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05/24/2019 12:07 AM CDT




                                                        - 492 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                  STATE v. SAVAGE
                                                  Cite as 302 Neb. 492




                                        State of Nebraska, appellee, v.
                                        Courtney J. Savage, appellant.
                                                    ___ N.W.2d ___

                                         Filed March 15, 2019.    No. S-17-1166.

                                              supplemental opinion

                  Appeal from the District Court for Lancaster County: Susan
               I. Strong, Judge. Supplemental opinion: Former opinion modi-
               fied. Motion for rehearing overruled.
                    Darik J. Von Loh, of Hernandez Frantz, Von Loh, appellant.
                  Douglas J. Peterson, Attorney General, and Austin N. Relph
               for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
               Papik, and Freudenberg, JJ.
                  Per Curiam.
                  This case is before us on a motion for rehearing filed by the
               appellant, Courtney J. Savage, concerning our opinion in State
               v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018). We overrule
               the motion, but we modify the opinion as follows:
                  In the subsection “(a) Authentication,” after the fourth
               sentence of the fourth paragraph, we insert the following
               language:
                    As for Savage’s contention that the State did not properly
                    authenticate messages sent to him by others, we again
                    disagree. The State was required only to introduce testi-
                    mony sufficient to establish that the evidence was what
                              - 493 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. SAVAGE
                        Cite as 302 Neb. 492

     the State claimed it to be. The State did not claim that
     messages sent by others were anything more than mes-
     sages sent to Savage’s cell phone. See State v. Elseman,
     287 Neb. 134, 841 N.W.2d 225 (2014).
Savage, 301 Neb. at 885, 920 N.W.2d at 703.
  In subsection “(b) Hearsay,” following the second to the last
paragraph, we insert the following paragraph:
        We also reject Savage’s argument that text messages
     sent to his cell phone by unidentified individuals contained
     inadmissible hearsay. Hearsay is “a statement, other than
     one made by the declarant while testifying at the trial or
     hearing, offered in evidence to prove the truth of the mat-
     ter asserted.” Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
     Messages sent to Savage’s cell phone were not offered
     for the truth of the matters asserted. They were offered to
     prove that the statements were made.
Savage, 301 Neb. at 887, 920 N.W.2d at 704.
  The remainder of the opinion shall remain unmodified.
	Former opinion modified.
	Motion for rehearing overruled.
