State v. Green ( 2014 )

Nebraska Advance Sheets
212 287 NEBRASKA REPORTS
State of Nebraska, appellee, v.
Jamey R. Green, appellant.
___ N.W.2d ___
Filed January 17, 2014. No. S-13-222.
1. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a
statute is a question of law, regarding which the Supreme Court is obligated to
reach a conclusion independent of the determination reached by the trial court.
2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
3. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
4. Motions for Mistrial: Appeal and Error. Whether to grant a motion for mistrial
is within the trial court’s discretion, and an appellate court will not disturb its
ruling unless the court abused its discretion.
5. Constitutional Law: Statutes. In a challenge to the overbreadth and vagueness
of a law, a court’s first task is to analyze overbreadth.
6. ____: ____. An attack on the overbreadth of a statute asserts that language in the
statute impermissibly infringes on a constitutionally protected right.
7. ____: ____. A statute may be unconstitutionally overbroad only if its overbreadth
is substantial, that is, when the statute would be unconstitutional in a substantial
portion of the situations to which it is applicable.
8. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient definite-
ness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.
9. Constitutional Law: Statutes: Legislature: Notice. The more important aspect
of the void-for-vagueness doctrine is not actual notice, but the requirement that a
legislature establish minimal guidelines to govern law enforcement.
10. Constitutional Law: Statutes: Standing. To have standing to assert a claim
of vagueness, a defendant must not have engaged in conduct which is clearly
prohibited by the questioned statute and cannot maintain that the statute is vague
when applied to the conduct of others.
11. ____: ____: ____. A court will not examine the vagueness of the law as it might
apply to the conduct of persons not before the court.
12. ____: ____: ____. The test for standing to assert a vagueness challenge is the
same whether the challenge asserted is facial or as applied.
13. Appeal and Error. In order to be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the brief of the
party asserting the error.
14. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution protects against unreasonable searches and seizures.
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15. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
searches and seizures are per se unreasonable under the Fourth Amendment, sub-
ject only to a few specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.
16. Warrantless Searches: Search and Seizure: Probation and Parole. The U.S.
Supreme Court has recognized that there is an exception to the warrant require-
ment for searches and seizures when special needs, beyond the normal need for
law enforcement, make the warrant and probable cause requirements impracti-
cable. A probation setting is an example of such a special need.
17. Constitutional Law: Warrantless Searches: Probation and Parole. Conditions
in probation orders requiring the probationer to submit to warrantless searches, to
the extent they contribute to the rehabilitation process and are done in a reason-
able manner, are valid and constitutional.
18. Search and Seizure: Probation and Parole: Police Officers and Sheriffs. Law
enforcement may conduct probation searches of probationers so long as law
enforcement is acting under the direction of a probation officer.
19. Entrapment: Jury Instructions. When a defendant raises the defense of
entrapment, the trial court must determine, as a matter of law, whether the
defendant has presented sufficient evidence to warrant a jury instruction on
entrapment.
20. Constitutional Law: Criminal Law: Entrapment: Words and Phrases. The
entrapment defense is not of constitutional dimension. In Nebraska, entrapment
is an affirmative defense consisting of two elements: (1) the government induced
the defendant to commit the offense charged and (2) the defendant’s predisposi-
tion to commit the criminal act was such that the defendant was not otherwise
ready and willing to commit the offense.
21. Entrapment: Evidence: Proof. The burden of going forward with evidence of
government inducement is on the defendant. In assessing whether the defendant
has satisfied this burden, the initial duty of the court is to determine whether there
is sufficient evidence that the government has induced the defendant to commit a
crime. The court makes this determination as a matter of law, and the defendant’s
evidence of inducement need be only more than a scintilla to satisfy his or her
initial burden.
22. Criminal Law: Entrapment: Estoppel. The defense of entrapment by estoppel
consists of four elements: (1) the defendant acted in good faith before taking
any action; (2) an authorized government official, acting with actual or apparent
authority and who had been made aware of all relevant historical facts, affirm­
atively told the defendant that his or her conduct was legal; (3) the defendant
actually relied on the statements of the government official; and (4) such reliance
was reasonable.
23. Entrapment: Estoppel: Proof. The same burdens apply for the defense of
entrapment by estoppel as do for traditional estoppel.
24. Entrapment: Intent. Nebraska has adopted the “origin of intent” test for entrap-
ment: If the intent to commit the crime charged originated with the government
rather than the defendant, the defendant was entrapped.
25. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecu-
torial misconduct in closing arguments, a court first determines whether the
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prosecutor’s remarks were improper. It is then necessary to determine the extent
to which the improper remarks had a prejudicial effect on the defendant’s right to
a fair trial.
26. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred.
27. 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.
28. Criminal Law: Trial: Prosecuting Attorneys: Juries. It is highly improper and
generally prejudicial for a prosecuting attorney in a criminal case to declare to the
jury his or her personal belief in the guilt of the defendant, unless such belief is
given as a deduction from evidence.
29. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: 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.
30. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abate-
ment is cured by a subsequent finding at trial of guilt beyond a reasonable doubt
which is supported by sufficient evidence.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
Christopher Eickholt for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
I. INTRODUCTION
Jamey R. Green was convicted of possession of a deadly
weapon by a prohibited person and was sentenced to 2 years’
probation. He appeals. We affirm.
II. BACKGROUND
Green was convicted in 2007 of several felonies in Minnesota
for which he was serving probation. Green and the State of
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Minnesota applied with the State of Nebraska for a courtesy
supervision of Green’s probation. An investigation was con-
ducted by Karen Foster, a probation officer for the State of
Nebraska. That investigation included, among other things,
an August 29, 2011, visit by Foster to the home of Green’s
sister, where Green was planning to reside if the transfer
was approved. Following that investigation, Green’s transfer
request was granted.
On September 21, 2011, Green signed paperwork agreeing
to probation supervision by the State of Nebraska. At the time
Green signed this paperwork, he met with Leslie Van Winkle,
another probation officer. The courtesy supervision guidelines
agreed to by Green stated that he “[s]hall not be in possession
of any firearms or illegal weapons” and that he “[s]hall submit
to a search and seizure of premises, person, or vehicle by a
law enforcement officer or probation officer, with or without
a warrant, day or night, to determine the presence of alcoholic
beverages or controlled substances.” In addition, the transfer
application submitted by Green provided that both Green and
the Nebraska Office of Probation were bound by the conditions
of probation as set forth in the Minnesota order of probation.
Among other requirements, the Minnesota order of probation
provided that Green “shall submit to random searches of his
person, vehicle and residence.”
About a month later, Green was assigned a new probation
officer, Kristi Bender. Bender had previously been on mater-
nity leave, and Van Winkle had been helping with Bender’s
caseload during her absence. On October 20, 2011, Bender met
with Green at the probation office. In the month that followed
that meeting, Bender spoke with Green on the telephone on at
least one occasion.
On November 14, 2011, Bender and Foster conducted a sur-
prise home visit at Green’s home. While on the visit, Bender
asked to view Green’s bedroom. Upon being shown the room,
Bender and Foster noted a sword and knife collection lining
the walls of the bedroom. After returning to the office, Bender
spoke with a colleague who had law enforcement experience
to discuss whether Green was permitted to have the swords
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and knives. Based upon that conversation, Bender thought that
Green might have violated the law in possessing the swords
and knives, so she contacted the Lincoln Police Department.
The next day, after considering the matter and consulting with
others at the police department, Joshua Zarasvand, the officer
assigned to Bender’s call, determined that officers needed to
examine the collection to determine whether it was legal for
Green to possess it.
Zarasvand, along with several other uniformed officers, met
Bender at a location near Green’s home. Zarasvand reviewed
a copy of Green’s probation contract that was provided by
Bender. At that point, the group approached the front door of
the home. As part of the group was knocking on the front door,
Officer Dawn Moore noticed that the garage door was opening.
Moore and another officer approached the garage and found
Green and his mother.
Bender, Zarasvand, and Officer Steven Wiese then joined
Moore in the garage, and Bender informed Green that she
needed to conduct a search of his residence. Green, Bender,
Zarasvand, Moore, and Wiese then entered the home by the
side door and went directly to the basement.
Upon entering the basement, Bender testified that the sword
and knife collection was still set up as it had been the day
before. Zarasvand, Moore, and Wiese all testified to the pres-
ence of the sword and knife collection. Zarasvand then asked
Green if the swords and knives belonged to him; Green replied
that they did. Zarasvand then placed Green under arrest. It was
later determined that Green’s collection consisted of 46 various
swords and knives of differing quality, blade sharpness, and
blade length.
Green was charged in Lancaster County Court with viola-
tion of Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2012), posses-
sion of a deadly weapon by a prohibited person, a Class III
felony. Following a preliminary hearing, the charge was bound
over to the district court and an information was filed on
March 16, 2012.
On March 21, 2012, Green filed a plea in abatement alleging
that there was insufficient evidence adduced at the preliminary
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hearing to bind the case over to district court. The plea in
abatement was overruled on April 23.
On April 25, 2012, Green filed a motion to quash on the
ground that § 28-1206 and related statutes were unconstitution-
ally vague and overbroad. The motion to quash was overruled
on May 22. Green pled not guilty on June 6.
On August 15, 2012, Green filed motions to suppress the
searches of his residence on November 14 and 15, 2011,
along with all items observed in or seized from his residence
and any statements made by him during his contact with law
enforcement during the search and arrest on November 15. His
motions were overruled.
Trial was then held on December 10 and 11, 2012. Testimony
was given in accordance with the facts as stated above, includ-
ing a stipulation that Green was a convicted felon and testi-
mony that various knives from the collection had blades in
excess of 31⁄2 inches in length. In addition, Green testified in
his own behalf that he disclosed his sword and knife collection
on paperwork he had completed with probation in the pres-
ence of Van Winkle, but acknowledged that he did not verbally
inform her of the collection.
Green’s sister also testified. In her testimony, she stated that
the sword and knife collection was in place at the time that
Foster conducted her initial home visit and that she discussed
the collection with Foster insofar as she “asked her if [the col-
lection] would be okay.” Green’s sister testified that Foster
told her that “she didn’t see that [the collection] would be a
problem.” Green’s sister did not testify that she relayed this
information to Green.
In addition, a frequent visitor to Green’s home testified that
she was in the house in May 2011, prior to Green’s arrival
from Minnesota, and that the swords and knives were in place
at that time.
At the jury instruction conference, Green requested that
the jury be instructed on the defense of entrapment. The dis-
trict court refused the instruction. Closing arguments were
then held. During the State’s closing, the prosecutor stated
the following:
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Typically at this stage, I would tell you there are [sic] one
issue, maybe two that you have to decide, that we’re only
fighting about one or two things. But in this case I don’t
know what we’re fighting about.
The defendant admitted to you, under oath, every sin-
gle element of the crime that I have to prove in order for
you to find him guilty. . . . Green said that on the 14th
and 15th of November of 2011, he possessed a knife. He’s
admitted and stipulated that before that time he had been
convicted of a felony, and that this all occurred here in
Lancaster County, Nebraska. That’s it. That’s what I have
to prove to you and that’s what you have to find in order
to find him guilty. So I’m a little confused on why we’re
here and what’s the issue.
At this point, Green objected and moved for a mistrial, argu-
ing that “the prosecutor is arguing his personal opinion with
respect to the evidence in this case. He’s commenting on the
fact that we’re here in trial and he’s confused as to why we’re
having a trial.” The district court overruled the motion for mis-
trial, but instructed the jury that “it is improper for attorneys
to give their own personal opinions about the evidence and if
[the prosecutor] has done so, you are ordered to disregard his
personal opinions.”
Following closing arguments and jury instructions, the jury
retired to deliberate. About 90 minutes later, the jury returned
with a guilty verdict. Green was subsequently sentenced to 2
years’ probation. He appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Green assigns, restated and consolidated, that
the district court erred in (1) denying his motion to quash, (2)
denying his motions to suppress, (3) failing to instruct the jury
on entrapment, (4) denying his motion for mistrial, (5) finding
sufficient evidence to support his guilty verdict, and (6) deny-
ing his plea in abatement.
IV. STANDARD OF REVIEW
[1] The constitutionality of a statute is a question of law,
regarding which the Supreme Court is obligated to reach a
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conclusion independent of the determination reached by the
trial court.1
[2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.2
[3] Whether jury instructions given by a trial court are cor-
rect is a question of law.3
[4] Whether to grant a motion for mistrial is within the trial
court’s discretion, and an appellate court will not disturb its
ruling unless the court abused its discretion.4
V. ANALYSIS
1. Motion to Quash
In his first assignment of error, Green asserts that the
district court erred in denying his motion to quash. Green
argues that the felon in possession statute under which he was
charged, § 28-1206, and its definitional section, Neb. Rev. Stat.
§ 28-1201 (Cum. Supp. 2012), are unconstitutionally vague
and overbroad.
Section 28-1206(1) provides in relevant part that “[a]ny per-
son who possesses a firearm, a knife, or brass or iron knuckles
and who has previously been convicted of a felony . . . commits
the offense of possession of a deadly weapon by a prohibited
person.” Section 28-1201(5) defines knife as “any dagger, dirk,
knife, or stiletto with a blade over three and one-half inches in
length or any other dangerous instrument capable of inflicting
cutting, stabbing, or tearing wounds.”
1
State v. Prescott, 280 Neb. 96, 784 N.W.2d 873 (2010).
2
State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).
3
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
4
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
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[5] As a general rule, in a challenge to the overbreadth
and vagueness of a law, a court’s first task is to analyze
overbreadth.5
(a) Overbreadth
[6,7] An attack on the overbreadth of a statute asserts that
language in the statute impermissibly infringes on a constitu-
tionally protected right.6 A statute may be unconstitutionally
overbroad only if its overbreadth is substantial, that is, when
the statute would be unconstitutional in a substantial portion of
the situations to which it is applicable.7
Green argues that the statute is overbroad in that it “neces-
sarily prohibits every item with a blade exceeding three and
one-half inches” and “would seem to prohibit every sharp
object a person might have in his or her possession.”8
But Green overlooks the fact that the definition of “knife”
set forth in § 28-1201(5) does not prohibit the innocent pos-
session of a knife with a blade in excess of 31⁄2 inches. Rather,
the possession of such a knife is only a violation of the law
when the possessor, like Green, is a felon. Thus, the definition
of a knife acts together with the criminal liability set forth in
§ 28-1206(1) to prohibit the possession of a knife in a fairly
narrow set of circumstances—when that knife is possessed
by a felon. This does not infringe upon a substantial amount
of constitutionally protected conduct, but instead acts to deter
convicted felons from possessing dangerous weapons.9
Green’s argument that the statutes are overbroad is with-
out merit.
(b) Vagueness
[8,9] The void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definite-
ness that ordinary people can understand what conduct is
5
State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).
6
Id.
7
Id.
8
Brief for appellant at 29.
9
See State v. Jones, 198 N.J. Super. 553, 487 A.2d 1278 (1985).
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prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.10 The more important aspect
of the void-for-vagueness doctrine is not actual notice, but the
requirement that a legislature establish minimal guidelines to
govern law enforcement.11
[10-12] To have standing to assert a claim of vagueness, a
defendant must not have engaged in conduct which is clearly
prohibited by the questioned statute and cannot maintain that
the statute is vague when applied to the conduct of others.12
A court will not examine the vagueness of the law as it might
apply to the conduct of persons not before the court.13 The
test for standing to assert a vagueness challenge is the same
whether the challenge asserted is facial or as applied.14
Green lacks standing to assert that § 28-1206 is vague
because his conduct clearly violated the statute. The statute
prohibits the possession of a knife by a felon. And “[k]nife”
is defined in § 28-1201(5) to include a knife with a blade that
exceeds 31⁄2 inches in length. Green was undisputedly a felon;
the evidence presented at trial showed, Green admitted, and a
jury found, that Green was in possession of knives with blades
in excess of 31⁄2 inches as defined by the statute.
Green lacks standing, and therefore his argument that the
statutes are vague is without merit, as is his first assignment
of error.
2. Motions to Suppress
In his second assignment of error, Green assigns that the
district court erred in denying his motions to suppress and in
admitting the sword and knife collection and statements he
made to law enforcement at the time of the search.
[13] While Green assigns that his statements admitting that
the weapons were his should have been suppressed and he
restates that assignment in the facts section of his brief, he
10
State v. Faber, supra note 5.
11
Id.
12
Id.
13
Id.
14
Id.
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does not otherwise argue the inadmissibility of those state-
ments. As such, the admissibility of the statements will not
be discussed further. In order to be considered by an appel-
late court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting
the error.15
Green does not contest the validity of Bender and Foster’s
first entry into his home on November 14, 2011, and acknowl-
edges that once the officers were in his bedroom on November
15, the sword and knife collection was in plain view. But
Green contends the November 15 search was not done pursu-
ant to a warrant, does not fit within an exception to the warrant
requirement, and was not permitted by any condition of his
probation; as such, the fruits of that search—the sword and
knife collection—should be suppressed.
[14-17] The Fourth Amendment to the U.S. Constitution
protects against unreasonable searches and seizures. We have
stated that warrantless searches and seizures are per se unrea-
sonable under the Fourth Amendment, subject only to a few
specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.16 The U.S.
Supreme Court has recognized that there is an exception
to the warrant requirement for searches and seizures “when
‘special needs,’ beyond the normal need for law enforce-
ment, make the warrant and probable-cause requirements
impracticable.”17 A probation setting is an example of such a
special need.18 Moreover, this court has held that “conditions
in probation orders requiring the probationer to submit to war-
rantless searches, to the extent they contribute to the rehabili-
tation process and are done in a reasonable manner, are valid
and constitutional.”19
15
J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013).
16
State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).
17
Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 97 L. Ed. 2d 709
(1987).
18
Id.
19
State v. Morgan, 206 Neb. 818, 826-27, 295 N.W.2d 285, 289 (1980).
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In this case, Green’s Nebraska probation order allowed
for searches for drugs or alcohol at any time. Of course, the
search at issue was not done for the purposes of searching
for drugs and alcohol. Rather, the record is clear that proba-
tion and law enforcement were interested in examining the
sword and knife collection. But Green’s Minnesota probation
order included a broader search condition. Green argues that
the Nebraska order narrowed the terms of his probation, but
he provides no authority for his implicit assertion that the
Minnesota condition on searches was no longer applicable.
Indeed, the Nebraska order, which Green specifically agreed
to, provided that all terms of the Minnesota order must con-
tinue to be complied with. Thus, Green’s contention that the
conditions of his probation did not permit this search is with-
out merit.
And the search condition is reasonable and related to the
rehabilitative process. While no warrant was sought, there
was probable cause to obtain a warrant based upon Bender
and Foster’s viewing the sword and knife collection. In addi-
tion, the search was done during daylight hours, and the
police located Green before conducting the search and were
admitted into the home by Green. Given this context and the
presence of probable cause, the search of Green’s bedroom
was reasonable.
Green also argues that the search condition was not related
to the rehabilitative purposes of his probation because he was
not convicted of a weapons violation. But state law prohibits
all felons, regardless of the underlying felony, from possessing
a weapon,20 and Green’s probation order specifically noted that
he was not to possess illegal weapons. The search condition
is related to this prohibition.21 Green’s argument that there is
no definition of an illegal weapon is without merit, as state
law specifically sets forth the weapons which may not be pos-
sessed by a convicted felon.22
20
§ 28-1206.
21
See, e.g., State v. Davis, 6 Neb. Ct. App. 790, 577 N.W.2d 763 (1998).
22
§§ 28-1201 and 28-1206.
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Finally, Green argues that the search was illegal because
it was done by law enforcement “for the purpose of locating
and confiscating the alleged knives and swords in . . . Green’s
residence.”23 Green contends that the search “cannot be said to
be a probation search [because t]he matter was turned over to
law enforcement, whose members organized the search.”24
[18] We disagree that on these facts the search was not
a probation search. Law enforcement may conduct searches
of probationers so long as law enforcement is acting under
the direction of a probation officer.25 The Eighth Circuit has
noted that
[p]robation offices are neither designed nor staffed to
conduct these types of searches alone. . . . Probation offi-
cers often must bring law enforcement along to ensure the
probation officers’ safety. . . . In short, when a probation-
ary condition authorizes searches by probation officers,
the Fourth Amendment does not require probation officers
to choose between endangering themselves by search-
ing alone and foregoing [sic] the search because they
lacked the resources and expertise necessary to search
alone safely.26
Such was the case here. It was a probation officer, Bender,
who originally expressed concern about the collection, and
both Bender and Foster testified that because of safety con-
cerns, nothing was said to Green about the collection during
the home visit. Because of the probation office’s questions
about the legality of the collection, Bender ultimately con-
tacted law enforcement. Finally, Bender and her supervisor
were present during the search. Under these circumstances, we
conclude that the search of Green’s bedroom was done under
the direction of probation.
This result does not change because Green was ultimately
charged with being a felon in possession of a weapon rather
23
Brief for appellant at 36.
24
Id. at 34.
25
See, e.g., U.S. v. Warren, 566 F.3d 1211 (10th Cir. 2009); U.S. v. Newton,
369 F.3d 659 (2d Cir. 2004); U.S. v. Brown, 346 F.3d 808 (8th Cir. 2003).
26
U.S. v. Brown, supra note 25, 346 F.3d at 812.
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than with a probation violation.27 In the parole context, the
Second Circuit has stated that
[a] parole officer is charged with the duty of enforc-
ing these conditions. To hold that evidence obtained by
a parole officer in the course of carrying out this duty
cannot be utilized in a subsequent prosecution because
evidence obtained directly by the police in such a man-
ner would be excluded, would unduly immunize parolees
from conviction.28
We find this equally applicable to the probation context.
Green’s second assignment of error is without merit.
3. Entrapment
In his third assignment of error, Green contends that the
district court erred in not instructing the jury on the defense
of entrapment.
[19] When a defendant raises the defense of entrapment,
the trial court must determine, as a matter of law, whether the
defendant has presented sufficient evidence to warrant a jury
instruction on entrapment.29
[20-22] The entrapment defense is not of constitutional
dimension.30 In Nebraska, entrapment is an affirmative defense
consisting of two elements: (1) the government induced the
defendant to commit the offense charged and (2) the defend­
ant’s predisposition to commit the criminal act was such that
the defendant was not otherwise ready and willing to commit
the offense. The burden of going forward with evidence of
government inducement is on the defendant.31 In assessing
whether the defendant has satisfied this burden, the initial
27
See, Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975); United States ex rel.
Santos v. New York State Bd. of Par., 441 F.2d 1216 (2d Cir. 1971).
28
United States ex rel. Santos v. New York State Bd. of Par., supra note 27,
441 F.2d at 1218.
29
State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).
30
United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366
(1973).
31
State v. Kass, supra note 29.
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226 287 NEBRASKA REPORTS
duty of the court is to determine whether there is sufficient
evidence that the government has induced the defendant to
commit a crime.32 The court makes this determination as a
matter of law, and the defendant’s evidence of inducement
need be only more than a scintilla to satisfy his or her ini-
tial burden.33
[22,23] This court has also recently approved a variation
on the traditional entrapment defense. In State v. Edwards,34
we recognized the defense of entrapment by estoppel, which
consists of four elements: (1) the defendant acted in good
faith before taking any action; (2) an authorized government
official, acting with actual or apparent authority and who had
been made aware of all relevant historical facts, affirmatively
told the defendant that his conduct was legal; (3) the defend­
ant actually relied on the statements of the government offi-
cial; and (4) such reliance was reasonable. The same burdens
apply for the defense of entrapment by estoppel as do for
traditional estoppel.35
At trial, Green sought an instruction on traditional entrap-
ment. Specifically, Green proposed the following instruction:
The state must prove beyond a reasonable doubt that
. . . Green was not entrapped into committing the crime of
Possession of a Deadly Weapon by a Prohibited Person.
Entrapment means that:
1. The idea for committing the crime of Possession
of a Deadly Weapon came from a law enforcement offi-
cer; and
2. a law enforcement officer then talked or persuaded
. . . Green into committing the crime of Possession of
a Deadly Weapon by a Prohibited Person. Simply giv-
ing . . . Green the opportunity to commit the crime of
Possession of a Deadly Weapon by a Prohibited Person is
not the same as persuading him to commit it; and
32
Id.
33
Id.
34
State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).
35
Id.
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STATE v. GREEN 227
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3. . . . Green was not already willing to commit the
crime of Possession of a Deadly Weapon by a Prohibited
Person before a law enforcement officer talked to him.
In his brief on appeal, Green argues generally that there
was a scintilla of evidence to support an entrapment defense
because of the testimony of Green’s sister, who testified that
she asked Foster during the home check if Green could have
the sword and knife collection and that Foster told her that the
collection was permitted.
But Green now also notes the entrapment by estoppel
defense. From his brief on appeal, it is not clear which instruc-
tion he now argues he should have had: the traditional entrap-
ment instruction that he requested, or the entrapment by estop-
pel instruction mentioned in his brief. In his reply brief, Green
seems to more clearly suggest that the entrapment by estoppel
instruction was appropriate.
As an initial matter, we note that Green cannot predicate
error on the district court’s failure to give the entrapment by
estoppel instruction when it was not asked to give that specific
instruction. But in any case, Green is not entitled to an entrap-
ment by estoppel instruction based upon the record.
Here, Green bears the initial burden of showing, among
other elements, that he was affirmatively told that he could
possess the sword and knife collection. But there is no evi-
dence of that in the record. There is disputed evidence that
Green’s sister was told that Green could have the collection;
but Green’s sister is not Green. And there is no evidence that
Green’s sister ever communicated to Green that the collection
was permissible.
There is also evidence that Green reported the collection on
paperwork filed with the probation office and assumed that the
collection was permitted, because he was not told otherwise.
But this was not an affirmative statement from an authorized
government official, nor can Green produce the paperwork
where he allegedly disclosed this collection.
[24] And the traditional entrapment defense actually sought
at trial is also inapplicable in this situation. As noted above,
entrapment consists of two elements: (1) the government
induced the defendant to commit the offense charged and
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228 287 NEBRASKA REPORTS
(2) the defendant’s predisposition to commit the criminal act
was such that the defendant was not otherwise ready and will-
ing to commit the offense. Nebraska has adopted the “origin of
intent” test for entrapment: “If the intent to commit the crime
charged originated with the government rather than the defend­
ant, the defendant was entrapped.”36 Put another way,
entrapment is established where police officers or their
agents incited, induced, instigated, or lured the accused
into committing an offense that the person otherwise
would not have committed and had no intention of com-
mitting. It entails the conception and planning of an
offense by an officer and the procurement of its commis-
sion by one who would have not perpetrated it, except for
the officer’s trickery, persuasion, or fraud.37
Even assuming that Foster told Green’s sister that the col-
lection was permissible, there is no evidence that Foster was
attempting to trap Green into being a felon in possession of
a weapon. Green already owned the weapons. In fact, the
evidence suggests that Foster and the others at the probation
office were not even clear that the collection was in violation
of the law.
And as with the defense of entrapment by estoppel, because
no law enforcement officer told Green that he could have the
collection, and at most told only his sister, Green cannot prove
that a law enforcement officer “talked or persuaded” him into
possessing the collection.
Green’s third assignment of error is without merit.
4. Motion for Mistrial
In his fourth assignment of error, Green assigns that the
district court erred in denying his motion for mistrial. Green
asserts that comments made by the prosecutor during closing
argument were prejudicial and entitle him to a mistrial. Green
also argues that the prosecutor continued to make such com-
ments even after the court admonished the jury to disregard the
personal opinions of the prosecutor.
36
State v. Cain, 223 Neb. 796, 800, 393 N.W.2d 727, 731 (1986).
37
22 C.J.S. Criminal Law § 72 at 113-14 (2006).
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Cite as 287 Neb. 212
[25-27] Generally, in assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines
whether the prosecutor’s remarks were improper.38 It is then
necessary to determine the extent to which the improper
remarks had a prejudicial effect on the defendant’s right to a
fair trial.39 Before it is necessary to grant a mistrial for pros-
ecutorial misconduct, the defendant must show that a substan-
tial miscarriage of justice has actually occurred.40 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.41
[28] As an initial matter, it is not clear that the prosecu-
tor’s statements were improper. We have held that it is highly
improper and generally prejudicial for a prosecuting attorney in
a criminal case to declare to the jury his or her personal belief
in the guilt of the defendant, unless such belief is given as a
deduction from evidence.42 Here, the prosecutor indicated that
he did not know why there was a trial because, in his view,
there were no issues left for the jury to decide. The prosecutor
then pointed out, correctly, that Green had admitted to every
element that the State had to prove. So, while the prosecutor
might have referenced his personal beliefs, it appears that such
were a deduction from the evidence. Green further argues that
the prosecutor persisted in making such statements even after
the admonishment. But Green does not specifically direct us
to the statements which he now complains about, nor did he
object to them at the time.
38
State v. Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).
39
Id.
40
State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727.
41
Id.
42
State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled on other
grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998); State v.
Leonard, 196 Neb. 731, 246 N.W.2d 68 (1976); State v. Brooks, 189 Neb.
592, 204 N.W.2d 86 (1973).
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230 287 NEBRASKA REPORTS
But even assuming that the statements were improper, the
remarks were not so prejudicial as to require the granting of
a mistrial. The jury was admonished that the attorneys were
not permitted to give their personal opinions about the case
and that if the jury believed that the prosecutor had done so,
it should disregard those statements. A review of the clos-
ing arguments as a whole does not suggest that Green was
deprived of his right to a fair trial.
Green’s fourth assignment of error is without merit.
5. Plea in Abatement and
Sufficiency of Evidence
[29] In his fifth and final assignment of error, Green argues
that there was insufficient evidence to support his conviction.
In reviewing 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; such matters are for the finder
of fact.43
Green’s argument is primarily premised on the lack of evi-
dence presented that he intended to “threaten or cause harm to
anyone.”44 But there is no intent element for the crime of felon
in possession of a weapon.45 The jury concluded that the evi-
dence supported a finding of guilt because Green was a felon
and he possessed a knife with a blade in excess of 31⁄2 inches.
The State did not have to show, and the jury did not have to
find, that Green intended to harm anyone with a knife.
In this case, the parties stipulated that Green was a convicted
felon and Green admitted that the sword and knife collection,
found in his bedroom, was his. There was sufficient evidence
to support Green’s conviction.
[30] Green also contends that the district court erred in
denying his plea in abatement. He argues that there was insuf-
ficient evidence to bind his case over for trial. But any error
43
State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).
44
Brief for appellant at 10.
45
See § 28-1206(1).
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STATE v. GREEN 231
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in ruling on a plea in abatement is cured by a subsequent
finding at trial of guilt beyond a reasonable doubt which is
supported by sufficient evidence.46
Green’s fifth assignment of error is without merit.
VI. CONCLUSION
The decision of the district court is affirmed.
Affirmed.
46
State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).