law to “change penalty provisions with
respect to Class IA felonies committed by persons under
eight­ en years of age [and] to change parole procedures with
     e
respect to offenses committed by persons under eighteen years
of age.”
   Neb. Rev. Stat. § 28-105.02 (Supp. 2013) provides:
         (1) Notwithstanding any other provision of law, the
     penalty for any person convicted of a Class IA felony for
     an offense committed when such person was under the
     age of eighteen years shall be a maximum sentence of not
     greater than life imprisonment and a minimum sentence
     of not less than forty years’ imprisonment.
         (2) In determining the sentence of a convicted per-
     son under subsection (1) of this section, the court shall

56	
      Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649
      (1987).
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	                      STATE v. CASTANEDA	315
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     consider mitigating factors which led to the commission
     of the offense. The convicted person may submit mitigat-
     ing factors to the court, including, but not limited to:
        (a) The convicted person’s age at the time of the
     offense;
        (b) The impetuosity of the convicted person;
        (c) The convicted person’s family and community
     environment;
        (d) The convicted person’s ability to appreciate the
     risks and consequences of the conduct;
        (e) The convicted person’s intellectual capacity; and
        (f) The outcome of a comprehensive mental health
     evaluation of the convicted person conducted by an
     adolescent mental health professional licensed in this
     state. The evaluation shall include, but not be limited to,
     interviews with the convicted person’s family in order
     to learn about the convicted person’s prenatal history,
     developmental history, medical history, substance abuse
     treatment history, if any, social history, and psychologi-
     cal history.
  And Neb. Rev. Stat. § 83-1,110.04 (Supp. 2013) further
provides:
        (1) Any offender who was under the age of eighteen
     years when he or she committed the offense for which
     he or she was convicted and incarcerated shall, if the
     offender is denied parole, be considered for release on
     parole by the Board of Parole every year after the denial.
        (2) During each hearing before the Board of Parole
     for the offender, the board shall consider and review, at
     a minimum:
        (a) The offender’s educational and court documents;
        (b) The offender’s participation in available rehabilita-
     tive and educational programs while incarcerated;
        (c) The offender’s age at the time of the offense;
        (d) The offender’s level of maturity;
        (e) The offender’s ability to appreciate the risks and
     consequences of his or her conduct;
        (f) The offender’s intellectual capacity;
        (g) The offender’s level of participation in the offense;
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            (h) The offender’s efforts toward rehabilitation; and
            (i) Any other mitigating factor or circumstance submit-
         ted by the offender.

                        (g) Disposition
   At the time of Castaneda’s sentencing for the first degree
murder convictions, Class IA felonies, the district court was
required by § 28-105(1) to impose sentences of life imprison-
ment. As we have explained, those sentences were tantamount
to life imprisonment without the possibility of parole and,
under Miller, were unconstitutional. As such, Castaneda’s life
imprisonment sentences must be vacated and Castaneda must
be resentenced.
   Subsequent to the enactment of L.B. 44, this court sought
supplemental briefing on the issue of whether Castaneda should
be resentenced under the provisions of L.B. 44. The State con-
tends that L.B. 44 should be utilized; Castaneda argues that to
do so would violate the Ex Post Facto Clauses of the U.S.57 and
Nebraska Constitutions.58
   [10,11] This court ordinarily construes Nebraska’s ex post
facto clause to provide no greater protections than those guar-
anteed by the federal Constitution.59 We have said that “‘[a]
law which purports to apply to events that occurred before
the law’s enactment, and which disadvantages a defendant by
creating or enhancing penalties that did not exist when the
offense was committed, is an ex post facto law and will not be
endorsed by the courts.’”60
   We have also held:
         “Any statute which punishes as a crime an act previ-
      ously committed which was innocent when done, which
      makes more burdensome the punishment for a crime after
      its commission, or which deprives one charged with a

57	
      U.S. Const. art. I, § 10.
58	
      Neb. Const. art. I, § 16.
59	
      State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
60	
      Id. at 83, 815 N.W.2d at 884.
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      crime of any defense available according to law at the
      time when the act was committed is prohibited as ex
      post facto. The Ex Post Facto Clause does not, however,
      extend to limit legislative control of remedies and modes
      of procedure which do not affect matters of substance.
      Thus, statutes governing substantive matters in effect at
      the time of a crime govern, and not later enacted statutes.
      In contrast, the procedural statutes in effect on the date
      of a hearing or proceeding govern, and not those in effect
      when the violation took place.
         “A change in law will be deemed to affect matters of
      substance where it increases the punishment or changes
      the ingredients of the offense or the ultimate facts neces-
      sary to establish guilt. In other words, a rule is substantive
      if it alters the range of conduct or the class of persons
      that the law punishes. In contrast, rules that regulate
      only the manner of determining a defendant’s culpability
      are procedural.”61
   We are therefore faced with the issue of whether the sen-
tencing provisions set forth in L.B. 44 increase the punish-
ment or change the ingredients of the offense or the ultimate
facts necessary to establish guilt. Because L.B. 44 deals with
sentencing, it does not affect the ingredients of the offense or
the facts necessary to establish guilt. Thus, we must answer
whether L.B. 44 increases the punishment; if it does, then the
change is substantive and ex post facto principles bar applica-
tion of L.B. 44 to Castaneda on resentencing.
   Castaneda argues that we must determine whether L.B. 44
increases the punishment by comparing the possible range of
sentences under L.B. 44 with the possible range of sentences
for a Class IB felony. This argument is based upon Castaneda’s
contention that because Miller invalidated the Nebraska sen-
tencing scheme for Class IA felonies committed by juveniles,
a Class IB felony is the “most serious degree of homicide for
which he may be prosecuted.”62

61	
      Id.
62	
      Supplemental brief for appellant at 21.
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318	287 NEBRASKA REPORTS



   We find this argument contradicts precedent from the U.S.
Supreme Court. In Dobbert v. Florida,63 the defendant was
convicted of first degree murder. At the time the murder was
committed, the applicable Florida statute provided that the
murder was to be punished by death unless the jury recom-
mended mercy. Before the case came to final judgment, the
Florida Supreme Court, based on a U.S. Supreme Court deci-
sion, found the statute to be unconstitutional.64 Florida then
enacted a new statute specifying procedures to be utilized prior
to the imposition of a death penalty. On appeal, the defendant
argued that applying the new statute to him would violate ex
post facto principles by increasing the punishment he was sub-
ject to. His argument was that because the prior statute was
found to be unconstitutional, there was no valid death penalty
in Florida as of the date of his actions, and that he thus could
not be subjected to that penalty under the new statute. The
Court rejected this argument, concluding:
      [T]his sophistic argument mocks the substance of the
      Ex Post Facto Clause. Whether or not the old statute
      would, in the future, withstand constitutional attack,
      it clearly indicated Florida’s view of the severity of
      murder and of the degree of punishment which the leg-
      islature wished to impose upon murderers. The statute
      was intended to provide maximum deterrence, and its
      existence on the statute books provided fair warning as
      to the degree of culpability which the State ascribed to
      the act of murder.
         . . . Here the existence of the statute served as an
      “operative fact” to warn the petitioner of the penalty
      which Florida would seek to impose on him if he were
      convicted of first-degree murder. This was sufficient com-
      pliance with the ex post facto provision of the United
      States Constitution.65

63	
      Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977).
64	
      See Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346
      (1972).
65	
      Dobbert, supra note 63, 432 U.S. at 297.
                        Nebraska Advance Sheets
	                           STATE v. CASTANEDA	319
	                            Cite as 287 Neb. 289

Dobbert makes it clear that the effect of Miller on Nebraska
law is not a factor in the ex post facto analysis of whether a
later-enacted statute increases punishment for a crime. Rather,
the proper comparison is the range of penalties that Nebraska
law provided for a Class IA felony committed by a juvenile at
the time Castaneda committed his crimes, within the range of
penalties Nebraska law provides for a Class IA felony com-
mitted by a juvenile at the time Castaneda is resentenced. We
observe that this is consistent with the underlying purpose of
the Ex Post Facto Clause: to “assure that legislative Acts give
fair warning of their effect and permit individuals to rely on
their meaning until explicitly changed.”66
   At the time Castaneda was sentenced, the only possible sen-
tence for a first degree murder committed by a juvenile was
life imprisonment. Under L.B. 44, the sentence is anywhere
from 40 years to life imprisonment.67 The possible range of
sentences provided for in L.B. 44 is not greater than the pos-
sible range of sentences which Castaneda was originally sub-
jected to.68 As such, the change effected by L.B. 44 does not
violate ex post facto principles.
   [12] Nor is it inconsistent under Nebraska law for this
mitigation in sentencing to apply upon resentencing. “[W]here
a criminal statute is amended by mitigating the punishment,
after the commission of a prohibited act but before final judg-
ment, the punishment is that provided by the amendatory act
unless the Legislature has specifically provided otherwise.”69
And in this case, the Legislature has not provided otherwise.
We therefore vacate Castaneda’s life sentences and remand the
cause for resentencing under the procedures set forth under
L.B. 44.

66	
      Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 67 L. Ed. 2d 17
      (1981).
67	
      See § 28-105.02(1).
68	
      See §§ 28-105 and 28-105.01.
69	
      State v. Randolph, 186 Neb. 297, 301-02, 183 N.W.2d 225, 228 (1971).
      See, State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); State v.
      Groff, 247 Neb. 586, 529 N.W.2d 50 (1995).
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   We decline to address Castaneda’s argument under Graham
as presented by his brief on appeal, because the possibility
exists that upon remand, Castaneda might not be resentenced
to life imprisonment.
   Finally, the State argues that the district court committed
plain error when it failed to order Castaneda’s three sentences
for use of a deadly weapon to run consecutively “to all other
sentences imposed.”70 We agree and vacate all of Castaneda’s
other sentences and remand the cause for resentencing.71

                       VI. CONCLUSION
   Castaneda’s assignments regarding trial error are without
merit. But the life imprisonment sentences imposed upon
Castaneda were effectively life imprisonment without the possi-
bility of parole and unconstitutional under Miller.72 We accord-
ingly vacate those unconstitutional sentences and remand the
cause for resentencing. We also vacate all of Castaneda’s other
sentences, because the district court committed plain error in
ordering some of those sentences to run concurrently rather
than consecutively.
	Convictions affirmed, all sentences vacated,
	                and cause remanded for resentencing.

70	
      Brief for appellee at 75 (emphasis in original).
71	
      See, Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2012); State v. Scott, 284
      Neb. 703, 824 N.W.2d 668 (2012); State v. Russell, 248 Neb. 723, 539
      N.W.2d 8 (1995).
72	
      Miller, supra note 34.




                    State of Nebraska, appellee, v.
                    Douglas M. Mantich, appellant.
                                  ___ N.W.2d ___

                       Filed February 7, 2014.   No. S-11-301.

 1.	 Constitutional Law: Sentences. Whether a sentence violates the Eighth
     Amendment’s cruel and unusual punishment clause presents a question of law.
 2.	 Judgments: Appeal and Error. When reviewing a question of law, an appellate
     court reaches a conclusion independent of the lower court’s ruling.
