State v. Osborne ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/10/2023 09:06 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. OSBORNE
Cite as 313 Neb. 726State of Nebraska, appellee, v.
Tony W. Osborne, appellant.
___ N.W.2d ___
Filed March 10, 2023. No. S-22-225.
1. Trial: Evidence. Whether there is sufficient foundation evidence for
the admission of physical evidence must necessarily be determined by
the trial court on a case-by-case basis.
2. Trial: Evidence: Appeal and Error. A trial court’s determination of
the admissibility of physical evidence will not ordinarily be overturned
except for an abuse of discretion.
3. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing 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 favor-
ably to the State, is sufficient to support the conviction.
4. Criminal Law: Trial: Evidence. Where objects pass through several
hands before being produced in court, it is necessary to establish a com-
plete chain of evidence, tracing the possession of the object or article
to the final custodian; and if one link in the chain is missing, the object
may not be introduced in evidence.
5. ____: ____: ____. Objects which relate to or explain the issues or
form a part of a transaction are admissible in evidence only when duly
identified and shown to be in substantially the same condition as at
the time in issue. It must be shown to the satisfaction of the trial court
that no substantial change has taken place in an exhibit so as to render
it misleading.
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STATE V. OSBORNE
Cite as 313 Neb. 7266. Evidence. Important in determining the chain of custody are the nature
of the evidence, the circumstances surrounding its preservation and cus-
tody, and the likelihood of intermeddlers tampering with the object.
7. Controlled Substances. Under the language of the criminal narcotics
statutes, possession may be either actual or constructive.
8. Words and Phrases. Actual possession is synonymous with physical
possession.
9. Evidence: Proof: Intent. Constructive possession may be proved by
mere ownership, dominion, or control over contraband itself, coupled
with the intent to exercise control over the same.
10. Evidence: Proof. Constructive possession may be proved by direct or
circumstantial evidence and may be shown by the accused’s proximity
to the item at the time of the arrest or by a showing of dominion over it.
11. Controlled Substances. Possession of a controlled substance means
either (1) knowingly having it on one’s person or (2) knowing of the
substance’s presence and having control over the substance.
12. Evidence: Proof. Mere presence at a place where the item in question is
found is not sufficient to show constructive possession.
13. Controlled Substances: Motor Vehicles: Evidence. Possession of an
illegal substance can be inferred from a vehicle passenger’s proximity
to the substance or other circumstantial evidence that affirmatively links
the passenger to the substance.
14. Controlled Substances: Evidence: Proof. Evidence that a defendant
had constructive possession of a drug with knowledge of its presence
and its character as a controlled substance is sufficient to support a find-
ing of possession and to sustain a conviction for unlawful possession.
Appeal from the District Court for Otoe County: Julie D.
Smith, Judge. Affirmed.
Keith M. Kollasch, of Kollasch Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Tony W. Osborne appeals his convictions in the district
court for Otoe County for possession of a controlled substance
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STATE V. OSBORNE
Cite as 313 Neb. 726with intent to deliver and for possession of a controlled sub-
stance without a tax stamp. Osborne claims that the district
court erred when it overruled his motion in limine and admit-
ted evidence, over objection at trial, including the controlled
substance that had been in the possession and under the control
of a Nebraska State Patrol evidence technician who was later
indicted for theft of controlled substances under her control.
Osborne also claims that there was not sufficient evidence to
support his convictions because the State failed to show that
the controlled substance was in his physical or constructive
possession. We affirm Osborne’s convictions.
STATEMENT OF FACTS
On March 2, 2021, Nebraska State Patrol Trooper Ashdonn
Nolte observed a traffic violation and initiated a stop of a red
Chevy Suburban. There were three occupants in the vehicle.
The driver was later identified as Wally Sellers, and the per-
son in the front passenger seat was later identified as Natasha
Borrego. Osborne was seated in the rear seat on the passen-
ger side.
Sellers initially gave Nolte a false name, but he was later
identified by use of a fingerprint device, and it was dis-
covered that he had outstanding warrants. After some resist­
ance by Sellers, Nolte placed Sellers under arrest based on
the warrants.
Additional law enforcement officers, including Nebraska
State Patrol Trooper Jamieson Brown and Otoe County Deputy
William Bushhousen, arrived to assist with the traffic stop.
Nolte had determined that neither Borrego nor Osborne had
a valid driver’s license, and he called for a tow truck. While
Nolte was processing the arrest of Sellers, Bushhousen asked
Borrego and Osborne to get out of the Suburban. Borrego
got out on the front passenger side and turned to collect her
personal items from inside the Suburban. As Osborne started
getting out on the rear passenger side and Borrego contin-
ued to retrieve her personal items, Bushhousen saw a black
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. OSBORNE
Cite as 313 Neb. 726sock falling and hitting the ground. Bushhousen picked up
the sock and saw that inside of it there were multiple plastic
baggies of a substance he thought to be methamphetamine.
Bushhousen handed the sock to Brown, who opened the sock
and observed multiple baggies containing what he also thought
to be methamphetamine. A field test completed by another
trooper and observed by Brown yielded a result that was posi-
tive for methamphetamine.
Both Borrego and Osborne denied ownership of the sock
and its contents, and Sellers also denied ownership. All three
were arrested and taken to the Otoe County jail on charges of
possession of methamphetamine. During searches at the jail,
Sellers and Borrego were both found to have methamphet-
amine on their persons. Sellers had a crystal substance in his
pocket, and Borrego admitted that she had hidden a baggie of
methamphetamine inside her vagina. No methamphetamine
was found on Osborne’s person during the traffic stop or dur-
ing a search at the jail.
Bushhousen initially thought that the sock had fallen from
Borrego’s person or her area of the vehicle because it landed
near her. However, after viewing video from his body camera,
Bushhousen determined that the sock had fallen from the rear
passenger side as Osborne was getting out of the vehicle. The
video was viewed by the district court and is included in the
record on appeal. Other evidence, some of which is discussed
later herein, led investigators to believe that the sock and its
contents had been in the possession of Osborne. The State
filed an information charging Osborne with possession of a
controlled substance with intent to deliver and possession of
a controlled substance without a tax stamp. The State also
charged Osborne with being a habitual criminal.
Prior to Osborne’s trial, Osborne’s attorneys learned that
Anna Idigima, a former employee of the Nebraska State Patrol
whose duties included having custody of evidence submitted
for forensic testing, had been charged with crimes involv-
ing evidence being held at the State Patrol evidence locker.
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STATE V. OSBORNE
Cite as 313 Neb. 726Idigima had been indicted in federal court on charges of con-
spiracy to distribute and possession with intent to distribute
controlled substances.
On December 9, 2021, Osborne filed a motion in limine in
which he sought an order preventing the State from seeking
admission of any evidence that had been under the control of
Idigima. Osborne alleged that Idigima had received evidence
related to his case on March 3, 2022, and that it was under her
control and custody prior to its transfer to the Nebraska State
Patrol Crime Laboratory (crime lab) on March 10. Osborne
alleged that it was his understanding that Idigima either would
not appear as a witness in this case or would invoke her Fifth
Amendment rights if questioned about evidence that had been
under her control. Osborne alleged that without testimony by
Idigima, the State would be unable to prove the complete chain
of custody for the evidence.
The district court held a hearing on Osborne’s motion in
limine on December 20, 2021. The State presented testimony
by four witnesses. The first witness was Brown, the trooper
who had participated in the traffic stop on March 2. Brown tes-
tified that after the traffic stop was concluded, he took the evi-
dence, including the sock and the methamphetamine contained
inside, to the State Patrol office in Nebraska City, Nebraska.
At that office, Brown weighed the methamphetamine and then
put it and the sock into an evidence bag which he then sealed
and initialed. Brown identified exhibit 5 as being the evidence
bag containing the sock and the methamphetamine. He testified
that the seal on the evidence bag appeared at the hearing to be
in the same condition as when he had placed it there. Brown
testified that there were two new markings on the bag, one
from the evidence room and one from the crime lab, as well as
a new seal. He testified that the items inside the evidence bag
appeared to be in the same condition as when he first collected
them at the traffic stop.
The State’s next witness was Tiffanie Leffler, who was
the evidence supervisor at the crime lab. Leffler testified that
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STATE V. OSBORNE
Cite as 313 Neb. 726one of her duties was to maintain the chain of custody for
evidence at the crime lab. She testified generally about pro-
cedures she follows to perform that duty. Leffler also testified
regarding security measures employed at the crime lab. Leffler
testified that on March 10, 2021, she received evidence in
Osborne’s case from Idigima. She identified exhibit 5 as being
part of the evidence that she received on that date.
Leffler testified that in accordance with her procedure, she
examined the evidence bag to ensure that the seal was intact
and initialed and that there were no rips or tears or opened
areas on the bag. She testified that she noted no issues with
the evidence bag. Leffler testified that upon examining exhibit
5 at the hearing, the only difference from when she first
received the evidence bag was that a new seal had been placed
by the analyst after testing the contents. Leffler testified that
because the original seal initialed by the law enforcement
officer and the new seal placed by the analyst were the only
two seals on exhibit 5, it indicated that there were no other
times that the contents of the evidence bag had been touched
since they were originally put into the bag. Leffler testified
that she did not think it was possible that exhibit 5 could have
been altered or opened prior to when she received it because
there would have been some indication on the bag that it had
been opened.
The State’s next witness at the hearing on the motion in
limine was Jerry Smith, who was a supervisor and technical
lead for the drug chemistry section at the crime lab. Smith
identified exhibit 5 as being evidence that he had tested. He
testified that the evidence bag was sealed when he received
it and that he did not observe any indication that it had been
opened since it was sealed. Smith testified that the substance
tested positive for methamphetamine and that the total weight
of the substance was 24.211 grams, which he testified was a
negligible difference from the weight of 24.1 grams that Brown
had measured when he collected the evidence. Smith testi-
fied that after he completed testing, he resealed the evidence
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STATE V. OSBORNE
Cite as 313 Neb. 726bag and returned it to Leffler. He testified that at the time of
the hearing, exhibit 5 was in essentially the same condition as
it was when he first received it and the only addition was a seal
he had placed and initialed after he had completed testing and
resealed the bag.
The State’s final witness at the hearing on the motion in
limine was Kaleb Bruggeman, a lieutenant with the Nebraska
State Patrol. Bruggeman testified that he was involved in
the investigation of Idigima and her handling of evidence at
the State Patrol evidence locker. Bruggemen testified that the
investigation indicated that Idigima had removed controlled
substances from the evidence locker and that she and a federal
codefendant intended to distribute the controlled substances.
He testified that the evidence showed that Idigima had taken
evidence but did not show that she had altered evidence or
transferred evidence from one case to another.
Bruggeman testified regarding procedures for maintaining
chain of custody; having reviewed the chain of custody report
for exhibit 5, Bruggeman testified that the report indicated
that on the morning of March 3, 2021, Idigima had taken the
sealed evidence bag from the evidence locker where it had
been left by the law enforcement officer, placed a barcode on
the evidence bag, and placed the evidence bag in a permanent
location in the storage room. Bruggeman also testified that the
report indicated that on March 10, Idigima had taken exhibit 5
to the crime lab. Bruggeman testified that the report indicated
that Idigima did not have any contact with exhibit 5 after she
transported it to the crime lab and that exhibit 5 remained at
the crime lab until Bruggeman himself retrieved it from the
crime lab.
Bruggeman testified that as part of the investigation of
Idigima, Lincoln Police Department officers examined evi-
dence that had been under the control of Idigima. Bruggeman
observed the officers’ examination of exhibit 5, which exami-
nation revealed no signs of tampering. Bruggeman testified
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STATE V. OSBORNE
Cite as 313 Neb. 726that based on his investigation, he believed that it was in or
after June 2021 that Idigima began taking items of evidence.
Osborne did not offer testimony at the hearing, but he argued
in part that the State could not establish a chain of custody
for exhibit 5 without testimony by Idigima or an opportunity
for Osborne to cross-examine her. At the close of the hearing,
the court ruled from the bench. The court stated that proof that
an exhibit remained in the custody of law enforcement officials
was sufficient to prove a chain of custody and was sufficient
foundation to permit its introduction into evidence.
As reflected in the record, the court considered evidence
presented at the hearing regarding the nature of the evidence at
issue, the circumstances surrounding its custody, and the likeli-
hood of intermeddlers tampering with the evidence. The court
noted that the evidence bag was sealed by Brown after he put
the evidence inside and that it was still sealed when Smith
received it to test the substance inside. The court noted no evi-
dence that anyone had observed anything that would indicate
tampering with the evidence. The court further noted that the
dates on which Idigima had access to the evidence predated
the dates of the offenses for which Idigima was charged and
that such charges related to taking evidence and not to tam-
pering with evidence by adding evidence or moving evidence
between cases. The court stated there was no evidence of
tampering with the specific evidence in this case. Based upon
these considerations, the court found that it was not likely that
any intermeddler, including Idigima, had tampered with the
evidence in this case. The court therefore overruled Osborne’s
motion in limine.
Osborne waived his right to a jury trial, and a bench trial
was held. Evidence presented by the State included, inter alia,
testimony by the law enforcement officers who participated
in the traffic stop, including Nolte, Brown, and Bushhousen.
Videos from the body cameras worn by each of the offi-
cers during the traffic stop were also received into evidence.
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STATE V. OSBORNE
Cite as 313 Neb. 726Stills from the video of Bushhousen’s body camera were also
received into evidence, and such stills generally depicted the
time when Borrego was gathering her items from the front
passenger compartment of the Suburban, Osborne was begin-
ning to get out on the rear passenger side of the vehicle, and
the sock was falling from the vehicle.
In connection with the admission of the stills from the video
of his body camera, Bushhousen testified that although at the
time of the traffic stop he thought the sock had come from
Borrego’s area of the vehicle, after reviewing the trajectory
of the sock as reflected in the video from his body camera,
he determined that the sock had come from the area where
Osborne was seated. Bushhousen also testified that the video
showed that prior to getting out of the vehicle, Osborne could
be seen leaning forward toward the floorboard or under the
front seat several times.
At trial, the State also presented testimony by Brown, Leffler,
and Smith regarding the chain of custody for exhibit 5. Their
testimony at the bench trial was consistent with their testimony
at the hearing on Osborne’s motion in limine recited above.
During Smith’s testimony, which followed that of Brown and
Leffler, the State offered exhibit 5 into evidence. The court
received exhibit 5 over Osborne’s objections based on chain of
custody and foundation.
Anthony Frederick, an investigator with the Nebraska State
Patrol, testified regarding his investigation of this case after the
traffic stop. On March 3, 2021, the day after the traffic stop,
Frederick interviewed Sellers, Borrego, and Osborne. Based on
information from those interviews, Frederick went to a gas sta-
tion in Lincoln, Nebraska, and obtained surveillance video of
the night of March 2 from that location. The surveillance video
was received into evidence without objection.
Frederick testified that the relevant part of the surveillance
video showed that a Suburban pulled up to a red car that was
parked in a lot near the gas station. The surveillance video
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STATE V. OSBORNE
Cite as 313 Neb. 726depicted a person getting out of the back seat of the Suburban
and getting into the back seat of the red car. The person
stayed inside the red car for a short time before getting out
and returning to the back seat of the Suburban. Both vehicles
then left the parking lot. Frederick identified Osborne as the
person depicted in the video as getting out of the Suburban,
getting into the red car, and then returning to the Suburban.
Frederick testified that through further investigation, he identi-
fied Daniel Zeiger as being in the red car. Frederick testified
that based on his training and experience, he believed that the
surveillance video depicted a drug transaction.
Zeiger was called by the State as a witness. He testified that
he was in custody on drug-related charges and that as part of
his case, he had agreed to give testimony in other cases, includ-
ing Osborne’s. Zeiger testified that he knew Osborne through
Osborne’s brothers, who were friends of Zeiger. Zeiger testi-
fied that he met Osborne in a parking lot near a gas station and
had delivered 7 grams of methamphetamine to Osborne. Zeiger
was shown the surveillance video from the gas station that
had been entered into evidence during Frederick’s testimony.
Zeiger testified that the surveillance video depicted the trans-
action between himself and Osborne. Zeiger also testified that
he had delivered an additional 7 grams of methamphetamine to
Osborne earlier that same day.
The State’s final witness in the bench trial was Borrego. She
testified that on March 2, 2021, she and Sellers drove from
Nebraska City to Lincoln in a red Suburban with the purpose
of buying methamphetamine from a friend of hers. The friend
was at the residence where Osborne lived. Borrego bought 3.5
grams of methamphetamine from her friend. While Borrego
and Sellers were at the residence, Osborne asked if they would
give him a ride to Nebraska City, to which they agreed.
In the red Suburban, Borrego sat in the front passenger
seat and Osborne was in the rear passenger seat. On the way
out of Lincoln, they stopped at one gas station to get gas,
and then they stopped at a second gas station where Osborne
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STATE V. OSBORNE
Cite as 313 Neb. 726“was meeting somebody.” Osborne got out of the Suburban, got
into another car, and then returned to the Suburban. After they
left the second gas station, Osborne asked Sellers and Borrego
whether they “were good,” which Borrego understood to mean
whether they had some methamphetamine; they replied that
they “had a little bit,” and Osborne said that “he would hook
[them] up for the ride.”
Borrego testified that during the traffic stop when she was
getting out of the Suburban, she did not retrieve a sock con-
taining methamphetamine from the vehicle, and that she was
not aware there was a sock containing methamphetamine in the
vehicle. She testified that when the officer presented the sock
to her, she did not recognize it. Borrego testified that when
she had methamphetamine, she generally carried it inside her
vagina, and that the only methamphetamine she had inside the
Suburban that night was that which she had obtained earlier
that day and that was on her person. On cross-examination,
Borrego testified that she had originally been charged with
felony possession with intent to deliver but that pursuant
to a plea agreement, she had pled guilty to misdemeanor
attempted possession.
Osborne called two witnesses in his defense—Sellers and
Zeiger. Sellers testified that Borrego was his girlfriend, that
they had traveled to Lincoln from Nebraska City, and that they
gave Osborne a ride on the trip back. Sellers testified that he
had been charged with felony possession with intent to deliver
but that pursuant to a plea agreement, he pled guilty to mis-
demeanor attempted possession. Osborne called Zeiger as a
witness and reminded Zeiger of his prior testimony regarding
the amount of methamphetamine he had delivered to Osborne.
Upon questioning, Zeiger testified that he generally weighed
methamphetamine before he delivered it and that his weights
were accurate.
After Osborne rested and both sides had presented clos-
ing arguments, the court announced its findings from the
bench. The court stated that it generally found the witnesses
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STATE V. OSBORNE
Cite as 313 Neb. 726to be credible “with the possible exception of . . . Sellers,”
and the court specifically noted testimony by Borrego and
Zeiger. The court also found that the stills from the video
taken on Bushhousen’s body camera “show[] the sock fall-
ing from the vehicle and not falling from . . . Borrego” and
that it “appear[ed] that it was swept out of the vehicle by
[Osborne’s] foot.” The court further noted that the meth-
amphetamine appeared to be packaged for sale and was in
a quantity in excess of 20 grams. The court found Osborne
guilty of both possession of a controlled substance with intent
to deliver and possession of a controlled substance without a
tax stamp.
The court thereafter found Osborne to be a habitual crimi-
nal. The court sentenced Osborne to imprisonment for 10 to 30
years for each conviction, and it ordered that the sentences be
served concurrent to one another.
Osborne appeals his convictions.
ASSIGNMENTS OF ERROR
Osborne claims, restated, that the district court erred when
it overruled his motion in limine and over objection at trial
admitted evidence that had been in the possession and under
the control of Idigima. Osborne also claims that there was not
sufficient evidence to support his convictions because the State
failed to show that the controlled substance was in his physical
or constructive possession.
STANDARDS OF REVIEW
[1,2] Whether there is sufficient foundation evidence for the
admission of physical evidence must necessarily be determined
by the trial court on a case-by-case basis. State v. Blair, 300
Neb. 372, 914 N.W.2d 428 (2018). A trial court’s determination
of the admissibility of physical evidence will not ordinarily be
overturned except for an abuse of discretion. Id.[3] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
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Cite as 313 Neb. 726the issue is labeled as a failure to direct a verdict, insuffi-
ciency of the evidence, or failure to prove a prima facie case,
the standard is the same: In reviewing 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. State v. Pauly,
311 Neb. 418, 972 N.W.2d 907 (2022).
ANALYSIS
There Was Sufficient Evidence to Establish
Foundation for Admission of Exhibit 5,
the Evidence Bag Containing the
Sock and Methamphetamine.
Osborne’s first assignment of error concerns the admission
of exhibit 5, the evidence bag containing the sock and metham-
phetamine, which at one point had been under Idigima’s con-
trol. Osborne claims that the district court erred when it over-
ruled his motion in limine and over objection admitted such
evidence at trial. Osborne argues that without testimony by
Idigima, the State could not establish the chain of custody for
evidence that had been in her possession and therefore could
not show foundation to admit such evidence. We conclude that
the State provided sufficient foundation and that the district
court did not abuse its discretion when it determined that the
evidence was admissible.
[4-6] Where objects pass through several hands before being
produced in court, it is necessary to establish a complete chain
of evidence, tracing the possession of the object or article to
the final custodian; and if one link in the chain is missing, the
object may not be introduced in evidence. State v. Weathers,
304 Neb. 402, 935 N.W.2d 185 (2019). Objects which relate
to or explain the issues or form a part of a transaction are
admissible in evidence only when duly identified and shown
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Cite as 313 Neb. 726to be in substantially the same condition as at the time in issue.
Id. It must be shown to the satisfaction of the trial court that no
substantial change has taken place in an exhibit so as to render
it misleading. Id. Important in determining the chain of custody
are the nature of the evidence, the circumstances surrounding
its preservation and custody, and the likelihood of intermed-
dlers tampering with the object. Id. Whether there is sufficient
foundation to admit physical evidence is determined on a case-
by-case basis. Id.Osborne generally argues that without testimony by Idigima,
one link in the chain of custody for exhibit 5 was missing,
and that therefore, the State could not establish foundation for
admitting it into evidence. However, our precedent does not
require that every person who has played a role in the chain of
custody must testify. Instead, the focus is on whether the com-
plete chain of custody has been established and whether it has
been shown to the satisfaction of the court that the object is in
substantially the same condition as it was at the relevant time
and that no substantial change has taken place in the evidence
so as to render it misleading.
For example, in State v. Weathers, supra, we concluded
that testimony by a doctor who supervised the collection of
evidence by a nurse was sufficient to establish the chain of
custody, even though the doctor did not personally handle all
of the steps in securing the evidence but did testify regard-
ing steps performed by a nurse under the doctor’s supervi-
sion. We determined that the doctor’s testimony regarding the
procedures which were followed, when combined with other
evidence such as testimony by police officers who collected,
packaged, and sealed the evidence, was sufficient to establish
a chain of custody. We noted that the defendant in Weathers
did not cite “authority requiring that the specific person who
physically collected and sealed the samples must testify,” and
we concluded that testimony by the doctor who supervised the
examination was sufficient to establish that step in the chain.
304 Neb. at 428, 935 N.W.2d at 205.
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Cite as 313 Neb. 726Similarly, in the present case, we do not think the absence
of testimony by Idigima was fatal to establishing the chain of
custody. The State presented testimony by other witnesses who
could establish the chain of custody from collection of the
evidence until the time of trial and who could establish that
it was in substantially the same condition as when it was
collected and that no material change had occurred which
would make the evidence misleading. Those witnesses included
Brown, who collected the sock and its contents at the scene,
put it into the evidence bag, and sealed the bag; Leffler,
who received the evidence bag at the crime lab; and Smith,
who tested the substance. Each witness testified that at the
time of trial, the evidence was in substantially the same condi-
tion as when each of them had custody of it. The discrepancies
noted by these witnesses, such as a seal Smith added when
testing was completed, were explained by the testimony of the
other witnesses. Significantly, with respect to Osborne’s argu-
ment that Idigima might have tampered with the evidence, we
note that Leffler, who was the first witness in the chain to have
custody after Idigima, testified that when she received the evi-
dence bag, she examined it and confirmed that the seal placed
by Brown was intact and there were no signs of tampering.
Smith similarly testified that when he received the evidence
bag, he did not observe any indication that it had been opened
since it was sealed by Brown. The testimony by the State’s wit-
nesses showed a complete chain of custody for exhibit 5. Such
testimony further showed that exhibit 5 was in substantially
the same condition as it was when Brown collected the sock
and its contents and placed them in the evidence bag and that
no substantial change had taken place in the evidence which
would render it misleading.
We conclude that the evidence in this case was sufficient to
establish the chain of custody and to provide foundation for the
admission of exhibit 5 and that the district court did not abuse
is discretion when it determined exhibit 5 was admissible. We
therefore reject Osborne’s first assignment of error.
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Cite as 313 Neb. 726There Was Sufficient Evidence to Show That
Osborne Possessed the Methamphetamine
and to Support Osborne’s Convictions.
Osborne also claims that there was not sufficient evidence
to support his convictions because the State failed to show that
the controlled substance was in his physical or constructive
possession. We conclude that the evidence was sufficient to
show possession and to support the convictions.
Osborne was convicted of possession of a controlled sub-
stance, methamphetamine, with intent to deliver under Neb.
Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2020) and of posses-
sion of a controlled substance without a tax stamp under Neb.
Rev. Stat. § 77-4309 (Reissue 2018). Both convictions require,
among other elements, that the defendant possessed a con-
trolled substance. Osborne contends that the State’s evidence
was not sufficient to prove that he was in possession of the
methamphetamine that was found inside the sock. Osborne
does not argue the sufficiency of the evidence with regard
to the other elements of either offense, and so our analysis
focuses solely on whether there was sufficient evidence of
Osborne’s possession of the methamphetamine.
In reviewing a criminal conviction, we do not resolve con-
flicts 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 convic-
tion. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
[7-14] We have held that under the language of the criminal
narcotics statutes, possession may be either actual or con-
structive. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269(2021). Actual possession is synonymous with physical posses-
sion. Id. Constructive possession, in contrast, may be proved
by mere ownership, dominion, or control over contraband
itself, coupled with the intent to exercise control over the
same. Id. Constructive possession may be proved by direct
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STATE V. OSBORNE
Cite as 313 Neb. 726or circumstantial evidence and may be shown by the accused’s
proximity to the item at the time of the arrest or by a showing
of dominion over it. Id. Thus, possession of a controlled sub-
stance means either (1) knowingly having it on one’s person
or (2) knowing of the substance’s presence and having control
over the substance. Id. Mere presence at a place where the
item in question is found is not sufficient to show constructive
possession. Id. But possession of an illegal substance can be
inferred from a vehicle passenger’s proximity to the substance
or other circumstantial evidence that affirmatively links the
passenger to the substance. Id. Evidence that a defendant had
constructive possession of a drug with knowledge of its pres-
ence and its character as a controlled substance is sufficient to
support a finding of possession and to sustain a conviction for
unlawful possession. Id.In the present case, there was no direct evidence that Osborne
was in physical possession of the methamphetamine. It was not
found on his person, and instead, it was found in a sock on the
ground outside the vehicle as Osborne was getting out of the
vehicle. However, in this bench trial, the district court cited
specific evidence that supported its finding that Osborne pos-
sessed the methamphetamine. The court stated that it found that
the stills from the video of Bushhousen’s body camera showed
that the sock containing the methamphetamine fell from the
vehicle and not from Borrego’s person and that instead, it
appeared to have been swept out of the vehicle by Osborne’s
foot as he was getting out of the vehicle. Our viewing of the
video from Bushhousen’s body camera and of the stills from
the video indicate that it was reasonable for the finder of fact
to find that the video shows that the sock fell from the area
of the vehicle where Osborne was seated and that Osborne
appeared to kick the sock out of the vehicle, whether intention-
ally or accidentally, as he got out of the vehicle. Based on this
evidence, Osborne’s possession of the sock and its contents
could be inferred from its physical proximity to him when it
was inside the vehicle.
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STATE V. OSBORNE
Cite as 313 Neb. 726But mere proximity was not the only evidence from which
it could be inferred that Osborne possessed the methamphet-
amine that was inside the sock; other circumstantial evidence
affirmatively linked Osborne to the substance. Zeiger testi-
fied that at two times on the day of the traffic stop, he had
distributed methamphetamine to Osborne. The second time
occurred shortly before the traffic stop. The methamphetamine
inside the sock was contained in multiple baggies, and the
amount of methamphetamine was such that it could be rea-
sonably inferred that the methamphetamine inside the sock
included the methamphetamine Zeiger provided to Osborne
earlier in the day, as well as methamphetamine from another
source or sources. In addition, Borrego testified that after
they had stopped at the gas station where Zeiger testified he
had provided methamphetamine to Osborne, Osborne made a
comment to her and Sellers that she understood to mean that
Osborne could provide them with some methamphetamine
if they wanted it. We note that the district court specifically
stated that it found testimony by Zeiger and by Borrego
to be credible, and the testimony set forth above provided
circumstantial evidence from which the court as finder of
fact could find that Osborne possessed the methamphetamine
found inside the sock.
Based on evidence of the proximity of the sock to Osborne
when it was inside and then falling from the vehicle and other
circumstantial evidence that Osborne was in possession of
methamphetamine at the time of the traffic stop, we determine
there was sufficient evidence from which the district court
could find that Osborne possessed the methamphetamine that
was inside the sock. Because there was sufficient evidence
that Osborne possessed the methamphetamine, and because
Osborne does not challenge the sufficiency of the evidence of
the other elements of each offense, we conclude that there was
sufficient evidence to support Osborne’s convictions. We reject
this assignment of error.
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STATE V. OSBORNE
Cite as 313 Neb. 726CONCLUSION
We conclude that there was sufficient evidence to establish
the chain of custody and provide foundation for admission of
exhibit 5 and that therefore, the district court did not abuse its
discretion when it found the evidence admissible. We further
conclude that there was sufficient evidence of Osborne’s pos-
session of the methamphetamine to support his convictions. We
therefore reject Osborne’s assignments of error, and we affirm
Osborne’s convictions.
Affirmed.