Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/02/2023 09:07 AM CDT
- 385 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
State of Nebraska, appellee, v.
Ross S. Lorello III, appellant.
___ N.W.2d___
Filed June 2, 2023. No. S-22-412.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
2. Rules of Evidence: 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.
3. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence, and such
matters are for the finder of fact. The relevant 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 elements of the crime beyond a reasonable doubt.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a
question of law.
5. Trial: Rules of Evidence. A trial court exercises its discretion in determining whether evidence is relevant and whether its probative value is
outweighed by its prejudicial effect.
6. Evidence: Proof. The bar for establishing evidentiary relevance is not
a high one and requires only the probative value of the evidence to be
something more than nothing.
7. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
- 386 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
Jerry M. Hug, of Hug & Jacobs, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Ross S. Lorello III appeals after he was convicted and sentenced for first degree murder and use of a deadly weapon to
commit a felony. At Lorello’s jury trial, various forms of circumstantial evidence connected him to the shooting death of
a real estate agent whose body was found at a house the agent
had shown to Lorello the previous day. On appeal, Lorello
claims that the district court erred in admitting an exhibit that
included a split-screen video showing slowed footage of an
individual, whom no witness had identified at trial, walking,
alongside slowed footage of Lorello walking. Lorello argues
that the evidence was irrelevant and unfairly prejudicial.
He also asserts that the evidence at trial was insufficient to
support his convictions. And Lorello contends that his trial
counsel was ineffective in failing to investigate juror interactions with members of the victim’s family. Finding no error,
we affirm.
BACKGROUND
Not long after real estate agent Michael Sodoro was
reported missing, law enforcement found his body concealed
in a rental house he had shown to Lorello the day before.
- 387 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
Sodoro had died from a single gunshot wound to the back of
the head. The State charged Lorello with first degree murder
and use of a deadly weapon to commit a felony. See
Neb. Rev.
Stat. §§ 28-303 and 28-1205 (Reissue 2016). Lorello was tried
before a jury.
Lorello and Sodoro Meet at Rental House.
Evidence at Lorello’s jury trial established that Lorello and
his ex-girlfriend had two young children and were residing
temporarily with the ex-girlfriend’s father. The family had previously been evicted multiple times, and Lorello’s credit issues
had prevented him from leasing a residence.
Sodoro was an experienced real estate agent who had listed
a rental house that his son had recently purchased. Sodoro
and Lorello arranged to meet there for a showing at 6:15
p.m. on December 28, 2020. Lorello’s ex-girlfriend testified
that when Lorello, who did not have a vehicle of his own,
left her father’s house in her Ford Edge that day, Lorello was
wearing an orange sweatshirt her father had just given him.
There is no dispute that Lorello met Sodoro at the rental house
as arranged.
At 6:10 p.m., around the time the meeting between Sodoro
and Lorello was scheduled to occur, Sodoro spoke to Casey
Freyer, the former owner of the rental house. Freyer had passed
by the rental house and encountered Sodoro in his truck,
parked on the street. Freyer told Sodoro that he had a spare set
of keys for the rental house at his new residence nearby and
left to retrieve the keys. When Freyer returned to the rental
house at 6:19 p.m., he observed Sodoro’s truck, still parked on
the street and running, with no one inside. He also saw a small
Ford sport utility vehicle parked in the driveway, and he noted
partial license plate information that was consistent with the
Ford Edge that Lorello drove.
Seeing lights on in the rental house, Freyer went to the
front door and rang the doorbell. Freyer testified that he
saw shadows and motion and heard an individual come
- 388 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
down the steps of the split-level rental house and pass the
front door. Freyer recounted that a large man with dark hair
came out through the garage to meet him and introduced himself as the new tenant; the man wore an orange sweatshirt.
Other evidence at trial established that in December 2020,
Lorello was a large man with dark hair. Freyer also testified
that the man looked very similar to a photograph of an individual identified as Lorello that he later saw in news coverage, and Freyer identified Lorello, in court, as the person he
had seen on the news.
Freyer recalled that he told the man in the orange sweatshirt
he was looking for Sodoro and that the man responded that
Sodoro had “jumped in another vehicle with a son’s friend to
go look at another property somewhere in the area.” Freyer
said he would wait outside for Sodoro, and the man went back
inside the rental house. Freyer left after waiting for a few minutes. Freyer drove by the rental house a few more times that
evening and noticed that both vehicles were gone.
Lorello’s ex-girlfriend testified that Lorello arrived home
later than expected. He gave her $100 and showed her a contract for a house.
Sodoro’s Body Found in Rental House.
In the early morning hours of December 29, 2020, Sodoro’s
son reported Sodoro missing. Sodoro had not been heard
from or seen after his scheduled meeting at the rental house.
Soon after receiving the report, a law enforcement officer
located Sodoro’s truck a few blocks from the rental house.
Law enforcement personnel also searched the house. They
observed it to be extremely clean and “move-in ready,” with
some exceptions. In the kitchen and on the carpet of an adjacent room, they found red stains. Inside the kitchen pantry,
they found an orange sweatshirt with red stains. On the floor
in a bathroom, investigators found a contact lens and a button,
along with red stains on the bathtub. Freyer and his wife, the
previous owners of the rental house, had thoroughly cleaned
- 389 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
the house about 10 days before, as Sodoro had requested prior
to closing. They denied seeing the red stains and leaving the
orange sweatshirt, the contact lens, or the button.
An officer found Sodoro’s body in the attached garage, in
a crawl space underneath some steps. Partially unrolled pieces
of carpet and a box of spare flooring concealed the body from
view; Freyer and his wife testified that they had left the carpet neatly rolled. There was a gunshot wound on the back of
Sodoro’s head, consistent with being shot at close range. A
contact lens was missing from Sodoro’s left eye, and a button
was missing from his shirt; investigators determined that these
missing items were in the bathroom.
Investigation Focuses on Lorello;
Lorello Makes Statements.
Lorello waived his Miranda rights and was interviewed at
the sheriff’s office on the afternoon of December 29, 2020.
Lorello initially told officers that he was the new owner of
the rental house and showed them a rent-to-own agreement.
Officers later discovered that Lorello had not only the tenant’s
copy of the agreement, but also the real estate agent’s copy,
which Sodoro’s business associate testified “wouldn’t make
any sense” for a real estate transaction. The real estate agent’s
copy that Lorello had was in a large file folder that Sodoro’s
business associate testified had distinct characteristics consist
ent with Sodoro’s method of organizing lease agreements. On
each copy, Lorello’s signature was on the first page, but not on
the signature block on the last page.
During the interview at the sheriff’s office, Lorello admitted meeting Sodoro at the rental house about 6:15 p.m. the
day before to execute the rent-to-own agreement. Lorello said
that he paid Sodoro about $9,700 in cash for 6 months’ rent.
Lorello stated that at 6:45 p.m., a couple also interested in the
house arrived outside in a silver car, and Sodoro was either
picked up to meet someone else or left with the couple, leaving his truck running at the rental house. Lorello told officers
- 390 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
that about the same time, he left. However, Lorello reported
that before departing, he had a 10-minute conversation with
a bearded man in a lime-green shirt, who was looking for
Sodoro. At trial, Freyer testified that on December 28, 2020,
he had a beard and wore a high-visibility yellow sweatshirt.
Lorello claimed that the bearded man waited for Sodoro for a
few minutes while Lorello locked up the house, and then left.
Lorello said that shortly after, he too left, and that Sodoro’s
truck was still there, running.
Lorello also told officers that after leaving, he went to a
QuikTrip gas station and then realized that he left the rental
house without his new sweatshirt, a signature on the rental
agreement, or a receipt for his rent payment. He claimed
that he tried to call Sodoro to let him know, but Sodoro did
not answer. Contrary to Lorello’s statement, the call logs
on Lorello’s cell phone did not show a call to Sodoro after
6:45 p.m. Lorello said that he returned to the house, but
he saw neither his sweatshirt nor any sign of Sodoro, so he
left. Lorello denied ever driving Sodoro’s truck, but he told
officers that days before, Sodoro had driven him around the
neighborhood in his truck. At some point during the interview, Lorello was informed that Sodoro had been found dead
inside the rental house. Officers eventually released Lorello
at his workplace.
On the night of December 29, 2020, investigators searched
the house where Lorello lived with his ex-girlfriend and her
father. They discovered wet clothing in the washing machine:
two pairs of men’s blue jeans and a long-sleeved T-shirt. The
shirt was consistent with Lorello’s description of the shirt he
had worn the night before. Lorello’s ex-girlfriend testified that
this was odd, because Lorello did not typically wash his own
clothes—she did, and she had not washed those clothes.
Meanwhile, during conversations on the night of December
29 and the morning of December 30, 2020, Lorello told a
coworker and the coworker’s fiancée that police told him
that a real estate agent in the area had been shot with
- 391 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
a “.22.” Officers testified that when these conversations
occurred, the sheriff’s office had not told Lorello the caliber
of firearm used to shoot Sodoro, nor had that information
been obtained through an autopsy or released to the press.
Lorello also told them that he had an inoperable .22-caliber
weapon, that police found his sweatshirt on the victim’s body,
that Lorello met with the agent to rent a house, that other
people were present, that an argument broke out, and that
Lorello was innocent. Thereafter, Lorello was arrested, and
the investigation continued.
On December 30, 2020, investigators searched the Ford
Edge Lorello drove to meet with Sodoro. In the cupholder of
the Ford Edge, they found keys for the rental house; an additional key for the rental house was later found at Lorello’s
residence. In the Ford Edge’s trunk area, where the spare tire
was normally stored, they found a backpack that Lorello’s
ex-girlfriend identified as one Lorello took nearly everywhere he went. Inside the backpack they found loose
.22-caliber ammunition and an identification card for “ROSS
S LORELLO.” Beside the backpack was a .22-caliber revolver
handgun, wrapped in a towel.
The six-shot .22-caliber revolver contained five unfired cartridges and one spent shell casing, which a forensic technician
for firearms concluded had been fired by that revolver. The
forensic pathologist who conducted Sodoro’s autopsy testified
that it was possible that a .22-caliber firearm caused Sodoro’s
head wound, and the forensic technician for firearms opined
that the bullet fragments retrieved from Sodoro’s body were
of the same “general or class characteristics” as the bullets she
test-fired from the revolver found in the Ford Edge.
Print and DNA Evidence.
Investigators determined that Lorello’s handprints were
on the bathtub in the bathroom where Sodoro’s contact lens
and button were found. The fingerprint examiner testified
that they also identified a print from Lorello’s left index
- 392 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
finger “in the inside of” the interior driver’s-side door handle
of Sodoro’s truck, which Lorello told investigators he had
never driven.
Items from the investigation were also linked to Lorello
and Sodoro by DNA analysis. It indicated an extremely
high probability that the DNA profile found on the soles of
Lorello’s shoes originated from Lorello and Sodoro. DNA
profiles obtained from the revolver found in the Ford Edge
were linked to Lorello alone, with an extreme degree of likelihood. A sample from the bathtub bearing Lorello’s prints
tested positive for blood and generated a DNA profile to
which Lorello was extremely likely to be the major contributor, but there was not enough information to make conclusions about the minor contributor. The neckline of the orange
sweatshirt yielded a DNA profile to which Lorello and Sodoro
were extremely likely to be contributors. A red stain on the
orange sweatshirt tested positive for blood and produced a
single-source DNA profile that was extremely likely to have
originated from Sodoro.
Navigation Data and Video
Surveillance Evidence.
Investigators harvested navigation data from the Ford Edge
and video surveillance footage from the area of the rental
house and from the QuikTrip where Lorello had stopped.
That evidence showed that the Ford Edge arrived at the rental
house around 6:15 p.m., where Sodoro’s truck was already
parked on the street. It depicted Freyer stopping his truck next
to Sodoro’s truck and then leaving. At 6:16 p.m., Sodoro and
an individual from the Ford Edge entered the rental house.
Freyer returned and approached the rental house. The video
provided a view of an individual coming out of the garage.
The video showed Freyer remaining outside for a few minutes, then departing.
Surveillance video showed an individual exit the rental
house and leave in Sodoro’s truck. It also showed an individual,
- 393 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
whom no witness identified at trial, walking away from the
area where Sodoro’s truck was parked. The surveillance video
further showed an individual approach the rental house on foot
and enter it about 10 minutes after Sodoro’s truck drove away.
At 6:50 p.m. an individual exited the house and backed the
Ford Edge into the garage. The Ford Edge left the rental house
at 7:04 p.m.
The Ford Edge arrived at a QuikTrip at 7:17 p.m., where
surveillance video captured footage of a man identified as
Lorello by Lorello’s ex-girlfriend. Next, the Ford Edge left the
QuikTrip at 7:25 p.m., returned to the rental house for a short
time, and then departed again. It arrived back at the QuikTrip
at 7:52 p.m. The Ford Edge then traveled to another location
and eventually ended up at Lorello’s temporary residence.
Objection to Video Evidence in Exhibit 364.
Other video surveillance footage—exhibit 364—was the
subject of objections by Lorello. Exhibit 364 consisted of two
digital video files compiling clips from footage that the jury
had already viewed.
One file in exhibit 364 showed three separate video clips
in succession. All of the clips depicted video images of an
individual walking. Two of them were surveillance video
images from QuikTrip, identified as Lorello by Lorello’s
ex-girlfriend. One of the images was of an individual, whom
no witness identified at trial, walking away from the area
where Sodoro’s truck had been parked—and later discovered
by law enforcement—after being moved from the rental house
shortly before.
The other file in exhibit 364 was video evidence that had
been slowed by an investigator by about 50 percent. In a split
screen, it compiled slowed portions of the three videos from
the other file in exhibit 364 with an additional slowed video
clip. The additional slowed clip depicted another view of
an individual, whom no witness identified at trial, walking
- 394 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
away from the area where Sodoro’s truck was parked and
later found.
On the morning the investigator was scheduled to testify,
Lorello sought to exclude exhibit 364 by claiming that it
was irrelevant and that even if relevant, its probative value
was outweighed by the danger of unfair prejudice. The State
responded that exhibit 364 was “simply a guide for the
jurors to make their own determination if this is the same
individual and if the evidence as a whole shows that this is
[Lorello].” The district court ruled that it would admit exhibit
364 but stated that it would not allow opinion testimony about
the exhibit.
Emily Penry, the investigator who compiled the footage
in exhibit 364, testified on direct examination that she used
a software program to slow the split-screen videos by about
50 percent “to be able to compare it, easier to view, and then
compiled it so that it’s kind of in sequence.” She testified that
she did not create a “new video” but, rather, slowed down the
speed of the “[s]ame video.”
Lorello renewed his objection to exhibit 364 and lodged a
continuing objection, and the district court overruled it. Exhibit
364 was received and published to the jury.
On cross-examination, Penry confirmed that she had not
had “any training in walking gait” and was not “an expert in
walking gait.” Lorello elicited testimony that Penry did not
know exactly how much she reduced the speed in each of the
split-screen videos. The following exchange occurred:
Q. The idea behind reducing those videos was to align
them to one cadence, if you will, to be able to allow for
the jury to review this, correct?
A. Yes.
....
[Q.] When you slowed those down, I think the
idea behind it, correct me if I’m wrong, was to match
like right foot, left foot, right foot, left foot in each
video, correct?
- 395 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
A. Honestly, I was just doing it so you can kind of
compare that it appears—
Q. But you would agree . . . that you did modify each
and every one of those four videos from the original
video that was obtained from other deputies and given to
you, correct?
A. Yes.
....
Q. In order to do that, you took individual videos
and you’ve already placed them in and you were able
to manipulate that in order to make the walking gait
video, correct?
A. Yes. I was able to slow them down.
Q. Slow them down, okay.
On redirect, Penry clarified that she slowed down the videos,
which she did not consider manipulation. She explained, “I
was just basically slowing the video down to better observe
the video.”
Lorello Found Guilty and Sentenced.
The jury was instructed to decide whether Lorello had
intentionally used a firearm to kill Sodoro purposely and
with deliberate and premeditated malice. The jury found that
he had and, accordingly, found Lorello guilty of first degree
murder. It also found him guilty of use of a deadly weapon to
commit a felony. The district court accepted the verdicts and
sentenced Lorello to life imprisonment for the homicide and
47 to 50 years’ imprisonment for the weapon offense, to be
served consecutively. Represented by new counsel, Lorello
filed a timely appeal.
ASSIGNMENTS OF ERROR
Lorello assigns (1) that the district court erred in admitting
as evidence “manipulated video surveillance from multiple
sources in [an] attempt to match the walking pattern of the
individuals in those videos to a video depicting [Lorello]
- 396 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
walking” and (2) that the evidence was insufficient to support
his convictions of first degree murder and use of a weapon to
commit a felony.
Lorello also assigns that his trial counsel was ineffective in
failing to investigate his reports of a conversation in the courthouse between a juror and a member of Sodoro’s family and
of an instance when a member of the prosecutor’s office was
present for a conversation between a juror and a member of
Sodoro’s family.
STANDARD OF REVIEW
[1,2] The standard we generally apply on appeal when
reviewing decisions regarding issues of admissibility under
the rules of evidence is as follows: In proceedings where the
Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor
in determining admissibility. State v. Hill, 298 Neb. 675,
905
N.W.2d 668 (2018). 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.
Id.
[3] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence,
and such matters are for the finder of fact. State v. Bryant,
311 Neb. 206,
971 N.W.2d 146 (2022). The relevant 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 elements of the
crime beyond a reasonable doubt.
Id.
[4] Whether a claim of ineffective assistance of counsel may
be determined on direct appeal is a question of law. State v.
Miranda,
313 Neb. 358,
984 N.W.2d 261 (2023).
- 397 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
ANALYSIS
Admissibility of Video Evidence.
[5] Lorello claims that the district court erred in admitting
exhibit 364. In particular, he challenges the admission of the
split-screen portion of exhibit 364 that was slowed and that
showed two video images of Lorello walking at QuikTrip
alongside two video images of an individual, whom no witness
identified at trial, walking away from the area where Sodoro’s
truck was found. The images of the unidentified individual
were captured soon after the truck was moved from the rental
house. As he did at trial, Lorello contends on appeal that this
evidence was irrelevant and that even if it was relevant, it
was unduly prejudicial. A trial court exercises its discretion
in determining whether evidence is relevant and whether its
probative value is outweighed by its prejudicial effect. State
v. Bauldwin, 283 Neb. 678,
811 N.W.2d 267 (2012). On both
counts, we discern no abuse of discretion.
[6] We first address relevance. Under
Neb. Rev. Stat.
§ 27-401 (Reissue 2016), “[r]elevant evidence means evidence
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 evidence.”
The bar for establishing evidentiary relevance is not a high
one and requires only the probative value of the evidence to
be something more than nothing. State v. Abligo,
312 Neb.
74,
978 N.W.2d 42 (2022). See, also, State v. Tucker,
301
Neb. 856, 865,
920 N.W.2d 680, 688 (2018) (“[e]vidence is
relevant if it tends in any degree to alter the probability of a
material fact”).
Lorello’s brief contends simply that “the manipulated evidence was not relevant as it was not produced to make the
existence of any fact that is of consequence more or less probable.” Brief for appellant at 11. At oral argument, Lorello’s
counsel explained, “[S]lowing the video down to try to get
it to match . . . to try to [identify Lorello], which was
really the purpose of the exhibit, makes it irrelevant because
- 398 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
they’ve altered it, they have taken something that didn’t fit
and tried to make it fit.”
We understand Lorello to take the position that the slowed
footage in exhibit 364 was irrelevant because it could not be
probative of how Lorello and the unidentified individual truly
appeared on the night of the murder. We disagree. In other
exhibits, the jury viewed individually the same footage that
exhibit 364 compiled and presented at approximately half
speed. As Penry testified, the compiled and slowed footage
in exhibit 364 was the “[s]ame video” the jury had already
viewed; she had merely slowed the speed of the digital footage.
The parties do not identify any meaningful difference between
this and the slowing of an analog film video. Penry slowed the
apparent relative movement of each video; she did not create a
“new video.”
Rather than making something new, Penry arranged and
slowed existing footage to allow the jury a field of vision and
time to compare known images of Lorello walking—by which
the jury could observe his physique, clothing, and gait—to
images in which the subject had not been identified. This
could have aided the jury in deciding whether Lorello was the
person who moved Sodoro’s truck from the rental house to a
location a few blocks away. A finding that Lorello had moved
Sodoro’s truck would have bolstered the State’s theory that
Lorello killed Sodoro inside the rental house and then tried
to hide the crime. It would also have been inconsistent with
Lorello’s statement that he had never driven Sodoro’s truck,
thereby calling into question other statements Lorello had
made, such as his claims that Sodoro conducted a routine real
estate transaction with Lorello and then left the rental house
with someone else. Because exhibit 364 altered the probability
of material facts, we conclude that the district court did not
abuse its discretion in admitting exhibit 364 over Lorello’s
relevancy objection.
Alternatively, Lorello claims that even if the slowed footage
was relevant, it was unfairly prejudicial under Neb. Rev. Stat.
- 399 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
§ 27-403 (Reissue 2016), which provides for the exclusion of
relevant evidence when “its probative value is substantially
outweighed by the danger of unfair prejudice.” Lorello claims
that the slowed portion of exhibit 364 unfairly prejudiced
him because clips of Lorello walking and of the unidentified
individual walking were slowed to “match” step-for-step, to
prompt an “unfounded determination” that they depicted the
same person. Brief for appellant at 11.
Whether there was an effort to “match” the footage in the
exact manner Lorello posits is not so clear to us. On cross-examination, Penry agreed that “[t]he idea behind reducing
those videos was to align them to one cadence, if you will, to
be able to allow for the jury to review this . . . .” She stopped
short, however, of agreeing that “the idea behind [slowing
the videos] was to match . . . right foot, left foot, right foot,
left foot in each video,” answering instead that she “was just
doing it so you can kind of compare.” But even assuming
Lorello’s “match” characterization of the slowed compilation
in exhibit 364 is correct, we are not persuaded that it was
unfairly prejudicial.
We find guidance in Com. v. Cash,
635 Pa. 451,
137 A.3d
1262 (2016), an opinion of the Pennsylvania Supreme Court,
which rejected an argument, based on Pennsylvania’s “Rule
403,” that the trial court abused its discretion in admitting
slow-motion video evidence. Over objection, the jury in Cash
viewed video footage of a homicide in a first degree murder
trial. The video showed the events in “real-time” speed, but
certain portions were then repeated in slow motion at onetenth speed and clearly marked “‘SLOW MOTION.’”
Id.
at 475,
137 A.3d at 1275. After the video was played in its
entirety, it was shown again while an expert in forensic video
recovery analysis narrated to explain alterations he had made
to the speed of the footage or camera angles. The trial court
later instructed the jury that the video was admitted “‘for the
purpose of showing the nature of the wound received by the
decedent, showing the conditions at the scene of the crime
- 400 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
and helping [them] understand the testimony of witnesses who
referred to it.’”
Id. at 476,
137 A.3d at 1276. The trial court
cautioned the jurors that they “‘should not let [the video] stir
up [their] emotions to the prejudice of the defendant.’”
Id.
On appeal, the court in Cash found no abuse of discretion
in allowing the evidence. The court explained that the slow-motion portions
enhanced the jury’s understanding of the events surrounding the murder by allowing it to have a better view of
Appellant’s face, thereby establishing Appellant’s identity
as the perpetrator, and by giving it the opportunity to
observe that two shots had been fired from Appellant’s
gun, a detail which was not readily ascertainable when the
video was played at normal speed.
Id. at 478,
137 A.3d at 1277. The court reasoned that this probative value outweighed the potential for prejudice, because
the jury had viewed the footage at normal speed, the slow-motion footage was clearly marked, and the trial court specifically instructed the jurors of the footage’s limited purpose and
to guard against allowing it to inflame their passions.
Similarly, in this case, there were factors that prevented
the danger of unfair prejudice from substantially outweighing exhibit 364’s probative value. As we have explained, the
disputed portion of exhibit 364 was probative because it aided
the jury in comparing known footage of Lorello at QuikTrip,
including his physique, clothing, and manner of walking, to
footage of the unidentified individual walking away from
Sodoro’s truck. As in Cash, before viewing the compiled and
slowed clips in exhibit 364, the jury viewed the same footage individually and at “real-time” speed.
Id. at 475,
137
A.3d at 1275. Moreover, before exhibit 364 was published,
Penry explained to the jury that it was the “[s]ame video”
they had seen before, with only the speed slowed to allow
the jury “to be able to compare it” and to make it “easier
to view.” When the jury viewed exhibit 364, it was evident
that the images in the split-screen portion had been slowed.
- 401 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
Lorello had the opportunity to cross-examine Penry about
exhibit 364 and to elicit her testimony about any effort to
“match” the footage step-for-step. Considering the probative
value of the compiled and slowed footage and the way it was
presented to the jury, we conclude that the district court did
not abuse its discretion in admitting exhibit 364.
Sufficiency of Evidence.
We now turn to Lorello’s assertion that the evidence was
not sufficient to convict him of first degree murder and use
of a deadly weapon to commit a felony. These convictions are
based on the jury’s findings that Lorello had used a firearm to
kill Sodoro “purposely and with deliberate and premeditated
malice.” See §28-303(1). See, also, § 28-1205(1)(a). Lorello
does not dispute that there was sufficient evidence to show that
some person committed the elements of the crimes charged.
Lorello argues only that no rational trier of fact could conclude
that he was that person. We disagree.
Rather than demonstrating that the evidence presented
failed to establish his identity as Sodoro’s killer, Lorello
claims that the absence of certain evidence rendered the jury’s
verdicts irrational. For example, Lorello notes that there were
no eyewitnesses to the murder, that no testimony pinpointed
Sodoro’s time of death, and that incriminating print and DNA
evidence was not found at certain locations. But our standard
of review directs us to evaluate the evidence that was before
the jury, not an account of potentially incriminating facts that
were lacking: The relevant question is whether, after viewing the evidence presented 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.
See State v. Bryant,
311 Neb. 206,
971 N.W.2d 146 (2022).
See, also, State v. Stack,
307 Neb. 773, 789,
950 N.W.2d 611,
622 (2020) (rejecting notion that State must disprove every
hypothesis other than guilt of defendant whose brief “t[ook]
a selective view of the evidence, focuse[d] on other possible
- 402 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
explanations for [the victim’s] death, and characterize[d] the
investigation as incomplete”). Reviewed under this standard,
the evidence amply supports Lorello’s convictions. The State
presented abundant circumstantial evidence showing that
Lorello fatally shot Sodoro in an effort to secure housing and
then tried to conceal what he had done.
The evidence demonstrated that Lorello was having difficulty obtaining and maintaining housing for his family. Lorello,
his ex-girlfriend, and their two young children were temporarily living with the ex-girlfriend’s father. Lorello, wearing an
orange sweatshirt, drove his ex-girlfriend’s Ford Edge to meet
Sodoro for a showing of the rental house. Circumstantial evidence and Lorello’s own statements to officers established that
Lorello met with Sodoro as scheduled.
Shortly before the meeting, Freyer spoke to Sodoro as he
sat in his truck. Testimony and neighborhood surveillance
video showed that minutes after Sodoro and Lorello went
inside, Freyer came to the door looking for Sodoro, whose
empty truck sat running on the street. Circumstantial evidence
demonstrated that Lorello came out from the rental house
to speak to Freyer. Lorello told Freyer that Sodoro had left
the rental house with someone else, but that account was
not corroborated by surveillance footage. No one heard from
Sodoro or saw him alive after he entered the rental house
with Lorello.
Lorello came away from the meeting with keys for the
rental house and lease paperwork that was not consistent
with an ordinary real estate transaction involving Sodoro.
The lease agreement was partially signed, and Lorello had
an extra copy of the agreement that, in a typical transaction,
would have remained with Sodoro. The extra copy was in the
type of large file folder Sodoro usually used to organize his
paperwork.
The day after the meeting, law enforcement found Sodoro
dead inside the rental house. Physical evidence supported
the State’s theory that Lorello killed Sodoro there. Sodoro’s
- 403 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
body was concealed in the attached garage, underneath partially unrolled carpet that the previous owners had left neatly
rolled. He died from a single gunshot wound to the back of
the head. The wound was consistent with a gunshot at close
range. Inside the otherwise clean rental house, investigators found a button and a contact lens belonging to Sodoro,
near handprints identified as Lorello’s and blood extremely
likely to contain Lorello’s DNA. Investigators also found red
stains on the carpet and in the kitchen. Also in the kitchen,
they found an orange sweatshirt; DNA testing showed it
extremely likely that Lorello’s DNA was on the sweatshirt
and that blood on the sweatshirt was Sodoro’s. DNA, exceedingly likely to be Sodoro’s, was also detected on the soles of
Lorello’s shoes.
Additional evidence connected Lorello to the single bullet
that killed Sodoro. Investigators found a .22-caliber revolver
handgun in the Ford Edge Lorello drove. The forensic pathologist who performed Sodoro’s autopsy opined that it was
possible Sodoro was shot with a .22-caliber firearm, and a
forensic technician testified that the bullet fragments recovered from Sodoro were of the same general or class characteristics as the bullets she test-fired from the revolver discovered in the Ford Edge. That six-shot revolver contained five
unfired cartridges and one spent shell casing and bore DNA
that almost certainly belonged to Lorello. The revolver was
found next to Lorello’s backpack; inside the backpack was
.22-caliber ammunition. Before investigators had uncovered
any of this information, Lorello told others about a real estate
agent in the area who had been killed with a “.22.”
There was evidence that Lorello attempted to conceal his
involvement in Sodoro’s murder. Neighborhood surveillance
footage did not corroborate Lorello’s statements that Sodoro
left the rental house with someone else or that someone else,
other than Freyer, was present there. Instead, it depicted someone leaving the rental house, after Sodoro and the individual
from the Ford Edge had entered it, and moving Sodoro’s
- 404 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
truck several blocks away. The jury observed surveillance
video of that person walking away on foot. Lorello denied
driving Sodoro’s truck, but investigators found his fingerprint
“in the inside of” the interior door handle on the driver’s side.
Surveillance showed an individual enter the rental house,
where the Ford Edge was parked, minutes later. Call logs on
Lorello’s cell phone did not comport with his statement to
investigators that he called Sodoro after leaving the rental
house to inquire about the transaction and his forgotten
sweatshirt. Circumstantial evidence strongly suggested that
after Lorello returned home from meeting Sodoro, he washed
the clothes he had worn, a household chore he did not typically do.
Viewing the evidence in the light most favorable to the
prosecution, we conclude that a rational trier of fact could
have found beyond a reasonable doubt that it was Lorello
who used a firearm to commit first degree murder.
Ineffective Assistance of Counsel.
Represented by new counsel on appeal, Lorello assigns and
argues that his trial counsel was ineffective in failing to investigate two reports Lorello claims to have made: (1) an occasion when a juror and members of the victim’s family were
conversing in the courthouse and (2) another occasion during
trial where a member of the prosecutor’s office was present for a conversation between a juror and a member of the
victim’s family. Lorello claims that these incidents occurred
when he was being moved through the courthouse during trial
delays and that he informed his counsel, but no action was
taken. He contends that a lawyer with ordinary training and
experience would have investigated his allegations.
[7] An ineffective assistance of counsel claim is raised on
direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition
- 405 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. LORELLO
Cite as 314 Neb. 385
for postconviction relief to recognize whether the claim was
brought before the appellate court. State v. Miranda,
313 Neb.
358,
984 N.W.2d 261 (2023). We conclude that Lorello has
alleged this claim with sufficient particularity, but that we are
unable to resolve it upon this record.
CONCLUSION
For the reasons explained above, we affirm the judgment of
the district court.
Affirmed.
