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Although our reasoning differs from that of the district
court, the court did not err in dismissing Bank of the West. We
affirm the district court’s dismissal of Courtney and Bank of
the West.
CONCLUSION
For the foregoing reasons, we affirm the grant of summary
judgment to Wells Fargo, Fannie Mae, and Knapstein, and we
affirm the dismissal of Courtney and Bank of the West.
Affirmed.
Stephan and Miller-Lerman, JJ., not participating.
State of Nebraska, appellee, v.
Anthony D. Davis, appellant.
___ N.W.2d ___
Filed May 8, 2015. No. S-14-508.
1. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
2. Convictions: Evidence: Appeal and Error. In reviewing a claim that the evi-
dence was insufficient to support a criminal conviction, an appellate court does
not resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact, and a conviction
will be affirmed, in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is sufficient to support
the conviction.
3. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
4. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error. Error can-
not ordinarily be predicated on the failure to grant a mistrial if an objection or
motion to strike the improper material is sustained and the jury is admonished to
disregard such material. The defendant must prove that the alleged error actually
prejudiced him or her, rather than creating only the possibility of prejudice.
5. Appeal and Error. When determining whether an alleged error is so prejudicial
as to justify reversal, courts generally consider whether the error, in light of the
totality of the record, influenced the outcome of the case.
6. Criminal Law: Trial. In some cases, the damaging effect of an event during trial
may be such that it cannot be removed by proper admonition or instruction to the
jury and thus prevents a fair trial.
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7. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the
contrary, it is presumed that a jury followed the instructions given in arriving at
its verdict.
8. Criminal Law: Pretrial Procedure. After a proper request by the defendant, the
State is required to disclose all material information.
9. Criminal Law: Pretrial Procedure: Motions for Mistrial. The failure of the
State to disclose properly requested information could potentially impact the
defendant’s ability to receive a fair trial to such a degree that a mistrial may
be necessary.
10. Criminal Law: Evidence: Appeal and Error. In reviewing a claim that the evi-
dence was insufficient to support the verdict, the relevant question for an appel-
late court is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.
11. Evidence: Appeal and Error. As with any sufficiency claim, regardless whether
the evidence is direct, circumstantial, or a combination thereof, an appellate court
does not resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Kelly M. Steenbock for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
I. NATURE OF CASE
Miguel Avalos and two of his sons were shot to death in
their Omaha, Nebraska, home during an apparent home inva-
sion robbery. Avalos was a known drug dealer. The attempted
robbery was allegedly orchestrated by Greg Logemann, another
drug dealer in the area. Logemann contacted the defendant,
Anthony D. Davis, and another individual, Timothy Britt,
about the opportunity to rob Avalos.
At Davis’ trial, multiple witnesses testified to observing
that Logemann had pointed out the Avalos home to Davis
earlier in the day and also testified that Davis and Britt were
at the Avalos home at the time the murders took place. One
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witness made an unsolicited comment that Davis had previ-
ously been in prison. Another witness’ testimony differed
substantially from her earlier deposition testimony regarding
incriminating statements made by Davis about the murders.
On both occasions, Davis moved for a mistrial. The district
court denied both motions.
Davis was convicted of three counts of first degree mur-
der and three counts of use of a deadly weapon to commit a
felony, and he was sentenced to three life sentences and 75
to 90 years’ imprisonment. Davis now appeals. We determine
that the district court did not abuse its discretion in overruling
Davis’ two motions for mistrial and that the verdicts were not
based on evidence that was insufficient to prove Davis guilty
beyond a reasonable doubt.
II. BACKGROUND
1. Murders
On July 9, 2012, Avalos and two of his sons were killed
inside Avalos’ home in Omaha. All three had been shot mul-
tiple times and died as a result of their wounds. Avalos’ oldest
son was in the house in a downstairs bedroom with his wife
and child at the time the three were shot upstairs. He testified
that he woke up to the sound of gunshots at approximately 3:45
a.m. He locked the door to the bedroom and called the 911
emergency dispatch service, remaining on the telephone until
police arrived. Police observed signs of forced entry at one of
the entrances to the residence. Inside Avalos’ bedroom within
the residence, police discovered methamphetamine and over
$5,000 in cash. A defaced .40-caliber semiautomatic pistol was
also found in the residence.
The State alleges that the three victims were killed by Davis
and Britt during an attempted robbery. Logemann testified that
he had orchestrated the robbery. Logemann and Avalos were
both drug dealers, and Logemann believed Avalos was an easy
target. Logemann had previously tried to eliminate Avalos as
a competitor by assisting the Omaha Police Department in
making controlled drug buys from Avalos. In exchange for
his testimony at trial, Logemann was granted use immunity
and not charged with the murders. Logemann was charged
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with criminal conspiracy to commit robbery, a Class II felony.
Logemann admitted to lying to the detectives the first time
he spoke with them about the murders, but testified that he
told the detectives everything he knew the second time he
was interviewed.
Logemann testified that on July 8, 2012, he offered to show
Davis where Avalos lived. Davis contacted Crystal Branch,
an acquaintance, and asked for a ride. Branch then asked her
roommate, Charice Jones, if she would be willing to give
Davis a ride. Jones agreed. Branch and Jones drove in Jones’
vehicle to Davis’ apartment in Council Bluffs, Iowa. According
to both Branch and Jones, the two picked up Davis and the
group then picked up Logemann.
Branch and Jones both testified that Logemann had Jones
drive past the Avalos residence and that Logemann pointed
out which house belonged to Avalos. While in the vehicle,
neither Branch nor Jones heard anyone mention a poten-
tial robbery. According to Branch and Jones, Logemann told
them that Logemann saw his sister outside of Avalos’ house.
Logemann’s sister, who purchased drugs from Avalos, testified
that she was at Avalos’ home on the evening of July 8, 2012,
and had observed a “weird dark colored truck” slowly drive by
the residence.
Davis, Britt, Branch, and Jones then returned to Jones and
Branch’s residence. The group remained there until approxi-
mately 2 a.m. Branch testified that Davis then told her,
“[O]kay we can go now, the guy’s home.” After stopping for
gas, Jones drove Davis, Britt, and Branch back to the Avalos
residence in her vehicle. Jones parked the vehicle “a block or
two away” from the house. Davis and Britt both exited the
vehicle, while Jones and Branch waited inside the vehicle.
Both Jones and Branch testified that they believed the two
men were going to Avalos’ house to purchase more drugs.
After approximately 20 minutes, Davis and Britt returned to
the vehicle. Branch testified that she saw Davis running back
to the vehicle and that Britt came back to the vehicle a few
minutes after Davis. Britt was wearing all black and had a
handkerchief over his face. Davis had on jeans and a light-
colored T-shirt.
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At approximately 4 a.m., Davis called Tiaotta Clairday, his
ex-girlfriend, several times before she finally answered the
telephone. Davis told Clairday that he “really needed” her to
pick him up. Clairday testified that Davis sounded nervous.
When Clairday arrived, Davis got in the front seat of the vehi-
cle. Clairday testified that Davis admitted to robbing a house
and that Davis and the person he was with “just started shoot-
ing” when they saw someone coming down the hall. Davis
informed Clairday that Britt needed to come along with them
too, because Britt had a gun. After Britt got into the vehicle,
Britt handed a .22-caliber revolver to Clairday.
Clairday, Davis, and Britt then drove to Larry
Lautenschlager’s apartment in Council Bluffs. Lautenschlager
is another acquaintance of Clairday and Davis. Clairday tes-
tified that she gave the gun to Lautenschlager and told him
to get rid of it. Clairday then had a private conversation
with Davis inside the bathroom of Lautenschlager’s apartment.
Clairday testified that Davis told her that “some people got
shot and that he didn’t want [Clairday] by [Britt] by [herself].”
After Davis and Clairday left the bathroom, Clairday testified
that she observed Britt outside the apartment burning a pair of
gloves on the grill.
Davis also allegedly spoke to Logemann about what had
occurred. Logemann testified that shortly after the murders,
Davis told him that Britt “started flipping out” and began fir-
ing his weapon in the hallway of the house. However, Davis
gave a different account to Logemann the following day and
denied any involvement. Logemann testified that he received a
text from Davis the next day “[s]aying that nothing took place
[the day before] because his girlfriend found him with another
woman.” Several days after the incident, Logemann testified
that Davis “wanted to know if [Logemann had] heard anything
about a gun being dropped at the scene” and that Davis “was
worried about his DNA being on the gun.”
Clairday testified that several days later, she and
Lautenschlager drove out to a concrete mill near Ashland,
Nebraska, and put the revolver in a culvert, although
Lautenschlager denied helping dispose of the gun. The revolver
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was eventually discovered by police in the exact place where
Clairday had told police it was located.
Investigators with the Omaha Police Department crime
laboratory testified that both .22- and .40-caliber bullets were
recovered from the victims’ bodies and from inside Avalos’
house. The investigators testified that the .22- and .40-caliber
bullets were consistent with having been fired from the same
models of both the .22-caliber revolver and .40-caliber semi-
automatic pistol, respectively, which were recovered by police.
However, due to the condition of the bullets, the evidence was
inconclusive to establish that the bullets had actually been
fired specifically from those two firearms.
On August 20, 2012, Davis was arrested and charged with
three counts of first degree murder and three counts of use of a
deadly weapon to commit a felony. Davis’ jury trial began on
February 24, 2014.
2. Davis’ Motions for Mistrial
Davis’ first motion for mistrial occurred during Branch’s
testimony. During her testimony, Branch made a reference
to Davis’ having previously been in prison. While on direct
examination from the State, the following exchange occurred:
“Q. Now, you had stated earlier that you had met . . . Davis
when you were teenagers? A. Correct. Q. And you had been
pen pals? A. Correct. He was writing me. When he got sen-
tenced to prison, he was . . . .” Davis promptly objected, and
the district court sustained the objection. The district court then
admonished the jury, instructing the jury to disregard Branch’s
last answer “in its entirety.” Branch never explained why Davis
was in prison or how long Davis was incarcerated.
Davis then moved for a mistrial. Davis did not argue that
the State was trying to intentionally elicit the information
about Davis’ previous incarceration from Branch, but that
it was impossible for “the bell [to] be unrung” now that the
information had been revealed to the jury. Counsel for the
State explained that he had previously admonished Branch not
to provide any extraneous information in her answers, but did
not tell Branch specifically not to mention Davis’ previous
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incarceration. The district court determined that the admon-
ishment to the jury was sufficient to cure any prejudice and
denied the motion for mistrial.
Davis moved for a mistrial a second time during Clairday’s
testimony. Portions of Clairday’s trial testimony were appar-
ently inconsistent with her deposition testimony, as reflected
by Davis’ questions on cross-examination. Clairday’s deposi-
tion testimony was never entered as an offer of proof, and the
deposition testimony is not included in the appellate record.
On cross-examination, Davis did, however, question Clairday
about several of her prior inconsistent statements. During
her deposition testimony, Clairday stated that Davis told
Clairday that “some people were hurt, something happened
that shouldn’t have happened,” but Clairday denied that Davis
had made any other statements about the attempted robbery or
the murders. On cross-examination, Clairday admitted that her
testimony at trial was different from her testimony in her depo-
sition. Clairday explained that she was not trying to be decep-
tive in her deposition testimony, but that at the time of the
deposition, she simply did not remember some of the details
recited at trial. Clairday testified that she had been a user of
methamphetamine, that she had been under the influence of
methamphetamine at the time she spoke with Davis about the
incidents, and that she has memory problems, especially when
she is nervous.
After it became clear that Clairday’s testimony differed
from her previous deposition testimony, Davis moved for a
mistrial. Davis argued that there had been a discovery viola-
tion, alleging that in Clairday’s deposition testimony, “there’s
only one occasion where [Clairday] attributes a statement
similar to that to [Davis] under oath.” Therefore, according
to Davis, Clairday must have communicated with the State at
some point after her deposition and the State failed to “advise
us of incriminating statements of [Davis] when they [knew]
them to be available.” The State strongly denied having any
meetings with Clairday after the deposition and stated that
it “did not have any other information aside from everything
that’s been provided by this witness in her previous statements,
nothing different from meetings.” The district court overruled
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the motion, because Davis was “effectively cross-examining”
Clairday on the inconsistencies between her deposition and
trial testimony.
3. Convictions and Sentences
The jury found Davis guilty on all charges, and the district
court accepted the verdicts. Davis was sentenced to a total of
three life sentences and 75 to 90 years’ imprisonment. Davis
now appeals.
III. ASSIGNMENTS OF ERROR
Davis assigns that the district court erred in (1) denying
Davis’ motions for mistrial and (2) supporting verdicts based
on evidence insufficient to prove Davis guilty beyond a reason-
able doubt.
IV. STANDARD OF REVIEW
[1] Whether to grant a mistrial is within the trial court’s dis-
cretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.1
[2] In reviewing a claim that the evidence was insufficient
to support a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of wit-
nesses, or reweigh the evidence; such matters are for the finder
of fact, and a conviction will be affirmed, in the absence of
prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support
the conviction.2
V. ANALYSIS
1. Denial of Motions for Mistrial
(a) First Motion for Mistrial
Davis first moved for a mistrial after Branch mentioned that
Davis had previously been in prison. Reference to Davis’ prior
conviction was likely impermissible under both Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2014), and
1
State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014).
2
State v. Sing, 275 Neb. 391, 746 N.W.2d 690 (2008).
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834 290 NEBRASKA REPORTS
Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
Davis immediately objected to Branch’s testimony, and the
district court sustained the objection and admonished the jury
to disregard Branch’s previous answer. Davis argues that the
prejudice from Branch’s answer could not be cured by admon-
ishment and that the district court abused its discretion in fail-
ing to grant a mistrial.
[3-5] A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial which is of such
a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial.3 An admonishment of the jury is typically sufficient to
cure any prejudice. Error cannot ordinarily be predicated on
the failure to grant a mistrial if an objection or motion to strike
the improper material is sustained and the jury is admonished
to disregard such material.4 Therefore, Davis faces the burden
of proving that “he was actually prejudiced” by the alleged
errors and not merely that “‘the errors . . . created a possibility
of prejudice.’”5 When determining whether an alleged error is
so prejudicial as to justify reversal, courts generally consider
whether the error, in light of the totality of the record, influ-
enced the outcome of the case.6
[6] In some cases, the damaging effect of an event dur-
ing trial may be such that it “cannot be removed by proper
admonition or instruction to the jury and thus prevents a
fair trial.”7 Fleeting, unsolicited remarks by a witness regard-
ing the defendant’s previous crimes or time spent in prison,
however, are not typically the type of errors that cannot be
cured by admonishment. In State v. Lotter,8 we held that an
3
State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
4
State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
5
Id. at 710, 715 N.W.2d at 546-47.
6
Id. (citing U.S. v. Wheeler, 322 F.3d 823 (5th Cir. 2003); Hester v. BIC
Corp., 225 F.3d 178 (2d Cir. 2000); State v. Wildenberg, 573 N.W.2d 692
(Minn. 1998); State v. Lyons, 951 S.W.2d 584 (Mo. 1997)).
7
State v. Kibbee, 284 Neb. 72, 102, 815 N.W.2d 872, 896 (2012).
8
State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on denial
of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999).
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admonishment was sufficient to cure any prejudice when a wit-
ness testified that she had previously gone to Missouri to bail
the defendant out of jail. In State v. Robinson,9 we determined
that a reference to the defendant’s involvement in prior gang-
related crimes, accompanied with an admonishment, did not
result in actual prejudice.
[7] There is nothing in the record to suggest that Branch’s
reference to Davis’ previous time in prison influenced the
outcome of the case. Branch’s testimony was cut off before
she revealed the crime or the length of the sentence. We must
also assume that the jury followed the district court’s instruc-
tion and disregarded the answer. “[E]ven though it is hard to
‘unring the bell’ in certain instances, absent evidence to the
contrary, it is presumed that a jury followed the instructions
given in arriving at its verdict.”10 It cannot be said that this
single mention of Davis’ prior conviction influenced the jury
to such a degree that the entire outcome of the case is now
tainted. The district court did not abuse its discretion in deny-
ing Davis’ motion for mistrial.
(b) Second Motion for Mistrial
[8,9] Davis moved for a mistrial a second time after
Clairday’s testimony allegedly differed substantially from her
deposition testimony. Davis alleged that the State had com-
mitted a discovery violation when it withheld incriminating
statements attributed to Davis. Prior to trial, Davis properly
requested the State to disclose “[a]ny and all admissions,
statements, confessions or other inculpatory or exculpatory
statements or admissions it has procured from [Davis] or any
other person relative to this case.” After a proper request by
the defendant, the State is required to disclose all material
information.11 The failure of the State to disclose such informa-
tion could potentially impact the defendant’s ability to receive
a fair trial to such a degree that a mistrial may be necessary.12
9
Robinson, supra note 5.
10
State v. Daly, 278 Neb. 903, 933, 775 N.W.2d 47, 71 (2009).
11
See State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
12
See id.
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Davis argues that the State committed a discovery violation
and that the district court abused its discretion in overruling
Davis’ motion for mistrial.
The record before us on appeal, however, presents no evi-
dence that a discovery violation occurred. There is no other
evidence to suggest that Clairday actually had any undis-
closed contact with the State. In fact, Clairday’s testimony at
trial appeared to be a surprise to the State’s counsel as well.
During a sidebar, counsel for the State adamantly denied
knowing Clairday would testify about additional incriminat-
ing statements. We find no reason to disagree with the dis-
trict court’s determination that no prosecutorial misconduct
had occurred.
Even if prosecutorial misconduct did occur, the extent to
which Davis was actually prejudiced is unclear. We have no
way of determining how Clairday’s deposition testimony actu-
ally differed from the hypothetical undisclosed statements.
Clairday’s deposition testimony is not included in the record
on appeal; the deposition testimony can only partially be
adduced from Davis’ questions on cross-examination. And, as
the district court correctly noted, Davis was able to effectively
cross-examine Clairday on her prior inconsistent statements.
Davis pointed out several instances where Clairday’s story had
changed between when Clairday initially spoke with police,
testified at the deposition, and finally testified at trial. The dis-
trict court did not abuse its discretion in denying Davis’ motion
for mistrial.
Davis’ first assignment of error is without merit.
2. Sufficiency of Evidence
[10,11] Davis assigns that the district court erred in sup-
porting a verdict based on insufficient evidence. The rel-
evant question for an appellate court is whether, after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.13 As with any
sufficiency claim, regardless whether the evidence is direct,
13
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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circumstantial, or a combination thereof, an appellate court
does not resolve conflicts in the evidence, pass on the cred-
ibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact.14
Davis was convicted on three counts of first degree mur-
der and three counts of use of a deadly weapon to commit a
felony. Under the felony murder rule, a person is guilty of first
degree murder “if he or she kills another person . . . (2) in
the perpetration of or attempt to perpetrate . . . robbery . . . or
burglary.”15 The elements of the deadly weapon charge simply
required the State to prove that Davis used a firearm or other
weapon to commit a felony.16 That charge is separate and dis-
tinct from the underlying felony.17
The prosecution presented a significant amount of evidence
from multiple witnesses to establish that Davis was involved
in the robbery attempt that led to the murders. The orchestra-
tor of the robbery, Logemann, testified about Davis’ involve-
ment. Logemann testified that he pointed out Avalos’ home to
Davis the evening of the robbery attempt and murders. Two
other witnesses corroborated this portion of Logemann’s tes-
timony. The same two witnesses also testified that Davis and
Britt were at the scene of the crime at the approximate time
the murders occurred.
In addition, Clairday and Logemann both testified to state-
ments and actions by Davis, after the murders, which indi-
cated his involvement. Clairday testified that shortly after the
murders occurred, Davis admitted to having taken part in the
murders. Clairday also testified that she took a .22- caliber
revolver from Davis and Britt and hid the weapon near
Ashland. That revolver was later recovered by the police in
the area Clairday described. The revolver was consistent with
bullets found at the scene of the crime. Logemann testified
that Davis admitted to being involved in the murders, but that
14
State v. Norman, 285 Neb. 72, 824 N.W.2d 739 (2013).
15
Neb. Rev. Stat. § 28-303 (Reissue 2008).
16
Neb. Rev. Stat. § 28-1205 (Cum. Supp. 2014).
17
§ 28-1205(3).
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Davis recanted the next day. At trial, Logemann also recalled
a conversation he had with Davis several days after the mur-
ders about the possibility of a gun being left at the scene.
Logemann testified that Davis was concerned that through
DNA evidence, investigators would be able to link the gun
to Davis as the shooter. The .40-caliber semiautomatic pistol
abandoned at the site of the murders was consistent with bul-
lets recovered from the scene.
The prosecution presented a significant amount of evidence
to establish Davis’ involvement at every step, from the plan-
ning stage of the robbery to the actual robbery attempt and
murders, to disposing of one of the murder weapons, and to
Davis’ incriminating statements after the murders occurred.
The evidence was sufficient such that a rational trier of fact,
viewing the evidence in a light most favorable to the prosecu-
tion, could find that Davis was guilty of all charges beyond a
reasonable doubt.
Davis’ second assignment of error is without merit.
VI. CONCLUSION
We affirm Davis’ convictions and sentences.
Affirmed.