State v. Ferguson , 301 Neb. 697 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/08/2019 08:09 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. FERGUSON
Cite as 301 Neb. 697State of Nebraska, appellee, v.
Travis L. Ferguson, appellant.
___ N.W.2d ___
Filed November 30, 2018. No. S-17-1197.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When 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 histori-
cal 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 indepen-
dently of the trial court’s determination.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination whether the
court admitted evidence over a hearsay objection or excluded evidence
on hearsay grounds.
3. Trial: Evidence: Appeal and Error. An appellate court reviews the
trial court’s conclusions with regard to evidentiary foundation for an
abuse of discretion.
4. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
5. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
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STATE v. FERGUSON
Cite as 301 Neb. 6976. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
7. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit
of an illegal search or seizure is inadmissible in a state prosecution and
must be excluded.
8. Constitutional Law: Search and Seizure. The ultimate touchstone of
the Fourth Amendment is reasonableness.
9. ____: ____. Reasonableness is determined by balancing the intrusion on
the individual’s Fourth Amendment interests against the promotion of
legitimate governmental interests.
10. ____: ____. A seizure that is lawful at its inception can violate the
Fourth Amendment by its manner of execution.
11. ____: ____. A “search” under the Fourth Amendment occurs if either (1)
the defendant’s legitimate expectation of privacy is infringed or (2) the
government physically intrudes on a protected area.
12. Constitutional Law: Search and Seizure: Words and Phrases. A
reasonable expectation of privacy is an expectation that has a source
outside of the Fourth Amendment, by reference either to concepts of real
or personal property law or to understandings that are recognized and
permitted by society.
13. Constitutional Law: Search and Seizure: Animals. Drug detection
dog sniffs in themselves do not infringe upon a constitutionally pro-
tected privacy interest, because they are designed to reveal no informa-
tion other than the possession of contraband and its location, and society
is not prepared to consider as either reasonable or legitimate any sub-
jective expectation that possession of contraband will not come to the
attention of the authorities.
14. Investigative Stops: Motor Vehicles: Animals: Time. The tolerable
duration of a traffic stop is that which is reasonably necessary to address
the mission of the stop and the ordinary inquiries incident thereto, and a
drug detection dog sniff is not an ordinary incident of a traffic stop.
15. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Animals: Probable Cause. Where a law enforcement officer has prob-
able cause or reasonable suspicion to continue the detention after the
initial mission of the stop is completed, the officer may conduct a drug
detection dog sniff while the suspect is properly detained.
16. Arrests: Probable Cause: Time: Proof. Judicial probable cause deter-
minations must be made promptly after a warrantless arrest, and unrea-
sonable delays in such judicial determinations of probable cause include
delays for the purpose of gathering additional evidence to justify the
arrest. However, the arrested individual bears the burden of proving the
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STATE v. FERGUSON
Cite as 301 Neb. 697delay was unreasonable when the probable cause determination occurs
within 48 hours.
17. Rules of Evidence: Hearsay: Words and Phrases. Hearsay is a state-
ment, other than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter asserted.
18. Rules of Evidence: Hearsay: Testimony: Records: Proof. Testimony
as to the content of records, entered into evidence to prove the truth of
the information contained therein, is hearsay.
19. Rules of Evidence: Rules of the Supreme Court: Hearsay. Hearsay is
not admissible except as provided by the rules of evidence or by other
rules adopted by the statutes of the State of Nebraska or by the discov-
ery rules of the Nebraska Supreme Court.
20. Hearsay: Proof. The proponent of the hearsay evidence has the burden
of identifying the appropriate exception and demonstrating that the tes-
timony falls within it.
21. Trial: Hearsay: Evidence: Appeal and Error. When the opposing
party objects to evidence as hearsay and the trial court sustains the
objection, the proponent is required to point out the possible hearsay
exceptions in order to preserve the point for appeal.
22. Trial: Evidence: Witnesses. There is sufficient foundation to render
communications by telephone admissible in evidence where the identity
of the person with whom the witness spoke or the person whom he or
she heard speak is satisfactorily established.
23. ____: ____: ____. A witness testifying positively that he or she recog-
nized, by voice, the person with whom he or she was talking, is gener-
ally sufficient to present the evidence to the jury to determine whether
the conversation actually occurred.
24. Criminal Law: Juries: Verdicts: Presumptions. Jurors in a criminal
case are presumed well equipped to analyze the evidence in order to
avoid resting a guilty verdict on a factually inadequate theory.
25. Juries: Verdicts: Appeal and Error. If there are two possible factual
grounds for the jury’s general verdict, one factually inadequate and
unreasonable and the other factually adequate and reasonable, an appel-
late court will assume, absent a contrary indication in the record, that the
jury based its verdict on the reasonable and factually adequate ground.
Appeal from the District Court for Lancaster County: Jodi L.
Nelson, Judge. Affirmed.
Candice C. Wooster, of Brennan & Nielsen Law Offices,
P.C., for appellant.
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STATE v. FERGUSON
Cite as 301 Neb. 697Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
The defendant appeals his convictions for possession of a
controlled substance and child abuse. The defendant was driv-
ing a vehicle owned by the defendant’s girlfriend when he
was stopped by law enforcement to investigate a citizen report
of dangerous driving. The stop occurred at a gas station. The
defendant’s two young children were in the back seat of the
vehicle. Methamphetamine was found during a search of the
vehicle, which was conducted subsequent to a drug detection
dog sniff. The dog sniff took place approximately 30 minutes
after law enforcement had completed their routine investiga-
tion related to the stop and had discovered that the defendant
was driving with a suspended license, had given them false
information, and had an outstanding civil contempt warrant for
his arrest. The principle issue presented is whether continuing
the defendant’s detention at the gas station beyond the time
reasonably necessary to complete the traffic stop’s mission of
investigating the report of dangerous driving constituted an
unreasonable seizure when the detention occurred after law
enforcement had probable cause to arrest the defendant.
II. BACKGROUND
Travis L. Ferguson was charged with one count of posses-
sion of a controlled substance in violation of Neb. Rev. Stat.
§ 28-416(3) (Supp. 2015); one count of false reporting in vio-
lation of Neb. Rev. Stat. § 28-907(1) (Reissue 2016); and one
count of child abuse in violation of Neb. Rev. Stat. § 28-707(1)
and (3) (Reissue 2016)—specifically, that Ferguson, acting
negligently, had placed his minor children, ages 8 and 6 at the
time of the stop, in a situation that endangered their lives or
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STATE v. FERGUSON
Cite as 301 Neb. 697physical or mental health, or deprived them of necessary food,
clothing, shelter, or care. The charges stem from the events
of March 9, 2016. Ferguson was driving his girlfriend’s 1998
four-door silver Honda Accord sedan with his children in the
back seat. He was stopped by law enforcement after another
driver called the 911 emergency dispatch service to report dan-
gerous driving, and methamphetamine was eventually found
inside the vehicle.
1. Motion to Suppress
Before trial, Ferguson moved to suppress any and all evi-
dence and statements obtained by law enforcement on March
9, 2016, for the reason that they were allegedly obtained in
violation of Ferguson’s constitutional rights under the 4th,
5th, 6th, and 14th Amendments to the U.S. Constitution and
the respective guarantees of the Constitution of the State of
Nebraska. The following evidence was adduced at the hearing
on the motion.
(a) Traffic Stop
Around 5 p.m. on March 9, 2016, Bradley Kinzie called
911 to report a vehicle swerving on Highway 77. The vehicle
was described as a gray, four-door sedan moving northbound
from Roca Road in Lancaster County, Nebraska. Kinzie also
reported the vehicle’s license plate number.
Deputy Sheriff Jeremy Schwarz was in his cruiser headed
southbound on Highway 77 in the same general vicinity when
he received the report of the 911 call. One or two minutes
later, Schwarz saw a man in a vehicle headed northbound on
Highway 77 behind a white, four-door sedan using hand ges-
tures to emphatically direct Schwarz’ attention to the sedan.
Schwarz understood, and it was later confirmed, that the
man gesturing was the 911 caller and the sedan was the vehi-
cle reported.
Schwarz made a U-turn to pursue the vehicle. The vehicle
pulled into a gas station before he could catch up with it.
Schwarz pulled up behind the vehicle. Schwarz confirmed
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STATE v. FERGUSON
Cite as 301 Neb. 697that the license plate number was only one digit off from the
number reported during the 911 call. Schwarz activated the
cruiser’s overhead lights.
At 5:05 p.m., Schwarz exited the cruiser and approached
the driver of the vehicle, who was later identified as Ferguson.
Schwarz observed two children in the back seat. Ferguson
informed Schwarz that he did not have his driver’s license with
him. Ferguson acknowledged that he was tired and had been
swerving the vehicle.
Ferguson originally identified himself using his brother’s
name. In the databases accessed through the mobile data ter-
minal of his cruiser, Schwarz could not find a person with that
name who matched the other information given by Ferguson.
At 5:16 p.m., Ferguson was asked to sit in the cruiser
while Schwarz further investigated Ferguson’s identity. During
the pat-down search conducted before entering the cruiser,
Schwarz found Ferguson’s electronic benefit transfer card
which included his real name. By 5:22 p.m., Schwarz was able
to confirm Ferguson’s identity through the databases, which
revealed that Ferguson had a suspended driver’s license and an
outstanding warrant for civil contempt related to unpaid child
support. At approximately that same time, Schwarz learned the
identity of the children’s mother.
(b) Probable Cause
Schwarz described that he had probable cause to arrest
Ferguson both for driving with a suspended license and on the
child support warrant.
Ferguson’s criminal history also caused Schwarz to suspect
that there might be narcotics in the sedan. Ferguson denied
consent to search the vehicle.
Schwarz did not transport Ferguson immediately to the
police station, because he was trying to make arrangements
for the children to be picked up by their mother and for
Lindsey Koch, the owner of the vehicle, to pick it up. Schwarz
contacted the children’s mother, who agreed to pick up the
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STATE v. FERGUSON
Cite as 301 Neb. 697children, but she lived 30 to 45 minutes away. Two offi-
cers who had arrived at the scene took the children out of
the vehicle and into the convenience store for snacks while
they waited.
(c) Dog Sniff and
Subsequent Search
At 5:25 p.m., approximately the same time that Schwarz
contacted the children’s mother, he decided to call in a canine
unit to conduct a dog sniff of the vehicle. Schwarz asked
Koch for her consent to the search, explaining that the canine
unit was on its way, but she refused. Koch agreed to pick
up her vehicle at the gas station. The canine unit arrived
approximately 30 minutes after Schwarz called it in. When the
canine unit arrived, neither Koch nor the children’s mother had
yet arrived.
The dog sniff was conducted around the exterior of the
sedan, and the dog alerted to the odor of narcotics. After that,
the officers searched the sedan and found a plastic bag of what
appeared to be methamphetamine on the driver’s side floor-
board between the center console and the driver’s seat. At trial,
the parties stipulated that the bag found in the sedan contained
approximately 1.6 grams of methamphetamine.
Approximately 15 minutes after the search of the sedan had
been completed, Koch arrived and removed the vehicle from
the premises. Five minutes later, the children’s mother arrived
and the children were turned over to her. Ferguson was then
taken to jail.
(d) Court’s Ruling
In support of the motion to suppress, defense counsel argued
that prolonging the stop while waiting for Koch and the canine
unit to arrive was unreasonable, because the officers were no
longer handling the matter for which the stop was initially
made. Defense counsel also argued that the search was not
incident to arrest. Without addressing Ferguson’s suspended
license, defense counsel argued that if Ferguson would have
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STATE v. FERGUSON
Cite as 301 Neb. 697been taken to jail sooner, he could have purged himself sooner
of the civil contempt warrant. Defense counsel explained that
the delay at the gas station unreasonably denied Ferguson the
“opportunity to go and bond himself out or purge himself of
that warrant.” The State responded that the continued detention
was a “non-issue,” because at that point, there was probable
cause for Ferguson’s arrest.
The court denied the motion to suppress. The court granted
defense counsel’s request for a continuing objection to evi-
dence of the methamphetamine found in the sedan, and the
case proceeded to trial.
2. Evidence Presented at Trial
(a) Kinzie’s Testimony
At trial, Kinzie testified that while driving along Highway
77 on March 9, 2016, he spotted in his rearview mirror a gray,
four-door Toyota or Mazda sedan behind him. He saw the
sedan going from one side of the road to the other. He slowed
down, and the sedan passed him. While passing him, the sedan
encroached into Kinzie’s lane so much that he had to drive on
the curb in order to avoid a collision.
Kinzie watched as the sedan, driving at that point in front of
him, veered past the white line of the right-hand lane and back
into the left-hand lane. The sedan then proceeded to encroach
into the right-hand lane again, even though there was another
vehicle in its path. The sedan pushed that vehicle off the road
and into a ditch.
After ensuring that the people in the vehicle that went off
the road were “okay,” Kinzie called 911. Kinzie described see-
ing a police cruiser soon thereafter and pointing out the sedan
to the law enforcement officer. While stopped at a red light,
Kinzie witnessed the cruiser follow the sedan to a nearby gas
station and park behind it.
The speed limit in that area of Highway 77 was 65 miles
per hour. It was rush-hour traffic. Kinzie testified that both he
and the driver of the other vehicle were forced to take evasive
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STATE v. FERGUSON
Cite as 301 Neb. 697action to avoid colliding with the sedan, stating, “At least
nobody was killed. That’s the main thing.”
(b) Schwarz’ Testimony and
Motion in Limine
At trial, Schwarz reiterated much of his testimony given at
the hearing on the motion to suppress. Schwarz also described
that when he approached the sedan, the children in the back
seat were moving around and not completely buckled in.
Schwarz testified that the children had access to the area by
the floorboards where the methamphetamine was found and
that they were apparently in the sedan alone for a brief period
of time after Schwarz directed Ferguson into his cruiser for
further investigation as to his identity.
Schwarz testified that he had received extensive training in
narcotics. According to Schwarz, methamphetamine is very
toxic and can be lethal to children if they accidentally ingest
it. He opined that a child who is within reach of methamphet-
amine is placed in a situation that endangers the child’s life.
During a recess, the State moved in limine to prohibit any
questioning or evidence concerning pending charges against
Koch originating from an arrest in April 2017, as well as any
other drug history associated with Koch or her sedan after the
March 9, 2016, arrest of Ferguson. Defense counsel responded
that it was part of the theory of Ferguson’s defense to demon-
strate that the methamphetamine might have belonged to Koch
or someone else she lent her vehicle to. The court expressed
concern that any questioning of Schwarz as to the criminal
record associated with Koch or the sedan would be outside of
Schwarz’ personal knowledge. The court sustained the motion
at that point in time, explaining that if defense counsel wanted
to “get into anything like that,” she was going to have to first
demonstrate to the court outside the presence of the jury that it
was admissible.
Subsequently, defense counsel questioned Schwarz outside
the presence of the jury as a proffer of “what he knows about
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STATE v. FERGUSON
Cite as 301 Neb. 697the vehicle.” Schwarz testified that during the stop, he had run
the license plate of the vehicle through the databases he had
access to. That information, he explained, would be found in
his report, but he recalled a prior arrest of Koch for possession
of methamphetamine. He could not specifically recall any-
thing else. During cross-examination for the proffer, Schwarz
affirmed that his report described other prior arrests for posses-
sion of a controlled substance in relation to the vehicle.
At the close of the proffer, the State objected on the grounds
of hearsay, relevance, unfair prejudice, and improper use of
character evidence for impeachment. The State explained
that the prior criminal history of Koch or her vehicle was
not relevant to the events of March 9, 2016, and that it
would improperly suggest that, because she had possessed
methamphetamine in the past, Koch was not telling the truth
about the methamphetamine found on March 9 when she
stated it did not belong to her. Defense counsel did not sug-
gest that the proffered statement fell under an exception to
the hearsay rule. The court sustained the objection on the
ground of hearsay, and did not specifically address the other
grounds presented.
(c) Children’s Mother’s Testimony
and Foundation Objection
The children’s mother testified without objection that the
older child reported that Ferguson had been falling asleep at
the wheel that day.
The children’s mother testified further that she and Ferguson
had a telephone conversation about his arrest a week or so
after Ferguson was released from jail, which she said was
in April 2016. She described that she was at home. No one
else was around at the time, and she did not know where
Ferguson was calling from. She confirmed that, as a result of
having previously dated Ferguson for 8 years, she had talked
to him on the telephone previously and knew the sound of
his voice.
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STATE v. FERGUSON
Cite as 301 Neb. 697Defense counsel objected on foundation grounds to any
further testimony about the telephone conversation. Defense
counsel explained that the State had failed to present evidence
as to both parties’ locations or precise information about when
it took place. The court overruled the objection.
The children’s mother proceeded to testify that during the
conversation, Ferguson apologized for his actions that had
caused the Department of Health and Human Services to make
inquiries into the children’s welfare. Ferguson explained that
he thought he had left the methamphetamine at home.
(d) Koch’s Testimony
Koch testified that after she had agreed to lend Ferguson
her car in order for him to be able to go see his children, she
spent about an hour cleaning it. She testified that her car was
normally very messy and that she wanted to make sure there
was room for the children and there was nothing “dangerous”
in the car. She denied placing any methamphetamine in the car
on March 9, 2016, and she denied that the methamphetamine
found in the car on that date was hers. Koch admitted that dur-
ing that general period of time, it was not unusual for her to
allow others to borrow her car, but clarified that no one had
borrowed her car from the time she cleaned it until the time
that Ferguson drove it to go see his children on March 9.
(e) Ferguson’s Testimony
Ferguson testified in his own defense. He generally denied
the allegations against him, except that he admitted he lied to
Schwarz when he identified himself as his brother rather than
as himself. He admitted to swerving his vehicle, because he
was tired, and he explained that he had been helping one of his
children with her seatbelt. He denied having any knowledge
that there were drugs in the vehicle. He conceded that children
can get hurt when they are within reach of methamphetamine.
3. Verdict
The jury found Ferguson guilty of all three charges.
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STATE v. FERGUSON
Cite as 301 Neb. 6974. Sentences
The court sentenced Ferguson to 365 days of imprisonment
and 12 months of postrelease supervision on count 1. The court
sentenced Ferguson to 90 days of imprisonment on count 2,
to be served consecutively to count 1. On count 3, the court
sentenced Ferguson to 30 days of imprisonment, to be served
concurrently to counts 1 and 2.
The court explained that it was not placing Ferguson on
probation because he did not appear to be capable of complet-
ing probation successfully. The court explained that Ferguson
was being sentenced to jail time, not to prison, and that if
he were given probation instead, he would likely engage in
criminal conduct in violation of the terms of his probation
and face a prison sentence. The court noted Ferguson’s his-
tory during the proceedings of not showing up to court and not
going to his probation evaluation on time. The court further
noted that Ferguson was convicted of other crimes committed
while awaiting trial. The record contains a bench warrant for
Ferguson’s failure to appear. Ferguson agreed that he would
likely fail probation.
Ferguson appeals his convictions for child abuse and posses-
sion of a controlled substance and his sentences.
III. ASSIGNMENTS OF ERROR
Ferguson assigns that the district court erred by (1) overrul-
ing his motion to suppress, (2) refusing to admit evidence that
the vehicle he was driving had previously been involved in
drug convictions, (3) admitting evidence of a telephone conver-
sation between Ferguson and the children’s mother, (4) finding
the evidence sufficient to support the child abuse conviction,
and (5) imposing excessive sentences.
IV. STANDARD OF REVIEW
[1] When 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
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STATE v. FERGUSON
Cite as 301 Neb. 697review.1 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 independently of the
trial court’s determination.2
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination whether the court admitted
evidence over a hearsay objection or excluded evidence on
hearsay grounds.3
[3] An appellate court reviews the trial court’s conclu-
sions with regard to evidentiary foundation for an abuse of
discretion.4
[4] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, 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.5 The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.6
[5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.7
1
State v. Barbeau, ante p. 293, 917 N.W.2d 913 (2018).
2
Id.3
State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
4
Midland Properties v. Wells Fargo, 296 Neb. 407, 893 N.W.2d 460 (2017).
5
State v. McCurdy, ante p. 343, 918 N.W.2d 292 (2018).
6
Id.7
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
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Cite as 301 Neb. 697V. ANALYSIS
On appeal, Ferguson challenges the denial of his motion
to suppress, which sought to prevent the jury from consider-
ing the methamphetamine found in Koch’s vehicle. He also
asserts that the district court erred in sustaining the State’s
hearsay objection to the proposed testimony of Schwarz
regarding his recollection of the criminal records associated
with Koch’s vehicle. He asserts, further, that the court should
not have allowed into evidence over Ferguson’s foundation
objection statements made by Ferguson during a telephone
conversation. Lastly, Ferguson argues that there was insuf-
ficient evidence to support the conviction for child abuse
and that his sentences to jail time rather than probation
were excessive.
1. Motion to Suppress
We first address the motion to suppress, which alleged that
the discovery of the methamphetamine in the vehicle Ferguson
was driving was the product of an illegal search and seizure.
Ferguson does not contest that Schwarz had reasonable suspi-
cion for conducting the traffic stop, that Schwarz had probable
cause to arrest Ferguson by the time the dog sniff of the vehi-
cle occurred, or that the officers had probable cause to search
inside the vehicle once the dog alerted to the presence of ille-
gal substances inside. In arguing that there was an unreason-
able seizure of Ferguson’s person and an unreasonable search
of the vehicle, Ferguson instead focuses on the length and
place of his detention and the fact that the search and seizure
occurred after Schwarz had completed all inquiries incident to
the citizen report of dangerous driving.
[6-10] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.8 Evidence obtained as the
fruit of an illegal search or seizure is inadmissible in a state
8
State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
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STATE v. FERGUSON
Cite as 301 Neb. 697prosecution and must be excluded.9 The ultimate touchstone
of the Fourth Amendment is reasonableness.10 Reasonableness
is determined by balancing the intrusion on the individual’s
Fourth Amendment interests against the promotion of legiti-
mate governmental interests.11 A seizure that is lawful at its
inception can violate the Fourth Amendment by its manner
of execution.12
In asserting that his seizure, lawful at its inception, was
unreasonable, Ferguson relies chiefly upon the holding of
the U.S. Supreme Court in Rodriguez v. U.S.13 that a seizure
justified by a legitimate traffic stop becomes unlawful if pro-
longed beyond the time reasonably required to complete the
mission of the stop.14 Ferguson has taken this proposition out
of context.
The U.S. Supreme Court has explained that the Fourth
Amendment tolerates certain investigations unrelated to the
traffic stop, so long as those investigations do not lengthen the
roadside detention.15 Before Rodriguez, in Illinois v. Caballes,16
the U.S. Supreme Court held that a dog sniff unsupported by
reasonable suspicion or probable cause was nevertheless rea-
sonable when conducted while the driver was lawfully seized
during a traffic stop and where the duration of the stop was
9
State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).
10
Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650(2006).
11
Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276(1990).
12
See Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842(2005).
13
Rodriguez v. U.S., ___ U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d 492(2015). See, also, State v. Barbeau, supra note 1.
14
See, Rodriguez v. U.S., supra note 13; Illinois v. Caballes, supra note 12.
15
Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L. Ed. 2d 694(2009). See, also, e.g., Illinois v. Caballes, supra note 12.
16
Illinois v. Caballes, supra note 12.
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Cite as 301 Neb. 697justified by the traffic offense and the ordinary inquiries inci-
dent thereto.
[11-13] The Court in Caballes held that the dog sniff, con-
ducted around the exterior of a vehicle without physically
intruding into a constitutionally protected area17 or prolonging
the seizure, did not change the lawful character of the traf-
fic stop.18 This was because a dog sniff, in itself, does not
infringe upon the driver’s constitutionally protected interest in
privacy.19 A “search” under the Fourth Amendment occurs if
either (1) the defendant’s legitimate expectation of privacy is
infringed or (2) the government physically intrudes on a pro-
tected area.20 A reasonable expectation of privacy is an expec-
tation that has a source outside of the Fourth Amendment, by
reference either to concepts of real or personal property law
or to understandings that are recognized and permitted by
society.21 The Court in Caballes explained that drug detection
dog sniffs in themselves do not infringe upon a constitutionally
protected privacy interest, because they are designed to reveal
no information other than the possession of contraband and its
location.22 And society, the Court explained, is not prepared
to consider as either reasonable or legitimate any subjective
expectation that possession of contraband will not come to the
attention of the authorities.23
[14] Subsequently, in Rodriguez, the U.S. Supreme Court
addressed the seizure of the driver and the vehicle in order to
conduct a dog sniff after the traffic stop had been completed.24
17
Compare Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409, 185 L. Ed. 2d
495 (2013).
18
See Illinois v. Caballes, supra note 12.
19
See id.20
City of Beatrice v. Meints, 289 Neb. 558, 856 N.W.2d 410 (2014).
21
State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).
22
Illinois v. Caballes, supra note 12.
23
Id.24
Rodriguez v. U.S., supra note 13. See, also, State v. Barbeau, supra note 1.
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Cite as 301 Neb. 697The U.S. Supreme Court reiterated that the tolerable dura-
tion of a traffic stop is that which is reasonably necessary to
address the mission of the stop and the ordinary inquiries inci-
dent thereto, and it clarified that a drug detection dog sniff is
not an ordinary incident of a traffic stop.25 Since it was undis-
puted in Rodriguez that the delay for purposes of conducting
the dog sniff occurred beyond the time reasonably necessary
to complete the tasks tied to the traffic infraction that justi-
fied the stop, the Court vacated the circuit court’s judgment,
which had held that the prolonged seizure was an accept-
able de minimis intrusion. The Court noted, however, that it
remained open for the circuit court on remand to determine
whether reasonable suspicion of criminal activity justified
detaining the driver beyond completion of the traffic infrac-
tion investigation.
[15] Read together, Caballes and Rodriguez instruct that
the fact that a dog sniff is conducted after the time reason-
ably required to complete the initial mission of a traffic stop is
not, in and of itself, a Fourth Amendment violation. A Fourth
Amendment violation arises only when the dog sniff is con-
ducted after the initial mission of a stop is completed and the
officer lacks probable cause or reasonable suspicion to investi-
gate further. Where, on the other hand, the officer has probable
cause or reasonable suspicion to continue the detention after
the initial mission of the stop is completed, the officer may
conduct a drug detection dog sniff while the suspect is properly
detained. We accordingly held in State v. Verling 26 and State v.
Rogers 27 that seizures that took place in order to facilitate dog
sniffs after the completion of traffic infraction investigations
did not violate the Fourth Amendment when the officers had
reasonable suspicion of criminal activity, developed during the
ordinary inquiries incident to the stops.
25
See id.26
State v. Verling, 269 Neb. 610, 694 N.W.2d 632 (2005).
27
State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
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Cite as 301 Neb. 697Like in Verling and Rogers, Ferguson’s detention at the
time of the dog sniff was independently justified. It was no
longer the temporary detention associated with an investi-
gatory stop, but was a tier-three encounter that necessar-
ily entails a prolonged detention.28 That prolonged detention
was supported by probable cause for the officers to believe,
based on information lawfully obtained during the stop, that
Ferguson had committed the law violations of driving with
a suspended license and giving false information to a police
officer. Additionally, the prolonged detention was supported
by a contempt warrant for Ferguson’s arrest. We find no
merit to Ferguson’s argument that the dog sniff was unlawful
because it occurred past the time necessary to investigate the
reported traffic violation.
Ferguson also argues that the prolonged seizure was con-
ducted in an unlawful manner because of the place where
he was being detained. He suggests that rather than being
detained at the gas station, “Ferguson should have immedi-
ately been taken to the jail to begin the booking process and
to allow Ferguson the opportunity to attempt to get his child
support payments up to date.”29 He argues that he was unrea-
sonably detained at the gas station in order to facilitate the
dog sniff.
[16] The U.S. Supreme Court has held that judicial probable
cause determinations must be made promptly after a warrant-
less arrest and, further, that unreasonable delays in such judi-
cial determinations of probable cause include delays for the
purpose of gathering additional evidence to justify the arrest.30
However, the Court has also held in this context that the
arrested individual bears the burden of proving the delay was
unreasonable when the probable cause determination occurs
28
See State v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018).
29
Brief for appellant at 13.
30
County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L.
Ed. 2d 49 (1991).
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Cite as 301 Neb. 697within 48 hours.31 Ferguson was arrested under a civil warrant
issued by a judge and, regardless, he made no attempt to prove
that a judicial probable cause determination was unreasonably
delayed by virtue of being held at the gas station for an addi-
tional 30 minutes.
Moreover, we fail to comprehend how any delay in reach-
ing the jail was causally connected to the dog sniff of Koch’s
vehicle and the resulting discovery of the methamphetamine.
In other words, his detention at the gas station was not for
the purpose of gathering additional evidence to justify the
arrest and, further, there is no evidence that the methamphet-
amine was derivative32 of Ferguson’s detention at the gas
station rather than at the jail. Regardless of where Ferguson
was detained, the vehicle would have been parked in a place
of public access until Koch arrived, which was after the dog
sniff. Ferguson does not assert that he could have reached
the jail, been released, and returned to the vehicle before
Koch arrived.
Finally, Ferguson suggests that the dog sniff was an unrea-
sonable “search” of the vehicle, because it was “merely parked
at a gas station waiting for the owner . . . to arrive.”33 It is not
clear that Ferguson had “standing” to claim a possessory or
privacy interest in the borrowed vehicle once he entered into
a tier-three encounter with law enforcement justified by prob-
able cause.34 In any event, the dog sniff did not unreasonably
intrude upon any reasonable expectation of privacy, no matter
how innocuously the vehicle was parked at the gas station.35
When the drug detection dog does not physically intrude into a
constitutionally protected area,36 the dog sniff is not a “search”
31
Id.32
See State v. Bray, 297 Neb. 916, 902 N.W.2d 98 (2017).
33
Brief for appellant at 13.
34
See State v. Lowery, 23 Neb. App. 621, 875 N.W.2d 12 (2016).
35
See Illinois v. Caballes, supra note 12.
36
Compare Florida v. Jardines, supra note 17.
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Cite as 301 Neb. 697at all.37 Ferguson does not suggest that the gas station was a
constitutionally protected area.
The district court did not err in denying Ferguson’s motion
to suppress.
2. Sustaining Hearsay
Objection R egarding
Koch’s Criminal History
[17] We turn next to Ferguson’s contention that the court
should have allowed him to adduce testimony from Schwarz
that Koch’s vehicle had been involved in prior drug possession
charges not involving Ferguson. The court sustained the State’s
objection to the proposed testimony on the ground of hearsay.
Hearsay is a statement, other than one made by the declarant
while testifying at trial or hearing, offered in evidence to prove
the truth of the matter asserted.38
[18] Ferguson asserts that Schwarz’ testimony as to what
he discovered while running a records search for the vehicle
was not hearsay. He cites to no law in support of such proposi-
tion. Our courts have repeatedly held that testimony as to the
content of records, entered into evidence to prove the truth
of the information contained therein, is hearsay.39 Ferguson’s
theory of defense was that the methamphetamine belonged to
someone else. Schwarz’ testimony of what he remembered of
the content of the databases was proffered for the truth of the
matters asserted: that there were other incidents involving ille-
gal drugs in Koch’s vehicle that did not involve Ferguson. The
proffered testimony was hearsay.
[19-21] Hearsay is not admissible except as provided by
the rules of evidence or by other rules adopted by the statutes
37
See Illinois v. Caballes, supra note 12.
38
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
39
See, e.g., State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992); Hoelck
v. ICI Americas, Inc., 7 Neb. App. 622, 584 N.w.2d 52 (1998); State v.
Ward, 1 Neb. App. 558, 510 N.W.2d 320 (1993).
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Cite as 301 Neb. 697of the State of Nebraska or by the discovery rules of this
court.40 Therefore, the proponent of the hearsay evidence has
the burden of identifying the appropriate exception and dem-
onstrating that the testimony falls within it.41 When the oppos-
ing party objects to evidence as hearsay and the trial court
sustains the objection, the proponent is required to point out
the possible hearsay exceptions in order to preserve the point
for appeal.42
During trial, Ferguson did not identify the appropriate
exception to the hearsay rule that would render the proffered
testimony admissible, and he makes no argument on appeal
that it falls under any exception. Ferguson did not offer
the records themselves into evidence. We find no merit to
Ferguson’s argument that the district court erred in refusing
to allow into evidence Schwarz’ testimony concerning what
he remembered to be the content of the databases he searched
during the stop.
3. Overruling Foundation
Objection to Telephone
Conversation
[22,23] Ferguson next contests the admission into evidence
of Ferguson’s statements to the children’s mother during a
telephone conversation. The court overruled Ferguson’s foun-
dation objection to the testimony. We have long held that there
is sufficient foundation to render communications by telephone
admissible in evidence where the identity of the person with
whom the witness spoke or the person whom he or she heard
speak is satisfactorily established.43 And a witness testifying
positively that he or she recognized, by voice, the person with
40
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
41
State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
42
Id.43
See, Midland Properties v. Wells Fargo, supra note 4; Linch v. Carlson,
156 Neb. 308, 56 N.W.2d 101 (1952).
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Cite as 301 Neb. 697whom he or she was talking, is generally sufficient to present
the evidence to the jury to determine whether the conversation
actually occurred.44
While additional evidence as to the surrounding circum-
stances of the telephone conversation may be necessary where
the witness was unable to identify the caller by voice,45 that
was not the circumstance here. The children’s mother testified
that as a result of having previously dated Ferguson for 8 years,
she had spoken to him on the telephone before and knew the
sound of his voice. She testified that she was able to identify
Ferguson by his voice and that it was Ferguson with whom she
had been speaking over the telephone. The district court did
not abuse its discretion in overruling Ferguson’s foundation
objection to the children’s mother’s testimony.
4. Sufficiency of Evidence
Having addressed the assignments of error related to the
evidentiary rulings at trial, we now consider Ferguson’s argu-
ment that the evidence was insufficient to support the jury’s
verdict that he committed child abuse. Ferguson’s challenge to
his child abuse conviction derives from the possibility the jury
concluded that the presence of methamphetamine in the vehicle
within reach of the children—as opposed to Ferguson’s alleged
reckless driving—was child abuse. Ferguson concedes that the
evidence that Ferguson was swerving the vehicle all over the
road was legally sufficient to support his conviction for child
abuse, but argues that the facts relating to the methamphet-
amine in the vehicle were not.
In reviewing a criminal conviction for a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such
44
See id.45
See Midland Properties v. Wells Fargo, supra note 4.
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Cite as 301 Neb. 697matters are for the finder of fact.46 The relevant question for
an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.47
Section 28-707(1) provides in relevant part that “[a] person
commits child abuse if he or she knowingly, intentionally, or
negligently causes or permits a minor child to be: (a) Placed in
a situation that endangers his or her life or physical or mental
health.” “Endangers” for purposes of § 28-707(1)(a) means to
expose a minor child’s life or health to danger or the peril of
probable harm or loss.48 The purpose of criminalizing conduct
under the statute is that where a child is endangered, it may be
injured; it is the likelihood of injury against which the statute
speaks.49 Criminal endangerment in § 28-707(1)(a) encom-
passes not only conduct directed at the child but also conduct
which presents the likelihood of injury due to the child’s having
been placed in a situation caused by the defendant’s conduct.50
Ferguson was charged with negligently placing his children
in a situation that endangered their lives or physical or men-
tal health under § 28-707(3). Section 28-707(9) explains that
“negligently” in this context “refers to criminal negligence and
means that a person knew or should have known of the danger
involved and acted recklessly, as defined in section 28-109,
with respect to the safety or health of the minor child.” Neb.
Rev. Stat. § 28-109 (Supp. 2015), in turn, defines “[r]eck-
lessly” as
acting with respect to a material element of an offense
when any person disregards a substantial and unjustifiable
46
State v. McCurdy, supra note 5.
47
Id.
48
State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017); State v.
Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990).
49
Id.50
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Cite as 301 Neb. 697risk that the material element exists or will result from his
or her conduct. The risk must be of such a nature and
degree that, considering the nature and purpose of the
actor’s conduct and the circumstances known to the actor,
its disregard involves a gross deviation from the standard
of conduct that a law-abiding person would observe in
the actor’s situation.
Without citation to legal authority, Ferguson argues that
being within reach of methamphetamine is insufficient to
support a child abuse conviction, because “[a] child can at
almost any time reach an object that could be harmful to the
child if used by the child. For example, knives in a kitchen
drawer, lighters in a drawer, alcohol in a cabinet, and guns
on a shelf.”51 Ferguson also points out that the only time the
children were alone in the vehicle within reach of the metham-
phetamine was when law enforcement removed Ferguson from
the vehicle in an attempt to identify him.
[24,25] We find no merit to Ferguson’s arguments that the
evidence was insufficient to support the child abuse convic-
tion. First, Ferguson’s reliance on the inability to know the fac-
tual theory underlying the jury’s general verdict is misplaced.
Jurors in a criminal case are presumed well equipped to ana-
lyze the evidence in order to avoid resting a guilty verdict on
a factually inadequate theory.52 Thus, if there are two possible
factual grounds for the jury’s general verdict, one factually
inadequate and unreasonable and the other factually adequate
and reasonable, we will assume, absent a contrary indication in
the record, that the jury based its verdict on the reasonable and
factually adequate ground.53
51
Brief for appellant at 20.
52
Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371(1991). See, also, e.g., U.S. v. Richardson, 421 F.3d 17 (1st Cir. 2005).
53
See, People v. Guiton, 4 Cal. 4th 1116, 847 P.2d 45, 17 Cal. Rptr. 2d 365(1993); People v. Spaccia, 12 Cal. App. 5th 1278, 220 Cal. Rptr. 3d 65(2017).
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Cite as 301 Neb. 697But we also reject the reckless driving and access to meth-
amphetamine as two disparate factual theories. The jury was
presented with evidence that on March 9, 2016, Ferguson,
without a license, drove recklessly and was falling asleep at
the wheel during rush-hour traffic at a speed of approximately
65 miles per hour, while his young children, able to unbuckle
themselves, could have reached for methamphetamine con-
tained in a bag lying on the floorboard and ingested it. The
jury was presented with further evidence that Ferguson chose
to leave the bag of methamphetamine in the vehicle with his
unattended children while he answered questions in Schwarz’
cruiser. This evidence was sufficient to support the conviction
of child abuse.
Finally, even if we were to parse out the children’s access to
the methamphetamine from the reckless driving, that evidence
was legally sufficient to support the child abuse conviction.
Unlike many of the common household risks illustrated by
Ferguson, the risk of access to methamphetamine, an illegal
and toxic substance, involves a gross deviation from the stan-
dard of conduct that a law-abiding person would observe.
In Carosi v. Com.,54 the Supreme Court of Virginia rejected
a similar argument that storage of illegal drugs where chil-
dren could have obtained access to them was no different than
the common methods of storing various dangerous household
items. “[T]hey differ,” the court explained, “in the important
respect that the latter items, though unquestionably danger-
ous if left accessible to unsupervised children, are possessed
by the parent or custodian for lawful purposes, whereas drugs
that are illegally present . . . are not.”55 The court in Carosi
further explained:
The myriad factors to be considered in such cases—such
as the ages of the children, the length of the exposure,
the level of supervision or lack thereof, and the quantity
54
Carosi v. Com., 280 Va. 545, 701 S.E.2d 441 (2010).
55
Id. at 556, 701 S.E.2d at 447.
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Cite as 301 Neb. 697and variety of the drugs—suggest that as with most cases
where criminal negligence is at issue, this determination
is necessarily fact-specific [and] best left to the jury.56
We agree.
We have explained that “‘[a]s a matter of practicability for
general application, child abuse statutes, by virtue of the nature
of their subject matter and the nature of the conduct sought to
be prohibited, usually contain broad and rather comprehensive
language.’”57 There was evidence that methamphetamine was
within reach of the children both while Ferguson was driv-
ing, tired and distracted, and while they were unattended in
the stopped vehicle. The jury could have inferred that the
children, ages 8 and 6, were likely to see the bag of metham-
phetamine and explore its contents out of curiosity. Schwarz
testified that he had received extensive training in narcotics
and that methamphetamine is very toxic and potentially lethal
to children if they accidentally ingest it. He opined that a child
who is within reach of methamphetamine is placed in a situa-
tion that endangers the child’s life.
Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essen-
tial elements of the crime of negligent endangerment child
abuse beyond a reasonable doubt.58
5. Excessive Sentences
Lastly, Ferguson asserts that the court imposed excessive
sentences. There is no dispute that the sentences imposed were
within the statutory limits, but Ferguson argues that his sen-
tences were excessive, because probation would have been bet-
ter suited to Ferguson’s rehabilitative needs. An appellate court
will not disturb a sentence imposed within the statutory limits
56
Id. at 557, 701 S.E.2d at 447-48.
57
State v. Mendez-Osorio, supra note 48, 297 Neb. at 534, 900 N.W.2d at
786-87, quoting State v. Crowdell, supra note 48.
58
See State v. Swindle, supra note 7.
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Cite as 301 Neb. 697absent an abuse of discretion by the trial court.59 An abuse of
discretion in imposing a sentence occurs when a sentencing
court’s reasons or rulings are clearly untenable and unfairly
deprive the litigant of a substantial right and a just result.60
The court explained that it was not placing Ferguson on pro-
bation because he was unlikely to complete probation success-
fully, given Ferguson’s history during the proceedings of not
showing up to court and not going to his probation evaluation
on time. The court further noted that Ferguson was convicted
of other crimes committed while awaiting trial. Ferguson him-
self admitted at the sentencing hearing that he would prob-
ably fail probation. The court did not abuse its discretion in
sentencing Ferguson to jail time with postrelease supervision,
rather than to probation.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
59
Id.60
Id.