State v. Nation ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. NATION
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JEREMIAH Y. NATION, APPELLANT.
Filed April 7, 2020. No. A-19-518.
Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
Joeeph D. Nigro, Lancaster County Public Defender, and Robert G. Hays for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.
PIRTLE, BISHOP, and ARTERBURN, Judges.
PIRTLE, Judge.
INTRODUCTION
Jeremiah Y. Nation appeals his convictions and sentences for two counts of robbery
following a jury trial. Nation argues that the district court for Lancaster County improperly (1)
denied his motions to suppress certain evidence seized during a search of his residence, (2) found
the evidence presented at trial was sufficient to support his convictions, and (3) imposed excessive
sentences. For the reasons that follow, we affirm.
BACKGROUND
On January 12, 2018, Nation was charged by information with two counts of robbery, each
count a Class II felony. The information was later amended to include a habitual criminal
enhancement on both counts. The charges arise out of two incidents occurring on June 26 and June
30, 2017, where two Burger King restaurants in Lincoln, Nebraska, were robbed at gunpoint.
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FIRST MOTION TO SUPPRESS
On May 21, 2018, Nation filed a motion to suppress evidence discovered during an alleged
pre-warrant search of his residence and vehicle on the late evening/early morning of June 30 and
July 1, 2017. A hearing on the motion to suppress was held on August 21, 2018.
At the hearing, Nation’s trial counsel stated that on the evening of June 30, 2017, law
enforcement arrived at Nation’s residence and placed him and Kelsey Bomberger, whom Nation
lived with at the time, into custody. He argued that prior to the search warrant being issued and
served, law enforcement asked Bomberger questions that could have only been asked if a search
of the residence had already taken place. The State introduced a certified copy of the search warrant
along with the supporting affidavit of Investigator Benjamin Pflanz. Nation’s counsel introduced
a transcript of Bomberger’s June 30 interview with law enforcement and several additional case
information reports prepared by law enforcement. The State objected on the basis of relevance.
The rulings on the State’s objections and the motion to suppress were taken under advisement.
The evidence showed that law enforcement officers were dispatched to a Burger King
located at 2805 South 48th Street in Lincoln, Nebraska, at approximately 10:30 p.m. on June 30,
2017. Witnesses described the suspect as a black male dressed in all black clothing. One witness
reported the suspect left the scene in a “black Charger or Avenger” and drove westbound on Van
Dorn Street. Shortly after, law enforcement located a vehicle matching the description of the
suspect’s parked in a driveway of a residence on South 35th Street. The vehicle appeared as though
it had recently been driven due to a warm engine block and the dome light of the vehicle being on.
Upon arrival, law enforcement gave verbal commands for those inside to exit the residence.
After a short time, Bomberger exited the house and was taken into custody. Nation was observed
closing the curtains of the kitchen window, obstructing the view of the officers outside, and
eventually came outside and was taken into custody. After both Bomberger and Nation exited the
residence, law enforcement were informed that two children were asleep inside. The residence was
cleared and seized while a search warrant was being obtained. One officer remained inside at the
time.
After her interview, Bomberger was transported back to the residence, and a search was
conducted pursuant to a signed search warrant shortly thereafter. The search of Bomberger and
Nation’s residence, and the vehicles located in the driveway, began at approximately 2 a.m. on
July 1, 2017. Within the Dodge Charger was a package of BBs, a pair of black rubber gloves, and
two CO2 cartridges. Within the home, law enforcement located a large amount of cash, a white
plastic bag with red lettering that matched the description of the one used in the robbery earlier
that evening, rolls of quarters, a BB gun case, and black pants and a black hoodie sweatshirt.
Officers also located a silver and black BB gun, additional cash and rolls of quarters, and a Union
Bank deposit bag with Burger King paperwork inside the HVAC system within the residence.
On December 6, 2018, the district court issued an order overruling Nation’s first motion to
suppress. Exhibits 4-7 were received over the State’s objections. No ruling was made on exhibit
3, the transcript of Bomberger’s police interview. In its order, the district court explicitly found
that “none of the information used to secure the warrant was obtained from what may or may not
be described as an illegal entry or impoundment.” The district court found that Nation had not met
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his burden of showing that an illegal search of the home was performed prior to the issuance of
the search warrant.
SECOND MOTION TO SUPPRESS
On January 4, 2019, Nation filed a second motion to suppress, again challenging the alleged
pre-warrant search of his residence and vehicle. The motion stated that exhibit 1, a transcript of
the preliminary hearing in this case, and exhibit 3, the transcript of Bomberger’s police interview,
were not received into evidence at the initial hearing and were critical to the issues raised in the
motion to suppress. A hearing on the second motion to suppress took place on February 1, 2019.
At the hearing, Nation’s counsel offered exhibits 1 and 3, which had not been previously
received into evidence. Exhibits 2-7, which had previously been received, were also reintroduced.
Arguments were made via the previously-submitted briefs of the parties, and the matter was taken
under advisement.
During her interview, Bomberger indicated that she returned home from work at around 6
p.m. on June 30 and Nation left at around 7 p.m. but returned sometime shortly after 8 p.m. and
did not leave again to her knowledge. At some point Bomberger took a shower for 20-30 minutes
and could not account for Nation’s whereabouts at the time. At one point, Investigator Andrew
Gallagher and Bomberger had the following exchange:
INV. GALLAGHER: Uhm, and the other thing is, uhm, th-th-the clothes that were
in the bedroom, like, I mean, there’s some black sweatpants and like a black sweatshirt.
Was he wearing that earlier in the day? That was in the bedroom, on the floor.
BOMBERGER: I don’t think he has black sweatpants.
INV. GALLAGHER: Well, there’s black sweatpants in the bedroom.
BOMBERGER: I’ve never seen (inaudible).
INV. GALLAGHER: They might be slacks, I don’t know if they’re sweatpants per
se, but they were like black pants. So, does he have work slacks that are black or work
pants?
BOMBERGER: Uh huh (yes).
Gallagher also asked about a plastic bag lying around in the bedroom of Bomberger and Nation’s
residence. He also questioned Bomberger about rolls of quarters located in the basement, and the
possibility of some type of airsoft or BB gun being located in the home.
On March 27, 2019, having considered the additional evidence in exhibits 1 and 3, the
district court overruled Nation’s second motion to suppress on the same basis it had overruled the
first motion to suppress.
JURY TRIAL
A jury trial was held on April 3 to 5 and April 8 to 9, 2019. Kaylean Gentry testified that
on the evening of June 30, 2017, she was visiting friends at their home near 47th and Van Dorn
Streets in Lincoln, Nebraska. At approximately 10:30 p.m. that evening she went outside to her
vehicle to buckle car seats for her children when she witnessed an individual dressed in all black,
and carrying a white bag, walking toward her vehicle. After seeing her, the man turned the other
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way, dropped something on the street, and drove off in a black car she described as either an
“Avenger or a Challenger.” The man drove westbound on Van Dorn Street.
Officer Brian Ward testified that he was on duty the evening of June 30, 2017, when he
was alerted of a robbery over the police scanner. After canvassing the area, Ward saw a black
Charger with its dome light on parked in the driveway of a residence on South 35th Street. Ward
approached the vehicle, placed his hand near the radiator, and noticed it was still hot. Ward
surveyed the area behind the house and looked inside an open window into the kitchen, but did not
see anybody at the time. Shortly after, Ward requested additional units to the scene to assist with
a possible suspect of the earlier robbery.
Based on the registration of the vehicle, Ward came to believe Nation resided at the
residence. This was subsequently verified by Officer Andrew Vocasek through the Lincoln Police
Department (LPD) Records Management System. Nation later exited the house and was taken into
custody. At that point, Ward and other officers cleared the residence in order to ensure no one else
was inside, given the involvement of a firearm in the earlier robbery.
On cross-examination, Ward indicated that he cleared the basement portion of the residence
and did not see anything in plain view that appeared as though it had been taken from a robbery.
After the protective sweep, while the search warrant was being obtained, Officer Gregg
was tasked with staying inside the entryway while a search warrant was obtained. While there,
Gregg did not see anything that appeared related to a robbery.
Alexander Schmidt testified that he was working at the Burger King on 48th and Van Dorn
Streets in Lincoln on June 30, 2017. At approximately 10:30 p.m. that evening Schmidt was
leaving the restaurant when a man pulled out a handgun and pointed it directly at his face. The
man instructed Schmidt to walk back inside the restaurant, toward the manager’s office. The man
also ordered the other employees to go with them toward the back. In the office, the man pulled
out a plastic bag and demanded “big bills and quarters.” One of the managers placed a Union Bank
deposit bag into the plastic bag. Schmidt testified that the plastic bag was clear or opaque with red
writing on it. The man then asked for the phones of everyone in the office, and the store phone.
Schmidt described the man as wearing black pants, a black sweatshirt, a Dri-FIT shirt as a
facemask, and wearing his hood over the top of his head. He identified the man as having brown
eyes and being an African American male. He described the handgun as black with a silver slide
and noticed that it made a rattling noise which made him believe it was not a “real gun.” Schmidt
testified that the Burger King has a camera that overlooks the front of the store where the registers
are located. Video surveillance was introduced from the night of the robbery as exhibit 24.
Terra Roberts, a general manager at the 48th and Van Dorn Burger King, testified that she
was working the evening the restaurant was robbed. She testified that she likely took at least $1,000
from the cash registers that evening and put it in the safe in the office. Roberts’ testimony
reaffirmed Schmidt’s description of the suspect’s clothing and the firearm and use of a plastic
grocery bag to hold the money.
The State introduced as exhibit 25 the Union Bank deposit bag that was found at Nation’s
residence. Roberts testified that she recognized the bag as the one kept in the restaurant safe
because she had “touched it a zillion times” and noticed the words “Burger King” in worn ink near
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the top of the bag. She testified that unclaimed paychecks are kept in the bank bag and placed in
the safe.
Kara Meints, another manager of the Burger King at 48th and Van Dorn, testified that she
was at the restaurant that evening doing the financial books for the month. She testified that the
man who robbed the restaurant had his face covered so that only his eyes and part of his nose were
visible. She was unable to testify exactly how much money had been taken.
The State introduced exhibit 26, a photocopy of a former Burger King employee’s
paycheck, which was recovered during the search of Nation’s home. She testified that the
employee number reflected on the paycheck was “491467” and the first two numbers, “49,” are
indicative of the store number for the Burger King on 48th and Van Dorn in Lincoln.
Alexis Gruhn testified that she was a crew member at the Burger King at 48th and Holdrege
in Lincoln when it was robbed on June 26, 2017. She testified that she was outside at around 11
p.m. when a man dressed in all black approached her and her manager and told them to give him
their phones. Her manager, Alicia Anderson, initially refused, but complied when the man pulled
out a gun and put it up to her head. Gruhn recalled the man specifically demanding the cash and
quarters from the safe.
The State introduced exhibit 27, which is video surveillance from the June 26 robbery. The
video depicted the suspect, dressed in all black and wearing black gloves, demanding money from
Burger King employees at gunpoint.
Alicia Anderson, was the manager at the 48th and Holdrege Burger King on June 26, 2017,
when the restaurant was robbed. She testified that a man wearing a black hoodie sweatshirt, black
jeans, and a black mask, pointed a gun at her and told her and Gruhn to walk back to the office
where the safe was located. She described the man as having a “mocha brown” skin tone. She
testified there was probably $400-$500 in the safe at the time.
Pflanz testified that as an investigator he conducts follow-up on felony investigations, such
as robberies. On June 30, 2017, Pflanz was alerted of a robbery that had taken place at 48th and
Van Dorn and began listening to the radio dispatch related to the robbery. After reports that a
potential suspect had been located, Pflanz did not go to the scene. Instead, he began drafting an
affidavit for a search warrant based on the facts that were coming in.
Pflanz spoke with Investigator Drager, who was the responding officer to the robbery at
48th and Van Dorn, and included information that Drager had received from one of the Burger
King employees working at the time, Schmidt. At some point, after officers had responded to 2525
South 35th Street where the vehicle of the potential suspect was located, it was determined the
vehicle was registered to Nation. Pflanz also learned from another officer that the phones that had
been taken from the Burger King were located at multiple intersections on Van Dorn, consistent
with the path of travel from the Burger King to Nation’s residence.
Pflanz testified that he recognized similarities between the June 30 robbery and the robbery
of the 48th and Holdrege Burger King that had taken place a few days earlier. The similarities
included the physical description of the suspect, the all black attire, the brandishing of a black
handgun with a silver slide, the fact both involved Burger King restaurants, the demand for large
bills and quarters, and the similar timeframe each night.
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Pflanz testified that “clearing” a residence, or a “protective sweep,” is common in cases
where evidence of a recent crime may be destroyed or removed prior to the police obtaining a
search warrant. When the crime involves a weapon, another purpose is to account for all
individuals in the residence and ensure the safety of the officers and the general public. Pflanz
testified that he did not include any information about the protective sweep in his affidavit for the
search warrant. A search warrant was issued and Pflanz arrived at Nation’s residence with the
warrant at approximately 2 a.m. on July 1, 2017. At that point, the warrant was read, and a search
of the residence was conducted.
Pflanz testified that the search of Nation’s residence and the two vehicles in the driveway
concluded at 4:22 a.m. The search of the Charger revealed a pair of black gloves, similar to those
used in the 48th and Holdrege robbery, a package of BBs, and two silver metallic CO2 cartridges
that appeared to belong to a BB gun or pellet gun. Within Nation’s residence, in the basement,
Pflanz testified he found two ten-dollar rolls of quarters and a plastic case for a handgun or BB
gun. Pflanz also located a white plastic grocery bag with red writing in the same bedroom where
the gun case was found. A pair of dark shoes, similar to those described by witnesses of the
robberies, was also seized.
On cross-examination, Pflanz testified that Nation was not a suspect for either Burger King
robbery until the discovery of the black Charger with its dome light on in his driveway. He testified
that, prior to obtaining the search warrant, Sergeant Justin Roach mentioned that “there is going to
be stuff in [Nation’s house]” but no other information regarding evidence discovered during the
protective sweep was mentioned. He acknowledged that the warrant was not executed until after
Bomberger had been questioned. He was unable to testify whether other officers discovered
evidence in plain view during the protective sweep because there was no report of it in any of the
police reports. He was unable to say whether any of the officers were aware if a BB gun, opposed
to a real firearm, had been used in either robbery.
Sergeant Benjamin Kopsa testified that he was the shift supervisor the night of June 30,
2017, and was in charge of the scene at Nation’s residence. Kopsa testified that he ordered a
protective sweep of the home in order to ensure no one else was present inside other than the
sleeping children, and that he remained in the house for a short time before turning over the task
of keeping the residence secure to Gregg.
Kopsa testified that he was involved in the search of the upstairs of the residence and later
the basement. In the basement, Kopsa discovered a bank bag, a black and silver BB gun, and some
money, consisting of loose bills and rolls of quarters, hidden inside the furnace.
On cross-examination, Kopsa testified that at least four officers were involved in the
protective sweep of the residence, and that he did not see anything related to the robbery in plain
view. He testified that if any officer had knowledge of the location of evidence prior to the
execution of the search warrant, he would have been told about it.
Roach testified that he was on duty the evening of June 30, 2017, and arrived on scene at
Nation’s residence between 10:45 and 11 p.m. that evening. After Nation was handcuffed and
placed in a police cruiser, and given his Miranda warnings, he willingly spoke with Roach. The
State played exhibit 98, a recording of that conversation, in which Nation denied leaving the
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residence other than a brief period of time between 6 p.m. and 7:30 p.m. to pay an automotive bill.
He also consented to a search of his vehicle, the black Charger located at the residence.
Once the search warrant arrived, Roach read the warrant out loud and directed teams of
officers to search designated areas of the house. Once inside, Roach discovered a purse on the
kitchen counter with cash visible inside. Later in his search, in the laundry room located in the
basement, Roach discovered three pairs of black Dickies pants and a black hoodie sweatshirt.
Roach described the gun that was later discovered as “a very realistic looking black and silver
semiautomatic handgun replica. It was a CO2 BB gun.”
On cross-examination, Roach testified that he did not receive any information regarding
previously-located evidence prior to the execution of the search warrant. Roach did not recall
receiving any information about the style or brand of pants the officers would be looking for, but
rather just the color description.
Investigator Lacey Reha testified that she responded to the Burger King at 48th and Van
Dorn after the robbery call came out. After taking fingerprints from the Burger King doors, Reha
made two stops on her way to Nation’s residence and discovered phones taken from the restaurant
that had been disposed of. She testified that she discovered three phones between the Burger King
and Nation’s residence, all along Van Dorn Street. Once on scene at Nation’s residence, Reha
overtook duties as the photographer at the scene.
Investigator Tu Tran testified that he was involved in taking Nation into custody and
processing property that was seized from Nation’s residence. One such item was a Union Bank &
Trust deposit bag. Tran also counted the money that was found within the deposit bag, which
totaled $1,053. Additional money was found in Nation’s furnace in the amount of $500 and in
Bomberger’s purse in the amount of $623. A torn up Burger King paycheck was also found in the
Union Bank bag.
On cross-examination, Tran testified that during Bomberger’s interview he asked her about
the presence of BB guns that looked like real guns within the home. Tran acknowledged that he
likely received information from an officer on scene at Nation’s residence that would have caused
him to inquire into a BB gun rather than a real gun. However, he also testified that, from his
experience, many cases involving firearms involve what turn out to be realistic looking BB guns
and that he was merely attempting to cover all possibilities while questioning Bomberger.
Jared Minary, a forensic video technician with the LPD, testified that he takes video from
crime scenes and uses still images from the video to publish on Crime Stoppers or compare the
images to known suspects or vehicles. Minary reviewed video surveillance from the June 26, 2017,
Burger King robbery. He testified that the appearance of the glove in the video was consistent with
the glove recovered from Nation’s vehicle. He was unable to conclusively state that the glove in
the surveillance footage and the glove discovered in Nation’s vehicle were the exact same glove.
Minary reviewed surveillance footage from the June 30, 2017, Burger King robbery and
testified that both the hoodie sweatshirt appearing in the footage and the one recovered from
Nation’s residence have two seams across the hood. Minary also testified to similarities between
surveillance images from both Burger King robberies where the suspect was holding a similar
white object and firearm. Minary conceded that he was not able to conclusively determine that the
white object and the firearm appearing in the images were the same in both robberies.
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Bomberger, who was living with Nation at the time of his arrest, testified she was in a
romantic relationship with Nation at the time. She testified that Nation was contributing $200 or
$300 per month to live with her. Around the time of his arrest, Nation had recently been fired from
Kawasaki and had started a new job at Burger King.
Bomberger testified that on June 30, 2017, she worked until approximately 5 p.m. and then
went to the bank to deposit her paycheck. At around 8 p.m. that evening Bomberger arrived home
for the night. She testified that Nation was at the home around 9 p.m. or 10 p.m. that evening when
she put her children to bed. She then took a shower that lasted between 20 and 30 minutes. At
some point Bomberger noticed the police presence outside her home and went outside.
Bomberger testified that the money found in her wallet was withdrawn from her bank
account. She also testified that she occasionally keeps rolls of quarters for car washes or to use at
the laundromat.
On cross-examination, Bomberger testified that she returned home from the police station
prior to the search warrant being executed. Bomberger did not recall being asked about clothing,
rolls of quarters, or a BB gun during her interview. She acknowledged that the transcript of her
interview showed she was asked about those items. Bomberger testified that she was concerned
law enforcement searched her house because she would not want anyone inside without her
knowing.
Investigator Gallagher testified that he acquired a search warrant for a black Samsung cell
phone that was recovered from Nation’s residence and determined to belong to Nation.
On cross-examination, Gallagher testified that, during her initial interview, he asked
Bomberger about specific items found within the home but that his questions were based off of
information that was received by other officers at the scene. He acknowledged that he asked
Bomberger if she had seen Nation with a “handgun or even a toy gun in the past.”
Investigator Corey Weinmaster testified that he is a member of the electronic evidence unit
with the LPD and works on extracting data from cell phones, computers, and other electronic
devices. Weinmaster testified that he conducted a digital examination of the cell phone identified
as belonging to Nation. Weinmaster testified at length regarding the process of extracting
electronic data from a cell phone.
After conducting an extraction of the data on Nation’s cell phone, Weinmaster identified
Google searches for “burger king lincoln, ne” and “what time does the burger king lobby close,”
which were searched for on June 26, 2017. Other similar searches related to Burger King were
made on June 13 and June 22. Weinmaster also retrieved a history from “Facebook Messenger”
which included a conversation between Nation and Bomberger from June 26, 2017:
BOMBERGER: Money is nice.
BOMBERGER: U know I just want YOU
BOMBERGER: But I’m w the shit
NATION: And you got that already . . . you know what we don’t have yet . . .
exactly! So let’s get it!
Weinmaster also extracted images from Nation’s cell phone that were clicked on after a
particular search was made on the phone. The images retrieved were photos of the exterior of the
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Burger King restaurants located at 48th and Van Dorn and 48th and Holdrege. There was also a
Facebook Messenger conversation between Nation and Bobby McMillian that took place on June
27, 2017, beginning at 6:49 a.m.:
NATION: You see the news cuz? Lol Its on there
MCMILLIAN: Lol I’m bout to now
NATION: No video, no nothing cuz!
MCMILLIAN: Lol ima watch I got it on channel now
MCMILLIAN: I seen it you good lol
MCMILLIAN: Delete this shit I’m deleting it now
NATION: Already
Exhibit 123 showed emails from Wells Fargo to “nationjeremiah@gmail.com” which reflected an
ATM receipt from a cash deposit made on June 27, 2017, for an amount of $281. There were also
deposits for separate amounts of $25, $24, and $17 at another ATM location.
After the conclusion of Weinmaster’s testimony, the State rested. Nation moved to dismiss
on the basis that the State failed to establish a prima facie case on either count. That motion was
overruled. Nation rested his defense without presenting any evidence. After both parties rested,
Nation moved for a directed verdict on each of the two counts on the basis that the evidence
adduced by the State was insufficient to allow a reasonable juror to find beyond a reasonable doubt
that Nation was guilty of the charges. That motion was overruled. Closing arguments were given
by the parties and the matter was submitted to the jury.
After deliberation, the jury returned a unanimous verdict of guilty on both counts against
Nation. A presentence investigation report (PSI) was ordered by the court.
A sentencing hearing was held on May 15, 2019. At the hearing, the State presented
evidence of Nation’s prior convictions for the purposes of a sentencing enhancement under Neb.
Rev. Stat. § 29-2221 (Reissue 2016). Other than the amount of time-served for purposes of jail
credit, Nation did not offer any additions or corrections to the PSI. Nation’s counsel asked that the
court impose the statutory minimum and order the sentences on the two robbery charges to run
concurrently due to the similar nature of the crimes and the minimal violence involved. After
considering Nation’s criminal history and the information in the PSI, the district court sentenced
Nation to 20 to 40 years’ imprisonment on both counts, with the sentences to run consecutively.
Nation received credit for four days’ time served. This appeal followed.
ASSIGNMENTS OF ERROR
Nation assigns as error, consolidated and restated, that (1) the district court erred in
overruling his motions to suppress evidence, (2) the evidence adduced at trial was insufficient to
sustain his convictions, and (3) the district court imposed an excessive sentence.
STANDARD OF REVIEW
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
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those facts trigger or violate Fourth Amendment protection is a question of law that an appellate
court reviews independently of the trial court’s determination. State v. Hartzell, 304 Neb. 82, 933
N.W.2d 441 (2019). When a motion to suppress is denied pretrial and again during trial on renewed
objection, an appellate court considers all the evidence, both from trial and from the hearings on
the motion to suppress. Id.
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 the 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 elements of the crime beyond a reasonable doubt. State
v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Garza, 295 Neb. 434, 888 N.W.2d 526 (2016). A
judicial abuse of discretion exists when the reason or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying just results in matters submitted for
disposition. Id.
ANALYSIS
MOTIONS TO SUPPRESS
Nation’s first two assignments of error allege that the district court erred in denying his
motion to suppress and second motion to suppress. Nation argues that the questions officers asked
Bomberger during her initial interview, prior to the execution of the valid search warrant, could
only have been asked if a search of the residence had already been done. We disagree.
Nation does not challenge the seizure of the premises during the time the search warrant
was being obtained, nor the validity of the search warrant itself, but rather claims a warrantless
search was conducted prior to a valid warrant being obtained. Regarding a motion to suppress, the
initial burden of proof is on the movant to establish a prima facie case of an unconstitutional search
and seizure, and when such prima facie case has been established, the burden of proof shifts to the
State to establish that the search and seizure were constitutionally permissible. State v. Vrtiska,
225 Neb. 454, 406 N.W.2d 114 (1987).
In this case, whether law enforcement conducted a pre-warrant search of the premises was
a factual dispute to be determined by the district court. As previously mentioned, in reviewing a
trial court’s ruling on a motion to suppress, we review the trial court’s factual findings for clear
error. State v. Hartzell, supra. Based on our review of the record, we cannot say the district court
committed clear error in determining that a pre-warrant search of Nation’s residence was not
conducted during the legitimate protective sweep (which, notably, Nation does not challenge).
Nation takes issue with questions asked to Bomberger regarding the presence of black pants
and a black sweatshirt on the bedroom floor; a plastic bag “laying around somewhere;” rolls of
quarters in the basement; and any weapons or firearms, including an airsoft, BB, or toy gun in the
residence. Because the motion to suppress was denied pretrial, and again at trial on Nation’s
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renewed objection, we consider all of the evidence, both from trial and from the hearings on the
motion to suppress. See id.
With the exception of the BB gun that was recovered from inside the furnace, and some
items of clothing that were found in the washing machine, all of the items Nation addresses were
located in areas within plain view throughout the residence. Gallagher asked about clothing and a
plastic bag lying around on the floor of the bedroom. This was consistent with Roach’s testimony
that the clothing was discovered in the laundry area attached to the nonconforming bedroom.
Furthermore, Gallagher had information regarding the robbery suspect’s clothing, and what
officers should be looking for, from witness reports. Exhibit 57 shows the plastic bag that was later
seized was lying on the bedroom floor near the bed when recovered. Exhibits 45 and 46, and
supporting testimony from Pflanz, show that at least one roll of quarters was discovered on a
television stand in the basement living room. This was another area visible to officers conducting
the protective sweep prior to the execution of the search warrant.
Several law enforcement officers also testified that through their experience and training,
realistic-looking BB or airsoft guns are commonly used in robberies. Furthermore, victims of both
robberies testified that the firearm used made a “rattling” noise when the suspect moved it. In fact,
Schmidt, one of the Burger King employees, testified that he “kind of figured that it wasn’t a real
gun” when initially confronted by the suspect. We cannot say it was clear error for the district
court to determine that these facts combined failed to establish that an impermissible pre-warrant
search took place. Nation has not met his burden of showing an impermissible search took place.
Nation also argues that the State’s alternative argument, that even if an impermissible
pre-warrant search took place the inevitable discovery or independent source doctrines should
apply, is inapplicable to this case. While we have already determined Nation did not meet his
burden of showing a pre-warrant search took place and, therefore, need not discuss the merits of
this argument, we briefly note that even if Nation had met this burden, the seized evidence would
nevertheless be admissible under the “independent source doctrine.” The crux of the “independent
source” rule is that even if there is illegal police conduct, evidence should not be excluded “if the
connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so
attenuated as to dissipate the taint.’” State v. Valdez, 5 Neb. Ct. App. 506, 523, 562 N.W.2d 64, 76
(1997) (citing Segura v. United States, 468 U.S. 796, 805, 104 S. Ct. 3380, 82 L. Ed. 2d 599
(1984)).
It is clear to us that even if there was an impermissible pre-warrant search in this case, the
evidence that was seized from Nation’s residence nevertheless would have been obtained pursuant
to the execution of the search warrant. We note that Nation has not and does not challenge the
validity of the search warrant. The district court found, and we agree, that the decision to obtain a
search warrant was not based on any information obtained during the alleged illegal entry and
impoundment. Pflanz testified that, despite not being on scene at Nation’s residence, he began
drafting an affidavit for the search warrant based on the facts that he received from other law
enforcement officials, including information regarding the suspect’s vehicle that ultimately led to
Nation’s residence. He also testified that he did not include any information obtained during the
protective sweep in his affidavit. We find this scenario analogous to the facts in State v. Valdez, 5
Neb. Ct. App. at 524, 562 N.W.2d at 76, and similarly hold:
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In this instance, it is clear that none of the information contained in the affidavit
was acquired as a result of either the entry or the impoundment. Therefore, even if both the
entry and the impoundment of the [Defendant’s] home were illegal, the evidence would
have been discovered regardless through the legal means of the search warrant.
SUFFICIENCY OF EVIDENCE
Nation’s next three assignments of error go to the sufficiency of the evidence presented at
trial. Nation contends that the district court erred in overruling his motion to dismiss at the
conclusion of the State’s presentation of evidence and his motion for directed verdict after all
evidence had been presented. He also generally assigns that the evidence is insufficient to support
his convictions. We disagree.
In a criminal case, a court can direct a verdict only when there is a complete failure of
evidence to establish an essential element of the crime charged or the evidence is so doubtful in
character, lacking probative value, that a finding of guilt based on such evidence cannot be
sustained. State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016). If there is any evidence
which will sustain a finding for the party against whom a motion for directed verdict is made, the
case may not be decided as a matter of law, and a verdict may not be directed. Id.
As previously mentioned, we do not resolve conflicts in evidence, pass on the credibility
of the witnesses, or reweigh the evidence on appeal. See State v. Thomas, 303 Neb. 964, 932
N.W.2d 713 (2019). The relevant question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Id.
Under Neb. Rev. Stat. § 28-324 (Reissue 2016), “[a] person commits robbery if, with the
intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another
any money or personal property of any value whatever.” Nation’s argument regarding the
sufficiency of evidence relies exclusively on the premise that “[t]he only evidence presented at
trial that connected [Nation] to either robbery was the evidence seized during the search of [his]
residence.” Brief for appellant at 39. Because we have already determined that the evidence seized
from Nation’s residence was the result of a search pursuant to a lawful warrant, and was properly
admitted, we find no merit in these assignments of error. The evidence in this case was
overwhelming and sufficient for the jury to find that the essential elements of robbery had been
met beyond a reasonable doubt on both charges. This argument fails.
EXCESSIVE SENTENCES
Nation’s final assignment of error is that the district court imposed excessive sentences on
each count of robbery insomuch as the court (1) ordered the sentences to be served consecutive,
rather than concurrent, to each other, (2) failed to give adequate weight to certain sentencing
factors, and (3) gave excessive weight to unsubstantiated conclusions that were overemphasized
in the PSI. These arguments fail.
When a trial court’s sentence is within the statutory guidelines, the sentence will only be
disturbed by an appellate court when an abuse of discretion is shown. State v. Savage, 301 Neb.
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873, 920 N.W.2d 692 (2018). In this case, Nation’s sentences were enhanced under Nebraska’s
habitual criminal statute, § 29-2221. Under Nebraska law, the mandatory minimum Nation could
have been sentenced under each charge was a term of 10 years’ imprisonment and the maximum
term was not more than 60 years’ imprisonment. Nation was sentenced to 20 to 40 years’
imprisonment on each count. Accordingly, each sentence is well-within the statutory limits.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019). In determining a
sentence to be imposed, relevant factors customarily considered and applied are 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.
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 all the facts and
circumstances surrounding the defendant’s life. Id.
Nation first argues that the district court should have ordered his sentences be served
concurrently, rather than consecutively. Nation argues that because the district court believed the
two robbery charges were similar enough to deny his motion to sever, and therefore try together,
the same rationale should apply to sentencing. We disagree. Generally, it is within a trial court’s
discretion to direct that sentences imposed for separate crimes be served either concurrently or
consecutively. State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015). The charges in this case
involved two separate robberies, on two separate dates, and each involved a distinct group of
victims. While certain evidence of each robbery was similar in nature, and at times overlapped,
this is insufficient to conclude that the district court abused its discretion in ordering the sentences
to run consecutively.
Nation next argues that the district court abused its discretion by failing to give adequate
weight to certain sentencing factors, such as his education, employment history, the impact the
sentence will have on his ability to support his family, and the “low level of violence involved in
the robberies.” Brief for appellant at 43. At the sentencing hearing, the district court recognized
that Nation had previously been convicted of multiple felonies, including previous robberies, and
was on parole for those offenses. The court also noted that it had considered “the nature and
circumstances of the crimes, the history, character, and condition of the defendant.” There is no
indication that the district court failed to consider any of the relevant sentencing factors, nor that
it considered any improper ones.
Nation also argues that the district court gave excessive weight to “unsubstantiated and
misleading conclusions about several categories [in the PSI] bearing on [Nation’s] risk to offend.”
Brief for appellant at 44. However, the record is clear that both Nation and his counsel were given
the opportunity to correct and/or amend the PSI at the sentencing hearing, but declined to do so.
Now on appeal, Nation specifically takes issue with information included in the PSI. Absent plain
error, an issue not raised to the district court will not be considered by an appellate court on appeal.
State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014).
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We find that the district court did not abuse its discretion in sentencing Nation to sentences
of 20 to 40 years’ imprisonment on each count and ordering the terms to be served consecutively.
CONCLUSION
We conclude the district court did not err in overruling Nation’s motions to suppress. We
also conclude, after viewing the evidence in the light most favorable to the prosecution, that the
evidence adduced at trial was sufficient to support a finding of guilt by the jury. Finally, we
conclude the district court did not abuse its discretion in sentencing Nation. Accordingly, Nation’s
convictions and sentences are affirmed.
AFFIRMED.
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