State v. Hernandez Cisneros , 32 Neb. Ct. App. 354 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. HERNANDEZ CISNEROS
Cite as 32 Neb. App. 354State of Nebraska, appellee, v. Lorenzo
Hernandez Cisneros, also known as
Lorenzo Hernandez-Lugo, appellant.
___ N.W.2d ___
Filed October 31, 2023. No. A-23-045.
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 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. An
appellate court applies a two-part analysis when reviewing whether a
consent to search was voluntary. As to the historical facts or circum-
stances 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 appellate court
reviews independently of the trial court.
3. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact. The relevant question 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.
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Cite as 32 Neb. App. 3544. 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.
5. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
6. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error.
The failure to object to evidence at trial, even though the evidence was
the subject of a previous motion to suppress, waives the objection, and
a party will not be heard to complain of the alleged error on appeal.
7. Appeal and Error. An objection, based on a specific ground and prop-
erly overruled, does not preserve a question for appellate review on
some other ground not specified at trial.
8. Constitutional Law: Search and Seizure: Investigative Stops: Motor
Vehicles. A traffic stop is a seizure for Fourth Amendment purposes, and
therefore is accorded Fourth Amendment protections.
9. Constitutional Law: Warrantless Searches: Search and Seizure.
Warrantless searches and seizures are per se unreasonable under the
Fourth Amendment, subject to a few established and well-delineated
exceptions.
10. Warrantless Searches. One well-recognized exception to the warrant
requirement is a search undertaken with consent.
11. Constitutional Law: Search and Seizure. To be effective under the
Fourth Amendment, consent to a search must be a free and uncon-
strained choice, and not the product of a will overborne.
12. Search and Seizure. Consent to search may be implied by action rather
than words.
13. ____. Whether consent to a search was voluntary is to be determined
from the totality of the circumstances surrounding the giving of consent.
14. 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.
15. Evidence: Appeal and Error. On a challenge to the sufficiency of the
evidence, 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.
16. Appeal and Error. 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.
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Cite as 32 Neb. App. 35417. Controlled Substances. For crimes under the criminal narcotics stat-
utes, Nebraska common law recognizes both actual and construc-
tive possession.
18. 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.
19. Controlled Substances: Evidence. Mere presence at a place where a
controlled substance is found is not sufficient to show constructive pos-
session. Instead, the evidence must show facts and circumstances which
affirmatively link the suspect to the narcotic so as to suggest that he or
she knew of it and exercised control over it.
20. Investigative Stops: Motor Vehicles. Generally, 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.
21. Investigative Stops: Motor Vehicles: Controlled Substances.
Possession of a controlled substance can be inferred if the vehicle’s
occupant acts oddly during the traffic stop, gives explanations that are
inconsistent with the explanations of other vehicle occupants, or gener-
ally gives an implausible explanation for the travels.
22. Controlled Substances: Circumstantial Evidence: Intent.
Circumstantial evidence sufficient to establish possession of a controlled
substance with intent to deliver may consist of evidence of the quantity
of the substance, equipment and supplies found with the substance, the
place where the substance was found, the manner of packaging, and the
testimony of witnesses experienced and knowledgeable in the field.
23. Weapons: Motor Vehicles. A weapon is concealed on or about the per-
son if it is concealed in such proximity to the driver of an automobile as
to be convenient of access and within immediate physical reach.
24. Sentences. When imposing a sentence, a sentencing judge should cus-
tomarily consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the
offense, as well as (7) the nature of the offense and (8) the amount of
violence involved in the commission of the crime.
25. ____. 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.
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
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STATE V. HERNANDEZ CISNEROS
Cite as 32 Neb. App. 354Justin R. Huber, Deputy Scotts Bluff County Public
Defender, for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Pirtle, Chief Judge, and Moore and Riedmann, Judges.
Pirtle, Chief Judge.
I. INTRODUCTION
Lorenzo Hernandez Cisneros, also known as Lorenzo
Hernandez-Lugo (Hernandez), appeals the district court for
Scotts Bluff County’s denial of his motion to suppress related
to the search of his vehicle during a traffic stop. He asserts
his consent to search the vehicle was not knowing and volun-
tary because he does not speak English and the consent was
communicated, in part, via “Google Translate.” Hernandez
also challenges the admission of evidence from the search of
the vehicle over his objections at trial, the sufficiency of the
evidence supporting his convictions, and the length of the sen-
tences imposed. We affirm.
II. BACKGROUND
1. Traffic Stop
On February 6, 2022, Officer Brennan Martinez of the
Gering Police Department performed a traffic stop on a vehicle
with a burned-out driver’s-side headlight. Upon approach-
ing the vehicle, Martinez encountered the driver, Hernandez,
and three other occupants. Martinez asked Hernandez for his
license, registration, and proof of insurance. Hernandez indi-
cated that he did not have a license, but provided an identifica-
tion card from Mexico, the vehicle’s registration, and proof of
insurance. While his name appeared on the proof of insurance,
it was not on the registration.
Martinez requested that Hernandez come to his patrol
car to speak to him individually. Hernandez does not speak
English, so they utilized Google Translate to communicate.
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Cite as 32 Neb. App. 354This entailed Martinez typing English into Google Translate on
his phone and showing the Spanish translation to Hernandez.
Hernandez would then type Spanish into Google Translate on
his own phone and show Martinez the English translation.
Using Google Translate, Hernandez informed Martinez they
had left Colorado that morning because two of the occupants
wanted to go to “the casinos.” This raised Martinez’ suspicions
because there are no casinos in the Nebraska Panhandle. After
relaying several more messages, Martinez asked, via Google
Translate, whether he could search the vehicle. Hernandez read
the translation and Martinez asked, “Sí or no?” Hernandez
responded, “Sí,” meaning “yes.”
2. Vehicle Search
During the search of the vehicle, Martinez found a black
backpack on the driver’s-side back seat. In the backpack, he
found over a pound of methamphetamine packaged into six
bags. Four of these bags each contained 4 ounces of metham-
phetamine, while the other two contained smaller amounts. He
also discovered a handgun and a combination-lock bag in the
backpack. Within the combination-lock bag, he found many
resealable “designer baggies” with dollar signs on them.
3. Motion to Suppress
Relevant to this appeal, Hernandez was charged with pos-
session of methamphetamine with intent to distribute with
a weight of 140 grams or more, possession of methamphet-
amine, failure to affix a drug tax stamp, and carrying a con-
cealed weapon. On July 27, 2022, Hernandez filed a motion
to suppress all evidence seized from the search of his vehicle.
He argued that the search was conducted without valid con-
sent. Martinez, Nohemi Leal, and Hernandez testified at the
September 23, 2022, hearing. Leal is a translator and inter-
preter who has worked for various police departments. Leal
explained that she watched a portion of Martinez’ body-worn
camera footage and transcribed Hernandez’ oral responses
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Cite as 32 Neb. App. 354from Spanish to English. A written copy of this transcription
was entered into evidence at the hearing.
(a) Evidence
Martinez testified that once Hernandez got into his patrol
car, he used Google Translate to communicate with Hernandez.
Initially, Martinez’ messages inquired as to what Hernandez
was doing that night, where he and the other occupants were
going, and whether he had been drinking alcohol or smok-
ing marijuana. Martinez continued to ask questions through
Google Translate but could not remember exactly what was
asked. While some of Hernandez’ responses included shoulder
shrugs or stating “no se,” meaning “I don’t know,” Martinez
indicated Hernandez’ responses were appropriate for the ques-
tions asked.
Martinez then asked Hernandez, via Google Translate, if he
had permission to search the vehicle. Although Martinez was
unsure of the specific wording of the request, it was “some-
thing along the lines of, can I have consent to search your
vehicle?” Following this, Hernandez verbally replied several
times in Spanish. Leal later transcribed and translated these
responses into English:
[Hernandez:] Do you want to search it? I have my
clothes.
[Martinez:] It’s ok to search it?
[Hernandez:] It’s my clothes. I have my clothes, that I
have in there.
[Martinez:] Is it yes or no?
[Hernandez:] It’s just that . . . Unintelligible[.]
[Martinez:] I am going to ask you if you have a prob-
lem with the vehicle.
[Hernandez:] I don’t read well.
[Martinez:] Ok. Can I, can I search the vehicle?
[Hernandez:] [A]ppears to be reading[.]
[Martinez:] Yes or no?
[Hernandez:] Yes, you can search it.
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Cite as 32 Neb. App. 354[Martinez:] Yes?
[Hernandez:] Yes.
[Martinez:] Ok.
Martinez stated that he found multiple items of clothing inside
the vehicle.
Hernandez, assisted by an interpreter, testified that he does
not speak English and had difficulty communicating with
Martinez the night of the traffic stop. He indicated that even
with the help of Google Translate, he did not understand
everything Martinez was asking. Specifically, he stated that he
did not understand when Martinez asked to search the vehicle.
When asked whether he gave permission for the vehicle to
be searched, he believed Martinez was only asking where the
vehicle was. He testified that when he responded to Martinez’
question with “Sí,” he believed that he was simply informing
him that “[his] vehicle was there.” Hernandez went on to state
that if he had known Martinez was asking whether he could
search the vehicle, the answer would have been no because the
vehicle was not his.
(b) District Court’s Ruling
The district court issued its denial of Hernandez’ motion to
suppress on October 20, 2022. The district court stated, “The
evidence is clear that [Hernandez] knew what was being asked
of him, and responded affirmatively that the search could
occur.” Consequently, the district court found Hernandez’ con-
sent was knowingly and voluntarily given.
4. Trial and Sentencing
A jury trial was held on October 26, 2022. The parties
stipulated that the substances discovered were methamphet-
amine. At trial, evidence was adduced that six packages
containing more than a pound of rock methamphetamine,
two digital scales, many small designer baggies, and a 9-mm
handgun were discovered in the backpack that was found in
the vehicle. The evidence also demonstrated that two cases of
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Cite as 32 Neb. App. 3549-mm ammunition were discovered inside a hidden compart-
ment within the vehicle’s center console. Additionally, more
methamphetamine was discovered in Hernandez’ inner coat
pocket when he was later searched at the Scotts Bluff County
Detention Center.
(a) Methamphetamine, Handgun,
and Ammunition
The six packages of methamphetamine within the backpack
were wrapped in plastic wrap, “saran wrap[ped],” and covered
with detergent-soaked paper towels, then placed inside of a
grocery bag. Martinez indicated that in his experience, drug
smugglers utilize this form of packaging for easier distribu-
tion and to mask the scent of the drugs they carry. Martinez
also found a combination-lock bag and a 9-mm handgun in
the backpack. Within the combination-lock bag was a reseal-
able baggie that contained large quantities of smaller designer
resealable baggies with dollar signs on them.
Upon a later, more thorough, search of the vehicle, law
enforcement discovered a hidden compartment under the vehi-
cle’s center console. To access this “cubbyhole,” the center
console had to be removed. Within the hidden compartment
were two boxes of 9-mm ammunition. A magnetic lockbox
with white residue inside was also discovered underneath the
driver’s seat. Law enforcement also noted the presence of
many air fresheners throughout the vehicle.
(b) Control of Vehicle
The State presented several items of evidence indicating the
vehicle was in Hernandez’ control at the time of the traffic stop.
While his name did not appear on the registration, it was pres-
ent on the proof of insurance. Officers also found in the vehicle
a check dated January 6, 2021, paid to the order of Hernandez
and two receipts that bore his name: one dated December 19,
2021, from a hotel and the other dated December 16, 2021,
from a self-storage facility.
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Cite as 32 Neb. App. 354(c) Detention Center Search
After the discovery of the methamphetamine and handgun in
his vehicle, officers took Hernandez to the Scotts Bluff County
Detention Center to be booked. Upon arriving at the detention
center, he was searched by officers. During that search, officers
removed a small designer baggie with dollar signs on it from
his inner coat pocket. This baggie contained a small amount of
crystalized methamphetamine. This baggie matched the other
designer baggies with dollar signs found in the combination-
lock bag from the vehicle.
(d) Convictions and Sentencing
The jury found Hernandez guilty of possession of metham-
phetamine with intent to distribute with a weight of 140 grams
or more, possession of methamphetamine, failure to affix a
drug tax stamp, and carrying a concealed weapon. The court
accepted the jury’s verdicts and found Hernandez guilty of
all charges.
Sentencing was held on January 12, 2023. The district court
sentenced Hernandez to 20 to 20 years’ imprisonment for the
possession with intent to distribute conviction, 1 to 2 years’
imprisonment for the possession conviction, 1 to 2 years’
imprisonment for the drug tax stamp conviction, and 0 to 6
months’ imprisonment for the carrying a concealed weapon
conviction. The court ordered the sentences to be served con-
currently, and the court granted 350 days’ credit for time
served on the first count.
III. ASSIGNMENTS OF ERROR
Hernandez assigns, restated, that the district court erred by
(1) overruling his motion to suppress evidence obtained as a
result of the vehicle search; (2) overruling his objections to the
admission of that evidence; (3) finding the evidence presented
by the State was sufficient to support his convictions for pos-
session of a controlled substance with the intent to distribute,
failure to affix a drug tax stamp, and carrying a concealed
weapon; and (4) imposing excessive sentences.
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Cite as 32 Neb. App. 354IV. STANDARD OF REVIEW
[1,2] 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. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020). Regarding
historical facts, an appellate court reviews the trial court’s find-
ings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial court’s deter-
mination. State v. Saitta, supra. The same two-part analysis is
used when reviewing whether a consent to search was volun-
tary. Id. As to the historical facts or circumstances leading up
to a consent to search, we review the 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 question of law, which we review indepen-
dently of the trial court. State v. Saitta, supra.[3] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. State v. Miller, 312
Neb. 17, 978 N.W.2d 19 (2022). The relevant question is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Id.[4,5] 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. Id. A judicial abuse of discretion
exists only when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
right and denying a just result in matters submitted for dispo-
sition. Id.- 364 -
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STATE V. HERNANDEZ CISNEROS
Cite as 32 Neb. App. 354V. ANALYSIS
1. Motion to Suppress and Admission
of Evidence Derived From
Traffic Stop
Hernandez assigns the district court erred in overruling
his motion to suppress because consent to search a vehicle
garnered via a “translation app” cannot constitute valid con-
sent. Hernandez essentially argues the district court’s ruling
was incorrect because (1) there was no evidence received as
to Google Translate’s accuracy and reliability and (2) he was
unable to voluntarily and knowingly consent, because he did
not speak English and the Google Translate translations cre-
ated a misunderstanding as to what Martinez was asking.
(a) Google Translate’s
Accuracy and Reliability
[6,7] There were no objections imposed at trial that
attacked Google Translate’s accuracy and/or reliability. As
such, Hernandez failed to preserve this issue for appeal. The
failure to object to evidence at trial, even though the evidence
was the subject of a previous motion to suppress, waives the
objection, and a party will not be heard to complain of the
alleged error on appeal. State v. Lowman, 308 Neb. 482, 954
N.W.2d 905 (2021). Furthermore, an objection, based on a
specific ground and properly overruled, does not preserve a
question for appellate review on some other ground not speci-
fied at trial. Id.While Hernandez’ counsel objected to the admission of the
evidence obtained from the search of the vehicle on Fourth
Amendment grounds, no objections were made at trial during
any of the testimony concerning the Google Translate transla-
tions. Without any objection made during this testimony—
particularly an objection that attacked the translation’s foun-
dational reliability—the issue was not preserved for appeal.
Accordingly, this argument fails.
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Cite as 32 Neb. App. 354(b) Voluntary and Knowing Consent
Hernandez asserts he did not understand what Martinez
was asking via Google Translate, so his consent to search the
vehicle was not voluntary and knowing.
[8-14] A traffic stop is a seizure for Fourth Amendment
purposes, and therefore is accorded Fourth Amendment pro-
tections. State v. Thompson, 30 Neb. App. 135, 966 N.W.2d
872 (2021). Warrantless searches and seizures are per se
unreasonable under the Fourth Amendment, subject to a few
established and well-delineated exceptions. State v. Schriner,
303 Neb. 476, 929 N.W.2d 514 (2019). One well-recognized
exception to the warrant requirement is a search undertaken
with consent. Id. To be effective under the Fourth Amendment,
consent to a search must be a free and unconstrained choice,
and not the product of a will overborne. State v. Schriner,
supra. Consent to search may be implied by action rather than
words. State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020).
Whether consent to a search was voluntary is to be determined
from the totality of the circumstances surrounding the giv-
ing of consent. State v. Schriner, supra. The determination
of whether the facts and circumstances constitute a voluntary
consent to a search, satisfying the Fourth Amendment, is a
question of law. State v. Schriner, supra.
We begin by first rejecting Hernandez’ contention that
consent can never be found when it is obtained wholly, or in
part, via a “translation app.” While other methods of transla-
tion may be superior or preferred, we refuse to adopt such a
broad standard. As Nebraska courts have consistently reiter-
ated, whether valid consent is given depends on the totality
of the circumstances surrounding the situation. See, State v.
Saitta, supra; State v. Schriner, supra; State v. Modlin, 291
Neb. 660, 867 N.W.2d 609 (2015); State v. Gorup, 279 Neb.
841, 782 N.W.2d 16 (2010).
Considering the totality of the circumstances, we find
Hernandez understood that Martinez was asking to search
his vehicle and gave voluntary and knowing consent for him
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Cite as 32 Neb. App. 354to do so. Although Hernandez claims to have misunderstood
Martinez’ request, Leal’s transcription of the oral communi-
cation indicates otherwise. Martinez testified that he typed
something akin to “can I have consent to search your vehicle”
into Google Translate. Upon Martinez’ showing Hernandez the
translation of that request, Hernandez asked in Spanish, “Do
you want to search it? I have my clothes.” Seconds later, he
made another reference to his clothes, stating, “It’s my clothes.
I have my clothes, that I have in there.” The vehicle was the
only place law enforcement found any clothes. Further, after
Martinez directed his attention back to the translation and
again asked if he could search the vehicle, Hernandez stated,
“Yes, you can search it.” Following Martinez’ confirming
the response by asking “Yes?”, Hernandez responded “Sí.”
This exchange clearly demonstrates that he understood that
Martinez was asking to search the vehicle. With this under-
standing, his consent to search the vehicle was given know-
ingly and voluntarily. We conclude that the search of the
vehicle was done with Hernandez’ consent and that therefore,
the district court did not err when it overruled his motion to
suppress and admitted the evidence obtained from the search
at trial.
2. Sufficiency of Evidence
Hernandez assigns the evidence submitted at trial was insuf-
ficient to prove him guilty of all counts. He asserts the State
did not prove beyond a reasonable doubt that he possessed a
controlled substance with intent to distribute, to wit: meth-
amphetamine, more than 140 grams; failed to affix a drug tax
stamp; and carried a concealed weapon.
(a) Possession of Methamphetamine
With Intent to Distribute
Hernandez argues the evidence adduced by the State at trial
was insufficient to prove that he possessed methamphetamine
with the intent to distribute because there was no evidence
that he intentionally possessed the methamphetamine. He
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Cite as 32 Neb. App. 354asserts the evidence merely demonstrates that he was driving
a vehicle that happened to have methamphetamine hidden
in it.
[15,16] On a challenge to the sufficiency of the evidence,
the relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt. State
v. Rakosnik, 22 Neb. App. 194, 849 N.W.2d 538 (2014). 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. Id.Possession with intent to distribute is set out in Neb. Rev.
Stat. § 28-416 (Cum. Supp. 2020). The relevant portion pro-
vides: “[I]t shall be unlawful for any person knowingly or
intentionally: (a) To manufacture, distribute, deliver, dispense,
or possess with intent to manufacture, distribute, deliver, or
dispense a controlled substance.” § 28-416(1).
[17-19] Thus, to find Hernandez guilty of possession of
methamphetamine with intent to distribute, the State had to
show that he knowingly or intentionally possessed metham-
phetamine with an intent to deliver or distribute it. For crimes
under the criminal narcotics statutes, Nebraska common law
recognizes both actual and constructive possession. See State v.
Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021). 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.
Id. Mere presence at a place where a controlled substance
is found is not sufficient to show constructive possession.
State v. Sherrod, 27 Neb. App. 435, 932 N.W.2d 880 (2019).
Instead, “the evidence must show facts and circumstances
which affirm­atively link [the suspect] to the [narcotic] so as to
suggest that he [or she] knew of it and exercised control over
it.” Id. at 442, 932 N.W.2d at 888.
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Cite as 32 Neb. App. 354[20,21] The evidence was sufficient to demonstrate that
Hernandez possessed the methamphetamine with the intent
to distribute. Generally, 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). Possession of a con-
trolled substance can also be inferred if the vehicle’s occupant
acts oddly during the traffic stop, gives explanations that are
inconsistent with the explanations of other vehicle occupants,
or generally gives an implausible explanation for the travels.
Id. The record shows Hernandez was driving the vehicle at the
time of the traffic stop and had been in control of the vehicle
for a lengthy period. Three items bearing his name were in
the vehicle: a 13-month-old check made payable to him, a
3-month-old receipt from a self-storage facility, and another
3-month-old receipt from a hotel. Additionally, Hernandez
told Martinez they were in the area because they were going
to the casinos. This is suspect, as there are no casinos in the
Nebraska Panhandle.
[22] The packaging of the methamphetamine and the other
items found in the vehicle also support an inference that
Hernandez possessed the methamphetamine with the intent to
distribute. Circumstantial evidence sufficient to establish pos-
session of a controlled substance with intent to deliver may
consist of evidence of the quantity of the substance, equip-
ment and supplies found with the substance, the place where
the substance was found, the manner of packaging, and the
testimony of witnesses experienced and knowledgeable in the
field. Id. The considerable amount of methamphetamine was
twice wrapped in plastic and covered with detergent-soaked
paper towels. Beyond this manner of packaging being com-
mon with drug distributors, the vehicle also contained various
drug paraphernalia. This included four digital scales, many
designer resealable baggies, a magnetic lockbox with white
residue in it, and a plethora of air fresheners throughout the
vehicle. Martinez testified that in his experience, these tactics
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Cite as 32 Neb. App. 354and supplies were common for drug distributors. Additionally,
the baggie containing crystalized methamphetamine found on
Hernandez during the detention center search matched the
designer baggies found in the backpack. Moreover, he was the
only occupant of the vehicle to have methamphetamine on his
person. Viewed in the light most favorable to the State, we find
this evidence is sufficient for a rational trier of fact to find that
Hernandez knew of the methamphetamine and had dominion
or control over it beyond a reasonable doubt.
(b) Failure to Affix Drug Tax Stamp
Hernandez asserts that because the evidence fails to demon-
strate that he possessed the methamphetamine with the intent
to distribute, the evidence fails to support a finding beyond
a reasonable doubt that he committed the crime of failing to
affix the requisite drug tax stamp. Neb. Rev. Stat. § 77-4309(Reissue 2018) provides that a dealer distributing or possess-
ing marijuana or a controlled substance without affixing the
official stamp, label, or other indicium shall be guilty of a
Class IV felony.
Consistent with the prior analysis, the evidence demon-
strates a trier of fact could find that Hernandez possessed a
controlled substance beyond a reasonable doubt. Martinez tes-
tified that none of the methamphetamine found in Hernandez’
possession had the requisite drug tax stamp. Thus, there was
sufficient evidence from which a rational trier of fact could
find that Hernandez possessed the methamphetamine without
affixing an official stamp, label, or other indicium of payment
of tax.
(c) Carrying Concealed Weapon
[23] Hernandez asserts that because he did not intention-
ally possess the backpack that contained the large amount
of methamphetamine, he likewise was not in possession of
the firearm located inside the backpack. Neb. Rev. Stat.
§ 28-1202 (Cum. Supp. 2022) provides that any person who
carries a weapon or weapons concealed on or about his or
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Cite as 32 Neb. App. 354her person, such as a handgun, a knife, brass or iron knuckles,
or any other deadly weapon, commits the offense of carry-
ing a concealed weapon. In applying § 28-1202 to drivers of
motor vehicles, the Nebraska Supreme Court has repeatedly
held that “‘[a] weapon is concealed on or about the person
if it is concealed in such proximity to the driver of an auto-
mobile as to be convenient of access and within immediate
physical reach.’” State v. Warlick, 308 Neb. 656, 687, 956
N.W.2d 269, 296 (2021).
That is not to say that for the evidence to be sufficient to
convict a driver of violating § 28-1202, the weapon must
have been found on the driver’s person at the time it was
seized or while driving, but there must be some evidence
beyond mere speculation that the weapon was within
immediate physical reach on or about the date the defend­
ant is charged with committing the crime.
State v. Warlick, 308 Neb. at 687-88, 956 N.W.2d at 296. In
other words, the weapon must be concealed “in such proxim-
ity to the passenger of a motor vehicle as to be convenient of
access and within immediate physical reach.” Id. at 688, 956
N.W.2d at 296-97.
In State v. Warlick, supra, the Supreme Court found that a
firearm stored in a bag underneath the spare tire in the cargo
area of the vehicle was outside the defendant’s proximity and
reach. The court noted that although there was testimony about
the firearm being reachable from the back seat, the defendant
was never in the back seat. Id. Thus, the evidence was insuf-
ficient to demonstrate the defendant was guilty of carrying a
concealed weapon on or about his person. Id.In State v. Senn, 295 Neb. 315, 888 N.W.2d 716 (2016), a
handgun was found behind the passenger seat—between the
passenger seat and the right side wall—of a truck. The firearm
“‘was completely on the other side of the cab’” and “‘partially
behind the seat, with some clothing on top of it.’” Id. at 317,
888 N.W.2d at 718. The Supreme Court found that “the jury,
as a rational trier of fact, could have found that the handgun
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Cite as 32 Neb. App. 354was on or about [the defendant’s] person, even though it was
not within his reach while driving.” Id. at 322, 888 N.W.2d at
720. The court stated that “[n]either the statute nor the [jury]
instruction[s] limited the jury’s consideration to a particular
time or location for the charged offense, except for the date
and the county specified.” Id. at 321, 888 N.W.2d at 720. As
such, the court found that the jury could have found that the
handgun was on or about the defendant’s person, even though
it was not within his reach while driving.
In the matter at hand, we conclude the State adduced suf-
ficient evidence to support Hernandez’ conviction for carrying
a concealed weapon on or about his person. As opposed to
the situation in Warlick where the bag containing the firearm
was stowed underneath the spare tire, the evidence in this case
demonstrated the handgun was in a backpack directly behind
the driver’s seat. This area of the vehicle was not only easily
accessible to Hernandez generally, but it also provided him
direct access for immediate use while driving. Therefore, view-
ing the evidence in the light most favorable to the prosecution,
we conclude that the jury, as a rational trier of fact, could have
found that the handgun was on or about Hernandez’ person in
such proximity as to be convenient of access and within imme-
diate physical reach.
3. Excessive Sentences
[24,25] Hernandez assigns the sentences imposed were
excessive and constituted an abuse of discretion by the trial
court. A sentence imposed within the statutory limits will not
be disturbed absent an abuse of discretion. See State v. Abligo,
312 Neb. 74, 978 N.W.2d 42 (2022). An abuse of discretion
occurs when a trial court’s decision is based upon reasons
that are untenable or unreasonable or if its action is clearly
against conscience, reason, and evidence. Id. When imposing
a sentence, a sentencing judge should customarily consider the
defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal
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Cite as 32 Neb. App. 354record 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. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
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 sentenc-
ing judge’s observations of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the
defendant’s life. Id.Hernandez was convicted of possession of methamphet-
amine with intent to distribute, a Class IB felony; posses-
sion of methamphetamine, a Class IV felony; failure to affix
a drug tax stamp, a Class IV felony; and carry a concealed
weapon, a Class I misdemeanor. Neb. Rev. Stat. § 28-105(Cum. Supp. 2022) contains the sentencing guidelines for
felony convictions and Neb. Rev. Stat. § 28-106 (Reissue
2016) provides the guidelines for misdemeanor convictions.
Pursuant to § 28-105, the minimum sentence for a Class IB
felony is 20 years’ imprisonment with life imprisonment as a
maximum. Class IV felonies do not have a statutory minimum
and can result in up to 2 years’ imprisonment and 12 months’
post-release supervision. Pursuant to § 28-106, a Class I mis-
demeanor has no minimum sentence and can result in up to 1
year’s imprisonment.
Hernandez received the minimum sentence of 20 to 20
years’ imprisonment for his Class IB felony, 1 to 2 years’
imprisonment for each of his Class IV felonies, and 0 to 6
months’ imprisonment for his Class I misdemeanor. All con-
victions were set to run concurrently. Each of these sentences
were within the statutory range, so Hernandez’ sentences will
be disturbed only if there was a judicial abuse of discretion by
the sentencing court.
The district court did not abuse its discretion in sentenc-
ing Hernandez. The record reflects that the district court
reviewed the materials presented to it and considered the
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Cite as 32 Neb. App. 354appropriate factors. There is no indication the district court
considered any inappropriate factors in levying the sentences.
Further, the district court imposed the minimum sentence
allowed by statute for a Class IB felony, and due to the con-
current sentences, Hernandez will not serve any sentence
beyond that statutory minimum. With that reality, the district
court’s sentencing is not clearly against conscience, reason, or
evidence. Hernandez’ final assignment of error fails.
VI. CONCLUSION
For the reasons set forth above, we affirm the district court’s
overruling of Hernandez’ motion to suppress and objections
made at trial to the evidence obtained as a result of the vehicle
search. We also find that the evidence was sufficient to support
Hernandez’ convictions and that the district court did not abuse
its discretion in levying his sentences.
Affirmed.