State v. Beal ( 2014 )

Decisions of the Nebraska Court of Appeals
STATE v. BEAL 939
Cite as 21 Neb. Ct. App. 939
State of Nebraska, appellee, v.
Irvin D. Beal, appellant.
___ N.W.2d ___
Filed April 22, 2014. No. A-12-1175.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Police Officers and Sheriffs: Probable Cause. Probable cause merely requires
that the facts available to the officer would cause a reasonably cautious person to
believe that the suspect has committed an offense; it does not demand any show-
ing that this belief be correct or more likely true than false.
3. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. A traffic violation, no matter how minor, creates probable cause to
stop the driver of a vehicle. An officer’s stop of a vehicle is objectively rea-
sonable when the officer has probable cause to believe that a traffic violation
has occurred.
4. Motor Vehicles. Neb. Rev. Stat. § 60-399(2) (Reissue 2010) provides that all let-
ters, numbers, printing, writing, and other identification marks upon a vehicle’s
license plates shall be kept clear and distinct so that they shall be plainly visible
at all times.
5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Once a
vehicle is lawfully stopped, a law enforcement officer may conduct an investi-
gation reasonably related in scope to the circumstances that justified the traffic
stop. This investigation may include asking the driver for an operator’s license
and registration, requesting that the driver sit in the patrol car, and asking the
driver about the purpose and destination of his or her travel. Also, the officer
may run a computer check to determine whether the vehicle involved in the
stop has been stolen and whether there are outstanding warrants for any of
its occupants.
6. ____: ____: ____. In order to continue to detain a motorist, an officer must have
a reasonable, articulable suspicion that the person is involved in criminal activity
beyond that which initially justified the stop.
7. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. To detain a motorist for further investigation past the time reasonably
necessary to conduct a routine investigation incident to a traffic stop, an officer
must have a reasonable, articulable suspicion that the motorist is involved in
criminal activity unrelated to the traffic violation.
8. Investigative Stops: Police Officers and Sheriffs: Probable Cause. Whether
a police officer has a reasonable suspicion based on sufficient articulable facts
depends on the totality of the circumstances.
Decisions of the Nebraska Court of Appeals
940 21 NEBRASKA APPELLATE REPORTS
9. Probable Cause: Words and Phrases. Reasonable suspicion entails some mini-
mal level of objective justification for detention; it is something more than
an inchoate and unparticularized hunch—but less than the level of suspicion
required for probable cause.
10. Investigative Stops: Police Officers and Sheriffs: Probable Cause. Regarding
an officer’s reasonable suspicion, factors that would independently be consistent
with innocent activities may nonetheless amount to reasonable suspicion when
considered collectively.
11. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the government. These constitu-
tional provisions do not protect citizens from all governmental intrusion, but only
from unreasonable intrusions.
12. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
searches and seizures are per se unreasonable under the Fourth Amendment, sub-
ject to a few specifically established and well-delineated exceptions.
13. Warrantless Searches. The warrantless search exceptions recognized by
Nebraska courts include searches undertaken with consent, searches justified
by probable cause, searches under exigent circumstances, inventory searches,
searches of evidence in plain view, and searches incident to a valid arrest.
14. Motor Vehicles: Warrantless Searches: Probable Cause. A warrantless search
of a vehicle is permissible upon probable cause that the automobile con-
tains contraband.
15. Police Officers and Sheriffs: Probable Cause. A law enforcement officer has
probable cause to search when it is objectively reasonable.
16. Search and Seizure. A search is objectively reasonable when known facts and
circumstances are sufficient to warrant a person of reasonable prudence in the
belief that he will find contraband or evidence of a crime.
17. Probable Cause. Probable cause depends on the totality of the circumstances.
18. Criminal Law: Choice of Evils Defense. The justification or choice of evils
defense is codified in Nebraska at Neb. Rev. Stat. § 28-1407 (Reissue 2008). That
statute specifies that conduct which the actor believes to be necessary to avoid a
harm or evil to himself or to another is justifiable if the harm or evil sought to be
avoided by such conduct is greater than that sought to be prevented by the law
defining the offense charged. The statute also mandates that a legislative purpose
to exclude the justification claimed does not otherwise plainly appear.
19. Criminal Law: Choice of Evils Defense: Public Policy. The justification or
choice of evils defense authorized by Neb. Rev. Stat. § 28-1407 (Reissue 2008)
reflects the Nebraska Legislature’s policy decision that certain circumstances
excuse conduct that would otherwise be criminal.
20. Criminal Law: Choice of Evils Defense. The justification or choice of evils
defense operates to legally excuse conduct that would otherwise subject a person
to criminal sanctions.
21. Choice of Evils Defense. If the harm which will result from compliance with the
law is greater than that which will result from violation of it, a person is justified
in violating it.
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 941
Cite as 21 Neb. Ct. App. 939
22. ____. The justification or choice of evils defense requires that a defendant (1)
acts to avoid a greater harm; (2) reasonably believes that the particular action is
necessary to avoid a specific and immediately imminent harm; and (3) reasonably
believes that the selected action is the least harmful alternative to avoid the harm,
actual or reasonably believed by the defendant to be certain to occur.
23. ____. For the justification or choice of evils defense to be factually available to
a defendant, he or she must factually establish that his or her actions were efforts
to prevent a specific and immediate harm to at least one reasonably identifi-
able person.
24. ____. A generalized belief, even if apparently well founded, that the alleged
greater harm might occur and might involve an unidentified person is insuf-
ficient to supply a factual basis for application of the justification or choice of
evils defense.
25. ____. Sincere belief and fervor, resulting in impatience with the alternative
and frequently time-consuming process for change in a democracy subject to
a constitution, do not supply a legal basis for the justification or choice of
evils defense.
26. Criminal Law: Choice of Evils Defense. For the justification or choice of evils
defense to be available, a defendant’s responsive criminal conduct must relate
only to an interest that the community is willing to recognize and that is not
specifically denied recognition by the legal system.
27. Sentences: Appeal and Error. Sentences within statutory limits will be dis-
turbed on appeal only if the sentences complained of were an abuse of judi-
cial discretion.
28. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
29. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and
(8) the amount of violence involved in the commission of the crime.
30. ____. In imposing a sentence, the sentencing court is not limited to any math-
ematically applied set of factors.
31. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Saunders County: Mary
C. Gilbride, Judge. Affirmed.
Glenn A. Shapiro, of Schaefer Shapiro, L.L.P., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Decisions of the Nebraska Court of Appeals
942 21 NEBRASKA APPELLATE REPORTS
Irwin, Moore, and Bishop, Judges.
Irwin, Judge.
I. INTRODUCTION
Irvin D. Beal appeals his conviction and sentence for posses-
sion with intent to deliver marijuana, a Class III felony offense.
On appeal, Beal challenges the district court’s denial of his
motion to suppress, the court’s refusal to allow Beal to present
evidence on his proposed defense of justification or choice of
evils, and the sentence imposed. We find no merit to the asser-
tions on appeal, and we affirm.
II. BACKGROUND
The events giving rise to this case occurred on or about
September 30, 2009. At approximately 10:30 that night, Officer
Christopher Engel, a law enforcement officer for the Ashland
Police Department, was in uniform in a marked patrol car in
Ashland, Nebraska. He observed a van approaching him and
“abruptly” slowing as it passed. Engel initially was unable to
see a rear license plate on the van, and he followed the van to
effect a traffic stop.
Engel testified that as he got closer to the van, he was able
to observe there was a rear license plate, but that he was unable
to read the plate. He testified that there was a “ball hitch”
blocking part of the plate and also a license plate bracket that
obscured the portion of the plate indicating what state the van
was registered in. Engel activated his patrol car’s emergency
lights and conducted a traffic stop.
Engel testified that as he approached the van, he observed
that the windows on the van had “blinds pulled down” and
that he “could detect the odor of raw marijuana.” Engel called
for backup and made contact with the driver of the van,
Christopher Ryan. Beal was a passenger in the van, as was a
third individual.
Engel had Ryan accompany him to Engel’s patrol car, where
he questioned Ryan about the group’s travel. According to
Engel, Ryan was “vague with his answers” and provided “short
vague answers when he was responding.” Engel questioned
Ryan about the other occupants of the van, and Ryan indicated
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 943
Cite as 21 Neb. Ct. App. 939
that they were “his friends, comrades,” and that they were
“acquaintances.” Ryan was unable to accurately provide the
second passenger’s last name, although he was able to cor-
rectly identify Beal.
Engel issued a warning to Ryan for driving with an obscured
rear license plate and “ran a records check . . . and com-
pleted a criminal history” on all three individuals. Engel then
returned to Ryan the license and paperwork he had provided
Engel, explained the warning citation to Ryan, and informed
Ryan that Engel was waiting for information to come back
from dispatch. Engel then made contact with Beal and the
other passenger. Engel testified that because he had smelled
marijuana, he was investigating and wanted to speak with the
two passengers “to see if they knew who the driver was and
to see where they were coming from, to see if their stories
would match up or if they were different.” Engel testified that
the passengers’ stories were “somewhat similar” to Ryan’s,
although the second passenger “just couldn’t really answer”
any questions, “didn’t really know where they [had been],”
and “really didn’t have any idea what was going on.” While
speaking with the passengers, Engel observed air freshen-
ers and four or five cell phones and again detected the odor
of marijuana.
Another officer, Deputy Jeffrey Hermanson, arrived on the
scene. Hermanson was a canine unit officer and had his canine
with him. The record indicates that although the canine had
previously been certified as a drug detection canine, its certifi-
cation was not current on the date in question.
Engel then attempted to create a consensual encounter with
the occupants of the van. Engel told Ryan that he was free to
go and allowed Beal and the other passenger to return to the
van. As Ryan was returning to the van, Engel asked if he would
answer some additional questions. Engel testified that Ryan
was not actually free to go and that Engel believed he “had
enough indicators of criminal activity” to proceed with his
investigation, but that he had been trained to attempt to secure
a consensual encounter if possible.
Engel received information from dispatch indicating that
all three occupants of the van had committed prior drug
Decisions of the Nebraska Court of Appeals
944 21 NEBRASKA APPELLATE REPORTS
violations and that Beal had “a history of prior weapons viola-
tions.” Hermanson also heard this information dispatched over
the radio.
Ryan initially indicated that “perhaps he would talk to”
Engel, and Engel explained that he was going to ask for con-
sent to search the van. Hermanson had approached the van to
have Beal and the other passenger exit the van again so that
the canine could be deployed around the van. During this proc­
ess, Hermanson observed “something shiny” sticking out of
Beal’s boot, where Beal’s pant leg was tucked into the boot.
Hermanson testified that he issued several commands and
questions to Beal, asking what the item in his boot was, and
that Beal was unresponsive. Engel and Hermanson directed all
three occupants to the ground and handcuffed them “for safety
reasons.” The object in Beal’s boot was then determined to be
“a cellophane baggy of marijuana.”
A search of the van resulted in the discovery of 154.9
pounds of marijuana.
Prior to trial, Beal sought to suppress the evidence seized
during the traffic stop. The court denied the motion to sup-
press, finding that Engel validly conducted a traffic stop based
on the van’s having an obscured rear license plate and that
Engel had sufficient reason to suspect additional criminal
activity based upon his observations during the traffic stop,
warranting extending the stop and searching the van.
Prior to trial, the State sought a motion in limine to pre-
vent Beal from presenting evidence or argument in support
of a justification or choice of evils defense. At a hearing on
the motion, Beal argued that he should be allowed to present
evidence and argument that he was transporting the marijuana
for distribution to a “buyers club” in New York and that the
marijuana was for medicinal purposes for patients who would
suffer a greater harm or evil from illness than the harm or evil
of his possession with intent to distribute.
Beal made an offer of proof in support of his argument. In
the offer of proof, Beal asserted that he would have testified
that he had cofounded a nondenominational religious organiza-
tion with a New York City tax number that runs a “cannabis
Patients Registry” and works with a “Buyers Club” in New
Decisions of the Nebraska Court of Appeals
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Cite as 21 Neb. Ct. App. 939
York. Beal would have testified that his organization provides
medicinal marijuana for patients with a medically diagnosed
condition recognized to benefit from cannabis. Beal would
have testified about other states’ passing laws to permit medi-
cal marijuana use, about how marijuana is the best therapeuti-
cally active medicine for many conditions, and about how it is
not addictive. He also would have testified that the marijuana
seized in this case was for use by specific individuals known
by him to be afflicted with AIDS and cancer and that mari-
juana provides treatment for these patients. He also would have
testified that the marijuana otherwise available to his organiza-
tion was not suitable. In the offer of proof, Beal also asserted
that a doctor would have testified about the medicinal benefits
of marijuana.
The district court granted the motion in limine and ordered
that Beal would not be allowed to present evidence or argu-
ment in support of his justification or choice of evils defense.
After a stipulated bench trial, the district court found Beal
guilty of possession with intent to distribute marijuana. The
court sentenced Beal to 48 to 72 months’ imprisonment. This
appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Beal assigns as error that the district court erred
in denying his motion to suppress, in refusing to allow him
to present evidence and argument in support of his justifica-
tion or choice of evils defense, and in imposing an exces-
sive sentence.
IV. ANALYSIS
1. Motion to Suppress
Beal first asserts that the district court erred in denying his
motion to suppress. He asserts that there was not probable
cause for the initial stop, was not sufficient cause to expand the
initial stop, and was not probable cause for a search of the van.
We find no merit to these assertions.
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
Decisions of the Nebraska Court of Appeals
946 21 NEBRASKA APPELLATE REPORTS
v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013). Regarding his-
torical facts, an appellate court reviews the trial court’s find-
ings 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 deter-
mination. Id.
(a) Initial Stop
Beal first asserts that there was no probable cause for the
initial traffic stop. The evidence indicates that Engel observed
a traffic violation, which provides sufficient probable cause
for the initial stop. We find no merit to Beal’s assertions
on appeal.
[2,3] Probable cause merely requires that the facts avail-
able to the officer would cause a reasonably cautious person to
believe that the suspect has committed an offense; it does not
demand any showing that this belief be correct or more likely
true than false. Id. A traffic violation, no matter how minor,
creates probable cause to stop the driver of a vehicle. Id. An
officer’s stop of a vehicle is objectively reasonable when the
officer has probable cause to believe that a traffic violation has
occurred. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696
(2012), cert. denied ___ U.S. ___, 133 S. Ct. 2359, 185 L. Ed.
2d 1082 (2013).
In the present case, Engel testified that when the van first
passed him in traffic, Engel was unable to see a rear license
plate on it and he followed it to effect a traffic stop. As he got
closer to the van, he was able to observe that there was a rear
license plate, but he was unable to read the plate. Engel testi-
fied that there was a “ball hitch” blocking part of the plate and
also a license plate bracket that obscured the portion of the
plate indicating what state the van was registered in.
[4] Neb. Rev. Stat. § 60-399(2) (Reissue 2010) provides that
“[a]ll letters, numbers, printing, writing, and other identifica-
tion marks upon [a vehicle’s license] plates . . . shall be kept
clear and distinct . . . so that they shall be plainly visible at
all times . . . .”
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 947
Cite as 21 Neb. Ct. App. 939
Engel’s testimony demonstrates that he observed the
rear license plate of the van not to be in compliance with
§ 60-399(2). Because Engel observed a traffic violation, he
had probable cause to stop the van.
Beal’s argument on appeal concerning probable cause to
stop the van is entirely based on an assertion that Engel’s
testimony was not trustworthy. Beal elicited testimony at trial
in an attempt to call Beal’s veracity into question. Issues of
credibility, however, are not resolved by the appellate court,
and we will not pass on the credibility of witnesses or reweigh
the evidence. See State v. Ruegge, 21 Neb. Ct. App. 249, 837
N.W.2d 593 (2013). As such, we find this argument to be
without merit.
(b) Expansion of Stop
Beal next asserts that the district court erred in finding that
there was reasonable, articulable suspicion to expand the initial
traffic stop. Based on Engel’s observations during the traffic
stop, including detecting the odor of marijuana, we find that
there was reasonable, articulable suspicion, and we find no
merit to Beal’s assertion.
[5] Once a vehicle is lawfully stopped, a law enforcement
officer may conduct an investigation reasonably related in
scope to the circumstances that justified the traffic stop. State
v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011); State v.
Morissey, 19 Neb. Ct. App. 590, 810 N.W.2d 195 (2012). This
investigation may include asking the driver for an operator’s
license and registration, requesting that the driver sit in the
patrol car, and asking the driver about the purpose and des-
tination of his or her travel. Id. Also, the officer may run a
computer check to determine whether the vehicle involved in
the stop has been stolen and whether there are outstanding war-
rants for any of its occupants. State v. Howard, supra.
In the present case, Engel was justified in conducting an
investigation reasonably related in scope to the circumstances
of the initial stop. He was justified in asking Ryan, the
driver, for his operator’s license and registration; having Ryan
Decisions of the Nebraska Court of Appeals
948 21 NEBRASKA APPELLATE REPORTS
accompany him to the patrol car; and asking Ryan about the
purpose and destination of his travel.
[6,7] In order to continue to detain a motorist, an officer
must have a reasonable, articulable suspicion that the person is
involved in criminal activity beyond that which initially justi-
fied the stop. State v. Prescott, 280 Neb. 96, 784 N.W.2d 873
(2010). To detain a motorist for further investigation past the
time reasonably necessary to conduct a routine investigation
incident to a traffic stop, an officer must have a reasonable,
articulable suspicion that the motorist is involved in criminal
activity unrelated to the traffic violation. State v. Draganescu,
276 Neb. 448, 755 N.W.2d 57 (2008).
[8] Whether a police officer has a reasonable suspicion
based on sufficient articulable facts depends on the total-
ity of the circumstances. State v. Prescott, supra; State v.
Draganescu, supra. Courts must determine this on a case-by-
case basis. Id.
[9,10] Reasonable suspicion entails some minimal level of
objective justification for detention; it is something more than
an inchoate and unparticularized hunch—but less than the
level of suspicion required for probable cause. Id. Regarding
an officer’s reasonable suspicion, the Nebraska Supreme Court
has previously noted that factors that would independently be
consistent with innocent activities may nonetheless amount
to reasonable suspicion when considered collectively. State v.
Draganescu, supra.
In the present case, Engel testified that he detected the odor
of raw marijuana when he approached the van, that the van’s
windows were covered with drawn blinds, and that Ryan pro-
vided vague and short answers concerning his travel. Although
Ryan had indicated that the other occupants of the van were
“his friends, comrades,” he was unable to accurately provide
the second passenger’s last name.
Upon making contact with Beal and the other passenger of
the van, after issuing a warning to Ryan, Engel discovered that
although their stories were “somewhat similar,” the second
passenger did not seem to know where they had been or “have
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 949
Cite as 21 Neb. Ct. App. 939
any idea what was going on.” Engel observed air freshen-
ers and four or five cell phones and again detected the odor
of marijuana.
Engel also received information from dispatch indicat-
ing that all three occupants of the van had committed prior
drug violations and that Beal had “a history of prior weap-
ons violations.”
The record indicates that all of these observations were
made prior to Engel’s initially indicating to Ryan that he was
free to go and prior to Engel’s attempt to secure a consensual
encounter. Those observations were sufficient to support a
reasonable, articulable suspicion of criminal activity exclusive
of the basis for the initial traffic stop, and they supported a
continued detention of the van’s occupants. We find no merit
to Beal’s assertions to the contrary.
(c) Search
Finally, Beal asserts that there was not sufficient probable
cause to search the van. We disagree.
[11-13] The Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution protect indi-
viduals against unreasonable searches and seizures by the
government. State v. Podrazo, 21 Neb. Ct. App. 489, 840 N.W.2d
898 (2013). These constitutional provisions do not protect
citizens from all governmental intrusion, but only from unrea-
sonable intrusions. Id. Warrantless searches and seizures are
per se unreasonable under the Fourth Amendment, subject
to a few specifically established and well-delineated excep-
tions. See State v. Podrazo, supra. The warrantless search
exceptions recognized by Nebraska courts include searches
undertaken with consent, searches justified by probable cause,
searches under exigent circumstances, inventory searches,
searches of evidence in plain view, and searches incident to a
valid arrest. Id.
[14-17] A warrantless search of a vehicle is permissible
upon probable cause that the automobile contains contra-
band. State v. Dalland, 20 Neb. Ct. App. 905, 835 N.W.2d 95
(2013), reversed on other grounds 287 Neb. 231, 842 N.W.2d
Decisions of the Nebraska Court of Appeals
950 21 NEBRASKA APPELLATE REPORTS
92 (2014). A law enforcement officer has probable cause
to search when it is objectively reasonable. Id. A search is
objectively reasonable when known facts and circumstances
are sufficient to warrant a person of reasonable prudence in
the belief that he will find contraband or evidence of a crime.
Id. Probable cause depends on the totality of the circum-
stances. Id.
In this case, Engel had probable cause to search the van.
As noted above, he had detected the odor of raw marijuana,
received objectively suspicious responses from the driver and
passengers of the van, observed air fresheners and numerous
cell phones, observed the drawn blinds on the windows of the
van, and received information from a routine records check
indicating that all of the occupants had a history of drug viola-
tions and that Beal had a history of weapons violations. The
odor of marijuana was also detected by Hermanson, the other
officer on the scene. Additionally, when Hermanson had Beal
and the other passenger exit the van so that the canine could
be deployed around it, Hermanson observed “something shiny”
sticking out of Beal’s boot, and after Beal refused to respond to
inquiries and commands concerning the shiny object, all three
occupants were patted down for officer safety. Marijuana was
discovered on the persons of both Beal and the driver when
they were patted down. There is no merit to Beal’s assertion
that there was not sufficient probable cause to support search-
ing the van.
(d) Conclusion on Motion
to Suppress
Because Engel observed a traffic violation, he had probable
cause to make the initial stop. During the traffic stop, Engel’s
observations gave rise to a reasonable, articulable suspicion
of criminal activity that justified expanding the scope of
the stop and continuing to detain the occupants of the van.
The observations also gave rise to probable cause sufficient
to justify a search of the van, which led to the discovery of
nearly 155 pounds of marijuana. Beal’s first assigned error
is meritless.
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Cite as 21 Neb. Ct. App. 939
2. Justification or Choice of Evils
and Motion in Limine
(a) Arguments Raised by Parties
Beal next challenges the district court’s granting of the
State’s motion in limine, precluding Beal from presenting
testimony or argument on his proposed justification or choice
of evils defense. The choice of evils defense was factually
unavailable to Beal on the record presented to us, and we find
no merit to his assertion that the district court erred.
[18] The justification or choice of evils defense is codified
in Nebraska at Neb. Rev. Stat. § 28-1407 (Reissue 2008). That
statute specifies that conduct which the actor believes to be
necessary to avoid a harm or evil to himself or to another is
justifiable if the harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented by the law
defining the offense charged, see § 28-1407(1)(a). The stat-
ute also mandates that “[a] legislative purpose to exclude the
justification claimed does not otherwise plainly appear,” see
§ 28-1407(1)(c).
[19-21] The justification or choice of evils defense autho-
rized by § 28-1407 reflects the Nebraska Legislature’s policy
decision that certain circumstances excuse conduct that would
otherwise be criminal. State v. Cozzens, 241 Neb. 565, 490
N.W.2d 184 (1992). Therefore, the justification or choice of
evils defense operates to legally excuse conduct that would
otherwise subject a person to criminal sanctions. Id. “‘[I]f the
harm which will result from compliance with the law is greater
than that which will result from violation of it, [a person is]
justified in violating it.’” Id. at 571, 490 N.W.2d at 189, quot-
ing 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law § 5.4 (1986).
[22] The justification or choice of evils defense requires
that a defendant (1) acts to avoid a greater harm; (2) reason-
ably believes that the particular action is necessary to avoid a
specific and immediately imminent harm; and (3) reasonably
believes that the selected action is the least harmful alterna-
tive to avoid the harm, actual or reasonably believed by the
defend­ nt to be certain to occur. State v. Cozzens, supra.
a
Decisions of the Nebraska Court of Appeals
952 21 NEBRASKA APPELLATE REPORTS
In State v. Cozzens, the Nebraska Supreme Court discussed
both legal and factual availability of the justification or choice
of evils defense in the context of an appeal by defendants con-
victed of criminal trespass when they sought to block lawful
access to an abortion clinic.
[23,24] The court discussed the proposition that for the
defense to be factually available to a defendant, he or she must
factually establish that his or her actions were efforts to pre-
vent a specific and immediate harm to at least one reasonably
identifiable person. Id. A generalized belief, even if apparently
well founded, that the alleged greater harm might occur and
might involve an unidentified person is insufficient to supply
a factual basis for application of the justification or choice of
evils defense. See id.
[25,26] The court also discussed the propositions that for
the defense to be legally available to a defendant, the defend­
ant’s conduct must be responsive to a legally recognized harm,
and that the defense may not be used to justify or excuse
criminal activity as an expression of disagreement with deci-
sions by a branch of government. Id. Sincere belief and fervor,
resulting in impatience with the alternative and frequently
time-consuming process for change in a democracy subject to
a constitution, do not supply a legal basis for the justification
or choice of evils defense. Id. In other words, for the defense
to be available, a defendant’s responsive criminal conduct
must relate only to an interest that the community is willing to
recognize and that is not specifically denied recognition by the
legal system. Id.
In State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992),
the Supreme Court concluded that the justification or choice
of evils defense was factually unavailable to all but one of
the defendants. The court noted that only one of the defend­
ants had established that she had personal knowledge, gained
through her contacts with women who were about to enter
the clinic, that abortions were likely to be performed on the
morning when the group of defendants attempted to block
access to the clinic. It was that one defendant’s knowledge
of specifically identifiable women who were attempting to
enter the clinic to receive an abortion that provided factual
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 953
Cite as 21 Neb. Ct. App. 939
availability of the defense. Id. The remaining defendants
established only a general belief that abortions were per-
formed, and none knew any particular woman who was about
to enter the clinic for the purpose of receiving an abortion.
The remaining defendants, therefore, were not acting to pre-
vent a specific and immediately imminent harm to a particular
person. Id.
We conclude that the justification or choice of evils defense
was similarly factually unavailable to Beal based on the record
presented to us. In support of his objection to the State’s
motion in limine, Beal presented a written offer of proof. That
offer of proof indicated that if allowed, he and a medical doc-
tor would both have presented testimony in support of Beal’s
choice of evils defense. The offer of proof indicated that Beal
would have testified that he had cofounded a nondenomina-
tional religious organization, with a New York City tax num-
ber, that runs a “cannabis Patients Registry” and works with
a “Buyers Club” in New York. Beal would have testified that
his organization provides medicinal marijuana for patients with
a medically diagnosed condition recognized to benefit from
cannabis. Beal would have testified about other states’ passing
laws to permit medical marijuana use, about how marijuana is
the best therapeutically active medicine for many conditions,
and about how it is not addictive.
According to Beal’s offer of proof, he also would have testi-
fied that the marijuana seized in this case was for use by spe-
cific individuals known by him to be afflicted with AIDS and
cancer and that marijuana provides treatment for these patients.
Beal did not, however, identify any such individuals or indicate
in his offer of proof that any of them would have testified on
his behalf. He also indicated in his offer of proof that he would
have testified that the marijuana otherwise available to his
organization was not suitable. In the offer of proof, Beal also
asserted that a doctor would have testified about the medicinal
benefits of marijuana.
In his offer of proof, Beal did not identify any particular
individuals who were at risk of immediately imminent harm.
He did not establish that he was acting to prevent infliction
of a specific and immediate harm to a reasonably identifiable
Decisions of the Nebraska Court of Appeals
954 21 NEBRASKA APPELLATE REPORTS
victim. Rather, he demonstrated general moral opposition to
illegalization of marijuana because of his belief in its medici-
nal benefits. Although not a published opinion, and therefore
not citable as authority, we note that similar testimony was not
sufficient to support factual availability of the defense in State
v. Thompson, No. A-98-1371, 2000 WL 758767 at *6 (Neb.
App. June 13, 2000) (not designated for permanent publica-
tion), wherein the defendant testified that “if the people he
knew in the ‘New York Buyer’s Club’ were not provided with
marijuana, they would suffer inescapable harm to their bodies.”
We held this did not demonstrate personal knowledge of any
specific person who would use the marijuana. Id.
In this case, we decline to specifically address the ques-
tion of whether the justification or choice of evils defense
is legally available to a defendant stopped with nearly 155
pounds of marijuana and purporting to have been transporting
it to patients in need of its medicinal benefits. We conclude that
Beal’s offer of proof was insufficient to demonstrate the factual
availability of the defense, and we find no error in the district
court’s grant of the State’s motion in limine to prevent Beal
from adducing testimony or argument about it.
(b) Requirement of Force
We have concluded that the justification or choice of evils
defense that Beal attempted to raise in this case is factu-
ally unavailable and have declined to address the question
of whether it could be legally available to a situation like
the present one. The concurrence disagrees with our decision
not to reach the issue of whether the defendant’s use of force
should be a legal prerequisite to the availability of the choice
of evils defense. We have declined to reach that question for
several reasons, including that the issue has not been raised
by the parties, that the issue would be one of first impression
and contrary to the guidance in Nebraska Supreme Court prec-
edents, and that stretching our analysis to reach the issue would
require resolution of competing rules of statutory analysis. It
is because none of that is necessary to reach the same result—
that the defense was properly rejected in this case—that we
decline to do so.
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 955
Cite as 21 Neb. Ct. App. 939
Initially, we note that the issue of whether the defendant’s
use of force is a legal prerequisite to application of the choice
of evils defense has not been raised by the parties in this
case. Although the State did argue on appeal that that defense
should be found legally unavailable, the State’s argument in
that regard was solely on the basis of an assertion that the laws
prohibiting the possession of marijuana evidence a legislative
intent that the choice of evils defense not be applicable to pos-
session of marijuana in any situation. The State did not make
any argument to this court that the defense should be unavail-
able because Beal did not use any force, as the concurrence
would conclude. Indeed, during oral argument, counsel for the
State specifically answered a question posed by the court by
indicating that the State did not believe the defendant’s use of
force was a legal prerequisite and that the State was not assert-
ing such a proposition.
There is no prior judicial pronouncement in this state to
indicate that the defendant’s use of force is a legal prerequisite
to application of the choice of evils defense. The concurrence
has cited to no such authority, despite the Nebraska Supreme
Court’s having discussed the choice of evils defense and spe-
cifically delineated the elements that must be shown to suc-
cessfully raise the defense. State v. Mowell, 267 Neb. 83, 672
N.W.2d 389 (2003); State v. Wells, 257 Neb. 332, 598 N.W.2d
30 (1999); State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184
(1992). The Supreme Court’s iteration of those elements has
never included the defendant’s use of force. Id.
Our review of the Nebraska Supreme Court’s jurisprudence
involving the choice of evils defense and other justifica-
tion defenses in prior cases demonstrates that the Supreme
Court has consistently chosen to find the defense factually
unavailable whenever possible and not to address the defend­
ant’s use of force as a legal prerequisite. See, e.g., State v.
Mowell, supra (defense found factually unavailable because
of inadequate showing of imminent risk of harm and specific
declination to address legal availability); State v. Wells, supra
(defense found factually unavailable for inadequacy of offer of
proof on imminent risk of harm and without discussion of use
of force as legal prerequisite); State v. Graham, 201 Neb. 659,
Decisions of the Nebraska Court of Appeals
956 21 NEBRASKA APPELLATE REPORTS
271 N.W.2d 456 (1978) (defense found factually unavailable
for inadequate showing of imminent risk of harm and without
discussion of use of force as legal prerequisite).
Indeed, in State v. Mowell, supra, the Nebraska Supreme
Court was presented with a factual situation wherein the
defend­ nt attempted to raise the choice of evils or justification
a
defense in a factual situation where the defendant was not try-
ing to justify the use of any force. In that case, the defendant
was charged with second degree murder, use of a weapon, and
possession of a weapon. The defendant attempted to raise the
choice of evils defense specifically as a defense to the posses-
sion of a weapon charge, arguing he was justified in possessing
the weapon for self-defense because he was in fear for his life.
The Supreme Court iterated the specific elements necessary to
demonstrating the choice of evils defense, never mentioning
the defendant’s use of force as a legal prerequisite. Id. The
court declined to address whether the defense could be legally
available, focusing instead on rejecting the defense as factu-
ally unavailable because there was an insufficient showing of
imminent risk of harm. Id. If the conclusion of the concurrence
is correct and the defendant’s use of force is a legal prereq-
uisite, it would appear that the Supreme Court could have
specifically found the defense legally unavailable in that case
because possession of a weapon would not constitute the use
of force; the court did not need to do so to reach its result, and
it accordingly did not do so.
Finally, in order to reach the conclusion that the concurrence
would urge, we would be required to engage in discussion of
rules of statutory construction and to resolve potential conflicts
in those rules. The concurrence correctly points out that the
choice of evils defense at issue in this case is in a section of the
Nebraska Revised Statutes generally pertaining to justification
for the use of force. The concurrence correctly points out that
nearly every other statute in the vicinity in the statutes includes
in its title or in its text a reference to the use of force. Notably,
however, § 28-1407 specifically does not include a reference to
the use of force either in its title or in its text, and none of the
other specific justification statutes referenced by the concur-
rence are implicated in the present case.
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 957
Cite as 21 Neb. Ct. App. 939
It is undoubtedly correct, as the concurrence notes, that
statutory language is to be given its plain and ordinary mean-
ing and that courts are not to read into a statute something
that is not there or read anything plain and direct out of the
statute. See, State v. Sikes, 286 Neb. 38, 834 N.W.2d 609
(2013); State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d
96 (2013). In this case, however, the plain and ordinary
meaning of the words actually in § 28-1407 does not include
any reference to the defendant’s use of force. The title of
§ 28-1407 does not refer to the defendant’s use of force.
Although the surrounding statutes do include such references,
it is not apparent that the plain and ordinary meaning or the
plain and direct language of § 28-1407, standing on its own,
makes a defendant’s use of force a legal prerequisite to appli-
cation of § 28-1407.
The concurrence correctly notes that the definitions sec-
tion of Neb. Rev. Stat. § 28-1406(4) (Reissue 2008) defines
“[a]ctor” to mean “any person who uses force.” A conclusion
that this definition necessarily means that the defendant’s use
of force is a legal prerequisite to application of the choice of
evils defense found specifically in § 28-1407, however, has
never been espoused by the Nebraska Supreme Court. Such
a reading would also suggest that a general justification or
choice of evils defense would be legally unavailable in a vari-
ety of situations where the defendant does not engage in the
use of force, including the factual situation discussed above in
State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003), or in a
hypothetical situation where a defendant has attempted to flee
a potential kidnapper and has trespassed on private property to
hide and procure safety, all without using force.
While it may well be true that the Supreme Court would
conclude that the defendant’s use of force is a legal prerequi-
site in any situation, and regardless of whether any of the stat-
utory provisions specifically referring to the use of force are
implicated, because the Supreme Court has never done so and
has, in fact, elected on multiple occasions to find the defense
factually unavailable without discussing legal availability, we
conclude that it would be inappropriate for us to reach such a
conclusion in this case. This is especially so because there is
Decisions of the Nebraska Court of Appeals
958 21 NEBRASKA APPELLATE REPORTS
no need for us to raise and resolve such an issue to reach the
conclusion in this case.
The concurrence has not taken issue with the conclusion
that the choice of evils defense is factually unavailable in this
case or the conclusion that the district court properly sustained
the State’s motion in limine. As such, it is apparent that there
is no disagreement that the factual unavailability conclusion
is a correct way to reach the result of affirming the decision
of the district court. Because that conclusion is in accordance
with the arguments raised by the parties, is consistent with
prior Nebraska Supreme Court jurisprudence, and does not
require us to sua sponte raise an issue, engage in analysis of
potentially conflicting rules of statutory analysis, and make the
present case one of first impression unnecessarily, we decline
to do so.
3. Excessive Sentence
Finally, Beal asserts that the district court imposed an exces-
sive sentence. Beal’s sentence was within statutory limits, and
there is no apparent abuse of discretion. This assigned error
is meritless.
[27,28] Sentences within statutory limits will be disturbed
on appeal only if the sentences complained of were an abuse
of judicial discretion. State v. Podrazo, 21 Neb. Ct. App. 489, 840
N.W.2d 898 (2013). An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.
[29-31] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the amount of violence involved in the com-
mission of the crime. Id. In imposing a sentence, the sentenc-
ing court is not limited to any mathematically applied set of
factors. Id. The appropriateness of a sentence is necessarily
a subjective judgment and includes the sentencing judge’s
observation of the defendant’s demeanor and attitude and
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 959
Cite as 21 Neb. Ct. App. 939
all the facts and circumstances surrounding the defendant’s
life. Id.
Possession of marijuana with intent to deliver is a Class III
felony offense. See Neb. Rev. Stat. §§ 28-405(c)(10) [Schedule
I] (Cum. Supp. 2009) and 28-416(2)(b) (Reissue 2008). A
Class III felony offense is punishable by 1 to 20 years’ impris-
onment, a fine of $25,000, or both. Neb. Rev. Stat. § 28-105
(Reissue 2008).
Beal was sentenced to 48 to 72 months’ imprisonment. This
sentence is well within the statutory limits, with the maximum
portion of Beal’s sentence being less than one-third of the
possible maximum sentence. Beal has presented no argument
on appeal to demonstrate how this sentence, well within the
statutory limits, is an abuse of discretion, other than to assert
that he was 65 years old at the time of sentencing, has been a
lifelong activist, and received scores on an evaluation consist­
ent with being amenable to probation and unlikely to present
supervision problems.
Beal’s presentence investigation report indicates a long
criminal history, including a long history of disregard for
drug laws, starting in 1967. Since that time, Beal has been
convicted on at least nine occasions and in at least five dif-
ferent states for violation of a variety of drug laws. Beal has
received sentences of jail and prison time, probation, and
fines, but none of these avenues have served to deter him
from continuing to disregard drug laws. Indeed, the presen-
tence investigation report indicates that in January 2011, less
than 16 months after the stop giving rise to the present case,
Beal was caught in possession of 169 pounds of marijuana in
Wisconsin. Beal’s “activism” reflects a continual disregard
for drug laws across the country. Beal’s criminal history is
not confined solely to drug offenses, however. He also has
prior convictions for reckless endangerment and destruction
of property.
On the record presented, the district court’s sentence of 48 to
72 months’ imprisonment is not an abuse of discretion for this
conviction of possessing nearly 155 pounds of marijuana with
intent to deliver. This assigned error is meritless.
Decisions of the Nebraska Court of Appeals
960 21 NEBRASKA APPELLATE REPORTS
V. CONCLUSION
We find no merit to Beal’s assertions on appeal. We affirm.
Affirmed.
Bishop, Judge, concurring.
I concur with the majority opinion affirming the district
court’s decision and sentence in this matter. However, I write
separately to address the justification or choice of evils defense
that Beal sought to raise at his bench trial. I agree that the
trial court was correct to deny this defense to Beal; however,
I disagree with the majority’s analysis on this issue and have
concerns that it will perpetuate continued attempts to raise
this defense in similar circumstances when, in my opinion, the
defense is legally unavailable for individuals charged with pos-
session with intent to deliver marijuana.
The majority concludes that the defense was “factually
unavailable to Beal” and declines to address whether the
defense was “legally unavailable” and whether the “use of
force [or threat of force] is [necessary as] a legal prerequisite
to application of the . . . defense.” It seems to me that if the
statutes pertaining to this defense specifically require “use of
force,” then the justification defense is legally unavailable
to a defendant charged with possession of marijuana with
intent to deliver where it is conceded there has been no use
of force by that defendant in committing the offense. The
majority in this case, like that in the unpublished case from
this court referred to by the majority, State v. Thompson, No.
A-98-1371, 2000 WL 758767 (Neb. App. June 13, 2000)
(not designated for permanent publication), concludes that
the defense is factually unavailable to the defendant, in this
case because “Beal did not identify any particular individuals
who were at risk of immediately imminent harm” and Beal
“did not establish that he was acting to prevent infliction of
a specific and immediate harm to a reasonably identifiable
victim. Rather, he demonstrated general moral opposition to
illegalization of marijuana because of his belief in its medici-
nal benefits.” My concern is that trial courts and litigants
may view this decision, along with Thompson, as suggesting
that the justification defense may have merit in these cases if
a proper factual basis exists. Based on the plain language of
Decisions of the Nebraska Court of Appeals
STATE v. BEAL 961
Cite as 21 Neb. Ct. App. 939
our statutes, I do not believe our Legislature has authorized
an application of the justification statutes to marijuana pos-
session offenses.
The justification statutes fall under chapter 28 (titled
“Crimes and Punishments”), article 14 (titled “Noncode
Provisions”), at subpart (b) under the heading “Justification for
Use of Force,” and can be found in Neb. Rev. Stat. §§ 28-1406
through 28-1416 (Reissue 2008 & Cum. Supp. 2012). Section
28-1406(4) states that “[a]ctor shall mean any person who uses
force in such a manner as to attempt to invoke the privileges
and immunities afforded him by sections 28-1406 to 28-1416,
except any duly authorized law enforcement officer of the State
of Nebraska or its political subdivisions.” (Emphasis supplied.)
Section 28-1407(1) states in relevant part, “Conduct which the
actor believes to be necessary to avoid a harm or evil to him-
self or to another is justifiable if: (a) The harm or evil sought
to be avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged.” Section
28-1409 is titled “Use of force in self-protection,” § 28-1410 is
titled “Use of force for protection of other persons,” § 28-1411
is titled “Use of force for protection of property,” § 28-1412
is titled “Use of force in law enforcement,” and § 28-1413 is
titled “Use of force by person with special responsibility for
care, discipline, or safety of others.” Given that use of force is
found in the heading of the statutory section on justification,
in the definition of “actor,” and throughout the justification
statutes, I would affirm the trial court’s denial of this defense
to Beal, but on the ground that the defense is legally unavail-
able to a defendant charged with possession of marijuana with
intent to deliver.
The Nebraska Supreme Court recently reminded us that
“[i]t is not within the province of the courts to read a mean-
ing into a statute that is not there or to read anything direct
and plain out of a statute.” State v. Medina-Liborio, 285
Neb. 626, 631, 829 N.W.2d 96, 100 (2013) (emphasis sup-
plied). Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. State v. Sikes, 286 Neb. 38,
Decisions of the Nebraska Court of Appeals
962 21 NEBRASKA APPELLATE REPORTS
834 N.W.2d 609 (2013). If the language of a statute is clear,
the words of such statute are the end of any judicial inquiry
regarding its meaning. State v. Bossow, 274 Neb. 836, 744
N.W.2d 43 (2008). I do not see how we can read “use of
force” or “[a]ctor shall mean any person who uses force,” see
§ 28-1406(4), out of §§ 28-1406 through 28-1416. This is a
marijuana possession with intent to deliver case. It does not
involve the use of force, and accordingly, the “Justification
for Use of Force” statutes are legally unavailable to Beal. In
my opinion, that should be the end of our judicial inquiry on
that issue.
State of Nebraska, appellee, v.
Christopher D. Elliott, appellant.
___ N.W.2d ___
Filed April 22, 2014. No. A-13-522.
1. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
2. Statutes. Statutory language is to be given its plain and ordinary meaning.
3. ____. If the language of a statute is clear, the words of such statute are the end of
any judicial inquiry regarding its meaning.
4. ____. It is not within the province of a court to read a meaning into a statute that
is not warranted by the language; neither is it within the province of a court to
read anything plain, direct, or unambiguous out of a statute.
5. Criminal Attempt: Weapons: Sentences. Attempted use of a deadly weapon to
commit a felony is not a crime defined in Neb. Rev. Stat. § 28-1205 (Cum. Supp.
2012), and therefore, it does not carry a mandatory consecutive sentence.
6. Sentences. It is within the discretion of the trial court to direct that sentences
imposed for separate crimes be served consecutively.
7. ____. The test of whether consecutive sentences may be imposed under two or
more counts charging separate offenses, arising out of the same transaction or the
same chain of events, is whether the offense charged in one count involves any
different elements than an offense charged in another count and whether some
additional evidence is required to prove one of the other offenses.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
Scott P. Helvie for appellant.