State v. Boswell

1

316 Neb. 542

State of Nebraska, appellee, v. Bailey M. Boswell, appellant.

No. S-21-980

Supreme Court of Nebraska

May 10, 2024

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by those rules and judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. When judicial discretion is not a factor, whether the underlying facts satisfy the legal rules governing the admissibility of a proponent's evidence is a question of law, subject to de novo review.

3. Rules of Evidence: Judgments: Words and Phrases Appeal and Error. Where 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. 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.

4. Rules of Evidence: Appeal and Error. An appellate court will review 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.

5. Trial: Photographs. The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect.

6. Trial: Photographs: Appeal and Error. An appellate court reviews the decision by a trial court to admit photographs of the victims' bodies for abuse of discretion.

7. Rules of Evidence Other Acts. An appellate court will review for abuse of discretion a trial court's evidentiary rulings on the admissibility of a defendant's other crimes or bad acts under Neb. Rev. Stat. § 27-404(2) (Reissue 2016), or under the inextricably intertwined exception to the rule.

8. Rules of Evidence: Hearsay: Appeal and Error. Hearsay is not admissible except as provided by the Nebraska Evidence Rules. 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.

9. Appeal and Error. In a de novo review, an appellate court reaches a conclusion independent of the trial court.

10. Evidence: Proof: Words and Phrases. The bar for establishing evidentiary relevance is not a high one; it requires only that the probative value of the evidence be something more than nothing. Evidence is relevant if it tends in any degree to alter the probability of a material fact.

11. Trial: Evidence. A trial court exercises its discretion in determining whether evidence is relevant and whether its probative value is outweighed by its prejudicial effect.

12. Evidence: Words and Phrases. The probative value of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the fact from the ultimate issue of the case. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

13. Rules of Evidence. The fact that evidence is prejudicial is not enough to require exclusion under Neb Rev. Stat. § 27-403 (Reissue 2016), 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 considered unfairly prejudicial under § 27-403.

14. Trial: Photographs. When several photographs depict similar scenes from different angles as compared to other photographs in evidence, the general rule is that when a court admits photographs for a proper purpose, additional photographs of the same type are not unfairly prejudicial.

15. Photographs: Rules of Evidence. Neb. Rev Stat. § 27-403 (Reissue 2016) does not require the State to have a separate purpose for every photograph, and it requires a court to prohibit cumulative evidence only if its probative value is "substantially outweighed" by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

16. Homicide: Photographs. In a homicide prosecution, a court may admit into evidence photographs of a victim for identification, to show the condition of the body or the nature and extent of wounds and injuries to it, and to establish an element of the crime.

17. Homicide: Photographs: Juries: Proof. In a first degree murder case, photographs can also provide visual proof from which a jury could reasonably infer that the homicide was committed purposely and with deliberate and premeditated malice.

18. Homicide: Photographs. When the State lays proper foundation, photographs that illustrate or make clear a controverted issue in a homicide case are admissible, even if gruesome.

19. Trial: Photographs. The gruesome nature of photographs alone will not keep them from the trier of fact, so long as the probative value is not outweighed by the prejudicial effect.

20. Photographs: Rules of Evidence. When considering whether photographs are needlessly cumulative under Neb. Rev. Stat. § 27-403 (Reissue 2016), the number of photographs, in and of itself, is not dispositive; rather, all the circumstances of each case must be considered in determining whether the admission in evidence of a significant number of photographs was so prejudicial that it constitutes reversible error.

21. Rules of Evidence. Evidence that is admissible under Neb. Rev. Stat. § 27-404(2) (Reissue 2016) may nevertheless be excluded under Neb. Rev. Stat. § 27-403 (Reissue 2016) if its probative value is substantially outweighed by the danger of unfair prejudice.

22. Rules of Evidence: Other Acts: Appeal and Error. An appellate court's analysis under Neb. Rev. Stat. § 27-404(2) (Reissue 2016) generally considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith; (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice; and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

23. Criminal Law: Words and Phrases. Motive is that which leads or tempts the mind to indulge in a criminal act.

24. Criminal Law: Intent: Proof. Motive, even when not an element of the charged crime, is nevertheless relevant to the State's proof of the intent element of the crime.

25. Criminal Law: Rules of Evidence. Motive qualifies as a legitimate noncharacter theory under Neb. Rev. Stat. § 27-403(2) (Reissue 2016) because although character carries a connotation of an enduring general propensity, a motive is a situationally specific emotion.

26. Intent: Words and Phrases. Intent is generally defined as the state of mind accompanying an act.

27. Conspiracy: Hearsay: Proof. A statement is excluded from the definition of hearsay under the coconspirator exception if the State shows that (1) a conspiracy existed, (2) the declarant was a member of the conspiracy, (3) the party against whom the assertion is offered was a member of the conspiracy, (4) the assertion was made during the course of the conspiracy, and (5) the assertion was made in furtherance of the conspiracy.

28. ___: ___: ___. Before a trier of fact may consider testimony under the coconspirator exception to the hearsay rule, a prima facie case establishing the existence of a conspiracy must be shown by independent evidence.

Appeal from the District Court for Saline County: Vicky L. Johnson, Judge. Affirmed.

Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

STACY J.

After the dismembered remains of 24-year-old Sydney Loofe were discovered, Bailey M. Boswell and Aubrey C. Trail were charged, in separate criminal cases, with premeditated first degree murder, conspiracy to commit first degree murder, and improper disposal of human skeletal remains. Trail's case was tried in 2019, and the jury found him guilty on all charges. His convictions and sentences were affirmed on direct appeal.^[1]

This appeal involves Boswell, whose case was tried in 2020. The jury found Boswell guilty on all charges. A three-judge panel sentenced her to life imprisonment on the first degree murder conviction, and the presiding trial judge imposed consecutive terms of imprisonment on the remaining convictions. In this direct appeal, Boswell assigns error to several evidentiary rulings made during the guilt phase of trial. Finding no error in the district court's evidentiary rulings, we affirm Boswell's convictions and sentences.

I. BACKGROUND

On November 16, 2017, Loofe was reported missing after she failed to show up for work at a hardware store in Lincoln Nebraska. Loofe's family and friends knew that a few days earlier, on November 14, she had gone on a first date with a female named "Audrey," who she met through an online dating application (dating app). They also knew that Loofe had a second date planned with "Audrey" for the evening of November 15. After Loofe was reported missing on November 16, one of her friends located the online profile for "Audrey" and...