State v. Franco , 27 Neb. Ct. App. 360 ( 2019 )

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STATE v. FRANCO
Cite as 27 Neb. Ct. App. 360
State of Nebraska, appellee, v.
M arlon Franco, appellant.
___ N.W.2d ___
Filed June 25, 2019. No. A-18-208.
1. Statutes. Statutory interpretation presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. 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.
4. Convictions: Corroboration: Witnesses: Testimony: Controlled
Substances. Under the Uniform Controlled Substances Act, corrobora-
tion is sufficient to satisfy the requirement that a conviction not be based
solely upon uncorroborated testimony of an individual cooperating with
the prosecution if the witness’ testimony is corroborated as to material
facts and circumstances which tend to support the testimony as to the
principal fact in issue.
5. Criminal Law: Corroboration: Testimony. Testimony of a cooperating
individual need not be corroborated on every element of a crime.
6. Controlled Substances. A person possesses a controlled substance
when he or she knows of the nature or character of the substance and of
its presence and has dominion or control over it.
7. Controlled Substances: Evidence: Circumstantial Evidence: Proof.
Possession can be either actual or constructive, and constructive pos-
session of an illegal substance may be proved by direct or circumstan-
tial evidence.
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8. Controlled Substances: Circumstantial Evidence: Intent.
Circumstantial evidence may support a finding that a defendant intended
to distribute, deliver, or dispense a controlled substance in the defend­
ant’s possession.
9. ____: ____: ____. Circumstantial evidence sufficient to establish pos-
session of a controlled substance with intent to deliver may consist of
evidence of the quantity of the substance, equipment and supplies found
with the substance, the place where the substance was found, the manner
of packaging, and the testimony of witnesses experienced and knowl-
edgeable in the field.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Justin B. Kalemkiarian, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
R iedmann, A rterburn, and Welch, Judges.
A rterburn, Judge.
INTRODUCTION
Marlon Franco appeals from a conviction, pursuant to jury
verdict, for possession of methamphetamine with the intent to
deliver in violation of Neb. Rev. Stat. § 28-416(1) (Reissue
2016). On appeal, Franco alleges that a cooperating indi-
vidual’s testimony was not sufficiently corroborated and that
the jury verdict rested on insufficient evidence. We reject
these arguments for the following reasons and, thus, affirm
Franco’s conviction.
BACKGROUND
On March 27, 2017, Undreia Martinez’ probation officer,
Avidan Perez, directed Martinez to report for drug testing.
Martinez was on probation at the time due to a conviction for
the unauthorized use of a financial transaction device. She
tested positive for methamphetamine on March 27 and admit-
ted her drug use to Perez. Pursuant to Martinez’ probation
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order, her residence was subject to search, and Perez informed
her that he would search her home following the positive
drug test.
Because probation officers do not carry firearms, police
officers often assist in searching homes, particularly when a
probation officer anticipates the presence of drugs or weap-
ons. Martinez admitted to Perez that there were drugs present
in her home. Martinez also told Perez that three individuals
were present in the home: Dylan Siefker, Jeremy Cushing, and
Yolanda Reyes. Perez asked a second probation officer, Jaime
Evans, and two police officers to assist in the search. They
gathered in a nearby parking lot to formulate a plan before
entering Martinez’ home. Perez directed Martinez, who was
also present, to remain in the parking lot during the search.
Perez led Evans and the police officers to Martinez’ resi-
dence, where two men, later identified as Siefker and Cushing,
were standing outside smoking. Perez ran into the home in
order to preserve its condition. As he entered, he saw Reyes
near the door moving toward him and a man, later identified
as Franco, sitting on the couch. Perez asked Reyes and Franco
to step outside. Perez noted Franco’s confused facial expres-
sion until Reyes conveyed the message to him in Spanish.
Perez said that he did not see anything in Franco’s hands
and that Reyes was carrying only a cell phone. Perez also
said he did not observe any suspected drugs on the couch at
that point.
A few seconds after Perez entered the home, Reyes and
Franco exited, and then Evans joined Perez inside. Evans
began searching the main level of Martinez’ home while Perez
searched the second floor. In one room upstairs, Perez found
marijuana; a folded dollar bill with white residue, which he
believed to be methamphetamine; and three scales. In the
other room upstairs, Perez found “a glass pipe with residue
in it [and] a syringe with a needle and a spoon.” Meanwhile,
Evans found a black zippered bag, smaller than a purse, that
was lying on the couch. Inside the black zippered bag was a
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plastic Ziploc bag, with green coloring at the top, that con-
tained methamphetamine. Martinez later testified that although
she had plastic baggies in her home, they had neither the
Ziploc seal nor the green coloring at the top. Evans said that
the black zippered bag, with the Ziploc bag inside that con-
tained methamphetamine, was on a couch cushion rather than
“in the crack in between the . . . cushions.” The Ziploc bag of
methamphetamine contained large “shards,” not salt-like crys-
talline. One of the police officers described the Ziploc bag of
methamphetamine as “a lot larger than what [he] was used to
seeing” as a street officer.
Franco was thereafter arrested and charged by criminal
complaint on March 29, 2017, with the crime of possessing 10
to 27 grams of methamphetamine with the intent to deliver. A
probable cause affidavit filed in the case noted that the Ziploc
bag of methamphetamine seized from the couch at Martinez’
home where Franco was sitting contained 25 grams of meth-
amphetamine. It also noted that Franco had $230 cash on his
person when he was arrested.
A jury trial was held from December 11 to 15, 2017. The
State introduced numerous exhibits and offered testimony from
11 witnesses: probation officers Perez and Evans; Martinez;
Siefker and Cushing, who were present outside Martinez’
home; Rhiannon Rojas; and five police officers. Franco offered
no evidence. In addition to the foregoing evidence, the follow-
ing evidence was adduced by the State.
Martinez testified that she had used methamphetamine dur-
ing the past 10 years, stopped using methamphetamine before
she gave birth to her son, and then relapsed. In March 2017,
Martinez allowed her friend Reyes to move into her home
and place property in a spare second-floor bedroom. Reyes
began providing methamphetamine to Martinez. In the days
leading up to Martinez’ testing positive for methamphetamine
and the probation and police officers’ searching her home on
March 27, Martinez and Reyes obtained methamphetamine
from Franco.
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On Friday, March 24, 2017, Martinez met Franco for the
first time when she and Reyes went to his trailer home to get
methamphetamine. Martinez testified that although she was
under the influence of both alcohol and methamphetamine that
night, she observed Franco give Reyes methamphetamine in
exchange for cash. Martinez testified that Franco and Reyes
spoke in Spanish, which she does not speak. Early in the morn-
ing on Sunday, March 26, Martinez and Reyes again went
to Franco’s trailer home and smoked methamphetamine with
Franco, supplied by him.
Rojas, who lived in the same trailer home as Franco, also
received methamphetamine from him during February and
March 2017. Rojas testified that she observed Franco store
methamphetamine in Ziploc bags that were colored green at
the top. She also testified that she knew Franco owned a black
zippered bag, like a fanny pack, in which he sometimes stored
his cell phone and cash but said that she never saw him keep
methamphetamine in it. Rojas said that in the past, she had
seen Franco with large quantities of methamphetamine, includ-
ing amounts up to a half pound.
Siefker testified that he did not see Franco or anyone with
methamphetamine at Martinez’ home on March 27, 2017. He
also said he did not see a black bag on the couch. Cushing
similarly testified that he did not see any methamphetamine at
Martinez’ home on March 27.
A police officer who interviewed Franco testified that Franco
denied any knowledge of the methamphetamine that was found
on Martinez’ couch. Franco told the officer that he was at
Martinez’ home to give a woman money for a hotel. Another
police officer testified that he tested the Ziploc bag of meth-
amphetamine for fingerprints, which yielded no result. He said
that he only finds fingerprints on plastic bags approximately
10 percent of the time. Another police officer with expertise
of methamphetamine testified that the 23-gram package found
at Martinez’ home would yield 115 individual doses, because
there are five doses per gram.
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The jury found Franco guilty of possession of methamphet-
amine with the intent to deliver, and the court entered judgment
accordingly. The court thereafter sentenced Franco to 4 to 10
years’ imprisonment with credit for 302 days’ time served.
Franco now appeals.
ASSIGNMENTS OF ERROR
On appeal, Franco argues generally that the evidence was
insufficient to support the jury’s verdict. He also specifically
argues that Martinez was a cooperating individual whose tes-
timony was not corroborated as required by Neb. Rev. Stat.
§ 28-1439.01 (Reissue 2016).
STANDARD OF REVIEW
[1,2] Statutory interpretation presents a question of law. In
re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018). We
independently review questions of law decided by a lower
court. Id.
[3] 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. State v. Garcia, 302
Neb. 406, 923 N.W.2d 725 (2019). 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. Id.
ANALYSIS
Corroboration of Cooperating Individual.
Franco argues that Martinez was a cooperating individual
under § 28-1439.01 and that her testimony was not suffi-
ciently corroborated as the statute requires. The State argues in
response that Martinez was not a cooperating individual. We
find that Martinez was not a cooperating individual under the
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relevant statute, and therefore, her testimony was not subject
to the statute’s corroboration requirement.
[4,5] Nebraska law provides, “No conviction for an offense
punishable under any provision of the Uniform Controlled
Substances Act shall be based solely upon the uncorrobo-
rated testimony of a cooperating individual.” § 28-1439.01.
Under the Uniform Controlled Substances Act, corroboration
is sufficient to satisfy the requirement that a conviction not be
based solely upon uncorroborated testimony of an individual
cooperating with the prosecution if the witness’ testimony is
corroborated as to material facts and circumstances which tend
to support the testimony as to the principal fact in issue. State
v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018), modified
on denial of rehearing 302 Neb. 492, 924 N.W.2d 64 (2019).
Testimony of a cooperating individual need not be corrobo-
rated on every element of a crime. Id.
For § 28-1439.01 to apply, however, the person testi-
fying must be a “cooperating individual.” Neb. Rev. Stat.
§ 28-401(26) (Reissue 2016) provides, “Cooperating individual
means any person, other than a commissioned law enforcement
officer, who acts on behalf of, at the request of, or as agent
for a law enforcement agency for the purpose of gathering or
obtaining evidence of offenses punishable under the Uniform
Controlled Substances Act.” Our review of pertinent case law
reveals cases which discuss whether, under the facts of each
case, a cooperating individual’s testimony was adequately cor-
roborated, but none which make a specific determination as to
whether a particular witness meets the definition of a cooperat-
ing individual. The question in this case is whether Martinez
acted on behalf of, at the request of, or as an agent for law
enforcement for the purpose of gathering or obtaining evidence
against Franco.
We find that Martinez was not a cooperating individual.
First, we note that it seems axiomatic that a cooperating indi-
vidual must perform a function greater than simply providing
information to law enforcement regarding events that she has
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observed in the past. Cooperating individuals also often par-
ticipate in some sort of quid pro quo agreement whereby inves-
tigators receive assistance from the individual in exchange for
providing to the individual some benefit.
This quid pro quo arrangement between investigators and
cooperating individuals is well established in our case law. For
example, in State v. Palser, 238 Neb. 193, 469 N.W.2d 753
(1991), the arrangement was made explicit. To induce an indi-
vidual to cooperate in a controlled drug buy, officers explained
to the cooperating individual that he “had the option of coop-
erating with the prosecuting authorities or a criminal complaint
might be filed against him” for his participation in past drug
purchases. Id. at 197, 469 N.W.2d at 757.
Similarly, in State v. Jimenez, 248 Neb. 255, 533 N.W.2d
913 (1995), an individual cooperated with investigators in
exchange for a reduced charge. In Jimenez, the court noted
that corroboration may be supplied by observation of the
cooperating individual’s meeting with the target of the inves-
tigation and searching the cooperating individual before and
after the purchase of controlled substances. These are common
occurrences in cases involving cooperating individuals, which
connote active evidence gathering on the part of the coopera-
tor. See, also, State v. Kuta, 12 Neb. Ct. App. 847, 686 N.W.2d
374 (2004).
In State v. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001),
a drug task force monetarily compensated a cooperating
individual who participated in controlled drug transactions.
Investigators gave that cooperating individual “‘buy money’”
prior to the drug transaction and also searched him both before
and after the transaction. Id. at 1004, 627 N.W.2d at 757.
Additionally, investigators outfitted the cooperating individual
with a transmitter disguised as a pager. Id.
While dismissal or reduction of charges and/or compen-
sation are commonly found in cases involving cooperating
individuals, these factors are not required. What is required
is that the cooperating individual “acts on behalf of, at the
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request of, or as an agent for a law enforcement agency.” See
§ 28-401(26). This definition requires that the individual take
some action in response to law enforcement’s request. Finally,
the definition requires that the act requested be “for the pur-
pose of gathering or obtaining evidence.” See id. In our view,
this definition indicates that this “gathering” takes place in
response to law enforcement’s request for the cooperator to
“act[].” It does not mean that a person who merely provides
information regarding a crime he or she has observed is trans-
formed thereby into a cooperating individual.
In the present case, Martinez is not a “cooperating indi-
vidual” under § 28-1439.01. First, we note that it is highly
questionable whether her probation officer would qualify as a
“law enforcement agency” under § 28-401(26). However, even
assuming that the probation officer coupled with the police
department’s later involvement qualifies, Martinez’ active
cooperation, to the extent that it existed at all, was providing
Perez a key to her home and informing him of its contents
and occupants. But Perez was entitled to search Martinez’
home at any time. Martinez’ provision of a key to her home
was required under her probation order, and informing Perez
of what he may encounter when he entered the home does
not connote the type of active evidence gathering found in the
statutory definition. Here, ascertaining Martinez’ compliance
with her probation order was the purpose of searching her
home, not collecting evidence of crimes under the Uniform
Controlled Substances Act. Moreover, there is no evidence
that Martinez was offered any leniency or other incentive to
provide information to Perez or to the police department or to
testify at trial. In fact, Martinez was sanctioned for her proba-
tion violation and later was sentenced to jail. Martinez’ actions
in this case exhibited none of the paradigmatic qualities of a
“[c]ooperating individual” as defined by § 28-401(26) or per-
tinent case law.
Because Martinez did not act as a cooperating individual
under § 28-1439.01, her trial testimony was not subject to
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the statute’s corroboration requirement. We therefore need not
consider whether, and to what extent, Martinez’ testimony was
corroborated by other sources.
Sufficiency of Evidence.
Franco was convicted of possession of methamphetamine
with the intent to deliver in violation of § 28-416(1). However,
Franco contends that his conviction was based on insufficient
evidence of possession of methamphetamine with the intent to
deliver. We find that the jury’s finding of Franco’s guilt was
supported by sufficient evidence.
[6-8] A person possesses a controlled substance when he
or she knows of the nature or character of the substance and
of its presence and has dominion or control over it. State v.
Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). Possession can
be either actual or constructive, and constructive possession of
an illegal substance may be proved by direct or circumstantial
evidence. Id. Circumstantial evidence may also support a find-
ing that a defendant intended to distribute, deliver, or dispense
a controlled substance in the defendant’s possession. State v.
Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). Circumstantial
evidence sufficient to establish possession of a controlled sub-
stance with intent to deliver may consist of evidence of the
quantity of the substance, equipment and supplies found with
the substance, the place where the substance was found, the
manner of packaging, and the testimony of witnesses experi-
enced and knowledgeable in the field. Id.
Taken in the light most favorable to the State, the evidence
produced at trial showed that Franco had a history of distrib-
uting methamphetamine to others. Both Rojas and Martinez
testified that they personally had received methamphetamine
from Franco in March 2017. Moreover, Martinez testified that
she observed Reyes provide cash to Franco in exchange for
methamphetamine on the evening of March 24.
The evidence also showed that Franco owned a black zip-
pered bag like the one containing methamphetamine that
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Evans found on Martinez’ couch. Rojas testified that she knew
Franco owned a black zippered bag that was smaller than the
size of a purse, although she said that she did not know Franco
to store methamphetamine inside it. Rojas also testified that
she had observed Franco with methamphetamine in a Ziploc
bag that had green coloring at the top, which comports with
the Ziploc bag of methamphetamine found inside the black
zippered bag on Martinez’ couch. Moreover, Franco had been
sitting on Martinez’ couch immediately before Evans found the
black zippered bag, which she said was sitting on top of the
couch and not “in the crack in between the . . . cushions.” A
police officer testified that the quantity of methamphetamine
found in the Ziploc bag was consistent with an intent to deliver
given the quantity contained therein.
Franco contends that the evidence does not support the
verdict because the methamphetamine was found in the home
of a known methamphetamine user who had other drug para-
phernalia in her home and was on probation at the time.
Nevertheless, the evidence in this case, when taken in a light
most favorable to the State, was sufficient to support the jury’s
finding Franco guilty of possession of methamphetamine with
the intent to deliver. Thus, we affirm the judgment entered by
the district court.
CONCLUSION
We find that the corroboration requirement of § 28-1439.01
was inapplicable to the testimony of Martinez, because she
was not a cooperating individual as defined by § 28-401(26).
We further find that there was sufficient evidence to support
the verdict finding Franco guilty of possession of methamphet-
amine with the intent to deliver.
A ffirmed.