                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. BURTON


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                               EDWARD R. BURTON, APPELLANT.


                              Filed June 7, 2016.   No. A-15-789.


       Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge. Affirmed.
       John H. Marsh, of Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., and Tana M. Fye
for appellant.
       Douglas J. Peterson, Attorney General, and George R. Love for appellee.


       MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
       MOORE, Chief Judge.
                                      I. INTRODUCTION
         Edward R. Burton appeals from his jury conviction for first degree sexual assault in the
district court for Buffalo County. On appeal, Burton alleges various evidentiary errors were made
by the district court and an excessive sentence was imposed. Finding no merit to Burton’s assigned
errors, we affirm.
                                II. FACTUAL BACKGROUND
        Burton was charged with first degree sexual assault for actions alleged to have occurred
during the evening of October 29 and early morning of October 30, 2014. On October 29, the
victim, referred to as S.M., was asked by someone to purchase marijuana for that individual. S.M.
agreed and arranged to get marijuana from a relative of Burton. After obtaining the marijuana and




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delivering it to the individual, S.M. accepted an invitation by Burton to have drinks at a lounge.
S.M., Burton, and his brother played pool and drank at the lounge.
         S.M. consumed 5 to 6 rum and cokes during approximately a 1-hour period while at the
lounge. She testified to feeling “sick and out of it” shortly thereafter, along with being dizzy and
unable to walk straight.
         S.M. testified that she was going to walk to her sister’s house, but was offered a ride by
Burton and his companion, Owens, whom S.M. had not previously met. S.M. accepted the
invitation and the group left the lounge in Owens’ vehicle. Owens drove and the group picked up
some fast food, at which point S.M. vomited. They then stopped at a liquor store. After leaving the
liquor store, S.M. was under the impression that she would be dropped off at her sister’s house.
Instead, Owens drove the group to his residence.
         Once at Owens’ residence, the group ate the fast food and proceeded to the living room
couch. S.M. was sitting next to Burton on the couch. Owens retrieved marijuana from a bag in his
room, then rolled a marijuana joint and lit it. Burton and Owens began smoking the joint, and S.M.
joined in, smoking a little to avoid being known as a snitch. S.M. testified that Burton then blew
marijuana smoke into her mouth several times until she said no and refused to participate.
         S.M. testified that at this point her whole body began to tingle badly, possibly caused by
the cumulative effect of alcohol, marijuana, and medication consumption. S.M. was taking various
medications for treatment of depression, anxiety, and bipolar disorder. S.M. also testified to being
a recovering substance abuser and acknowledged that she had been charged with false reporting
during her period of substance abuse.
         S.M. thereafter called a friend with her cell phone. She spoke over the phone with her face
down on the couch, whispering because she was getting “bad vibes.” She requested that the friend
pick her up, but she apparently provided him with incorrect directions. S.M. also sent text messages
to the same friend asking for help. S.M. chose not to call the police, although she was afraid based
on her knowledge of Burton and Owens’ reputation while living in Chicago. S.M. testified that she
felt safer contacting the friend rather than the police.
         S.M. testified that Burton kept asking her for “head,” to which she responded by saying no
repeatedly. S.M. then started to stand up, planning to grab her handbag and leave. However, S.M.
testified that as she attempted to stand, her legs collapsed and she fell onto the floor between the
couch and a coffee table. Because S.M. was weak she was unable to get off the floor.
         S.M. described her condition at this point as passing in and out of consciousness. She
testified that Burton then got down on the floor and proceeded to sexually assault her. S.M.
responded by stating “stop” and “don’t,” then she started crying. S.M. also testified that she bit
Burton’s penis when he attempted oral intercourse and thereafter he penetrated her vagina with his
penis.
         After Owens told Burton someone was coming over and they needed to move, S.M. claims
that Burton grabbed her feet and Owens grabbed her shoulders, carrying her through a doorway
with hanging beads into a little girl’s room, wherein she was placed on the floor. While moving
her, S.M. testified that Owens started laughing and said that he was standing on S.M.’s hair. S.M.
indicated that her head was jerked down when Owens stepped on her hair and she believed that




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some of her hair was pulled out as a result. S.M. indicated that this occurred while she was on the
floor between the couch and coffee table.
        Once in the other room, S.M. testified that Burton continued to sexually assault her while
she faded in and out of consciousness. She continued to protest by telling Burton “stop” and
“don’t” while crying. S.M. remembers awakening and hearing Burton in the doorway while Owens
penetrated her, unaware that they had switched. She maintains that at no point was the sexual
contact between herself and Burton consensual.
        S.M. awoke early the following morning, while it was still dark. She gathered her
belongings and quietly left the residence, believing that Burton was asleep on the couch. S.M.
walked to her sister’s house. S.M. did not tell her sister about the assault because she did not want
to place an additional burden on her. S.M. did not report the assault that day.
        S.M. went back to Owens’ residence the day following the assault to search for her ID.
After knocking on the door and receiving no response, S.M. called Burton. Following the call,
Owens proceeded to let S.M. into the residence. S.M. entered the residence and searched for her
ID. S.M. testified that there was a woman with blond hair in the house at the time of her search.
        On the morning of October 31, 2014, two days after the alleged assault, S.M. attended a
previously scheduled appointment at a local hospital with her therapist, Bridgett Mostek. During
this appointment, S.M. disclosed the assault to Mostek. Mostek told S.M. to report the assault or
she would. At S.M.’s request, Mostek contacted law enforcement.
                               III. PROCEDURAL BACKGROUND
         On December 2, 2014, Burton was charged by information in the district court for Buffalo
County with first degree sexual assault, a Class II Felony, in violation of Neb. Rev. Stat. § 28-319
(Reissue 2008).
         Trial was held on June 22 and 23, 2015. In addition to the testimony of S.M., as articulated
in the previous section, testimony was given by David Stott, an officer with the Kearney Police
Department; Mostek; and Ann Johnson, a nurse practitioner and sexual assault examiner affiliated
with the Family Advocacy Network.
         Mostek testified concerning S.M.’s therapeutic treatment and disclosure of the assault. She
testified that S.M. suffered from “major depressive disorder, severe, recurrent without psychotic
features” and “use of substances.” Johnson testified regarding her sexual assault examination of
S.M. on October 31, 2014. The examination did not produce evidence of acute trauma, and led to
an unconfirmed diagnosis. However, Johnson testified that it is not unusual to not find injuries in
adult cases of sexual assault, and that the nature of S.M.’s assault could have occurred without
physical injury.
         Officer Stott was dispatched to the hospital to investigate a sexual assault reported by
Mostek concerning S.M. Stott testified that S.M. was visibly upset and crying when he arrived. He
proceeded to interview S.M. in his patrol vehicle because it contained recording equipment.
Mostek sat in the back seat of the vehicle for support. S.M. described the individuals who
committed the alleged assault and assisted the police in establishing the location of Owens’
residence. Stott later testified, over a hearsay objection, that S.M. identified the individuals during
a photographic line-up. S.M. also described Owens’ car, which was later located by police.



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         Over relevance and Rule 404 objections, Stott testified to various items that were found
during the police investigation of Owens’ residence, pursuant to the execution of a search warrant
on November 1, 2014. These items included marijuana, hashish, drug paraphernalia, a sawed-off
shotgun, and objects located in the little girl’s bedroom, including bed sheets, blue beads consistent
with what Owens had worn in his hair, and hair found on the bedroom floor.
         During Stott’s testimony, certain photographs were identified and admitted into evidence
over Burton’s respective Rule 403 and foundation objections.
         The first photograph depicted a small amount of marijuana and drug paraphernalia
(specifically rolling papers). Stott described this photograph as depicting “a small tin container
that contained a small amount of marijuana, some rolling papers, and another small tin that I
believe contained some old residue.”
         The second photograph was of long blond hair strands. S.M. testified that the hair depicted
in this photograph was similar in length and color to her hair on the day of the assault and at trial.
Over a hearsay objection, Stott testified that the blond hair was located between the couch and
coffee table in the approximate area where S.M. advised that part of the assault allegedly occurred.
The court gave a limiting instruction, advising the jury that this testimony was offered to explain
what Stott was told by S.M. regarding her location during the events in question and to explain
why officers were examining that area of the living room and picking up hair during their search.
The court further advised the jury that Stott’s testimony was not to be accepted as truth regarding
S.M.’s statement.
         Stott later testified, once again over a hearsay objection, that the hair stands were sent to a
crime lab for DNA testing, but no confirmation was returned regarding the sample. No limiting
instruction followed this later comment.
         Other evidence introduced at trial included text message communications and call logs
from S.M.’s cell phone and various photographs. The call logs and text messages offered by the
State showed S.M.’s attempts to contact her friend for assistance while at Owens’ residence. Text
messages offered by Burton’s attorney depicted communications between Burton and S.M.
regarding her lost ID. Additional photographs were also received into evidence without objection,
including photographs of Owens’ vehicle, the exterior of Owens’ house, the living room of the
residence, the beaded door S.M. was carried through, the room she was placed in, and S.M.’s
clothing.
         At the conclusion of the State’s case, Burton’s attorney moved to dismiss for failure to
prove a prima facie case, which motion was overruled. Burton did not put on a case in chief.
         Following deliberations, the jury returned a verdict of guilty on the charge of first degree
sexual assault. On August 25, 2015, the district court sentenced Burton to incarceration for a period
of not less than 7 years nor more than 15 years, with credit for 288 days served.
         Burton subsequently perfected this appeal.
                                 IV. ASSIGNMENTS OF ERROR
       Burton assigns, restated, that the district court erred in (1) admitting Stott’s testimony
regarding the collected hair sample over a hearsay objection; (2) allowing Stott’s testimony
regarding marijuana, hashish, drug paraphernalia and a sawed-off shotgun over a relevancy



                                                 -4-
objection; (3) allowing Stott’s testimony regarding these same items over a Rule 404 objection;
(4) admitting the photograph of hair strands without proper foundation; (5) admitting the
photograph depicting marijuana and drug paraphernalia over a Rule 403 objection; and (6)
imposing an excessive sentence.
                                  V. STANDARD OF REVIEW
         Apart from rulings under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection or exclude evidence on
hearsay grounds. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
         When the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). 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 and 27-404(2) (Reissue 2008), and the
trial court’s decision will not be reversed absent an abuse of discretion. State v. Torres, 283 Neb.
142, 812 N.W.2d 213 (2012). See, also, Johnson, supra (trial court exercises its discretion in
determining whether evidence is relevant and whether its prejudicial effect substantially outweighs
its probative value).
         The admission or rejection of photographs in evidence is largely within the discretion of
the trial court. In the absence of a showing of an abuse of discretion, error may not be predicated
upon such a ruling. Steele v. Sedlacek, 267 Neb. 1, 673 N.W.2d 1 (2003). See, also, State v.
Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008) (because authentication rulings are necessarily
fact specific, a trial court has discretion to determine whether evidence has been properly
authenticated; therefore, an appellate court reviews a ruling on authentication for abuse of
discretion).
         An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
         An abuse of discretion occurs when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
                                          VI. ANALYSIS
                     1. ADMISSIBILITY OF STOTT’S HAIR SAMPLE TESTIMONY
       Burton challenges the admissibility of Stott’s testimony regarding the location and testing
of a blond hair sample. Burton’s hearsay objection to this testimony was overruled, and was
followed by a limiting instruction given by the court.
                                       (a) Hearsay Objection
       Hearsay is a statement, other than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter asserted. State v. Stricklin, 290 Neb.
542, 861 N.W.2d 367 (2015); Neb. Rev. Stat. § 27-801(3) (Reissue 2008). When overruling a



                                                -5-
hearsay objection on the ground that testimony about an out-of-court statement is received not for
its truth but only to prove that the statement was made, a trial court should identify the specific
nonhearsay purpose for which the making of the statement is relevant and probative. State v. Baker,
280 Neb. 752, 789 N.W.2d 702 (2010).
                                    (i) Location of Hair Sample
        Stott testified about photographic evidence introduced at trial which he described as
depicting “a blond or strawberry blond hair that was located between the couch and the coffee
table in the approximate area where (S.M.) . . . had stated that part of the events had taken place.”
        Burton maintains on appeal that this statement was inappropriately offered for its truth to
corroborate S.M.’s testimony regarding the location of the assault. The State argues that this
statement was offered to show why hair was collected between the couch and coffee table, not for
the truth of S.M.’s statement.
        Given our review of the record, we find that Stott’s testimony pertaining to the location of
the hair sample was not hearsay and therefore was admissible. The statement was not offered to
prove the truth of S.M.’s testimony. Rather, it was offered to prove that S.M. stated to police where
the assault allegedly occurred, which in turn caused police to search this location in the residence
for evidence.
        The district court properly identified the specific nonhearsay purpose for which the making
of S.M.’s statement was relevant and probative. Specifically, the court responded to Burton’s
hearsay objection by clarifying for the jury that “we’re explaining what the officer was told as to
where the location of the individual was, and we’re not accepting that as the truth of (S.M.’s)
statement to him; only the fact that he was told that as part of the explanation as to why they were
picking up the hair or looking in that area.” These factual findings of the court supporting its ruling
were not clearly erroneous. The district court did not err in admitting Stott’s statements regarding
the location of the hair sample over Burton’s hearsay objection.
                                     (ii) Testing of Hair Sample
         Stott later testified that a crime lab analysis produced “no confirmation” regarding the hair
sample, once again over a hearsay objection but without a limiting instruction. Burton argues that
this statement “appears to suggest that the state used due diligence in handling the forensic
evidence” and was an inappropriate summary of an analyst’s findings without use of proper
firsthand testimony. The State asserts that even if this statement was hearsay, it was not prejudicial
to Burton because the statement was favorable to him, particularly due to evidence that a blond
haired woman was present when S.M. returned the following day to search for her license. The
district court did not provide a clear explanation supporting its decision to overrule Burton’s
hearsay objection to this testimony. However, assuming without deciding, that this statement
amounted to inadmissible hearsay, we conclude that admitting it was harmless error.
                                         (b) Harmless Error
       An erroneous admission of evidence is considered prejudicial to a criminal defendant
unless the State demonstrates that the error was harmless beyond a reasonable doubt. State v.




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Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003). In a jury trial of a criminal case, harmless error
exists when there is some incorrect conduct by the trial court which, on review of the entire record,
did not materially influence the jury in reaching a verdict adverse to a substantial right of the
defendant. Brouillette, supra; State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013), State v.
Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013). Harmless error review looks to the basis on
which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error. Johnson, supra. See, also, State v. Freemont, 284
Neb. 179, 817 N.W.2d 277 (2012). See also State v. Baker, 280 Neb. 752, 765-766, 789 N.W.2d
702, 712-713 (2010) (harmless error review applies to the denial of hearsay objection).
        The State claims that Stott’s testimony that testing of the hair sample provided “no
confirmation” was not prejudicial to Burton because it demonstrates that either no testing of the
sample occurred or the tests were unable to prove the hair belonged to S.M. Both of these
inferences are favorable to Burton, particularly considering that S.M. later saw a blond haired
woman at Owens’ residence.
        Upon our review, we determine that the admission of such testimony was harmless beyond
a reasonable doubt. The jury most certainly based their decision upon the other strong and
competent evidence presented by the State, most importantly S.M.’s detailed testimony about the
assault. This verdict was clearly unattributable to any error that occurred in admitting this
testimony. Therefore, because the State carried its burden of demonstrating that the alleged error
was harmless beyond a reasonable doubt, we find that the potentially erroneous admission of such
testimony was not prejudicial to Burton.
       Burton’s first assignment of error is without merit.
     2. ADMISSIBILITY OF TESTIMONY REGARDING DRUGS, PARAPHERNALIA, AND SHOTGUN
       Burton argues that the court erred in allowing Stott to testify that the officers found
marijuana, hashish, drug paraphernalia, and a sawed-off shotgun in the residence during the
execution of a search warrant. Burton made a relevancy objection to this testimony during trial.
                                      (a) Relevancy Objection
       Under Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2008), irrelevant evidence is
inadmissible. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). Under Neb. Evid. R. 401,
Neb. Rev. Stat. § 27-401 (Reissue 2008), 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
probable or less probable than it would be without the evidence. Id. Relevancy requires only that
the degree of probativeness be something more than nothing. State v. Lavalleur, 289 Neb. 102,
853 N.W.2d 203 (2014).
                               (i) Relevance of Marijuana Testimony
         Burton asserts that locating marijuana in the house several days after the alleged assault
has no tendency to prove the facts regarding smoking marijuana on the night of the alleged assault
as testified to by S.M. The State in turn argues that the testimony about finding marijuana was



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relevant to corroborate S.M.’s testimony, specifically her references to drug use and Burton
blowing smoke into her face, and to demonstrate that she was “mentally or physically incapable
of consent.” Further, the State argues that the timing of the search goes to weight rather than
admissibility.
        We conclude that Stott’s testimony regarding marijuana located in Owens’ residence was
sufficiently probative to qualify as relevant evidence. Such testimony supported S.M.’s testimony
that Owens retrieved marijuana from a bag in his room; and that Burton, Owens, and S.M. smoked
a marijuana joint while at the residence. These were facts of consequence, and Stott’s testimony
made the existence of such facts more probable than without such evidence. The court’s decision
to allow such testimony was not an abuse of discretion.
                              (ii) Relevancy of Drug Paraphernalia
         Burton argues that Stott’s testimony regarding finding drug paraphernalia was also
irrelevant and inadmissible. Specifically, he claims that such a statement did not corroborate
S.M.’s testimony.
         In his testimony, Stott referred generally to finding items of paraphernalia without
specifically identifying the items. Stott later mentioned rolling papers when describing the
photographic evidence. S.M. testified that Owens rolled “a joint” when the group was sitting in
the living room. S.M. did not testify regarding any other forms of drug paraphernalia. We conclude,
as we did above, that the testimony concerning the drug paraphernalia was relevant and admissible.
iii. Relevancy of Hashish and Shotgun Testimony
         Burton argues that Stott’s testimony that the officers found hashish and a sawed-off
shotgun was not relevant. Unlike the marijuana and drug paraphernalia discussed above, there was
no evidence in the record that hashish was consumed on the night of the assault or about the
existence of a sawed-off shotgun in the residence. S.M. testified to being aware that Burton’s
family has “contact with guns,” but she never claimed to have seen a gun during the events at
issue. No other evidence beyond Stott’s testimony regarding such items exists in the record.
         With regard to the reference to hashish, the State generally argues that the testimony about
finding hashish was relevant to corroborate S.M.’s testimony about drug usage on the night in
question. The State does not assert that the testimony about finding the shotgun was relevant.
However, the State argues that even if admitting evidence regarding finding hashish and the
shotgun was error, any such error was harmless error beyond a reasonable doubt.
         The testimony regarding these items came in as follows:
                  STATE: What did you collect?
                  Officer Stott: We located several items within the residence to include marijuana,
         hashish, drug paraphernalia . . .
                  Burton’s Attorney: Judge, object on relevance, 404.
                  Court: Overruled. You may continue.
                  Officer Stott: Other items of drug paraphernalia, a sawed-off shotgun, items in the
         little girl’s bedroom . . .




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        Assuming, without deciding, that Stott’s testimony regarding the hashish and shotgun was
irrelevant, we conclude that the admission of such brief testimony was harmless beyond a
reasonable doubt. See State v. Johnson, 290 Neb. 862, 883-885, 862 N.W.2d 757, 774-775 (2015)
(harmless error review applies to the admission of irrelevant evidence).
        First, the brief reference to hashish was not prejudicial to Burton. Such evidence, although
suggestive of drug use, was cumulative to other admissible evidence that marijuana was present
and consumed on the night of the assault. Given the detailed evidence of the presence of marijuana
and paraphernalia in the residence, the jury’s verdict was surely unattributable to any error in
allowing the testimony regarding hashish, which was harmless beyond a reasonable doubt.
        With regard to the testimony about recovering a sawed-off shotgun, this testimony was
also quite brief and no further evidence was adduced regarding the shotgun. However, the State
did mention the shotgun during closing arguments. While reiterating that S.M. was scared on the
night of the assault, in part due to the reputation of Burton and Owens concerning Chicago, the
State’s attorney indicated that the “officer told you that he found a sawed-off shotgun when they
did a search of that house,” implying that such fear was reasonable. No objection, argument of
prosecutorial misconduct, or motion for mistrial was made by defense counsel in response to this
statement.
        The State’s case demonstrating that a sexual assault occurred was strong. The jury’s guilty
verdict was unlikely to have been impacted by the brief reference to the shotgun in the testimony
and at closing argument. Therefore, the improper admission of the shotgun evidence was
inconsequential, harmless beyond a reasonable doubt, and not prejudicial to Burton.
        Burton’s second assignment of error is without merit.
                                      (b) Rule 404 Objection
        We next consider Burton’s assertion that Stott’s testimony about finding marijuana, drug
paraphernalia, hashish, and a sawed-off shotgun in the residence amounted to inadmissible
evidence of other bad acts in violation of Rule 404.
        Bad act evidence is evidence of other crimes, wrongs, or acts, aside from the crime charged,
which tend to prove the character of a person and to show that he or she acted in conformity
therewith when committing the charged crime. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894
(2002). Evidence of other bad acts falls into two categories under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 1995), according to the basis of the relevance of the acts: (1) evidence
which is relevant only to show propensity, which is not admissible, and (2) otherwise relevant
(nonpropensity) evidence, which is admissible. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589
(2007). See, also, State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003). (evidence of bad acts of
an accused might be admissible if it has independent relevance under Neb. Rev. Stat. § 27-404(2)
(Reissue 1995)); State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011) (bad act cannot be
independently relevant for a proper purpose if that purpose was not at issue in the case).
        An appellate court reviews the admission of other bad acts evidence under Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), by considering (1) whether the evidence was
relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the
evidence is substantially outweighed by its potential for unfair prejudice, and (4) whether the trial



                                                -9-
court, if requested, instructed the jury to consider the evidence only for the limited purpose for
which it was admitted. Kuehn, supra.
        Bad acts that form the factual setting of the crime in issue or that form an integral part of
the crime charged are not part of the coverage under Neb. Evid. R. 404(2). State v. Baker, 280
Neb. 752, 789 N.W.2d 702 (2010).
        Burton admits that testimony about the existence of marijuana may form part of the factual
setting and thus not be inadmissible bad act evidence. However, he claims that only the marijuana
joint smoked while S.M. was at the residence would qualify. The State asserts that the locating of
marijuana in the residence is relevant for the purpose of corroborating S.M.’s testimony and
inability to consent, and the 2-day period between use and discovery goes to weight rather than
admissibility.
        Upon our review, we find that Stott’s testimony regarding the seizure of marijuana and
drug paraphernalia was properly admitted. The discovery of marijuana and drug paraphernalia was
relevant and probative with regard the S.M.’s testimony. It corroborated her description of drug
use at the residence, which was a proper purpose for such evidence. Further, the discovery of
marijuana and drug paraphernalia (including the rolling papers) was part of the factual setting of
the crime. Such evidence was clearly relevant for several permissible purposes, and its admission
was not an abuse of discretion.
        Assuming without deciding that admission of the evidence of discovery of hashish and a
sawed-off shotgun violated Rule 404, we nevertheless find that it was harmless error, for the same
reasons articulated above in our discussion of relevance. The same harmless error standards apply
to the erroneous admission of both irrelevant evidence and improper evidence of other bad acts.
See Johnson, supra; State v. Sutton, 16 Neb. App. 185, 195-196, 741 N.W.2d 713, 722 (2007)
(harmless error review applies to admission of evidence of other bad acts).
        Burton’s third assignment of error is without merit.
                        3. ADMISSIBILITY OF HAIR STRANDS PHOTOGRAPH
        Burton argues that there was insufficient foundation for the admission of the photograph
depicting hair strands located between the couch and coffee table. Specifically, Burton claims that
the State failed to establish foundation by presenting facts indicating that the hairs belonged to
S.M. He argues that such foundation was particularly necessary because of the presence of another
blond haired woman at the residence prior to the seizure of the hair sample. Upon our review, we
conclude that proper foundation for the photograph was established through the testimony on S.M.
and Stott.
        Neb. Rev. Stat. § 27-901 (Reissue 2008) does not impose a high hurdle for authentication
or identification. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). A proponent of
evidence is not required to conclusively prove the genuineness of the evidence or to rule out all
possibilities inconsistent with authenticity; if the proponent’s showing is sufficient to support a
finding that the evidence is what it purports to be, the proponent has satisfied the requirement of
the authentication rule. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
        Rule 901(2)(a) provides that authentication or identification can be achieved through
“testimony that a matter is what it is claimed to be.” Neb. Rev. Stat. § 27-901(2)(a) (Reissue 2008).



                                               - 10 -
Even if direct, eyewitness testimony is absent, the contents of photographic evidence itself,
together with such circumstantial or indirect evidence as bears upon the issue, may serve to explain
and authenticate the evidence sufficiently to justify its admission pursuant to this section. State v.
Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).
         S.M. testified that the photographed hair was similar in length and color to her own at the
time of the incident. Stott testified that the hair was found in the location where S.M. claimed the
initial assault occurred and where Owens had stepped on her hair. This testimony establishes the
photograph as reliable evidence and satisfies the low evidentiary hurdle for the authentication of
photographs.
         Lastly, the presence of another blond haired woman in the residence goes towards the
weight the jury would give such evidence, not its admissibility. The admission of this photograph
was not an abuse of discretion.
         Burton’s fourth assignment of error is without merit.
                             4. ADMISSIBILITY OF DRUG PHOTOGRAPH
        Burton argues that the photograph depicting a small baggie of marijuana and rolling papers
was improperly admitted over a Rule 403 objection. He argues that the probative value of the
photograph is outweighed by unfair prejudice.
        Neb. Rev. Stat. § 27-403 (Reissue 2008) provides that evidence, although relevant, may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779
(2010). See, also, State v. Fick, 18 Neb. App. 666, 790 N.W.2d 890 (2010). The fact that evidence
is prejudicial is not enough to require exclusion under this section, because most, if not all, of the
evidence a party offers is calculated to be prejudicial to the opposing party; it is only the evidence
which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under
this section. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
        Burton claims that the probative value of this photograph is low because testimony on the
topic of drugs and drug paraphernalia was previously introduced at trial, making the photograph
cumulative evidence; the contents depict paraphernalia other than that contained in a marijuana
joint; and such evidence was located two days after the alleged assault. Burton claims that such
evidence of illegal drug use was extremely and unfairly prejudicial to him, suggesting bad
character.
        We first address the contents of the photograph. Burton provides no description regarding
any other claimed items of paraphernalia in the photograph beyond rolling papers. After reviewing
the photograph and considering Stott’s description of said photograph, we find Burton’s assertion
that the exhibit depicted paraphernalia unrelated to S.M.’s testimony to be incorrect. The only
paraphernalia visible in the photograph is the rolling papers, which is probative evidence
supporting S.M.’s testimony that they smoked a joint prior to the assault.
        Upon our review, we find that the probative value of the photograph exceeded any danger
of unfair prejudice. Such evidence was highly probative for corroborating S.M.’s testimony that
the group smoked a marijuana joint at the residence. Further, it was probative of S.M.’s alleged




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resulting diminished mental capacity and susceptibility to assault. Such evidence did not have a
tendency to suggest a decision on an improper basis that is unfairly prejudicial.
         Lastly, the locating of the marijuana and rolling papers two days after the incident goes to
the weight given such evidence by the jury, not its admissibility. The district court did not abuse
its discretion in admitting this photograph.
         Burton’s fifth assignment of error is without merit.
                                5. APPROPRIATENESS OF SENTENCE
         Burton was convicted of first degree sexual assault, a Class II felony. Neb. Rev. Stat.
§ 28-319. The court sentenced Burton to incarceration for a period not less than 7 years nor more
than 15 years, with credit for 288 days served.
         Class II felonies are punishable by up to 50 years’ imprisonment, with a minimum of one
year imprisonment. Neb. Rev. Stat. § 28-105(1), § 29-2204(1)(a)(ii)(A) (Cum. Supp. 2014). The
sentence imposed by the district court is clearly within the statutory limits.
         Burton asserts on appeal that the sentence imposed was excessive and amounted to an
abuse of discretion by the district court, citing to no prior sexual offences or “violence or
aggression against women” on his record.
         Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
an appellate court must determine whether the sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016). In imposing a
sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past criminal record or record of
law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense
and (8) the amount of violence involved in the commission of the crime. Id. The sentencing court
is not limited to any mathematically applied set of factors. State v. Dominguez, 290 Neb. 477, 860
N.W.2d 732 (2015). The appropriateness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. State v. Custer, 292 Neb. 88, 871 N.W.2d
243 (2015).
         The record reveals that the district court did not abuse its discretion in sentencing Burton.
The court reviewed the presentence investigation report (PSR), noted several corrections to the
report identified by Burton’s attorney, listened to counsels’ arguments, and considered Burton’s
own testimony at the sentencing hearing maintaining his innocence. Further, the court had an
opportunity to consider all the relevant sentencing factors based upon the information contained
in the PSR.
         The sentence imposed upon Burton was within the statutory limits, and the district court
did not abuse its discretion in considering the relevant factors and legal principles. Therefore, we
will not disturb his sentence.
         Burton’s last assignment of error is without merit.




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                                       VII. CONCLUSION
        Upon our de novo review, we find that the district court did not err in its admission of
Officer Stott’s testimony regarding the hair sample over a hearsay objection. Further, the court did
not abuse its discretion in admitting Stott’s testimony regarding items located during execution of
a search warrant over relevancy and Rule 404 objections. To the extent such admissions were
inappropriate, they amounted to harmless error within the context of the entire record. Similarly,
the court properly admitted photographic evidence over foundation and Rule 403 objections.
Lastly, the sentence was not excessive and did not constitute an abuse of discretion by the court.
We affirm the conviction and sentence.
                                                                                         AFFIRMED.




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