State v. Worthman , 311 Neb. 284 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/20/2022 09:07 AM CDT
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STATE v. WORTHMAN
Cite as 311 Neb. 284State of Nebraska, appellee, v.
Jon P. Worthman, appellant.
___ N.W.2d ___
Filed April 1, 2022. No. S-21-330.
1. Evidence: Appeal and Error. When reviewing the sufficiency of the
evidence to support a conviction, 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 essen-
tial elements of the crime beyond a reasonable doubt.
2. ____: ____. An appellate court does not resolve conflicts in the evi-
dence, pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact.
3. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Controlled Substances: Intent: Evidence: Expert Witnesses: Juries.
Evidence of the quantity of a controlled substance possessed, combined
with expert testimony that such quantity indicates an intent to deliver,
can be sufficient for a jury to infer an intent to deliver.
6. New Trial: Evidence: Witnesses. To warrant a new trial, newly discov-
ered evidence must involve something other than the credibility of the
witness who testified at trial.
Appeal from the District Court for Scotts Bluff County:
Richard A. Birch, Judge. Affirmed.
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STATE v. WORTHMAN
Cite as 311 Neb. 284Maren Lynn Chaloupka, of Chaloupka Law, L.L.C., for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Heavican, C.J.
INTRODUCTION
Defendant and criminal defense attorney Jon P. Worthman
was arrested after he purchased cocaine from his client, Jeffrey
Lujan, in the course of a controlled delivery orchestrated
by the Western Nebraska Intelligence and Narcotics Group
(WING). The State charged Worthman with possession of a
controlled substance with intent to distribute. Evidence offered
at a bench trial revealed that Worthman received “ounce”
amounts of cocaine from Lujan over a period of many months.
Evidence also showed that Worthman had falsely indicated to
Lujan that the cocaine was being distributed to a local pros-
ecutor to obtain favorable outcomes regarding criminal cases
against Lujan and his colleagues.
The district court found Worthman guilty and later overruled
Worthman’s motion for new trial. The district court sentenced
Worthman to 3 to 3 years’ imprisonment, with 2 days’ credit
for time served. Worthman appealed, and we moved this case
to our docket. We affirm.
FACTUAL BACKGOUND
On January 7, 2020, law enforcement conducted a controlled
delivery of 1 ounce of cocaine from Lujan to Worthman.
Following the transaction, law enforcement arrested Worthman
and charged him with possession of a controlled substance (10
to 28 grams of cocaine) with intent to distribute, in violation
of Neb. Rev. Stat. § 28-416(1) and (7)(c) (Cum. Supp. 2020), a
Class ID felony. Worthman waived his right to a jury trial, and
the case proceeded to a bench trial on September 15.
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STATE v. WORTHMAN
Cite as 311 Neb. 284At trial, the State offered testimony from Andrew Soucie, an
investigator with the Scottsbluff Police Department and a mem-
ber of the WING task force, as well as Lujan. The State con-
ditionally offered certain additional evidence under Neb. Rev.
Stat. § 27-404(2) (Supp. 2019), with the understanding that the
district court would rule on its admissibility later, following
the evidentiary portion of the trial. Evidence presented as part
of this conditional offer related to Lujan and Worthman’s rela-
tionship and whether Worthman had the requisite mental state
during the January 7, 2020, controlled delivery.
Evidence presented at trial showed that Lujan was a mid-
level drug dealer, that Worthman was a criminal defense attor-
ney, and that Lujan was one of Worthman’s legal clients. Lujan
first retained Worthman to represent him sometime in July
2018 and, thereafter, retained Worthman periodically to repre-
sent him and others in various criminal matters.
Soucie first met Lujan due to Lujan’s repeated contacts with
law enforcement. In November 2019, Soucie signed up Lujan
to work as a confidential informant for the WING task force.
Soucie conducted an interview with Lujan on November 6, to
collect information regarding potential targets for controlled
deliveries or controlled buys. During this interview, Lujan
informed Soucie that he had previously delivered cocaine to
his attorney, Worthman, and could do so in the future.
Sometime in December 2019, Soucie approached his super-
visors and inquired into the possibility of obtaining 1 ounce of
cocaine to perform a controlled delivery to Worthman. Soucie
had determined that 1 ounce should be used in the controlled
delivery because, based on the information from Lujan, 1
ounce would be most common for Lujan to deliver.
On the morning of January 7, 2020, Lujan informed Soucie
that he had met with Worthman, that Worthman had agreed to
purchase 1 ounce of cocaine for $500, and that an additional
debt that Lujan owed to Worthman would be forgiven as part
of the transaction. Soucie assembled a team to participate in
the controlled transaction, and he went with the WING task
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STATE v. WORTHMAN
Cite as 311 Neb. 284force commander to the Nebraska State Patrol evidence locker
to retrieve the cocaine that would be used in the delivery: a
little over 1 ounce of cocaine packaged in a Ziploc bag.
Soucie and his team then met at Lujan’s house to prepare
for Worthman’s arrival. Lujan was given two different audio
and video recording devices to assist in collecting informa-
tion during the controlled delivery. One of the devices actively
transmitted audio so that Soucie and his team could listen to
the transaction in real time.
When Worthman arrived outside Lujan’s residence, the
WING task force commander gave the Ziploc bag of cocaine
to Lujan; the commander had maintained control of the bag
from the time it was removed from the evidence locker until
the time it was given to Lujan for the controlled delivery.
Lujan left his residence and got into the passenger seat of
Worthman’s vehicle.
Once inside Worthman’s vehicle, Worthman stated that he
only had $100 on him, not $500, but offered to “figure some-
thing out.” Worthman then talked about getting a gun for
$1,600, and Lujan responded by accepting the $100 and agree-
ing to work out the details of the remaining balance at a later
time. Worthman asked, “I can give you this, but what am I
getting?” to which Lujan responded by handing him the bag of
cocaine and saying, “best . . . you’ve ever seen, here, check it
out.” Worthman then said, “Yeah, I’ve seen that, alright, there
you go.” Lujan and Worthman spent a few moments assuring
each other that they were “good for it” in terms of what they
owed to each other, and Worthman told Lujan “[a]s far as you
and I are concerned, we are straight as . . . rain.”
After Soucie heard this exchange confirming that the
transaction had occurred, Soucie activated his team to arrest
Worthman. Audio recordings of the transaction reveal that
Lujan first noticed officers approaching the vehicle, to which
Worthman says “take this, go, go, go.” Officers retrieved the
cocaine from the passenger side of the vehicle.
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STATE v. WORTHMAN
Cite as 311 Neb. 284Worthman was taken into custody and later interviewed.
During the interview, Worthman first denied any involvement
with Lujan or cocaine, saying that he had no idea why Lujan
“threw” the bag of cocaine at him because Worthman was
only there to collect attorney fees that Lujan owed him. Later,
Worthman admitted to using cocaine, but denied ever buying
cocaine from Lujan. Worthman then changed his story again
and admitted that he had bought cocaine from Lujan in the
past, but stated that it was a long time ago and that he had
never sold cocaine and was not a dealer.
Subsequently, Worthman continued to alter his story, claim-
ing again that he never got any cocaine from Lujan and did
not use cocaine. After investigators pushed him for more
information, he once again admitted to using cocaine and
receiving it from Lujan, but asserted that he never intended
to get that quantity from Lujan and was not distributing drugs
to others.
As part of the State’s conditional offer, Soucie testified that
in addition to the text messages he collected from Lujan’s
cell phone, which were dated December 10, 2019, to January
7, 2020, Lujan had contacted Soucie on January 10, 2020,
regarding additional text messages he received from Worthman
on another cell phone. Lujan offered to provide the second
cell phone to Soucie in exchange for protection against future
charges. Soucie thereafter collected screenshots of text mes-
sages from this second cell phone; the text messages were
dated January 7, 2019, to June 15, 2019.
Also as part of the State’s conditional offer, Lujan testi-
fied that he generally paid Worthman for his legal services
in cocaine. Many of the legal services that Lujan paid for
were apparently a ruse by Worthman to get free cocaine; for
example, Worthman told Lujan in May 2019 that it would cost
2 ounces of cocaine to ensure Lujan’s cousin received proba-
tion rather than incarceration, when probation was already
the most likely outcome of that case. According to Lujan,
Worthman repeatedly indicated that the cocaine was being
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STATE v. WORTHMAN
Cite as 311 Neb. 284used to bribe a local prosecutor to reduce or waive charges
against Lujan or his colleagues.
Following a bench trial, Worthman was found guilty of pos-
session of a controlled substance (10 to 28 grams of cocaine)
with intent to distribute, a Class ID felony.
After conviction, Worthman filed a motion for new trial
on the basis of insufficient evidence and newly discovered
evidence that was both relevant and material to Worthman’s
claim. Such evidence consisted of four additional felony
charges and misdemeanors against Lujan in the 3 months
between the close of evidence and the court’s determination
of guilt, as well as a plea agreement offered to Lujan in which
most of the charges were dismissed in favor of Lujan’s agree-
ing to pay restitution.
At a hearing on March 26, 2021, the district court received
evidence and heard arguments from the parties regarding
Worthman’s motion for new trial. The district court ulti-
mately overruled the motion and proceeded to sentencing.
The district court then sentenced Worthman to 3 to 3 years’
imprisonment with 2 days’ credit for time served. Worthman
appealed his conviction and sentence, and we moved this case
to our docket.
ASSIGNMENTS OF ERROR
On appeal, Worthman assigns that the district court erred
in (1) finding sufficient evidence to support a verdict that
Worthman was guilty beyond a reasonable doubt and (2) over-
ruling Worthman’s motion for new trial based on newly discov-
ered evidence.
STANDARD OF REVIEW
[1,2] When reviewing the sufficiency of the evidence to
­support a conviction, 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
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STATE v. WORTHMAN
Cite as 311 Neb. 284reasonable doubt. 1 Whether the evidence is direct, circumstan-
tial, 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. 2
[3,4] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of dis-
cretion is shown, the trial court’s determination will not be
disturbed. 3 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 4
ANALYSIS
Insufficient Evidence
In his first assignment of error, Worthman argues that the
district court erred in finding sufficient evidence to support a
verdict that Worthman was guilty of possession of a controlled
substance with intent to distribute. According to Worthman,
the evidence was insufficient regarding the element of intent
because Lujan determined how much cocaine to use in the
controlled delivery and because Worthman never indicated that
he wanted to purchase such a large amount. Instead, Worthman
asked “what am I getting?” which Worthman argues is indica-
tive of a narcotics user but not indicative of a narcotics dis-
tributor. Worthman emphasizes that the only eyewitness who
claims to have seen him distribute cocaine to others was Lujan,
who has multiple credibility problems. Accordingly, Worthman
contends that there is no credible evidence showing that he
ever did or intended to distribute narcotics to another.
1
State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
2
Id.3
State v. Faust, 269 Neb. 749, 696 N.W.2d 420 (2005).
4
Id.; State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005), overruled on
other grounds, State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).
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STATE v. WORTHMAN
Cite as 311 Neb. 284In reviewing the sufficiency of the evidence to support
Worthman’s conviction, the relevant question for this court is
whether, after viewing the evidence in the light most favorable
to the State, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. 5
We will not resolve conflicts in the evidence, pass on the cred-
ibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact. 6
Worthman admits that “Soucie opined that [Worthman] went
through a lot of cocaine in six months” and that Soucie stated
that “‘my opinion is that this is more than personal use.’” 7
Worthman also acknowledges that such testimony “can support
a conviction,” but argues that this testimony “does not mean
that it must result in a conviction.” 8 But this court is not tasked
with determining whether the conviction must have or should
have occurred, as such a finding would be dependent on this
court’s reweighing the evidence. Instead, we look for whether
the evidence presented could have supported a conviction when
viewed and construed most favorably to the State.
Evidence presented at trial showed that the substance used
in the controlled delivery was cocaine in the requisite amount.
The audio recording from the delivery indicates that Worthman
possessed the cocaine after Lujan handed Worthman the bag of
cocaine in his vehicle.
[5] As for intent, we have stated repeatedly that evidence
of the quantity of a controlled substance possessed, combined
with expert testimony that such quantity indicates an intent
to deliver, can be sufficient for a jury to infer an intent to
deliver. 9 Here, evidence in the form of text messages showed
that Worthman had previously received large amounts of
5
See State v. Kofoed, supra note 1.
6
Id. Accord State v. Utter, 263 Neb. 632, 641 N.W.2d 624 (2002).
7
Brief for appellee at 17.
8
Id.9
State v. Utter, supra note 6.
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STATE v. WORTHMAN
Cite as 311 Neb. 284cocaine from Lujan. Soucie testified that such a large amount
of cocaine was “a lot of cocaine” for one user, “even a heavy
addict,” and that if one user tried to consume that amount of
cocaine, the user would “probably have a heart attack.” Soucie
also characterized the amount as “a lot of cocaine for some-
one who’s selling it to have at one time, much less use. It’s
unheard of, I guess, in my training and experience.” While this
evidence is circumstantial, it supports a finding that Worthman
intended to distribute, deliver, or dispense the cocaine in
his possession.
Based on the evidence presented at trial, and in viewing
such evidence in a light most favorable to the State, we find
that a rational trier of fact could find the essential elements
of the crime beyond a reasonable doubt. Accordingly, the evi-
dence was not insufficient to support Worthman’s conviction,
and this assignment of error is without merit.
Motion for New Trial
In his second assignment of error, Worthman assigns that
the district court abused its discretion in denying Worthman’s
motion for new trial, based on evidence that Worthman could
not have discovered before trial. This evidence included four
additional felony charges and misdemeanors against Lujan,
each of which arose within the 3 months between the close of
evidence and the district court’s determination of guilt, as well
as a plea agreement offered to Lujan. Under the plea agree-
ment, most of the charges brought against Lujan within this
3-month period were dismissed in favor of Lujan’s agreeing to
pay restitution.
Worthman argues that as a result of the additional felony and
misdemeanor charges, Lujan was motivated to lie; if Lujan was
able to help convict Worthman, Lujan could potentially gain
leniency from the State regarding his own criminal charges.
Further, Worthman argues that the State’s tolerance of Lujan’s
repeated breaches of the law and breaches of the cooperation
agreement indicates that some other agreement—whether it
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STATE v. WORTHMAN
Cite as 311 Neb. 284be oral or written, formal or informal—must be in place in order
to preserve Lujan’s availability as a witness against Worthman.
Since such agreement was not disclosed to Worthman prior
to trial, and because Worthman was not notified about the
additional charges against Lujan, Worthman argues that he is
entitled to a new trial.
[6] We have previously held that to warrant a new trial,
newly discovered evidence must involve something other than
the credibility of the witness who testified at trial. 10 But here,
the evidence Worthman describes would go only to Lujan’s
credibility. Further, the record indicates that Lujan’s cred-
ibility was both extensively tested on cross-examination and
specifically considered by the district court in its determina-
tion of Worthman’s guilt. Hence, such evidence is insufficient
to warrant a new trial and the district court did not abuse its
discretion in denying Worthman’s motion for new trial. This
assignment of error is without merit.
CONCLUSION
The evidence in this case was sufficient for a reasonable
trier of fact to find all essential elements of the crime beyond a
reasonable doubt. The district court did not err in finding suf-
ficient evidence to convict Worthman. Accordingly, we affirm
Worthman’s conviction of possession of a controlled substance
with intent to distribute.
Further, we find no merit to Worthman’s contention that he
is entitled to a new trial based on evidence of the additional
charges brought against Lujan and the plea agreement between
Lujan and the State. Such evidence related only to Lujan’s
credibility and is therefore insufficient to warrant a new trial.
Finding no abuse of discretion, we affirm the decision of the
district court denying Worthman’s motion for new trial.
Affirmed.
Freudenberg, J., not participating.
10
State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).