State v. Boswell

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www.nebraska.gov/apps-courts-epub/
07/10/2024 06:08 PM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
State of Nebraska, appellee, v.
Bailey M. Boswell, appellant.
___ N.W.3d ___

Filed May 10, 2024. No. S-21-980.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by those rules and judi-
cial 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 founda-
tion 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.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
7. Rules of Evidence: Other Acts. An appellate court will review for
abuse of discretion a trial court’s evidentiary rulings on the admissi-
bility of a defendant’s other crimes or bad acts under
Neb. Rev. Stat.
§ 27-404
(2) (Reissue 2016), or under the inextricably intertwined excep-
tion 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 hear-
say 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 eviden-
tiary 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 out-
weighed 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 cumula-
tive evidence.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
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, pho-
tographs 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 pho-
tographs are needlessly cumulative under
Neb. Rev. Stat. § 27-403
(Reissue 2016), the number of photographs, in and of itself, is not dis-
positive; 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) gener-
ally 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. § 27-404
(2) (Reissue 2016)
because although character carries a connotation of an enduring general
propensity, a motive is a situationally specific emotion.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
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 defini-
tion 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 indepen-
dent 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 premedi-
tated 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
1
State v. Trail,
312 Neb. 843
,
981 N.W.2d 269
(2022).
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
degree murder conviction, and the presiding trial judge
imposed consecutive terms of imprisonment on the remain-
ing 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 rul-
ings, 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 provided it to police. Police investigators discovered that
“Audrey” was actually Boswell, and they eventually learned
that Boswell and Trail lived together in a basement apartment
in Wilber, Nebraska.
Investigators also obtained cell site location data for two
cell phones associated with Boswell and one associated with
Trail. That data, along with other evidence gathered during
the investigation, showed the following coordinated activity
by Boswell and Trail during the days immediately before and
after Loofe’s disappearance.
1. Cell Phone Activity on
November 14 and 15, 2017
On the afternoon of November 14, 2017, Loofe texted
Boswell her apartment address in preparation for their first
date that evening. Within minutes, Boswell phoned a hotel
close to Loofe’s apartment, after which Boswell and Trail trav-
eled to, and checked into, that hotel. At 5:35 p.m., Boswell
left the hotel without Trail and drove to Loofe’s apartment.
Boswell picked up Loofe, and they drove around Lincoln for
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
almost 2 hours. Boswell returned Loofe to her apartment at
approximately 7:15 p.m., and Loofe remained there until she
left for work the following morning. Boswell phoned Trail at
7:22 p.m., and then returned to the hotel where she and Trail
spent the night.
Boswell and Loofe planned a second date for the evening
of November 15, 2017. On the morning of November 15,
Boswell and Trail traveled to the vicinity of Loofe’s apartment
and then followed the same route that Loofe took to her job.
Shortly after Loofe began her work shift, Trail was observed
on the hardware store’s security camera watching Loofe, after
which Trail phoned Boswell, who was waiting in the store
parking lot. Throughout the day, Boswell and Trail went to
multiple stores in Lincoln and Wilber and purchased items,
including plastic dropcloths, a hacksaw, hacksaw blades, tin
snips, drywall blades, a utility knife, rope, chemical drain
cleaner, bleach, plastic trash bags, duct tape, and four roast-
ing pans.
Shortly before 7 p.m. on November 15, 2017, Boswell
arrived at Loofe’s apartment, and the two traveled together to
Boswell’s apartment in Wilber. At approximately 8:08 p.m.,
Boswell and Loofe arrived at the apartment. The last time
Loofe’s cell phone communicated with any cell tower was at
8:32 p.m.
2. Evidence Linking Loofe’s Disappearance
and Death to Boswell and Trail
The following morning, November 16, 2017, Boswell pur-
chased more bleach, plastic trash bags, and chemical drain
cleaner in Wilber. Police telephoned Boswell on November
17, and she admitted going on a date with Loofe on November
15th but insisted she had dropped Loofe off at a friend’s home
in Lincoln after the date.
On November 18, 2017, police conducted a welfare check
at the Wilber apartment shared by Boswell and Trail. No one
was in the basement apartment, but police noticed a strong
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
smell of bleach. The upstairs residents reported that an over-
whelming bleach smell began on the night of November 15.
Using cell site location data and mapping software, inves-
tigators were able to determine that on the afternoon of
November 16, 2017, the cell phones associated with Boswell
and Trail traveled the same route along county roads west
of Wilber. For approximately 3½ hours that afternoon, those
cell phones were either stationary or slowly moving along
that route.
In December 2017, investigators searched the county roads
and ditches along the route where Boswell’s and Trail’s cell
phones had traveled on November 16. They discovered a
partially torn plastic trash bag that contained severed human
body parts, including a severed arm with a distinct tattoo that
matched a known tattoo of Loofe. In subsequent searches of
ditches and fields in the area, investigators discovered addi-
tional disposal sites, and eventually, they recovered a total of
13 body segments. All of the recovered body segments were
found in or near plastic trash bags, and several of the bags
were torn or ripped open when discovered. All of the body
segments were photographed as they were discovered. A total
of 87 photographs were taken documenting the recovery proc
ess, and some of those photographs were admitted into evi-
dence at trial over Boswell’s objection.
In all, 17 different disposal sites were discovered by inves-
tigators. Additional items of evidence were recovered near the
body segments, including (1) plastic tarps with what appeared
to be blood and body fluids; (2) pieces of a sauna suit with
the crotch cut out; (3) a sex toy; (4) latex gloves; (5) a flat
bedsheet; (6) star-patterned pajama pants; (7) an extension
cord; (8) a large green shirt with apparent bleach stains on it;
(9) torn pieces of denim clothing; (10) a towel; (11) cut-up
pieces of Loofe’s driver’s license and credit card; (12) broken
pieces of Loofe’s cell phone; (13) Loofe’s jacket, bra, and
shirt; and (14) Loofe’s car keys.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
When investigators searched the Wilber apartment shared
by Boswell and Trail, they recovered several bottles of bleach,
a second sauna suit, duct tape, a human anatomy book, a fit-
ted bedsheet like the flat bedsheet found at one of the disposal
sites, and two roasting pans. No blood evidence was discovered
in the apartment.
DNA tests were performed on several items of evidence
collected from the various disposal sites. Results showed that
Loofe was included as a contributor of DNA from blood found
on one of the latex gloves, blood found on the towel, and
blood found on torn pieces of denim clothing. Loofe could
not be excluded as a possible contributor of DNA found on
the other latex glove and on the star-patterned pajama pants.
Trail was included as a possible contributor of DNA found
on the extension cord, and both Trail and Boswell were pos-
sible contributors to DNA found on the large green shirt.
After Boswell’s arrest, a search of data stored on her cell
phone revealed a photograph of Boswell wearing similar star-
patterned pajama pants.
3. Autopsy
The recovered human body segments were positively iden-
tified as belonging to Loofe, and an autopsy was performed.
The forensic pathologist who performed the autopsy testified
that Loofe’s body had been dismembered into 14 segments,
13 of which were recovered and examined. Most of the inter-
nal organs in Loofe’s torso and abdomen were missing. The
recovered body segments included Loofe’s head and upper
neck; her lower neck and upper torso; a “mid torso doughnut
segment of skin and soft tissue” with some ribs and bone in
the region of her belly button; her lower torso area, including
her pelvis and hip joints; segments of her right and left thighs;
her right and left lower legs from the calves to around the
knees; her right and left forearms and hands; her right upper
arm; and her left and right ankles and feet. More than 100
photographs, and multiple x rays, were taken of Loofe’s body
during the autopsy process.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
Over Boswell’s objections, the pathologist used some of the
autopsy photographs and x rays to explain her findings and
opinions to the jury. This testimony included findings about
the areas where Loofe’s body had been segmented; the type
of instruments used to cut the flesh and bones; which cuts
and marks were consistent with animal predation and which
were consistent with a knife, hacksaw, or tin snips; which
marks and bruises were recent; and the cause of Loofe’s death.
The pathologist determined the cause of death was homicidal
violence by strangulation. She based this conclusion on the
congestion of blood observed in the tissues of Loofe’s head,
petechial hemorrhaging observed in her forehead and in each
of her eyes, and bleeding observed in all the layers of tissue
in her lower neck. Abraded contusions around Loofe’s wrists
suggested the use of restraints.
4. Criminal Charges
Boswell and Trail were eventually arrested in Missouri after
several weeks on the run. Both were ultimately charged with
three felonies: premeditated first degree murder, conspiracy to
commit first degree murder, and improper disposal of human
skeletal remains. In Boswell’s case, the State alleged the fol-
lowing overt acts in furtherance of the charged conspiracy to
commit murder:
• Trail and Boswell solicited young females through social net-
working sites;
• Trail and Boswell recruited A.H., A.G., and K.B. to commit
murder;
• Trail and Boswell selected a victim, to wit: Loofe and other
unidentified persons, to murder;
• Trail and Boswell purchased materials used to kill and/or dis-
member Loofe; and
• Trail and Boswell disposed of Loofe’s body.
5. Trial
In the fall of 2020, the charges against Boswell were tried to
a jury over the course of several weeks. The State called more
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
than 40 witnesses and offered hundreds of exhibits in its case
in chief, presenting much of the same evidence that had been
admitted during the guilt phase of Trail’s case in 2019.
In addition to the evidence already summarized above, the
State offered the testimony of three young women—A.H.,
A.G., and K.B.—to prove both the first degree murder charge
and the conspiracy charge. Relevant details of their testimony
will be set out later in the opinion. The State’s theory was that
Boswell and Trail formed a conspiracy to murder someone for
sexual gratification and that Loofe’s murder was the result of
that conspiracy. Central to the State’s theory was evidence that
in the summer and fall of 2017, Boswell and Trail used a dat-
ing app to solicit and recruit several young women, including
A.H., A.G., and K.B., into dominant-submissive sexual rela-
tionships that included grooming the women, through physical
and sexual punishment and regular discussions of witchcraft
and the occult, to plan and participate in torture and murder for
sexual gratification.
During the State’s case in chief, Boswell objected to the
admission of several categories of evidence, including (1) pho-
tographs of Loofe’s dismembered body; (2) evidence regarding
sex toys, sexual fantasies, and sexual torture; (3) testimony
about witchcraft and the occult; and (4) certain statements
made by Trail that were offered into evidence under the cocon-
spirator exception to the hearsay rule. 2 Relevant details about
this evidence, and the court’s rulings on Boswell’s objections,
will be provided in the analysis of Boswell’s specific assign-
ments of error.
After the State presented its case in chief, Boswell rested
without adducing any evidence. Closing arguments were deliv-
ered, instructions were given, and the matter was submitted to
the jury. The jury returned unanimous guilty verdicts on all
three charges.
2
See
Neb. Rev. Stat. § 27-801
(4)(b)(v) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. BOSWELL
Cite as
316 Neb. 542
6. Sentencing and Appeal
Boswell waived her right to a jury determination of the
only aggravating factor alleged on the first degree murder
charge, and the sentencing hearing was conducted before a
three-judge panel. 3 Two members of the panel found the State
had proved the alleged aggravator beyond a reasonable doubt,
but one judge dissented. Consequently, on November 8, 2021,
Boswell was sentenced to life imprisonment on the first degree
murder conviction. The presiding trial judge then sentenced
Boswell to consecutive prison terms of not less than 2 years
nor more than 2 years on the conviction for improper disposal
of human skeletal remains and not less than 50 years nor more
than 50 years on the conviction for conspiracy to commit first
degree murder.
Boswell appeals, represented by trial counsel.
II. ASSIGNMENTS OF ERROR
All of Boswell’s assigned errors challenge the admission
of evidence during the guilt phase of her trial. She assigns,
restated, that the court erred in admitting (1) photographs of
Loofe’s dismembered body; (2) evidence of sex toys, sexual
fantasies, and sexual torture; (3) testimony of witchcraft and
the occult; and (4) hearsay statements by Trail under the cocon-
spirator exemption in § 27-801(4)(b)(v).
III. STANDARD OF REVIEW
[1] 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. 4
[2] When judicial discretion is not a factor, whether
the underlying facts satisfy the legal rules governing the
3
See
Neb. Rev. Stat. §§ 29-2520
(3) and 29-2521(2) (Cum. Supp. 2022).
4
See, State v. Wood,
310 Neb. 391
,
966 N.W.2d 825
(2021); State v. Estrada
Comacho,
309 Neb. 494
,
960 N.W.2d 739
(2021).
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STATE V. BOSWELL
Cite as
316 Neb. 542
admissibility of a proponent’s evidence is a question of law,
subject to de novo review. 5
[3] Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for
an abuse of discretion. 6 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 con-
science, reason, and evidence. 7
[4] 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. 8
[5,6] 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. 9 An appellate court reviews the
decision by a trial court to admit photographs of the victims’
bodies for abuse of discretion. 10
[7] 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 inter-
twined exception to the rule. 11
5
State v Burries,
297 Neb. 367
,
900 N.W.2d 483
(2017).
6
Id.
7
Estrada
Comacho, supra note 4
.
8
Burries, supra note 5
. Accord, State v. Lorello,
314 Neb. 385
,
991 N.W.2d
11
(2023) (trial court exercises its discretion in determining whether
evidence is relevant and whether its probative value is outweighed by its
prejudicial effect).
9
State v. Britt,
305 Neb. 363
,
940 N.W.2d 270
(2020).
10
Id.
See State v. Galindo,
278 Neb. 599
,
774 N.W.2d 190
(2009).
11
Burries, supra note 5
.
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STATE V. BOSWELL
Cite as
316 Neb. 542
[8,9] Hearsay is not admissible except as provided by the
Nebraska Evidence Rules. 12 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. 13 In a de novo review,
an appellate court reaches a conclusion independent of the
trial court. 14
IV. ANALYSIS
1. Objections to Photographs of
Crime Scene and Autopsy
During the investigation, photographs of Loofe’s dismem-
bered body were taken at different times and for different
purposes. Photographs taken during the recovery process gen-
erally documented the condition and location of the plastic
trash bags and body segments as they were discovered by
investigators at the various disposal sites. And photographs
taken during the autopsy generally documented the condition
of each body segment when it was delivered to, and as it was
examined by, the pathologist.
At trial, the State offered multiple photographs of the vari-
ous disposal sites during the testimony of the investigator
who described the recovery process. And, during the tes-
timony of the pathologist who performed the autopsy, the
State offered multiple photographs and x rays relied upon by
the pathologist to explain her findings. As this photographic
evidence was offered, Boswell objected on grounds the pho-
tographs were irrelevant, were more prejudicial than proba-
tive, and were needlessly cumulative. The court held several
12
Id.
13
In re Estate of Walker,
315 Neb. 510
,
997 N.W.2d 595
(2023); State v.
Reznicek,
315 Neb. 272
,
995 N.W.2d 204
(2023);
Burries, supra note 5
.
14
In re Estate of
Walker, supra note 13
.
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316 Neb. 542
hearings in chambers to address the admissibility of the vari-
ous photographs. Ultimately, the court received into evidence
15 photographs taken at the disposal sites, 35 photographs
taken during the autopsy, and 8 photographs of x rays taken
during the autopsy. The court excluded several photographs
as cumulative.
On appeal, Boswell assigns that the trial court erred by
“allowing numerous gruesome photograph[s] over Boswell’s
objections based on . . . §§ 27-404 and 403.” We assume the
reference in Boswell’s assignment of error to “§ 27-404” was
a typographical error, because her objections at trial, and her
related arguments on appeal, focus on whether the photo-
graphs were relevant under
Neb. Rev. Stat. § 27-401
(Reissue
2016), and whether they were unduly prejudicial or needlessly
cumulative under
Neb. Rev. Stat. § 27-403
(Reissue 2016).
To address this assignment of error, we therefore confine our
analysis to whether the district court erred in admitting the
photographs over Boswell’s objections under §§ 27-401 and
27-403. We begin by reviewing the legal principles that gov-
ern our analysis.

(a) Governing Principles
[10,11] Under § 27-401, “[r]elevant evidence means evi-
dence 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 evi-
dence.” The bar for establishing evidentiary relevance is not a
high one; it requires only that the probative value of the evi-
dence be something more than nothing. 15 Evidence is relevant
if it tends in any degree to alter the probability of a material
fact. 16 A trial court exercises its discretion in determining
15
See,
Lorello, supra note 8
; State v. Abligo,
312 Neb. 74
,
978 N.W.2d 42
(2022).
16
State v. Tucker,
301 Neb. 856
,
920 N.W.2d 680
(2018).
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STATE V. BOSWELL
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316 Neb. 542
whether evidence is relevant and whether its probative value is
outweighed by its prejudicial effect. 17
[12,13] Under § 27-403, even when evidence is relevant, it
“may be excluded if its probative value is substantially out-
weighed 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.” The probative value of evidence involves a mea-
surement 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. 18 Unfair prejudice
means an undue tendency to suggest a decision based on an
improper basis. 19 The fact that evidence is prejudicial is not
enough to require exclusion under § 27-403, because most, if
not all, of the evidence a party offers is calculated to be preju-
dicial 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. 20
The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must deter-
mine their relevancy and weigh their probative value against
their prejudicial effect. 21 An appellate court reviews the deci-
sion by a trial court to admit photographs of the victims’ bodies
for abuse of discretion. 22
[14,15] 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
17
Lorello, supra note 8
.
18
State v. Thomas,
303 Neb. 964
,
932 N.W.2d 713
(2019).
19
State v. Oldson,
293 Neb. 718
,
884 N.W.2d 10
(2016).
20
State v. Mabior,
314 Neb. 932
,
994 N.W.2d 65
(2023). See State v.
Thomas, supra note 18
.
21
Britt, supra note 9
.
22
Id.
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photographs for a proper purpose, additional photographs of
the same type are not unfairly prejudicial. 23 Section 27-403
does not require the State to have a separate purpose for
every photograph, 24 and it requires a court to prohibit cumu-
lative evidence only if its probative value is “substantially
outweighed” by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence. 25 With these
principles in mind, we turn to Boswell’s arguments that the
photographs were not relevant, were more prejudicial than
probative, and were needlessly cumulative.

(b) Photographs Were Relevant
[16,17] 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. 26
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.” 27
Boswell contends that, aside from the photographs depict-
ing petechial hemorrhaging of Loofe’s head and restraint
marks on her wrists, “none of the photographs were relevant”
to Loofe’s cause of death. 28 And Boswell argues that none of
23
Id.
24
See, id.; State v. Dubray,
289 Neb. 208
,
854 N.W.2d 584
(2014).
25
§ 27-403.
26
Britt, supra note 9
; State v. Jenkins,
294 Neb. 684
,
884 N.W.2d 429
(2016), overruled on other grounds, State v. Cox,
307 Neb. 762
,
985
N.W.2d 395
(2020).
27
See State v. Stelly,
304 Neb. 33
, 47,
932 N.W.2d 857, 870
(2019) (internal
quotation marks omitted). See, also,
Neb. Rev. Stat. § 28-303
(1) (Cum.
Supp. 2022).
28
Brief for appellant at 23.
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the photographs were relevant to prove the identity of Loofe’s
killer or to prove any other controverted fact. These arguments
are meritless.
The photographs taken at the various disposal sites provided
direct evidence of the charged crime of improper disposal
of human skeletal remains. And such photographs were also
relevant to document the recovery process, to show chain of
custody, to show the identity of the victim, to show the condi-
tion and location of the body segments and plastic trash bags as
they were discovered by investigators, to assist in determining
which body segments had been subjected to animal predation
and which had not, and to support a finding of deliberate and
premeditated malice.
Likewise, photographs and x rays documenting the autopsy
process were relevant. The pathologist testified that the photo-
graphs helped her to explain her findings to the jury, including
her findings as to the points of dismemberment, the type of
tools/instruments used to dismember the body, which marks
were consistent with animal predation and which were not,
which portions of the body were still missing, and the cause
and manner of Loofe’s death. The autopsy photographs were
also probative of deliberate and premeditated malice to the
extent they showed dismemberment, recent bruising and blunt
force trauma, a torn earlobe, marks consistent with wrist
restraints, hemorrhaging consistent with strangulation, and cuts
framing a tattoo on Loofe’s arm that read “Everything will be
wonderful someday.”
The trial court did not abuse its discretion in overruling
Boswell’s relevancy objections to the challenged photographs
and x rays.

(c) Photographs Not Unduly Prejudicial
Boswell argues that even if the photographs were rele-
vant, they should have been excluded under § 27-403. She
makes two arguments in this regard. First, she contends the
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photographs were so gruesome that any probative value was
substantially outweighed by the danger of unfair prejudice.
Second, she contends the photographs were needlessly cumula-
tive. We consider each argument in turn, and ultimately reject
them both.
Boswell’s appellate brief argues generally that the graphic
nature of the photographs served to “inflame the passions of
the jury and anger them toward Boswell.” 29 Her brief does not
identify which specific photographs she is challenging in that
regard, but we understand her argument to be focused primar-
ily on photographs and x rays depicting Loofe’s severed body,
and we limit our analysis accordingly.
[18,19] We have often observed that gruesome crimes pro-
duce gruesome photographs. 30 That said, when the State lays
proper foundation, photographs that illustrate or make clear a
controverted issue in a homicide case are admissible, even if
gruesome. 31 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. 32
We agree that the photographs of Loofe’s recovered body
were graphic and gruesome, but so too was the crime. The
photographs accurately depict the stark reality of a horrific
crime that involved strangulation, torture, dismemberment
of the body into 14 segments, and disposal of those seg-
ments in plastic trash bags left in rural ditches and fields.
Because the probative value of this photographic evidence was
strong, as already discussed, we find no abuse of discretion in
the trial court’s conclusion that the probative value was not
29
Id. at 15-16.
30
See, State v. Malone,
308 Neb. 929
,
957 N.W.2d 892
(2021), modified on
denial of rehearing
309 Neb. 399
,
959 N.W.2d 818
;
Britt, supra note 9
;
Stelly, supra note 27
;
Jenkins, supra note 26
.
31
Id.
32
State v. Parsons,
226 Neb. 543
,
412 N.W.2d 480
(1987).
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substantially outweighed by the danger of unfair prejudice.
This is particularly so because jurors are not fragile people,
incapable of seeing gruesome evidence. 33
[20] Finally, Boswell argues that even if the photographs
were relevant and not more prejudicial than probative, they
were needlessly cumulative and thus should have been
excluded under § 27-403. Boswell’s brief does not specifi-
cally identify which photographs she contends should have
been excluded as needlessly cumulative. Instead, she tallies
up the number of photographs depicting each recovered body
segment and states the “number of photographs [was] not pro-
portional to the number of dismembered segments.” 34 But this
argument assumes that, in a dismemberment case such as this,
there is some acceptable ratio of admissible photographs to
segmented body parts. There is not. To the contrary, we have
held that 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. 35 When we consider all the
circumstances here, including the nature of the crimes and the
different purposes for which the various photographs were
offered, we find no abuse of discretion based solely on the
number of photographs received into evidence.
Although it is not necessary under § 27-403 to have a
separate purpose for every photograph, 36 we find it significant
that here, to the extent some of the photographs depicted
the same body segment, they did so from different angles,
at different points in the investigation, and they were used
by the witnesses to illustrate different points of evidentiary
33
See
Britt, supra note 9
.
34
Brief for appellant at 24.
35
State v. Partee,
199 Neb. 305
,
258 N.W.2d 634
(1977).
36
See
Stelly, supra note 27
.
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significance. 37 Particularly in a crime such as this, where the
victim was dismembered and multiple body segments were
recovered from multiple disposal sites, it is not unreason-
able to expect that the State would need to offer multiple
photographs to document and explain the crime, the recovery
process, the autopsy process, and the nature and significance
of the multiple injuries. On this record, we can find no abuse
of discretion in the number of photographs admitted into
evidence.
2. Evidence of Sex Acts
and Witchcraft
Boswell’s primary arguments on appeal pertain to the
admission of testimony and exhibits regarding various sexual
acts and discussions of witchcraft and occult practices. Before
trial, Boswell filed motions in limine seeking to prohibit the
State from offering or introducing (1) “[a]ny testimony regard-
ing witchcraft, sorcery, or the occult” and (2) any evidence of
other bad acts or character, including “[a]ny mention of por-
nographic films, videos, CDs, vibrators, dildos, fake penises,
sex toys, sexual lubricants, condoms, lingerie or restraints,”
and/or “[a]ny mention of [Boswell’s] participating in sexual
activity which includes discussion of torture, involves sado-
masochistic activity, or the infliction of consensual physical
punishment during sexual activity.” For brevity, we will gener-
ally refer to this as the “sex and witchcraft evidence.” Boswell
37
See, e.g., State v. Grant,
293 Neb. 163, 190
,
876 N.W.2d 639, 662
(2016)
(holding admitting 11 autopsy photographs depicting body stabbed more
than 50 times was not needlessly cumulative “because they each portray
different wounds or angles” and it was “not unreasonable to expect that
the State must show multiple pictures in order to document all or most
of [victim’s] numerous wounds”); State v. White,
244 Neb. 577, 589
,
508 N.W.2d 554, 565
(1993) (holding despite admitting photographs of
victim’s body at crime scene, autopsy photographs were admissible to
show nature and extent of wounds or injuries and were “necessary to
understand this information”), overruled on other grounds,
Wood, supra
note 4
.
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generally argued this evidence was inadmissible because it
was not relevant, it was improper character evidence, and it
was more prejudicial than probative.
The State addressed much of the same sex and witchcraft
evidence in a pretrial motion of its own, requesting a hearing
“to determine the admissibility of evidence concerning other
crimes, wrongs or acts committed by [Boswell] pursuant to
. . . § 27-404(2).” The State’s motion asserted this evidence
was either inextricably intertwined with the charged crimes
or was admissible to prove one or more of the purposes under
§ 27-404(2).
At a consolidated evidentiary hearing on these motions, the
parties advised the court that most of the sex and witchcraft
evidence would be adduced from three witnesses: A.H., A.G.,
and K.B. These witnesses had offered similar testimony during
Trail’s criminal trial, and transcripts of their prior trial testi-
mony were received without objection. The parties generally
agreed that the prior testimony of these witnesses was sub-
stantially similar to the testimony the State expected to adduce
from the witnesses during Boswell’s criminal trial.
In a written order, the court overruled Boswell’s motion
in limine as it related to the sex and witchcraft evidence. In
finding the evidence was admissible, the court ruled in the
alternative. First, it found that much of the sex and witch-
craft evidence the State wanted to present was either “direct
evidence of premeditation, and not subject to [§ 27-]404,”
or was “inextricably intertwined” evidence that formed part
of the factual setting of the crime, and thus was not subject
to § 27-404. 38 Alternatively, to the extent some of the sex
and witchcraft evidence did not go to premeditation or was
not inextricably intertwined with the charged crimes, the
38
See
Mabior, supra note 20
(holding § 27-404(2) does not apply to
evidence of defendant’s other crimes or bad acts if evidence is inextricably
intertwined with charged crime).
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court found such evidence was nevertheless admissible under
§ 27-404(2) to show motive and intent.
In its § 27-404 analysis, the court first found the State
had shown by clear and convincing evidence that the sexual
acts and discussions of witchcraft had occurred. 39 The court
went on to conclude that the sex and witchcraft evidence was
relevant and admissible under § 27-404(2) to prove motive
or intent regarding both the conspiracy and the first degree
murder charges. Finally, it determined that the probative value
of the sex and witchcraft evidence was not substantially out-
weighed by the danger of unfair prejudice under § 27-403. The
court’s order instructed the State to advise the court at sidebar
before presenting any sex and witchcraft evidence, so the court
could give a limiting instruction to the jury.
During Boswell’s trial, A.H., A.G., and K.B. were called
to testify near the end of the State’s case in chief, and
Boswell renewed her objections to the sex and witchcraft evi-
dence. The court overruled the objections, and it repeatedly
instructed the jury that they were to consider the evidence
of sexual activity, sexual items, and witchcraft only “for the
purpose of motive or intent and for no other purpose, as in
it is not evidence of anyone having a bad character or being
a bad person or any other impugnment of their character.”
The court included a similar limiting instruction in the final
jury instructions.
No party challenges the scope or sufficiency of the limiting
instruction given by the trial court. And given the scope of
the limiting instruction used at trial, we understand the court
to have premised its ultimate admissibility determination
exclusively on § 27-404(2). We see no indication in the record
that, when admitting this evidence at trial over Boswell’s
objection, the court rested its determination on the alternative
basis described in the motion in limine ruling—that some of
39
See § 27-404(3).
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the sex and witchcraft evidence was probative of premedita-
tion or was inextricably intertwined with the charged crimes,
and thus was not subject to § 27-404 at all. We thus limit
our analysis to whether the court abused its discretion by
admitting the challenged sex and witchcraft evidence under
§ 27-404(2) for the limited purposes of proving Boswell’s
motive or intent.
In the sections that follow, we summarize the testimony of
A.H., A.G., and K.B., focusing on the testimony Boswell chal-
lenges on appeal and providing additional context as neces-
sary. We then analyze the admissibility of such evidence under
§ 27-404(2).

(a) Testimony of A.H.
According to A.H., she began communicating with Boswell
through the dating app in July 2017. At that time, A.H. was
20 years old. Very early in their communication, Boswell told
A.H. about being in a relationship with Trail, and A.H. agreed
to enter into a “sugar daddy” type relationship with Trail and
Boswell. Under the arrangement, Trail gave A.H. a weekly
allowance and various other gifts, and A.H. was expected
to follow certain household rules, which included having
sex with Boswell and Trail, staying overnight at the Wilber
apartment once a week, being naked at the apartment, asking
permission for everything, and checking in with Trail every 3
hours. A.H. was also expected to assist in a coin/antique busi-
ness operated by Trail and Boswell. If A.H. did not follow the
rules, she was physically punished by Trail.
In her testimony, A.H. described specific sexual encounters
and conversations she had with Boswell and Trail. A.H. testi-
fied that Trail and Boswell kept an assortment of sex toys
in a bedroom drawer in their apartment, and she identified
a photograph of those items in an open drawer. A.H. testi-
fied that when she and Boswell engaged in sexual activities,
Trail watched and sometimes participated. On one occasion,
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Boswell directed A.H. to anally penetrate Trail with an inflat-
able sex toy while he appeared to be unconscious, and when
she obeyed, she was told she had “torn something inside
of him.”
A.H. also described encounters and conversations relating to
sexual torture. A.H. testified that Boswell told her she wanted
to torture someone by cutting a hole in their stomach and then
penetrating them with a sex toy and watching it come through
the hole, and A.H. described Boswell as “joyful” when she
described this torture. Trail asked A.H. to describe how she
would torture someone, and she told him she would torture a
man by cutting off his penis and sodomizing him with it.
A.H. also testified about regular conversations and interac-
tions with Trail and Boswell involving witchcraft, becoming
a witch, torture, and killing. A.H. testified that she under-
stood Boswell was a witch and that Trail was a vampire who
could fly and who controlled Boswell and 12 other witches.
A.H. understood that to become part of the coven, one had
to inhale another’s last breath. A.H. believed that Trail could
read her mind and erase her memory. She described incidents
where Boswell and Trail appeared to be communicating with
witches, including a time when Boswell was talking and laugh-
ing with witches during a car ride. A.H. understood there was
a ceremony where the witches would go out to a field under
a full moon and then leave their bodies to commit good or
bad acts out in the world. She understood that another young
woman, A.G., watched over the bodies of the witches during
this ceremony.
A.H. testified that Trail and Boswell told her she would
have to kill someone to gain her powers and become the 13th
witch in the coven. In August 2017, Boswell and Trail took
A.H. to a retail store to “scout” a young woman they met on a
dating app. Trail talked with the young woman in the store and
later asked A.H. if she wanted the young woman to be her first
kill, and A.H. said she did. A week later, Trail told A.H. they
would have to find someone else to kill because the woman
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had left the state. At one point, Trail showed A.H. Boswell’s
“kill bag,” which included a sauna suit and a hammer. Trail
told A.H. that she would get her own kill bag and that its con-
tents would be replenished after each kill.
A.H. testified that while she was in the arrangement with
Trail and Boswell, she was introduced to A.G. According to
A.H., in early September 2017, she and Boswell talked about
killing A.G. because A.G. was “annoying” and was not fol-
lowing the rules. Around this time, Boswell also talked about
killing Trail. A.H. said that by mid-September, she “snapped
. . . back into reality” and decided to leave the arrangement
with Boswell and Trail. She was warned that if she told anyone
about the arrangement, she and her family would be killed.

(b) Testimony of A.G.
In the summer of 2017, A.G. met Boswell on the same dat-
ing app, a few months after A.G.’s high school graduation.
Almost immediately, Boswell told A.G. about being in a “sugar
daddy” type relationship with Trail. Within a few weeks, A.G.
entered into an arrangement with Boswell and Trail, under
which she was required to follow household rules similar to
those described by A.H., and Trail gave A.G. a weekly allow-
ance and other gifts, as well as a share of the profits from the
coin/antique business Boswell and Trail operated. Under the
arrangement, A.G. engaged in sexual acts with both Trail and
Boswell. Boswell hit A.G. when she refused to do something
asked of her.
A.G. testified that on numerous occasions, Boswell and
Trail talked about witchcraft, the women in their coven, and
their supernatural powers. A.G. also testified about discussions
with Trail and Boswell involving torture and killing, including
plans to make money by recording a “snuff film” of someone
being tortured and killed.
A.G. testified that Trail claimed he was a vampire and
that he was periodically possessed by different people. On at
least one occasion, Trail claimed to have hypnotized Boswell.
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A.G. testified that she left the arrangement with Trail and
Boswell in mid-October 2017. She did not tell others about
her experience because she was afraid Trail would harm her
or her family.
(c) Testimony of K.B.
K.B. met Boswell on the same dating app in late October or
early November 2017, when K.B. was 21 years old. Boswell
almost immediately told K.B. about being in a “sugar daddy”
type relationship with Trail. K.B. understood that Boswell and
Trail were a “package deal” and that she had to be with both
of them if she wanted a sexual relationship with Boswell. K.B.
agreed to be in a dominant-submissive sexual relationship with
Boswell that included specific household rules and physical
and sexual punishment for violating the rules. In exchange,
K.B. received a weekly allowance and other gifts.
K.B. described spending time with Boswell and Trail and
engaging in sexual acts with them, including acts involving
pain and discussions of torture during sex. Over Boswell’s
objection, K.B. testified that (1) Boswell anally penetrated her
with a sex toy as a form of punishment; (2) Boswell directed
her to use a sex toy to anally penetrate Trail while he was
unconscious and she obeyed; and (3) during sex with Boswell,
Trail told K.B. that Boswell would orgasm faster if K.B.
described torturing someone, and when K.B. described rats
eating through someone’s bowels, Boswell appeared to orgasm
quickly. K.B. also testified that Boswell was a powerful witch
and that Boswell and Trail had many conversations with her
about witchcraft.
In addition to the sex and witchcraft evidence, K.B. testi-
fied about events that occurred around the time of Loofe’s
disappearance and murder. According to K.B., Boswell and
Trail had plans to pick her up in Omaha on November 16,
2017, but Boswell texted K.B. on that date and said she was
“busy” and would instead pick up K.B. the next day. Boswell
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also complained on November 16 that her shoulder was sore
and that she was tired.
Boswell and Trail picked K.B. up on November 17, 2017,
and drove her to a casino in Iowa, where they initially told
K.B. she would need to prove herself by torturing and kill-
ing someone with Boswell. After leaving the casino, Trail and
Boswell drove K.B. to different cities in Nebraska, including
Omaha, Grand Island, and Kearney. According to K.B., they
had multiple discussions about finding someone to kill, and
Trail wanted to watch while Boswell and K.B. tortured and
killed a college student. K.B. understood they were looking
for an international student who would not be missed over the
Thanksgiving holiday.
While in Kearney, K.B. received a voicemail message from
the Lincoln Police Department, inquiring about her well-being,
because K.B.’s mother was worried and had contacted police.
When K.B. told Boswell and Trail about the call, they told her
to shut off her cell phone, and the trio left Kearney and drove
back to the casino in Iowa. At that point, K.B. learned that a
young woman had gone missing and that Trail and Boswell
were suspects. Boswell cried and said she “didn’t hurt the
girl.” Boswell told K.B. she did not have a romantic relation-
ship with the missing girl, but Trail had “fool[ed]” around
with her. After K.B. was dropped off at the casino, she had no
further contact with Boswell or Trail. K.B. testified she was
afraid of Trail because he told her he would harm her and her
family if she told anyone about their arrangement.

(d) Photograph of Sex Toy
One of the items of evidence discovered by investigators at
a disposal site was a sex toy. It was found near a white fleece
jacket identified as the one Loofe was wearing at the time she
disappeared. A photograph of this sex toy was admitted into
evidence at trial over Boswell’s objection. Her appellate brief
mentions this photograph in passing but makes no specific
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argument as to why its admission was improper. We therefore
do not further address this evidence. 40
(e) Resolution
[21] Under § 27-404(1), evidence of a person’s character or
a trait of his or her character is not admissible for the purpose
of proving that he or she acted in conformity therewith on a
particular occasion. However, such evidence can be admis-
sible for other purposes, such as proof of motive, opportu-
nity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident. 41 Evidence that is admissible under
§ 27-404(2) may nevertheless be excluded under § 27-403 if
its probative value is substantially outweighed by the danger of
unfair prejudice. 42
[22] An appellate court’s analysis under § 27-404(2) gener-
ally 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. 43 As
we explain, applying this framework, we find no abuse of
discretion in concluding that the evidence of sexual acts and
witchcraft was admissible under § 27-404(2) for the purpose
of proving Boswell’s motive and intent and that the probative
value of this evidence was not substantially outweighed by the
danger of unfair prejudice under § 27-403.
40
See, e.g., State v. Clark,
315 Neb. 736
,
1 N.W.3d 487
(2024) (to be
considered by appellate court, error must be both specifically assigned and
specifically argued).
41
§ 27-404(2).
42
Thomas, supra note 18
.
43
State v. Matteson,
313 Neb. 435
,
985 N.W.2d 1
(2023); State v. Chavez,
281 Neb. 99
,
793 N.W.2d 347
(2011).
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[23-25] Motive is that which leads or tempts the mind to
indulge in a criminal act. 44 And 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. 45 Motive qual-
ifies as a legitimate noncharacter theory under § 27-404(2)
because although character carries a connotation of an endur-
ing general propensity, a motive is a situationally specific
emotion. 46
[26] Intent is generally defined as “‘[t]he state of mind
accompanying an act.’” 47 Intent or knowledge is a statutory
element of each of the crimes Boswell was charged with
committing, 48 and thus, intent was an issue in this case.
Boswell argues that the sex and witchcraft evidence was
classic “bad act” evidence because “atypical sexual conduct
between Boswell, Trail and others . . . had very little proba-
tive value” 49 and “there was no relevant purpose for extensive,
graphic descriptions of sexual encounters between the various
members of the group.” 50 She also contends that evidence of
witchcraft and occult rituals was irrelevant and designed to
evoke the type of hysteria observed in the “Salem Witch Trials
of 1692” and that the State offered such testimony merely “to
disgust and prejudice the jury against Boswell.” 51
The State disagrees. It argues that without the sex and
witchcraft testimony from A.H., A.G., and K.B., “the jury
44
State v.
Thomas, supra note 18
.
45
Id.
46
Id.
47
State v. Torres,
283 Neb. 142
, 157,
812 N.W.2d 213
, 231 (2012), quoting
Black’s Law Dictionary 881 (9th ed. 2009).
48
See,
Neb. Rev. Stat. § 28-202
(Cum. Supp. 2022); § 28-303;
Neb. Rev.
Stat. § 28-1301
(Reissue 2016).
49
Brief for appellant at 36.
50
Id. at 38.
51
Id. at 41.
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would have been left with the impression that Loofe’s mur-
der and dismemberment was an ‘inexplicable act of random
violence.’” 52 The State contends that evidence of Boswell’s
prior sexual acts and the particular fantasies she described
“not only revealed the sexually motivated explanation for the
murder, but it provided context or explanation for the dildo
and crotchless sauna suit bottom found at the disposal scenes
in the same areas as Loofe’s dismembered body parts, spe-
cifically her ‘doughnut of skin’ or abdomen.” 53 The State also
argues that the witchcraft evidence was an integral part of
the recruitment process for the conspiracy to commit murder
because what began as “‘atypical’ sexual conduct” progressed
quickly to “discussions of witchcraft and other supernatural
phenomenon for the purpose of introducing the idea of torture
and killing.” 54
On this record, the sex and witchcraft evidence was not
offered merely to show that Boswell had a propensity for
engaging in “‘atypical’ sexual conduct” 55 or that she had a fas-
cination with occult rituals and claimed to be a witch. Instead,
the evidence was offered to show that Boswell got sexual
gratification from controlling and torturing others, that prior
to Loofe’s murder Boswell was describing ways she wanted
to torture and kill someone, and that Boswell and Trail had
been actively recruiting and grooming others to participate in
such a crime. The sex and witchcraft evidence was integral
to explaining how Boswell and Trail methodically recruited
and groomed young women to participate in the planned
torture and killing of another person by using sexual control
and punishment, gradually testing the boundaries of obedi-
ence, and introducing and normalizing discussions of occult
52
Brief for appellee at 48-49.
53
Id. at 49.
54
Id. at 52.
55
Id. at 49.
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rituals, torture, and murder. This evidence was relevant and
probative to show Boswell’s motive and intent for engaging
in the conspiracy and committing the murder with which she
was charged, and we reject Boswell’s argument to the con-
trary. And we find no abuse of discretion in the trial court’s
determination that the sex and witchcraft evidence had sub-
stantial probative value that was not outweighed by the danger
of unfair prejudice, particularly given the limiting instruction
repeatedly given by the trial court.
For the sake of completeness, we note the State also argues
that some of the sex and witchcraft evidence was admissible
either as direct evidence of premeditation on the first degree
murder charge or as evidence that was inextricably inter-
twined with the charged crimes of conspiracy and murder, and
thus necessary to present a coherent picture of those crimes.
Because we understand the court’s admissibility determination
at trial to have rested exclusively on § 27-404(2), and because
we have found no abuse of discretion in that determination, we
do not address the State’s alternative arguments.

3. Coconspirator Statements
Lastly, we turn to Boswell’s argument that the district
court erred in admitting testimony about certain out-of-court
statements made by Trail. The court admitted this evidence
as nonhearsay statements made by a coconspirator under
§ 27-801(4)(b)(v).

(a) Additional Background
Before trial, Boswell filed a motion in limine seeking to
prevent the State from offering any hearsay statements made
by Trail to A.H., A.G., or K.B. without first having a hear-
ing to determine admissibility. The State resisted the motion,
arguing that Trail’s statements were admissible as statements
of a coconspirator under § 27-801(4)(b)(v). The district court
deferred ruling on the motion until the time of trial.
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[27,28] Pursuant to the coconspirator exception, a state-
ment is not hearsay if it is “offered against a party and is
. . . a statement by a coconspirator of a party made during the
course and in furtherance of the conspiracy.” 56 We have held
that 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. 57 We have also held
that 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. 58
In this case, the applicability of the coconspirator exception
arose on the eighth day of trial, when the prosecutor began
questioning A.H. to elicit statements made by Trail about find-
ing someone to be A.H.’s first kill. Boswell objected to the
question on the ground of hearsay. The court sustained the
objection, and the State asked for a meeting in chambers.
Outside the presence of the jury, the State argued that Trail’s
statements to A.H. were admissible under the coconspirator
exception to hearsay because the State had established, by that
point in the trial, that a conspiracy to commit murder existed
between Boswell and Trail. In response, Boswell argued that
the State had not yet proved the existence of a conspiracy and
that instead, it was trying to “bootstrap[]” Trail’s statement to
prove the existence of a conspiracy.
56
§ 27-801(4)(b)(v).
57
See, Estrada
Comacho, supra note 4
; State v. Britt,
293 Neb. 381
,
881
N.W.2d 818
(2016).
58
Estrada
Comacho, supra note 4
.
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After considering the parties’ arguments, the district court
expressly found the State had sufficiently proved the exis-
tence of a conspiracy through independent evidence regard-
ing the conduct and actions of Boswell and Trail, as well as
through statements made by Boswell, and thus, Trail’s state-
ments were admissible under the coconspirator exception to
the hearsay rule. Boswell then requested, and was granted, a
continuing objection to any testimony of A.H., A.G., and K.B.
relating to statements made to them by Trail.
(b) Specifically Assigned and Argued
On appeal, Boswell broadly argues that the State “impermis-
sibly elicited hearsay statements [made] by Trail” 59 through
the testimony of A.H., A.G., and K.B. and that the court erred
in admitting such statements under the coconspirator excep-
tion. As to the specific statements being challenged, Boswell’s
appellate brief references the following categories: statements
“regarding witchcraft or the occult and torture,” 60 statements
“about Boswell’s arousal being derived from discussions of
torture,” 61 and statements “about how to make Boswell achieve
an orgasm.” 62 We decline to scour the record searching for
statements that fall into one of these categories, and instead,
we address only those statements that Boswell’s appellate brief
specifically identifies by annotation to the bill of exceptions
and that were sufficiently argued in the brief. 63 We identify
three such statements: (1) A.H.’s testimony that Trail asked
her if she wanted a young woman they saw in a discount store
to be her first kill; (2) K.B.’s testimony that Trail told her
Boswell was a witch and that he was a powerful being who
59
Brief for appellant at 43.
60
Id.
61
Id. at 44.
62
Id. at 46.
63
E.g.,
Wood, supra note 4
.
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could grant a wish; and (3) K.B.’s testimony that Trail told her
that if she talked about torture while having sex with Boswell,
Boswell would orgasm faster.

(c) Nebraska’s Coconspirator Rule
The coconspirator exception in § 27-801(4)(b)(v) was
enacted by the Legislature in 1975, and essentially codi-
fied the common-law rule governing the admissibility of
statements of a coconspirator. 64 Our 1977 decision in State
v. Bobo 65 was the first time we discussed the coconspirator
exception as codified by § 27-801, and we stated:
The rule is well established that before the trier of
facts may consider testimony under the coconspirator
exception to the hearsay rule, a prima facie case estab-
lishing the existence of the conspiracy must be shown
by independent evidence. . . . The purpose of requiring
that the conspiracy be established by independent evi-
dence is to prevent the danger of hearsay evidence being
lifted by its own bootstraps, i. e., relying on the hearsay
statements to establish the conspiracy, and then using
the conspiracy to permit the introduction of what would
otherwise be hearsay testimony in evidence.
At the time we decided Bobo, the language of § 27-801(b)(b)(v)
was substantively similar to the language of the corresponding
Fed. R. Evid. 801(d)(2)(E), which provided that a statement
64
State v. Bobo,
198 Neb. 551, 556-67
,
253 N.W.2d 857, 861
(1977)
(reciting pertinent statutory language and noting that “[t]his was the rule
in Nebraska even prior to the enactment of section 27-801 in 1975”). See,
also, O’Brien v. State,
69 Neb. 691
,
96 N.W. 649
(1903) (stating rule
is that acts and declarations of one conspirator are not evidence against
another unless conspiracy is established).
65
Bobo, supra note 64
,
198 Neb. at 557
,
253 N.W.2d at 861
(emphasis
supplied), citing State v. Merchants Bank,
81 Neb. 704
,
116 N.W. 667
(1908). See United States v. Nixon,
418 U.S. 683
,
94 S. Ct. 3090
,
41 L.
Ed. 2d 1039
(1974).
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is not hearsay if made “‘by a coconspirator of a party during
the course and in furtherance of the conspiracy.’” 66 In addition,
when we decided Bobo, our application of the coconspirator
rule was consistent with the U.S. Supreme Court’s application
of the provisions in Fed. R. Evid. 801. 67
Ten years after our decision in Bobo, the U.S. Supreme
Court decided Bourjaily v. United States. 68 That case held,
among other things, that Congress’ enactment of the Federal
Rules of Evidence, and in particular Fed. R. Evid. 104(a) and
Fed. R. Evid. 1101(d), effectively abrogated the common-
law prohibition against bootstrapping. 69 The Court reasoned
this was so because the existence of a conspiracy is a pre-
liminary question concerning admissibility of evidence, and
rules 104(a) and 1101(d) expressly provide that preliminary
questions as to the admission of evidence are not subject to
the rules of evidence. Based on the language of rules 104(a)
and 1101(d), Bourjaily reasoned “there is little doubt that a
co-conspirator’s statements could themselves be probative of
the existence of a conspiracy and the participation of both the
defendant and the declarant in the conspiracy.” 70 Bourjaily
declined to decide whether a court could rely solely upon
66
See Bourjaily v. United States,
483 U.S. 171, 173
,
107 S. Ct. 2775
,
97 L.
Ed. 2d 144
(1987).
67
See
id.,
citing
Nixon, supra note 65
. See, also, Glasser v. United States,
315 U.S. 60
,
62 S. Ct. 457
,
86 L. Ed. 680
(1942) (superseded by rule as
stated in
Bourjaily, supra note 66
).
68
Bourjaily, supra note 66
.
69
See, Fed. R. Evid. 104(a) (“[p]reliminary questions concerning . . . the
admissibility of evidence shall be determined by the court . . . . In making
its determination it is not bound by the rules of evidence except those
with respect to privileges”); Fed. R. Evid. 1101(d) (stating that other than
with respect to privilege, federal rules of evidence shall not apply to “the
court’s determination, under Rule 104(a), on a preliminary question of fact
governing admissibility”).
70
Bourjaily, supra note 66
,
483 U.S. at 180
.
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hearsay statements to determine whether a conspiracy had
been proved, but held:
To the extent that [the bootstrapping rule] meant that
courts could not look to the hearsay statements them-
selves for any [preliminary] purpose, it has clearly been
superseded by Rule 104(a). It is sufficient for today
to hold that a court, in making a preliminary factual
determination under [the coconspirator hearsay exemp-
tion], may examine the hearsay statements sought to
be admitted. 71
Ten years after the Court’s decision in Bourjaily, Fed.
R. Evid. 801(d)(2)(E) was amended. It now provides that
an opposing party’s statement is not hearsay if it is offered
against the opposing party and “was made by the party’s
coconspirator during and in furtherance of the conspiracy.
The [opposing party’s] statement must be considered but does
not by itself establish . . . the existence of the conspiracy or
participation in it . . . .” 72
We note the Nebraska Legislature has not amended
§ 27-801, to include language similar to the current Fed.
R. Evid. 801(d)(2)(E). And unlike Fed. R. Evid. 104 and
1101, neither
Neb. Rev. Stat. § 27-104
(Reissue 2016) nor
Neb. Rev. Stat. 27-1101 (Reissue 2016) expressly states that
courts are not bound by the rules of evidence when decid-
ing preliminary questions of admissibility. 73 Perhaps because
of these distinctions between Nebraska law and federal law,
Nebraska appellate courts have cited Bourjaily but have not
directly considered the effect of Bourjaily, if any, on the
bootstrapping rule in Nebraska’s coconspirator jurisprudence.
71
Id.,
483 U.S. at 181
.
72
Fed. R. Evid. 801(d)(2)(E).
73
But see State v. Piper,
289 Neb. 364
, 372,
855 N.W.2d 1
, 8 (2014)
(noting that despite differing language, § 27-104 “was never intended to
treat preliminary questions of admissibility differently than Fed. R. Evid.
104(a)”).
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Instead, most of our post-Bourjaily cases have continued to
prohibit bootstrapping and have required the State to prove
the existence of a conspiracy using independent evidence
before a coconspirator’s statement could be admitted under
§ 27-801(4)(d)(v). 74
But the State’s brief on appeal directs us to language in a
few post-Bourjaily cases, 75 which the State reads as softening
Nebraska’s bright-line rule against bootstrapping. The State
suggests this language has caused confusion about the current
status of the rule against bootstrapping in Nebraska, and it
urges us to “specifically disapprove of” 76 our cases endorsing
a bright-line rule and instead align our coconspirator jurispru-
dence with current federal law.
We are not persuaded it is necessary, in this appeal, to
address whether a trial court may consider the hearsay state-
ment of a coconspirator when determining whether a con-
spiracy has been established. That is so because, as we discuss
next, this appeal does not present an issue of bootstrapping. 77
74
See, e.g., State v.
Trail, supra note 1
; State v. Torres, supra note 47; State
v. Hudson,
279 Neb. 6
,
775 N.W.2d 429
(2009).
75
See, Estrada
Comacho, supra note 4
, 309 Neb. at 521, 906 N.W.2d at
758-59 (citing Bourjaily and stating “although the [hearsay] statements
themselves cannot be the sole evidence to support the existence of
conspiracy, the statements can be part of the determination so long as there
is also evidence independent of the statements to show a conspiracy”);
State v. Henry,
292 Neb. 834, 874
,
875 N.W.2d 374, 403
(2016) (stating
“a correct evidentiary ruling will not be reversed simply because the
foundational proof came at the wrong time . . . [a]nd there is no bright-line
requirement that the independent evidence of a conspiracy must precede
the admission of coconspirator statements”). See, also, State v. Pullens,
281 Neb. 828
,
800 N.W.2d 202
(2011) (citing Bourjaily and finding no
prohibition against bootstrapping in making preliminary determinations
related to excited utterance hearsay exception).
76
Brief for appellee at 55.
77
See State v. Jedlicka,
297 Neb. 276
,
900 N.W.2d 454
(2017) (appellate
court not obligated to engage in analysis not necessary to adjudicate case
before it).
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(d) Statements Were Admissible
Here, when making the preliminary finding that the State
proved the existence of a conspiracy so that admission of
Trail’s statements met the requirements of § 27-801(4)(b)(v),
the trial court expressly stated it was not relying on any of
Trail’s statements. Instead, the trial court relied solely on inde-
pendent evidence already adduced by the State.
The record shows that before attempting to introduce any
of the three statements made by Trail that Boswell challenges
on appeal, the State adduced extensive evidence of receipts,
credit/debit card records, cell phone records, and other testi-
mony that linked Boswell and Trail to A.H., A.G., K.B., and
Loofe. Additionally, the State adduced considerable evidence
that Boswell and Trail engaged in overt acts of recruiting
and grooming young women to assist them in planning and
committing murder for sexual gratification and that Trail and
Boswell purchased materials used to commit the murder, dis-
membered and disposed of the body to cover up the crime,
and went on the run to evade law enforcement. Limiting our
review to only the evidence adduced by the State prior to the
time it sought to introduce Trail’s three statements, we find
no clear error in the court’s determination that the State had
proved the existence of a conspiracy by a preponderance of the
evidence. And having conducted our own de novo review, we
agree with the trial court’s ultimate determination that Trail’s
statements were admissible as statements of a coconspirator
under § 27-801(4)(b)(v).
Boswell makes one additional argument related to the cocon-
spirator exception that we address: She argues that Trail’s
statement to K.B., indicating that Boswell would orgasm faster
if K.B. talked about torture, was inadmissible because it was
not made in furtherance of the conspiracy. We find this argu-
ment unpersuasive. It is apparent from the record that Boswell
and Trail were involved in a conspiracy to torture and kill
another for sexual gratification. As such, a statement by Trail
that Boswell found torture to be sexually gratifying was a
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statement in furtherance of the conspiracy. The district court
did not err in admitting Trail’s statements under the cocon-
spirator exemption.
V. CONCLUSION
For the foregoing reasons, there is no merit to any of
Boswell’s assigned errors regarding the trial court’s eviden-
tiary rulings. We therefore affirm Boswell’s convictions and
sentences.
Affirmed.

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