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06/08/2018 09:09 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                                  STATE v. TROTTER
                                                  Cite as 299 Neb. 392




                                        State of Nebraska, appellee, v.
                                        Charles S. Trotter, appellant.
                                                    ___ N.W.2d ___

                                         Filed March 23, 2018.    No. S-16-1146.

                1.	 Rules of Evidence: Appeal and Error. An appellate court reviews
                    for abuse of discretion a trial court’s evidentiary rulings on relevance,
                    whether the probative value of evidence is substantially outweighed by
                    the danger of unfair prejudice, and the sufficiency of a party’s founda-
                    tion for admitting evidence.
                2.	 Constitutional Law: Sentences. Whether a sentence constitutes cruel
                    and unusual punishment in violation of the Eighth Amendment presents
                    a question of law.
                3.	 Judgments: Appeal and Error. When reviewing a question of law,
                    an appellate court reaches a conclusion independent of the lower
                    court’s ruling.

                  Appeal from the District Court for Douglas County: Leigh
               A nn R etelsdorf, Judge. Affirmed.
                    James Martin Davis, of Davis Law Office, for appellant.
                 Douglas J. Peterson, Attorney General, and Melissa R.
               Vincent for appellee.
                  Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
               JJ., and R iedmann and A rterburn, Judges.
                    Heavican, C.J.
                                    INTRODUCTION
                  Charles S. Trotter was convicted of two counts of first
               degree murder and two counts of use of a deadly weapon
               to commit a felony. He was sentenced to a term of 40 to 60
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                        STATE v. TROTTER
                        Cite as 299 Neb. 392

years’ imprisonment for each murder conviction and 5 to 10
years’ imprisonment for each use conviction, to be served
consecutively.
   On direct appeal, Trotter, who was 16 years of age at the
time of the events for which he was convicted, alleges that
the district court erred in not admitting photographs he claims
support his defense that another individual committed the
murders and that his collective sentence of 90 to 140 years’
imprisonment was the functional equivalent of a sentence of
life imprisonment. We affirm.

                        BACKGROUND
   Trotter was charged in the January 3, 2015, shooting deaths
of Marcel Lovejoy and Dexter Joseph. Lovejoy and Joseph
were shot while attending a party at an apartment complex in
Omaha, Nebraska. At trial, three eyewitnesses testified that
Trotter was the shooter.
   Trotter’s defense was mistaken identity: He claimed that
the witnesses who identified him mistook him for DeAndre
Hines. He attempted to introduce into evidence photographs
of Hines, which were found on Hines’ cell phone during a
consensual search of that phone by law enforcement. The
photographs were taken on two different days toward the end
of December 2014 and depicted Hines holding a silver and
black handgun.
   Anticipating an objection to these photographs, Trotter’s
counsel sought a sidebar prior to the offering of the
photographs:
        [Counsel for Trotter]: Okay. Here is the screenshot.
     It’s dated December 29th of 2014, which is a couple of
     days beforehand, and that’s — although you may not be
     able to tell, that clearly is . . . Hines with a gun that is
     similar to the one described by the witnesses as silver
     and black.
        Show them the next picture. For your information, the
     next one is taken on — okay. There it is. Similar gun, . . .
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     Nebraska Supreme Court A dvance Sheets
             299 Nebraska R eports
                   STATE v. TROTTER
                   Cite as 299 Neb. 392

Hines on New Year’s Eve. He doesn’t have — doesn’t
have the time on there. It’s 7:56 p.m., it looks like, and
once again, I believe that he’s in possession of a gun
that is similar to the one described by the witness, silver
and black.
   And so I would — my intention would be to ask him if
he got them from — captured them from the phone, and
put them into evidence, and I want to do this beforehand,
so it’s not —
   THE COURT: I appreciate that you are playing fair.
   [The State]: The State would object, first off, on rel-
evance. I don’t know if that is, in fact, a gun or a BB gun.
It looks like a real gun. I can’t tell from looking at the
photo what caliber of weapon it is. I can’t tell if it’s a 9
millimeter or a .40 caliber or a .22. In terms of — so we
have a relevance objection.
   I would also object on 403 and also on 404, because
I think what [Trotter’s counsel] is trying to show is pro-
pensity evidence of the fact that this person possessed a
gun a week or four days before this crime so that he must
have been the person possessing the gun on the day of.
   THE COURT: All right. My — my recollection — I
don’t recall a witness saying anything about the gun was
black and silver, maybe there was someone that said
silver, but I only recall black — a description as black,
but regardless of that, I would agree that the relevance is
overweighed by the potential prejudice, and I would not
allow you to put those in.
   [Counsel for Trotter]: May I just respond briefly? This
is not 404 evidence. This is evidence that he had posses-
sion of the weapon or a similar weapon on the day of,
so I wasn’t trying to show any propensity there. I under-
stand the Court’s ruling. It was more in line with 403
and relevance.
   THE COURT: That’s right. And the other problem that
I have with that, there is clear gang signs in the second
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. TROTTER
                               Cite as 299 Neb. 392

         photo, so I wouldn’t let it in because of the motion
         in limine.
            I don’t remember the first one. Go back to the first one.
            [Counsel for Trotter]: There is none on that one.
            THE COURT: Yeah, and, again, that appears to be a
         silver weapon when the only witness description I have is
         black, and, again, I think the small amount of relevance
         is overweighed by the — by 403 on this.
            [Counsel for Trotter]: I will — I do have pictures that I
         will ask to be marked during a break. I can make an offer
         of proof that way. Okay?
            THE COURT: Absolutely. We will reserve the oppor-
         tunity to make an offer of proof until the next break,
         which will probably be over the noon hour.
            [Counsel for Trotter]: Okay.
            THE COURT: All right.
            [Counsel for Trotter]: Okay. Thanks.

                 ASSIGNMENTS OF ERROR
   Trotter assigns that the district court erred in (1) not admit-
ting exhibits 292 and 293, which were photographs of an
individual Trotter argued was the actual perpetrator, wearing
clothes matching the description of the shooter and holding a
gun, and (2) sentencing him to a functional life sentence, in
violation of the Eighth Amendment to the U.S. Constitution.

                   STANDARD OF REVIEW
  [1] An appellate court reviews for abuse of discretion a trial
court’s evidentiary rulings on relevance, whether the probative
value of evidence is substantially outweighed by the danger of
unfair prejudice, and the sufficiency of a party’s foundation for
admitting evidence.1
  [2,3] Whether a sentence constitutes cruel and unusual
punishment in violation of the Eighth Amendment presents

 1	
      State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. TROTTER
                               Cite as 299 Neb. 392

a question of law.2 When reviewing a question of law, an
appellate court reaches a conclusion independent of the lower
court’s ruling.3
                            ANALYSIS
Admissibility of Photographs.
   Trotter first asserts that the district court erred in not admit-
ting exhibits 292 and 293, which were photographs of Hines.
The district court refused to admit these photographs, contend-
ing that “the small amount of relevance is overweighed by
[evidence rule] 403 on this.”
   Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016),
provides that “relevant evidence is admissible [and] [e]vidence
which is not relevant is not admissible.” Neb. Evid. R. 403,
Neb. Rev. Stat. § 27-403 (Reissue 2016), qualifies that admis-
sibility: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
   Exhibit 292 is a photograph taken on December 29, 2014, of
Hines wearing a gray button-up hooded sweatshirt and holding
a black and silver handgun. Exhibit 293 is a photograph taken
on December 31 of Hines and another individual. In this latter
photograph, Hines is apparently wearing the same gray hooded
sweatshirt, now unbuttoned, and is pointing a gun at the cam-
era. The other individual in the photograph is displaying a
gang sign. Both photographs are out of focus.
   Trotter argues that these photographs are relevant, because
in them, Hines is wearing a sweatshirt similar to the one which
witnesses describe the shooter as wearing and is carrying a gun
similar to the one described by those witnesses. There is no
merit to Trotter’s assertions.

 2	
      State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).
 3	
      Id.
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                        STATE v. TROTTER
                        Cite as 299 Neb. 392

   We first observe that Trotter did not argue at trial that these
exhibits were relevant because they showed Hines wearing a
gray hooded sweatshirt similar to the one worn by the shooter.
Thus, Trotter has not preserved that argument for purposes of
this appeal. We note, however, that exhibit 235, which was
received, is also a photograph of Hines wearing the same
sweatshirt. To the extent exhibits 292 and 293 might have been
admissible for that purpose, those exhibits would have been
cumulative evidence and, on these facts, any error would have
been harmless.
   Nor was the district court’s failure to admit these exhib-
its because of the depiction of the handgun reversible error.
Assuming without deciding that these photographs were rel-
evant, any relevance is minimal.
   Trotter argued at trial that the photographs were admissible,
because the gun depicted was “similar” to the one described by
the witnesses. But as the district court noted, the gun in these
exhibits was silver and black, while the only testimony at trial
about the color of the weapon used by the shooter was that
it was black. Nor was there any evidence presented that this
handgun was the caliber of weapon used in the shooting or that
the gun was even a real gun. The gun used in the shootings was
never recovered by law enforcement. Other evidence at trial
showed that a bullet matching the caliber of the bullets used in
the shootings was found in a couch near Trotter’s possessions
in the home where he was living.
   The uncontroverted testimony at trial was that the shooter
was carrying a black handgun. Exhibit 292 depicts a predomi-
nantly silver handgun with some black accents. It is not pos-
sible to identify the characteristics of the gun shown in exhibit
293. Given these contradictions, the risk of juror confusion
is present. Admitting photographs showing a gun that does
not match the description offered by any testifying witnesses
could confuse the issues presented at trial and have a tendency
to mislead the jury. The members of the jury may place more
emphasis on exhibits, including a photograph of any handgun,
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               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                             STATE v. TROTTER
                             Cite as 299 Neb. 392

particularly given that the gun used in these shootings was
never recovered and therefore was not offered as evidence at
trial. Given this risk, we cannot conclude that the district court
abused its discretion in excluding the exhibits by reasoning that
“the small amount of relevance [was] overweighed by [evi-
dence rule] 403 on this.”
   There is no merit to Trotter’s first assignment of error.
Sentences.
   Trotter also argues that the district court’s sentences of a
combined 90 to 140 years’ imprisonment was the functional
equivalent of a life sentence, which is a violation of the Eighth
Amendment as interpreted by Miller v. Alabama.4 This argu-
ment is without merit.
   We recently decided State v. Castaneda.5 At issue in
Castaneda was whether the defendant’s combined sentence of
105 to 125 years’ imprisonment was an effective life sentence
because it did not provide a “‘meaningful opportunity to obtain
release.’”6 We rejected that contention in Castaneda, reasoning
in that case:
      [T]he court held a full evidentiary hearing concerning
      [the defendant’s] resentencing. Before issuing the sen-
      tences, the court discussed the individualized factors it
      was required to consider and how they impacted its deci-
      sion. Even assuming, without deciding, that a court was
      required to find a juvenile “irreparably corrupt” before
      issuing him or her a life imprisonment without parole
      sentence, [an argument the defendant made on appeal,]
      the court here gave [the defendant] no such sentence;
      instead, it sentenced [him] on the low end of the statutory
      range for each of his eight convictions. Accordingly, [the

 4	
      Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407
      (2012).
 5	
      State v. Castaneda, 295 Neb. 547, 889 N.W.2d 87 (2017).
 6	
      Id. at 559, 889 N.W.2d at 96.
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               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                            STATE v. TROTTER
                            Cite as 299 Neb. 392

      defendant] received the protections required by Miller for
      a juvenile convicted of a homicide offense.7
   Trotter was convicted of two counts of first degree murder
and two counts of use of a deadly weapon to commit a felony.
The district court noted at sentencing that it was “clear . . .
that [Trotter’s] type of antisocial behavior [was] significantly
attached due to the fact of his age as opposed to being pre-
determined type of behaviors that the doctor would predict
would last through adulthood.” Nevertheless, the district court
observed that it became “an unworkable situation,” because a
sentence with a reduced upper sentence limit “wouldn’t take
into account the fact that there [were] two separate victims.”
The court then imposed the minimum sentence for each of
the convictions against Trotter and ordered those sentences to
run consecutively.8
   As we found in Castaneda, Trotter received the protections
required by Miller for a juvenile convicted of a homicide
offense. We conclude that Trotter’s second assignment of error
is without merit.
                          CONCLUSION
      The judgment and sentences of the district court are affirmed.
                                                        A ffirmed.
      Wright and K elch, JJ., not participating.

 7	
      Id. at 560, 889 N.W.2d at 97.
 8	
      See Neb. Rev. Stat. §§ 28-105 (Cum. Supp. 2014) and 28-105.02 and
      28-1205 (Reissue 2016).
