State v. Samuels , 31 Neb. Ct. App. 918 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/30/2023 08:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. SAMUELS
Cite as 31 Neb. App. 918State of Nebraska, appellee, v.
Jarell C. Samuels, appellant.
___ N.W.2d ___
Filed May 23, 2023. No. A-22-077.
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 histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate the Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Constitutional Law: Search and Seizure: Appeal and Error. When
reviewing whether a consent to search was voluntary, as to the historical
facts or circumstances leading up to a consent to search, an appellate
court reviews the trial court’s findings for clear error. However, whether
those facts or circumstances constituted a voluntary consent to search,
satisfying the Fourth Amendment, is a question of law, which an appel-
late court reviews independently of the trial court.
3. Trial: Investigative Stops: Warrantless Searches: Appeal and Error.
The ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search
are reviewed de novo, and findings of fact are reviewed for clear error,
giving due weight to the inferences drawn from those facts by the
trial judge.
4. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
5. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion
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Cite as 31 Neb. App. 918of the trial court, an appellate court reviews the admissibility of evi-
dence for an abuse of discretion.
6. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
7. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial
unless the court has abused its discretion.
8. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
9. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
10. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit
of an illegal search or seizure is inadmissible in a state prosecution and
must be excluded.
11. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure: Appeal and Error. To determine whether an encounter
between an officer and a citizen reaches the level of a seizure under the
Fourth Amendment to the U.S. Constitution, an appellate court employs
the analysis set forth in State v. Van Ackeren, 242 Neb. 479, 495
N.W.2d 630 (1993), which describes the three levels, or tiers, of police-­
citizen encounters.
12. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure: Arrests. A tier-one police-citizen encounter involves the vol-
untary cooperation of the citizen elicited through noncoercive question-
ing and does not involve any restraint of liberty of the citizen. Because
tier-one encounters do not rise to the level of a seizure, they are
outside the realm of Fourth Amendment protection. A tier-two police-
citizen encounter involves a brief, nonintrusive detention during a frisk
for weapons or preliminary questioning. A tier-three police-citizen
encounter constitutes an arrest, which involves a highly intrusive
or lengthy search or detention. Tier-two and tier-three police-citizen
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Cite as 31 Neb. App. 918encounters are seizures sufficient to invoke the protections of the
Fourth Amendment to the U.S. Constitution.
13. Constitutional Law: Search and Seizure. A seizure in the Fourth
Amendment context occurs only if, in view of all the circumstances sur-
rounding the incident, a reasonable person would have believed that he
or she was not free to leave.
14. ____: ____. In addition to situations where an officer directly tells a sus-
pect that he or she is not free to go, circumstances indicative of a seizure
may include the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the citizen’s person, or
the use of language or tone of voice indicating the compliance with the
officer’s request might be compelled.
15. Police Officers and Sheriffs: Search and Seizure. A seizure does not
occur simply because a law enforcement officer approaches an indi-
vidual and asks a few questions or requests permission to search an area,
provided the officer does not indicate that compliance with his or her
request is required.
16. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs.
Although a police officer can inquire into matters unrelated to the jus-
tification for a traffic stop if it does not measurably extend the duration
of the stop, it is unlawful to prolong a stop beyond the time reasonably
required to complete the mission of the stop.
17. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. A traffic stop can be extended if the officer has a rea-
sonable, articulable suspicion that the motorist is involved in criminal
activity unrelated to the traffic violation.
18. Probable Cause: Words and Phrases. Reasonable suspicion entails
some minimal level of objective justification for detention, something
more than an inchoate and unparticularized hunch, but less than the level
of suspicion required for probable cause.
19. Police Officers and Sheriffs: Probable Cause. Whether a police offi-
cer has a reasonable suspicion based on sufficient articulable facts
depends on the totality of the circumstances.
20. Probable Cause. Factors that would independently be consistent with
innocent activities may nonetheless amount to reasonable suspicion
when considered collectively.
21. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. An officer’s suspicion of criminal activity may reason-
ably grow over the course of a traffic stop as the circumstances unfold
and more suspicious facts are uncovered.
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Cite as 31 Neb. App. 91822. Constitutional Law: Search and Seizure. The determination of whether
the facts and circumstances constitute a voluntary consent to a search,
satisfying the Fourth Amendment, is a question of law.
23. Search and Seizure: Duress. For consent to be voluntarily given, it
must be a free and unconstrained choice, not the product of a will over-
borne, and it cannot be given as the result of duress or coercion, whether
express, implied, physical, or psychological.
24. ____: ____. In determining whether consent was coerced, account must
be taken of subtly coercive police questions, as well as the possibly vul-
nerable subjective state of the person who consents.
25. Search and Seizure. Mere submission to authority is insufficient to
establish consent to a search.
26. ____. Although the fact that an individual is in police custody is an
important consideration in determining the voluntariness of the consent
to search, such factor, standing alone, does not invalidate the consent to
search as long as the consent was otherwise voluntarily given.
27. ____. The determination of whether consent to a search was freely and
voluntarily given is based on the totality of the circumstances.
28. Police Officers and Sheriffs: Search and Seizure. A determination of
whether consent to a search was sufficiently attenuated is necessary only
when the consent was obtained as a result of additional inquiries made
during a seizure after the authority for a seizure has expired.
29. Trial: Pretrial Procedure: Pleadings: Evidence: Juries: Appeal and
Error. A motion in limine is a procedural step to prevent prejudicial
evidence from reaching the jury. It is not the office of a motion in limine
to obtain a final ruling upon the ultimate admissibility of the evidence.
Therefore, when a court overrules a motion in limine to exclude evi-
dence, the movant must object when the particular evidence is offered at
trial in order to predicate error before an appellate court.
30. Pretrial Procedure: Pleadings: Appeal and Error. An appellant who
has assigned only that the trial court erred in denying a motion in limine
has not triggered appellate review of the evidentiary ruling at trial.
31. Evidence: Pleas. Whether a codefendant’s guilty plea is admissible evi-
dence turns upon whether it was properly offered to help the jury assess
the codefendant’s credibility or was improperly offered as substantive
evidence of the defendant’s guilt.
32. Criminal Law: Convictions: Evidence. Evidence that another person
has been convicted of the same crime for which the defendant is on
trial is not admissible as proof of the guilt of the defendant. The same
evidence, however, may be admissible for other reasons.
33. Evidence: Convictions: Pleas: Prosecuting Attorneys: Jury
Instructions. Under proper instruction, evidence of a codefendant’s
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Cite as 31 Neb. App. 918guilty plea or conviction may be elicited by the prosecutor on direct
examination so that the jury may assess the credibility of the witness
that the government asks it to believe. However, even when such evi-
dence is admissible, a curative instruction is required when requested by
the defendant’s counsel.
34. Weapons: Circumstantial Evidence. The doctrine of constructive pos-
session has been extended to the crime of possession of a firearm by a
felon under Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2022).
35. Evidence: Words and Phrases. Constructive possession means the pos-
sessor did not have actual possession but was aware of the presence of
the contraband and had dominion or control over it.
36. Evidence. Two persons may have constructive possession, or one may
have actual possession and the other have constructive possession.
37. Evidence: Proof. Constructive possession may be proved by direct or
circumstantial evidence and may be shown by the accused’s proximity
to the item at the time of the arrest or by a showing of dominion over it.
38. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of trial which
is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
39. Motions for Mistrial: Proof. A defendant faces a higher threshold than
merely showing a possibility of prejudice when attempting to prove
error predicated on the failure to grant a mistrial.
40. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
cated on the failure to grant a mistrial, the defendant must prove the
alleged error actually prejudiced him or her, rather than creating only
the possibility of prejudice.
41. Jurors: Jury Instructions: Presumptions. Absent evidence to the con-
trary, the legal system presumes that jurors, to the extent they are able,
will comply with curative instructions and judicial admonitions.
42. Courts: Motions for Mistrial: Motions for New Trial: Appeal and
Error. A trial court is vested with considerable discretion in passing on
motions for mistrial and new trial, and an appellate court will not disturb
a trial court’s decision whether to grant a motion for mistrial or a motion
for new trial unless the court has abused its discretion.
43. Appeal and Error. It is an abuse of discretion to make an error of law
or clear errors of factual determination.
44. Judges: Witnesses: Appeal and Error. An appellate court’s deference
to the trial court stems in part from the recognition that the trial judge
is better situated than a reviewing court to pass on questions of wit-
ness credibility and the surrounding circumstances and atmosphere of
the trial.
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Cite as 31 Neb. App. 91845. Controlled Substances. Under the criminal narcotics statutes, posses-
sion may be either actual or constructive.
46. ____. Possession of a controlled substance means either (1) knowingly
having it on one’s person or (2) knowing of the substance’s presence and
having control over the substance.
47. Controlled Substances: Evidence: Proof. Evidence that a defendant
had constructive possession of a drug with knowledge of its pres-
ence and its character as a controlled substance is sufficient to sup-
port a finding of possession and to sustain a conviction for unlawful
possession.
48. Investigative Stops: Motor Vehicles. The fact that one is the driver of
a vehicle, particularly over a long period of time, creates an inference
of control over items in the vehicle.
49. Sentences: Appeal and Error. When sentences imposed within stat-
utory limits are alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused its discre-
tion in considering well-established factors and any applicable legal
principles.
50. Sentences. The relevant factors for a sentencing judge to consider
when imposing a sentence 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.
51. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
52. ____. For a defendant who has been sentenced consecutively for two or
more crimes, courts generally consider the aggregate sentence to deter-
mine if it is excessive.
53. ____. A sentencing court is not required to articulate on the record that
it has considered each sentencing factor or to make specific findings as
to the facts that bear on each of those factors.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Affirmed.
Matthew K. Kosmicki for appellant.
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Cite as 31 Neb. App. 918Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Moore, Bishop, and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Jarell C. Samuels appeals from his convictions and sen-
tences for possession of a firearm by a prohibited person and
possession of marijuana weighing more than 1 pound. He
argues that the district court erred in denying various pretrial
motions, granting the State’s motion in limine, overruling his
motion for a mistrial, finding that the evidence was sufficient
to support his convictions, and imposing excessive sentences.
For the reasons stated herein, we affirm.
II. STATEMENT OF FACTS
1. Facts Leading to Arrest
On June 5, 2020, Lincoln police officer John Hudec was
traveling on Interstate 80 when he observed a vehicle with
out-of-state plates driving on the yellow shoulder line. Officer
Hudec’s radar clocked the vehicle going 74 m.p.h. in a
65-m.p.h. zone. He also observed that the vehicle was follow-
ing too closely and failed to signal a lane change. The events
of the traffic stop were captured on Officer Hudec’s cruiser
camera and were received into evidence at trial.
After learning that the vehicle was rented, Officer Hudec
approached the vehicle and contacted the driver, Samuels, and
the front seat passenger. Samuels provided Officer Hudec with
his identification but did not have registration or rental paper-
work for the vehicle. Officer Hudec requested that Samuels
accompany him to his cruiser while he issued him a warning.
Officer Hudec completed a data check on Samuels that indi-
cated Samuels had a substantial criminal history, including
involvement with narcotics.
Officer Hudec observed that, even though he was only
issuing a warning, Samuels appeared nervous during their
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Cite as 31 Neb. App. 918interactions. Samuels indicated that he and the passenger were
returning from Colorado, where they visited Samuels’ sis-
ter. Officer Hudec stated that while questioning Samuels, he
observed an artery in Samuels’ neck pulsating, and Samuels
was unable to provide any paperwork or information as to who
had rented the vehicle that he was driving.
In order to obtain more information on the rental vehicle,
Officer Hudec exited his cruiser to obtain the “VIN number”
from the vehicle. During this time, he asked the passenger
about the nature of the trip. The passenger responded that he
and Samuels were returning to Des Moines, Iowa, from pro-
tests in “Hampton.” Officer Hudec was familiar with Hampton,
Nebraska, but was not aware of a Hampton, Colorado.
Officer Hudec returned to the cruiser and, after issuing the
warning and returning Samuels’ documents, stated, “I’ll give
you this and you’re good to go man. Be safe and have a good
rest of your trip.” Before Samuels exited the cruiser, Officer
Hudec stated, “[R]eal quick, let me ask you real quick before
you get away . . . .” Officer Hudec asked if there was con-
traband in the vehicle and Samuels responded that there was
not. Officer Hudec then received consent from Samuels to
search the vehicle. While the vehicle was searched, Samuels
and his passenger were placed in the back seat of the cruiser
for their safety and officer safety. During the search of the
vehicle, Officer Hudec and another officer who had been
called to assist located a 9-mm pistol, including a magazine
and six rounds of ammunition, under the floormat of the front
passenger seat. Officers also located a bag in the rear cargo
area that contained approximately 1.9 pounds of marijuana
in dispensary containers, several receipts, and a cell phone.
The receipts showed purchases from various marijuana dis-
pensaries in Colorado made the previous day. There was
also a receipt dated 2 days prior from a gas station in Des
Moines, Iowa.
During the search of the rental vehicle, the cruiser cam-
era was still recording and captured a conversation between
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Cite as 31 Neb. App. 918Samuels and the passenger wherein the passenger stated, “I
can’t take that pipe, bro,” referring to the pistol. Samuels
asked the passenger why he did not hide it, and the passenger
responded, “Bitch, I put it under the floorboard under the rug.”
During the conversation, the passenger also asked whether
the officers “kn[e]w that’s weed” as the officers searched the
cargo area of the vehicle. The two began discussing what they
had told Officer Hudec about their trip; the passenger reiter-
ated that he “‘can’t take the pipe,’” and Samuels responded,
“I got you.”
Following the search of the vehicle, Officer Hudec read
both Samuels and the passenger their Miranda rights, which
they waived. When asked by Officer Hudec how much mari-
juana was in the rental vehicle, neither party responded. Once
Officer Hudec again exited the cruiser, the cruiser camera
captured the parties discussing what they believed the amount
of marijuana in the vehicle was—under 2 pounds. When
Officer Hudec returned and asked to whom the gun belonged,
Samuels stated that “it’s mine.” In response to Officer Hudec’s
questions, Samuels stated that the gun was a 9-mm pistol that
he had purchased a long time ago, and he declined to consent
to a DNA test. When Officer Hudec asked whether the passen-
ger’s DNA would be found on the pistol, the passenger said no
but also declined to take a DNA test. Officer Hudec again left
the cruiser, and the camera recorded the passenger apologizing
to Samuels stating that “it’s my fault,” because he had asked
Samuels to come on the trip.
As a result of these events, Samuels was charged with pos-
session of a firearm by a prohibited person, a Class ID felony,
and possession of marijuana weighing more than 1 pound, a
Class IV felony.
2. Pretrial Motions
Prior to trial, Samuels filed a motion to suppress evidence
and statements obtained by law enforcement as violative of
his constitutional rights. In his motion, he argued that because
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Cite as 31 Neb. App. 918an officer continued to detain him after giving him a warn-
ing, his consent to search was involuntarily obtained. The
district court overruled Samuels’ motion to suppress finding
that Samuels and the passenger gave inconsistent versions of
the origin and destination of their trip and that nothing in the
record, including Samuels’ own testimony, indicated Samuels’
statements or subsequent consent to search was involuntary.
Samuels also filed two motions in limine in which he sought
to preclude the State from adducing text messages, videos, and
photographic evidence obtained from a cell phone that had
been seized during the search of the vehicle. In his motions,
Samuels argued that the evidence contained on the cell phone
lacked foundation, was irrelevant, was unfairly prejudicial, and
was improper character evidence. The district court overruled
his motions.
Prior to trial, the State also filed a motion in limine to
preclude Samuels from adducing evidence related to the pas-
senger’s conviction and sentence on the same charges, arguing
that the evidence was hearsay, assumed facts not in evidence,
was inadmissible character evidence, and would mislead the
jury. During the hearing on the motion, Samuels argued that
preventing him from adducing evidence of the passenger’s
conviction for possession of a firearm denied him his con-
stitutional right to present a complete defense. The district
court disagreed and found that Samuels could elicit testimony
regarding the passenger’s possession of the firearm without
introducing evidence of the passenger’s conviction and sen-
tence for that offense.
3. Jury Trial
During the trial, evidence, including testimony by Officer
Hudec, was adduced consistent with the facts as previously
described above. As to the charge of possession of a firearm
by a prohibited person, the parties stipulated that Samuels
had previously been convicted of a felony. Evidence adduced
at trial also established that an extraction of the seized cell
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Cite as 31 Neb. App. 918phone elicited various text messages, pictures, and videos
that confirmed the cell phone seized belonged to Samuels.
Additionally, evidence confirmed that the substance seized
was marijuana. To determine the weight of the marijuana,
officers matched dispensary receipts to the individual dispen-
sary packages.
Other evidence was adduced related to DNA found on the
firearm, the magazine, and the rounds inside of the magazine.
The evidence established that there was a mixture of three indi-
viduals’ DNA on the firearm, but that Samuels was excluded as
a major contributor. The mixture of DNA found on the firearm
was 1 septillion (1 followed by 26 zeroes) more likely to have
originated from the passenger and two unknown, unrelated
individuals. Further, both Samuels and the passenger were
excluded as major contributors of DNA located on the maga-
zine and the rounds located inside the magazine. After the State
rested its case, Samuels moved for a directed verdict that was
denied. Samuels did not present any evidence and the matter
was submitted to the jury.
4. Convictions and Sentences
The jury found Samuels guilty of both charged offenses.
Following a sentence enhancement hearing, the district court
determined that Samuels was a habitual criminal. At sentenc-
ing, the district court stated:
I’ve read and reviewed the Presentence Investigation,
considered the comments of counsel as well as the rel-
evant statutory factors and considered that you are 34
years old. You have . . . a GED. Your background,
as counsel noted, your past criminal record, consider-
ing these particular offenses and the nature of these
offenses, having considered all of that information, and
regarding the nature and circumstances of the crimes
as well as your history, character and condition, I do
find that imprisonment is necessary for the protection of
the public, because there is a substantial risk [Samuels]
would engage in criminal conduct, and a lesser sentence
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Cite as 31 Neb. App. 918would depreciate the seriousness of the crime and pro-
mote disrespect for the law.
The court sentenced Samuels to 10 to 15 years’ imprisonment
for possession of a firearm by a prohibited person and 10 to
11 years’ imprisonment for possession of more than 1 pound
of marijuana. Due to the habitual criminal enhancement, each
conviction carried a mandatory minimum sentence of 10 years’
imprisonment, and the sentences were ordered to run consecu-
tively to each other and consecutively to any sentence previ-
ously imposed on Samuels. Samuels was granted credit for
580 days served. Samuels now appeals from his convictions
and sentences.
III. ASSIGNMENTS OF ERROR
Samuels assigns, restated and renumbered, that the dis-
trict court erred (1) in denying Samuels’ motion to suppress
and overruling his related objections at trial, (2) in denying
Samuels’ motion in limine, (3) in sustaining the State’s motion
in limine, and (4) in overruling Samuels’ motion for a mistrial.
He also contends that (5) the evidence was insufficient to prove
Samuels’ guilt beyond a reasonable doubt and (6) the sentences
imposed were excessive.
IV. STANDARD OF REVIEW
[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
v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015). Regarding
historical facts, an appellate court reviews the trial court’s find-
ings for clear error, but whether those facts trigger or violate
the Fourth Amendment protections is a question of law that an
appellate court reviews independently of a trial court’s determi-
nation. State v. Tyler, supra.
[2] Likewise, an appellate court will apply the same two-
part analysis when reviewing whether a consent to search
was voluntary. Id. As to the historical facts or circumstances
leading up to a consent to search, an appellate court will
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Cite as 31 Neb. App. 918review a trial court’s findings for clear error. Id. However,
whether those facts or circumstances constituted a voluntary
consent to search, satisfying the Fourth Amendment, is a ques-
tion of law, which an appellate court will review independently
of a trial court. State v. Tyler, supra.
[3] The ultimate determinations of reasonable suspicion to
conduct an investigatory stop and probable cause to perform a
warrantless search are reviewed de novo, and findings of fact
are reviewed for clear error, giving due weight to the inferences
drawn from those facts by the trial judge. State v. Shiffermiller,
302 Neb. 245, 922 N.W.2d 763 (2019).
[4,5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. State v. Figures, 308 Neb. 801, 957 N.W.2d 161(2021). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. State v. Figures, supra.[6] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted
at trial, viewed and construed most favorably to the State, is
sufficient to support the conviction. State v. Cerros, 312 Neb.
230, 978 N.W.2d 162 (2022); State v. Pauly, 311 Neb. 418, 972
N.W.2d 907 (2022).
[7] An appellate court will not disturb a trial court’s deci-
sion whether to grant a motion for mistrial unless the court has
abused its discretion. State v. Figures, supra.- 931 -
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Cite as 31 Neb. App. 918[8] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion.
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
V. ANALYSIS
1. Motion to Suppress
Samuels first assigns that the district court erred in deny-
ing his motion to suppress evidence and statements obtained
by law enforcement during the traffic stop. Although Samuels
concedes the initial stop of the vehicle was proper, he contends
that the initial stop was improperly extended beyond the scope
of the traffic violation because Officer Hudec did not have rea-
sonable suspicion to extend the stop beyond the purpose of the
traffic violation and that his subsequent consent to search the
vehicle was not voluntary.
[9-15] In State v. Hartzell, 304 Neb. 82, 90-91, 933 N.W.2d
441, 448-49 (2019), the Nebraska Supreme Court addressed
the tiers of police-citizen encounters for determining Fourth
Amendment violations:
Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guaran-
tee against unreasonable searches and seizures. Evidence
obtained as the fruit of an illegal search or seizure is inad-
missible in a state prosecution and must be excluded.
To determine whether an encounter between an officer
and a citizen reaches the level of a seizure under the Fourth
Amendment to the U.S. Constitution, an appellate court
employs the analysis set forth in State v. Van Ackeren,
[242 Neb. 479, 495 N.W.2d 630 (1993),] which describes
the three levels, or tiers, of police-citizen encounters. A
tier-one police-citizen encounter involves the voluntary
cooperation of the citizen elicited through noncoercive
questioning and does not involve any restraint of liberty
of the citizen. Because tier-one encounters do not rise
to the level of a seizure, they are outside the realm of
Fourth Amendment protection. A tier-two police-citizen
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Cite as 31 Neb. App. 918encounter involves a brief, nonintrusive detention during
a frisk for weapons or preliminary questioning. A tier-
three police-citizen encounter constitutes an arrest, which
involves a highly intrusive or lengthy search or deten-
tion. Tier-two and tier-three police-citizen encounters are
seizures sufficient to invoke the protections of the Fourth
Amendment to the U.S. Constitution.
A seizure in the Fourth Amendment context occurs
only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that
he or she was not free to leave. In addition to situations
where an officer directly tells a suspect that he or she is
not free to go, circumstances indicative of a seizure may
include the threatening presence of several officers, the
display of a weapon by an officer, some physical touching
of the citizen’s person, or the use of language or tone of
voice indicating the compliance with the officer’s request
might be compelled. A seizure does not occur simply
because a law enforcement officer approaches an indi-
vidual and asks a few questions or requests permission to
search an area, provided the officer does not indicate that
compliance with his or her request is required.
Here, the evidence established that Samuels was initially
stopped for violations of the rules of the road and Samuels
concedes the legality of the initial traffic stop. The traffic
stop resulted in a tier-two seizure sufficient to invoke the
protections of the Fourth Amendment. See State v. Hartzell,
supra. After stopping the vehicle, Officer Hudec conducted an
investigation reasonably related in scope to the circumstances
that justified the stop. Officer Hudec then provided Samuels
with a written warning. While Samuels was still sitting in
the cruiser, Officer Hudec told Samuels that he was “good
to go” and then continued to ask Samuels a series of ques-
tions about whether Samuels had drugs in the rental vehicle
and whether he consented to a search of the vehicle. After
reviewing the cruiser-camera video of this exchange, we find
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Cite as 31 Neb. App. 918that the circumstances do not indicate the traffic stop had
de-escalated despite Officer Hudec’s admonition that Samuels
was “good to go.” As such, we must next determine whether
Samuels’ consent was obtained in violation of his Fourth
Amendment rights.
In Rodriguez v. U.S., 575 U.S. 348, 135 S. Ct. 1609, 191
L. Ed. 2d 492 (2015), the U.S. Supreme Court addressed the
seizure of the driver and the vehicle in order to conduct a
dog sniff after the traffic stop had been completed. The U.S.
Supreme Court reiterated that the tolerable duration of a
traffic stop is that which is reasonably necessary to address
the mission of the stop and the ordinary inquiries incident
thereto, and it clarified that a drug detection dog sniff is not
an ordinary incident of a traffic stop. Since it was undisputed
in Rodriguez that the delay for purposes of conducting the
dog sniff occurred beyond the time reasonably necessary to
complete the tasks tied to the traffic infraction that justi-
fied the stop, the Court vacated the circuit court’s judgment,
which had held that the prolonged seizure was an accept-
able de minimis intrusion. The Court noted, however, that it
remained open for the circuit court on remand to determine
whether reasonable suspicion of criminal activity justified
detaining the driver beyond completion of the traffic infrac-
tion investigation.
[16-19] Thus, although a police officer can inquire into mat-
ters unrelated to the justification for a traffic stop if it does not
measurably extend the duration of the stop, it is unlawful to
prolong a stop beyond the time reasonably required to com-
plete the mission of the stop. Id. However, a traffic stop can be
extended if the officer has “a reasonable, articulable suspicion
that the motorist is involved in criminal activity unrelated to
the traffic violation.” State v. Draganescu, 276 Neb. 448, 461,
755 N.W.2d 57, 74 (2008).
Reasonable suspicion entails some minimal level of
objective justification for detention, something more
than an inchoate and unparticularized hunch, but less
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Cite as 31 Neb. App. 918than the level of suspicion required for probable cause.
Whether a police officer has a reasonable suspicion
based on sufficient articulable facts depends on the total-
ity of the circumstances. Reasonable suspicion must be
determined on a case-by-case basis.
State v. Howard, 282 Neb. 352, 360, 803 N.W.2d 450,
460 (2011).
[20-21] We further note that factors that would indepen-
dently be consistent with innocent activities may nonetheless
amount to reasonable suspicion when considered collectively.
State v. Khalil, 25 Neb. App. 449, 908 N.W.2d 97 (2018). An
officer’s suspicion of criminal activity may reasonably grow
over the course of a traffic stop as the circumstances unfold
and more suspicious facts are uncovered. Id.Here, the evidence established that during his investiga-
tion into the reasons for the initial traffic stop, Officer Hudec
learned that Samuels and the passenger provided inconsistent
stories regarding their destination and reason for their trip,
were unsure of the origin of the rental vehicle in which they
were riding, and did not have the registration or rental paper-
work for the vehicle. The evidence also established Officer
Hudec observed that the artery in Samuels’ neck was pulsat-
ing and that Samuels appeared nervous. Additionally, during
the initial stop, Officer Hudec completed a data check that
indicated Samuels had a substantial criminal history, includ-
ing involvement with narcotics. Based upon a totality of the
circumstances, we find that the officer had a reasonable,
articulable suspicion that Samuels was engaged in criminal
activity sufficient to extend the traffic stop. During that brief
period of time following an extension of the stop, Officer
Hudec asked Samuels several questions, including a request
to search his vehicle, and Samuels consented to such request.
Because Officer Hudec had a reasonable, articulable suspicion
to extend the traffic stop and Samuels’ consent was obtained
during that extension, we next consider whether Samuels’
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Cite as 31 Neb. App. 918consent to search was voluntarily obtained during the exten-
sion of the stop.
[22-27] In State v. Thompson, 30 Neb. App. 135, 151-52,
966 N.W.2d 872, 888 (2021), this court recently set forth con-
siderations when determining whether consent to search was
voluntarily given:
The determination of whether the facts and circum-
stances constitute a voluntary consent to a search, satis-
fying the Fourth Amendment, is a question of law. State
v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 (2020). For
consent to be voluntarily given, it must be a free and
unconstrained choice, not the product of a will over-
borne, and it cannot be given as the result of duress or
coercion, whether express, implied, physical, or psycho-
logical. State v. Bray[, 297 Neb. 916, 902 N.W.2d 98(2017)]. In determining whether consent was coerced,
account must be taken of subtly coercive police ques-
tions, as well as the possibly vulnerable subjective state
of the person who consents. State v. Howell, 26 Neb.
App. 842, 924 N.W.2d 349 (2019). Mere submission to
authority is insufficient to establish consent to a search.
Id. Although the fact that an individual is in police
custody is an important consideration in determining
the voluntariness of the consent to search, such factor,
standing alone, does not invalidate the consent to search
as long as the consent was otherwise voluntarily given.
State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992).
See, also, State v. Degarmo, supra. The determination
of whether consent to search was freely and voluntarily
given is based on the totality of the circumstances. State
v. Bray, supra.During the extension of the stop based upon Officer Hudec’s
reasonable articulable suspicion, Samuels denied having any-
thing illegal in the vehicle but ultimately agreed to Officer
Hudec’s request to search the vehicle. Samuels verbally con-
sented to the search of the vehicle without any indication
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Cite as 31 Neb. App. 918that the consent was obtained as a result of coercive tactics.
To the contrary, the record indicates that Samuels voluntarily
consented to a search of his vehicle without being subject to
coercive tactics and that Samuels never revoked that consent.
Based on the totality of the circumstances surrounding the
consent, the district court’s finding that Samuels’ consent was
voluntary was not clearly erroneous and the district court did
not err in overruling Samuels’ motion to suppress.
[28] We note that Samuels separately argues that the con-
sent obtained to search the vehicle was unlawful because it
was not sufficiently attenuated in relation to the violation of
Samuels’ Fourth Amendment rights. But we need not decide
whether the consent was sufficiently attenuated in this case.
Because we found that the consent was voluntarily obtained
during a lawful extension of the stop, there was no violation
of Samuels’ Fourth Amendment rights which requires these
additional inquiries. As such, we need not determine whether
the consent was sufficiently attenuated from the violation,
as such considerations are necessary only when the consent
was obtained as a result of additional inquiries made dur-
ing a seizure after the authority for a seizure has expired.
See State v. Thompson, 30 Neb. App. 135, 966 N.W.2d 872(2021). Accordingly, for the reasons stated, this assignment of
error fails.
2. Samuels’ Motion in Limine
Samuels next argues that the district court erred in denying
his motion in limine as it related to the text message and video
evidence obtained from Samuels’ cell phone that was seized
during the search of the vehicle. Samuels asserted that the
cell phone evidence was irrelevant, was prejudicial, and was
improper character evidence under Neb. Evid. R. 404.
[29] A motion in limine is a procedural step to prevent
prejudicial evidence from reaching the jury. State v. Ferrin,
305 Neb. 762, 942 N.W.2d 404 (2020). It is not the office of
a motion in limine to obtain a final ruling upon the ultimate
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Cite as 31 Neb. App. 918admissibility of the evidence. Id. Therefore, when a court over-
rules a motion in limine to exclude evidence, the movant must
object when the particular evidence is offered at trial in order
to predicate error before an appellate court. Id.During the trial, Samuels objected to the State’s evidence
that related to certain text messages and a video which were
the subject of Samuels’ original motion in limine. The district
court overruled Samuels’ objections. On appeal, Samuels does
not separately assign error to the district court’s rulings on the
various objections during trial but only to the district court’s
ruling on the motion in limine.
[30] In State v. Ferrin, supra, the Nebraska Supreme Court
addressed a similar argument wherein the defendant alleged
error with the trial court’s ruling on a motion in limine. The
court stated:
[The appellant’s] brief notes that he objected at trial
when the video recording of [the witness’] statements was
offered, but he has not assigned error to the ruling during
trial. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically
argued in the brief of the party asserting the error.
An appellant who has assigned only that the trial court
erred in denying a motion in limine has not triggered
appellate review of the evidentiary ruling at trial. Because
[the appellant’s] second assignment of error challenges
only the ruling on the motion in limine, it presents noth-
ing for appellate review.
State v. Ferrin, 305 Neb. at 770-71, 942 N.W.2d at 411-12.
Likewise, in this case, Samuels assigns error to the district
court’s ruling on the motion in limine but fails to assign error
to the district court’s rulings during trial that related to the
various objections made during trial to subjects raised in the
motion in limine. As a result, this assignment does not present
a challenge for appellate review. Accordingly, this assignment
of error fails.
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Cite as 31 Neb. App. 9183. State’s Motion in Limine
Samuels next assigns that the district court erred in sus-
taining the State’s motion in limine preventing Samuels from
introducing evidence that the passenger was convicted of pos-
session of a firearm following a trial that dealt with the same
subject matter. He contends that the evidence of the passen-
ger’s conviction should have been admissible and that a failure
to allow presentation of the result from his trial denied Samuels
a complete defense and violated his right to due process insofar
as he had a right to present a complete defense.
During the hearing on the State’s motion in limine, Samuels’
counsel argued:
Judge, I agree we shouldn’t talk about penalties and all
those kind of things that has nothing to do with the case.
That’s not relevant. That’s not the job of the jury. That’s
for the Court if he is found guilty. The part about the
verdict of guilty is — we are talking about possession of
a gun that was found under [the passenger’s] floorboard,
and his DNA was on it, and the jury has found him guilty,
I think it is relevant, and to prevent . . . Samuels . . . from
presenting that kind of evidence, I think, violates his due
process to present a defense.
And there’s an old U.S. Supreme Court case that kind
of supports that. I would tell you it’s Webb [v.] Texas,
409 U.S. 95, [93 S. Ct. 351, 34 L. Ed. 2d 330 (1972),]
and it isn’t directly on point, but it talks about prevent-
ing . . . the defendant . . . from presenting a defense. It
violates a right to due process. Same thing with Chambers
[v.] Mississippi, [410 U.S. 284, 93 S. Ct. 1038, 35 L.
Ed. 2d 297 (1973)]. They are old cases . . . but they are
still good case law. So I think not allowing . . . Samuels
. . . to present [the passenger’s] guilty verdict on the gun
charge would violate his right to due process to present
a defense.
Thereafter, the district court sustained the State’s motion
prohibiting Samuels from eliciting testimony about the
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Cite as 31 Neb. App. 918verdict in the passenger’s case. The court found that Samuels
could elicit the testimony of the firearm’s location during the
vehicle search and the subsequent DNA profile found on the
firearm without needing to introduce into evidence the jury
verdict in the passenger’s case. During the trial, Samuels
made an offer of proof utilizing a certified copy of the infor-
mation, the amended information, and the jury verdict from
the case against the passenger.
More specifically, Samuels now argues that the passenger’s
conviction for possession of a firearm was independently rel-
evant to show that the passenger was convicted of the same
crime and that the firearm could not have been possessed by
both Samuels and the passenger at the same time.
[31-33] Whether a codefendant’s guilty plea is admis-
sible evidence turns upon whether it was properly offered
to help the jury assess the codefendant’s credibility or was
improperly offered as substantive evidence of the defendant’s
guilt. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
Generally, evidence that another person has been convicted
of the same crime for which the defendant is on trial is not
admissible as proof of the guilt of the defendant. Id. The
same evidence, however, may be admissible for other rea-
sons. Id. For instance, under proper instruction, evidence of a
codefend­ant’s guilty plea or conviction may be elicited by the
prosecutor on direct examination so that the jury may assess
the credibility of the witness that the government asks it to
believe. Id.Here, the passenger was convicted of possession of the fire-
arm located on the passenger side of the vehicle during the
search. Samuels argues that the evidence of that conviction
is independently relevant here because Samuels and the pas-
senger could not have both been in possession of that firearm.
That is, Samuels argues that he and the passenger cannot
both be convicted of that same crime and that the court’s
prohibition granting the motion in limine denied him due
process in order to conceal from the jury the result of the
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Cite as 31 Neb. App. 918passenger’s conviction. Generally, evidence of a codefendant’s
guilt is not admissible as substantive evidence; rather, it is
available as a means to challenge the codefendant’s credibility.
See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998),
modified on denial of rehearing 255 Neb. 889, 587 N.W.2d
673 (1999). As such, we must determine whether evidence
of the passenger’s conviction for the same crime produces an
exception to that general rule in this context. We hold that it
does not.
[34,35] Although we more thoroughly explain the elements
of the crime of possession of a weapon by a prohibited person
in the section of the opinion governing the sufficiency of the
evidence, one such element involves possession of the weapon.
See Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2022). The doc-
trine of constructive possession has been extended to the
crime of possession of a firearm by a felon under § 28-1206.
State v. Sherrod, 27 Neb. App. 435, 932 N.W.2d 880 (2019).
Constructive possession means the possessor did not have
actual possession but was aware of the presence of the contra-
band and had dominion or control over it. Id.Pursuant to Neb. Rev. Stat. § 28-1212 (Reissue 2016):
The presence in a motor vehicle other than a public
vehicle of any firearm or instrument referred to in sec-
tion 28-1203, 28-1206, 28-1207, or 28-1212.03 shall be
prima facie evidence that it is in the possession of and
is carried by all persons occupying such motor vehicle
at the time such firearm or instrument is found, except
that this section shall not be applicable if such firearm or
instrument is found upon the person of one of the occu-
pants therein.
[36,37] Further, in State v. Warlick, 308 Neb. 656, 682, 956
N.W.2d 269, 293 (2021), the Nebraska Supreme Court held:
Two persons may have constructive possession, or one
may have actual possession and the other have construc-
tive possession. Constructive possession may be proved
by direct or circumstantial evidence and may be shown
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Cite as 31 Neb. App. 918by the accused’s proximity to the item at the time of the
arrest or by a showing of dominion over it.
It is clear from these authorities, taken together, that more
than one person in a nonpublic vehicle may be convicted of
the crime of possession of a firearm located in that vehicle.
As such, the disposition of the passenger’s trial was of no
consequence insofar as it related to the State’s independent
burden to prove the elements of the crime as against Samuels.
Because the passenger’s conviction in and of itself had no
bearing on a charge against Samuels of the same crime, we
reject Samuels’ claim that the court’s refusal to admit the
results of that trial interfered with his defense or violated his
right to due process.
4. Denial of Motion for Mistrial
Samuels next assigns that the district court erred in denying
his motion for mistrial made after a juror’s disclosure that she
previously heard certain facts of the case from an individual
who had served as a juror in the passenger’s trial. Samuels
argues that the juror stated, in front of Officer Hudec, that
she had been informed of what evidence the jury in the pas-
senger’s case believed was significant in finding the passenger
guilty. Samuels contends that Officer Hudec’s presence in the
courtroom during the juror’s disclosure allowed Officer Hudec
to reformulate his own testimony on that basis. As a result,
Samuels contends that his motion for mistrial should have
been granted.
[38] A mistrial is properly granted in a criminal case where
an event occurs during the course of trial which is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
[39-41] A defendant faces a higher threshold than merely
showing a possibility of prejudice when attempting to prove
error predicated on the failure to grant a mistrial. State v.
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Cite as 31 Neb. App. 918Trail, 312 Neb. 843, 981 N.W.2d 269 (2022). The defendant
must prove that the alleged error actually prejudiced him or
her, rather than creating only the possibility of prejudice. Id.Absent evidence to the contrary, the legal system presumes
that jurors, to the extent they are able, will comply with cura-
tive instructions and judicial admonitions. Id.[42-44] A trial court is vested with considerable discretion
in passing on motions for mistrial and new trial, and an appel-
late court will not disturb a trial court’s decision whether to
grant a motion for mistrial or a motion for new trial unless the
court has abused its discretion. Id. It is an abuse of discretion
to make an error of law or clear errors of factual determina-
tion. Id. Our deference to the trial court stems in part from
the recognition that the trial judge is better situated than a
reviewing court to pass on questions of witness credibility
and the surrounding circumstances and atmosphere of the
trial. Id.Here, at the end of a trial day while Officer Hudec was on
the witness stand, the district court recessed until the follow-
ing day. Outside the presence of the jury, but while Officer
Hudec was still present in the courtroom, a juror informed the
bailiff that she had information about the case that she needed
to disclose. The following colloquy occurred between the
court and a member of the jury:
THE COURT: It’s my understanding you indicated to
the bailiff there’s something else you needed to tell us.
[Juror:] Yes. Apologies. I will just — at the very end
of this when we were about to take the video, I had the
realization that I may have heard about [the passenger’s]
case that has happened already. I was told by someone
who served as a foreperson a few months ago in a case
of a similar — very similar scenario in which two young
men were charged with possession of a large amount of
marijuana in a trash bag and a firearm and then — sorry
— I’m nervous.
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Cite as 31 Neb. App. 918THE COURT: That’s fine. And this is just like earlier.
We just want to know what you know and do whatever
we have to do.
[Juror:] So she had said that it was at the point where
they saw a video where the gentleman talked about hav-
ing a gun and they shouldn’t be able to find it. That piece
is kind of what connected it. So if it was indeed that case
related to this one, I don’t feel like I can sit in on this and
be impartial.
THE COURT: So other than the facts that you just
relayed — the individual relayed to you — anything
about the case, about the verdict or anything else?
[Juror:] She did say it turned out to be a guilty verdict.
Thereafter, counsel questioned the juror, who disclosed the
following:
[Defense counsel:] You kind of heard the facts ahead of
time from this other person; is that right?
[Juror:] Yes.
[Defense counsel:] Did they tell you how they viewed
it and why this person voted the way she did?
[Juror:] I heard that it — that her opinion had been
the not guilty up until the point where she heard in the
back of the vehicle, essentially, what she called a confes-
sion as far as mentioning hiding the gun, but that may
have been more of a tainted view of denying that they
had ownership of it and that comment negated it? I don’t
know for sure.
[Defense counsel:] Okay. Well, she told you that they
voted guilty, and you kind of thought you agreed with that
and that made sense?
[Juror:] I could understand how hearing that would
have changed someone’s opinion.
The juror was then excused from service on the jury. When
the trial resumed, Samuels’ counsel moved for a mistrial
alleging that when the juror made her disclosure, Officer
Hudec was in the courtroom, heard what a juror claimed the
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Cite as 31 Neb. App. 918prior jury found to be significant in finding the passenger
guilty, and had the ability to change his testimony based on
the juror’s disclosure. The district court overruled the motion
for mistrial.
Samuels argues that Officer Hudec’s receipt of information
regarding prior jury deliberations in the passenger’s case vio-
lated Samuels’ right to a fair and impartial trial and resulted
in per se prejudice to him. He contends that because Officer
Hudec was the State’s primary witness and heard the juror’s
disclosure, Officer Hudec was made aware of what a jury
found to be significant and had the ability to place emphasis on
it after his testimony resumed.
Based on our review of the record, Samuels was not preju-
diced by this alleged error. During the juror’s disclosure,
she did not indicate her own viewpoint on the evidence. The
juror indicated that she was familiar with the case because an
acquaintance had told her facts related to the passenger’s con-
viction and what that acquaintance had found to be significant
to the determination in the passenger’s guilty verdict. The
court immediately excused the juror following her disclosure,
and the record does not indicate that she had any communica-
tion with the other members of the jury. Nor does Samuels
argue that any prejudice arose from the incident as it related
to the jury that decided the case. Instead, Samuels simply
argues that the court should have declared a mistrial based
upon the impact of that disclosure on a witness. But under this
logic, even a mistrial would not cleanse the witness’ percep-
tion of what he heard—that is, a juror’s account of another
juror’s impression from a related case. Samuels fails to cite
any authority that suggests a witness is prohibited from testi-
fying due to learning the impressions of a jury from evidence
adduced in a companion case, and our independent research
has uncovered none. Because we find no prejudice from the
witness’ hearing a secondhand account of a juror’s impres-
sions from another trial, we reject Samuels’ argument that
the district court abused its discretion in failing to grant his
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Cite as 31 Neb. App. 918motion for mistrial under these circumstances. This assignment
of error fails.
5. Sufficiency of Evidence
Samuels next assigns that the district court erred in denying
his motion for a directed verdict. He argues that the evidence
was insufficient to support his convictions for possession of a
firearm by a prohibited person and possession of more than 1
pound of marijuana.
Regardless of whether the evidence is direct, circumstantial,
or a combination thereof, and regardless of whether the issue
is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard
is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. Bershon, 313 Neb.
153, 983 N.W.2d 490 (2023); State v. Pauly, 311 Neb. 418, 972
N.W.2d 907 (2022).
(a) Possession of Deadly Weapon
Samuels argues that the evidence was insufficient to support
his conviction for possession of a deadly weapon by a prohib-
ited person. Samuels acknowledges that he stipulated to having
been convicted of a felony but argues that the State failed to
prove that he possessed the firearm.
A person commits the offense of possession of a deadly
weapon by a prohibited person if that person possesses a fire-
arm, a knife, or brass or iron knuckles and has previously been
convicted of a felony. § 28-1206. The doctrine of construc-
tive possession is applicable to the offense of possession of a
firearm by a felon under § 28-1206. State v. Sherrod, 27 Neb.
App. 435, 932 N.W.2d 880 (2019). Constructive possession
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Cite as 31 Neb. App. 918means the possessor did not have actual possession but was
aware of the presence of the contraband and had dominion or
control over it. Id.Here, after the firearm was seized from the vehicle, Samuels
admitted that the firearm belonged to him; described the fire-
arm to the officer; and, as evidenced by the cruiser footage,
was aware of the firearm’s presence in the vehicle. However,
Samuels claims that the evidence was insufficient to establish
his possession of the firearm, because the firearm was found
under the floormat on the passenger side of the vehicle; that
Officer Hudec believed that Samuels was admitting to the gun
charge for the passenger; and that Samuels had been excluded
as a major contributor of the DNA profile found on the firearm.
We disagree.
Pursuant to § 28-1212:
The presence in a motor vehicle other than a public
vehicle of any firearm or instrument referred to in sec-
tion 28-1203, 28-1206, 28-1207, or 28-1212.03 shall be
prima facie evidence that it is in the possession of and
is carried by all persons occupying such motor vehicle
at the time such firearm or instrument is found, except
that this section shall not be applicable if such firearm or
instrument is found upon the person of one of the occu-
pants therein.
Further, as the Nebraska Supreme Court stated in State v.
Warlick, 308 Neb. 656, 682, 956 N.W.2d 269, 293 (2021):
Two persons may have constructive possession, or one
may have actual possession and the other have construc-
tive possession. Constructive possession may be proved
by direct or circumstantial evidence and may be shown
by the accused’s proximity to the item at the time of the
arrest or by a showing of dominion over it.
Taking the facts in the light most favorable to the State,
the evidence established that Samuels, a prohibited person,
had constructive possession of the firearm based upon evi-
dence including the firearm in the rental vehicle that he was
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Cite as 31 Neb. App. 918driving, his proximity to the firearm, his description of the
firearm to the officer, his admissions to the officer, and the
admissions captured on the cruiser footage. This assignment of
error fails.
(b) Possession of Marijuana
Samuels also argues that the evidence was insufficient to
support his conviction for possession of more than 1 pound of
marijuana. He argues that the State did not provide sufficient
evidence that the marijuana seized from the vehicle weighed
more than 1 pound.
Neb. Rev. Stat. § 28-416(12) (Cum. Supp. 2020) provides
that “[a]ny person knowingly or intentionally possessing mari-
juana weighing more than one pound shall be guilty of a Class
IV felony.” We note that § 28-416 was amended in 2022 after
the operative date of the offense in this case.
[45-47] In State v. Warlick, 308 Neb. at 682-83, 956 N.W.2d
at 293, the Nebraska Supreme Court explained:
[W]e have long held under the language of the criminal
narcotics statutes here at issue that possession may be
either actual or constructive.
Two persons may have constructive possession, or
one may have actual possession and the other have
constructive possession. Constructive possession may be
proved by direct or circumstantial evidence and may
be shown by the accused’s proximity to the item at the
time of the arrest or by a showing of dominion over it.
Thus, possession of a controlled substance means either
(1) knowingly having it on one’s person or (2) know-
ing of the substance’s presence and having control over
the substance.
. . . Evidence that a defendant had constructive pos-
session of a drug with knowledge of its presence and its
character as a controlled substance is sufficient to support
a finding of possession and to sustain a conviction for
unlawful possession.
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Cite as 31 Neb. App. 918[48] Further, the fact that one is the driver of a vehicle,
particularly over a long period of time, creates an inference of
control over items in the vehicle. State v. Howard, 282 Neb.
352, 803 N.W.2d 450 (2011).
Here, Samuels does not argue that the evidence was insuf-
ficient to establish his knowing or intentional possession of the
marijuana, and we find that the evidence, including the foot-
age from the cruiser, established that Samuels was aware of
the nature of the marijuana contained inside the rental vehicle.
We further reject Samuels’ claim that the evidence was insuf-
ficient to establish that the weight of the marijuana exceeded
1 pound. The evidence at trial established that the officers
seized containers from different marijuana dispensaries, which
containers were located inside the rental vehicle that Samuels
was driving. Officers also located receipts accompanying the
dispensary containers inside the vehicle and on Samuels’ per-
son. The dispensary labels and receipts indicated the date of
each purchase, a warning that the purchase contained mari-
juana, the “THC percentage,” and the net weight in grams.
Officers determined that all the individual dispensary contain-
ers together weighed “31 ounces; so just under two pounds.”
Cruiser footage captured a conversation between Samuels and
the passenger discussing their belief that the amount of mari-
juana in the vehicle weighed under 2 pounds. Based upon the
aforementioned evidence, the evidence was sufficient to sup-
port Samuels’ conviction for the knowing and intentional pos-
session of more than 1 pound of marijuana. This assignment of
error fails.
6. Excessive Sentences
Samuels’ final assignment of error is that the sentences
imposed were excessive and that the district court failed to
adequately consider his rehabilitative needs, age, health, and
general life circumstances.
Samuels was convicted of possession of a firearm by
a prohibited person, a Class ID felony, and possession of
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Cite as 31 Neb. App. 918more than 1 pound of marijuana, a Class IV felony. See,
§ 28-1206(1) and (3)(b); § 28-416(12). The district court
determined that Samuels was a habitual criminal, resulting
in enhancement of the sentences for his convictions of the
offenses, each being punishable by a mandatory minimum of
10 years’ imprisonment and a maximum of 60 years’ impris-
onment. See Neb. Rev. Stat. § 29-2221(1) (Reissue 2016).
Samuels’ sentences of 10 to 15 years’ imprisonment and 10 to
11 years’ imprisonment are both within the applicable statu-
tory range for enhancements pursuant to a finding that he was
a habitual criminal.
[49-52] When sentences imposed within statutory limits are
alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion in
considering well-established factors and any applicable legal
principles. State v. Morton, 310 Neb. 355, 966 N.W.2d 57(2021). The relevant factors for a sentencing judge to consider
when imposing a sentence 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 sentencing court is
not limited to any mathematically applied set of factors, but
the appropriateness of the sentence is necessarily a subjective
judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life. Id. For a
defendant who has been sentenced consecutively for two or
more crimes, courts generally consider the aggregate sentence
to determine if it is excessive. Id.At the time of the presentence investigation report (PSR),
Samuels was 34 years old, was single, and had four depen-
dents. Samuels had obtained his diploma through the GED
program but was unemployed. His prior criminal history
included two convictions for controlled substance violations,
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Cite as 31 Neb. App. 918voluntary absence (escape), operating a motor vehicle with-
out its owner’s consent, and willful failure to stop for law
enforcement. Samuels had previously been sentenced to pro-
bation and parole for his convictions, which sentences were
revoked. The PSR indicated Samuels was scored as a high risk
to reoffend on the “LS/CMI Assessment,” had a low risk for
substance misuse, and needed further intervention for mental
health support.
Further, contrary to Samuels’ claim that the district court
failed to consider or improperly considered the sentencing fac-
tors, at the sentencing hearing, the district court stated:
I’ve read and reviewed the [PSR], considered the com-
ments of counsel as well as the relevant statutory fac-
tors and considered that you are 34 years old. You have
. . . a GED. Your background, as counsel noted, your past
criminal record, considering these particular offenses and
the nature of these offenses, having considered all of that
information, and regarding the nature and circumstances
of the crimes as well as your history, character and con-
dition, I do find that imprisonment is necessary for the
protection of the public, because there is a substantial risk
[that Samuels] would engage in criminal conduct, and a
lesser sentence would depreciate the seriousness of the
crime and promote disrespect for the law.
[53] Thus, the district court stated that it reviewed the PSR,
which included information concerning all of the factors to be
considered by a sentencing court. We also note that a sentenc-
ing court is not required to articulate on the record that it has
considered each sentencing factor or to make specific find-
ings as to the facts that bear on each of those factors. State v.
Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022).
In sum, the evidence reflects that the district court con-
sidered the appropriate sentencing factors and that based on
these factors—including that the sentences imposed were
within the relevant statutory sentencing range for habitual
criminal enhancements, Samuels’ criminal history, his previous
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Cite as 31 Neb. App. 918failures at probation and parole, and his high risk to reoffend—
the sentences imposed were not an abuse of discretion.
VI. CONCLUSION
Having considered and rejected Samuels’ assigned errors,
we affirm Samuels’ convictions and sentences.
Affirmed.