State v. Savage ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/04/2019 08:07 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SAVAGE
Cite as 301 Neb. 873
State of Nebraska, appellee, v.
Courtney J. Savage, appellant.
___ N.W.2d ___
Filed December 14, 2018. No. S-17-1166.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence, it does
not matter whether the evidence is direct, circumstantial, or a combi-
nation 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 finders 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.
2. Verdicts: Appeal and Error. Only where evidence lacks sufficient pro-
bative force as a matter of law may an appellate court set aside a guilty
verdict as unsupported by evidence beyond a reasonable doubt.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
5. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
6. Pleadings: Evidence: Appeal and Error. A motion in limine is a pro-
cedural step to prevent prejudicial evidence from reaching the jury, but
is not an appealable order. The purpose of a motion in limine is to pro-
duce, when appropriate, an advance ruling on anticipated objectionable
material, and the denial of the motion cannot, in and of itself, constitute
reversible error.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SAVAGE
Cite as 301 Neb. 873
7. Rules of Evidence: Proof. A proponent of evidence is not required to
conclusively prove the genuineness of the evidence or to rule out all
possibilities inconsistent with authenticity.
8. Rules of Evidence. Generally, the foundation for the admissibility of
text messages has two components: (1) whether the text messages were
accurately transcribed and (2) who actually sent the text messages.
9. Rules of Evidence: Proof. The proponent of text messages is not
required to conclusively prove who authored the messages. The possibil-
ity of an alteration or misuse by another generally goes to weight, not
admissibility.
10. Rules of Evidence: Hearsay: Proof. The State must prove by a greater
weight of the evidence that a defendant authored or made a statement
in order to establish preliminary admissibility as nonhearsay under Neb.
Rev. Stat. § 27-801(4)(b)(i) (Reissue 2016).
11. Rules of Evidence: Proof. Under what is commonly and incorrectly
referred to as the “best evidence rule,” in order to prove the content of
a writing, recording, or photograph, the original writing, recording, or
photograph is required.
12. ____: ____. The “original writings rule” applies only if the party offer-
ing the evidence is seeking to prove the contents of a writing, recording,
or photograph.
13. Rules of Evidence. The rule of completeness allows a party to admit the
entirety of an act, declaration, conversation, or writing when the other
party admits a part and when the entirety is necessary to make it fully
understood.
14. ____. The rule of completeness is concerned with the danger of admit-
ting a statement out of context, but when this danger is not present, it
is not an abuse of discretion to refuse to require the production of the
remainder or, if it cannot be produced, to exclude all the evidence.
15. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution and
who, when the court overrules the dismissal or directed verdict motion,
proceeds with trial and introduces evidence, waives the appellate right
to challenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict.
16. Directed Verdict: Appeal and Error. When a defendant makes a
motion at the close of the State’s case in chief and again at the conclu-
sion of all the evidence, it is proper to assign as error that the defend­
ant’s motion to dismiss made at the conclusion of all the evidence
should have been sustained.
17. Convictions: Evidence: Appeal and Error. A conviction will be
affirmed in the absence of prejudicial error if the properly admitted
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301 Nebraska R eports
STATE v. SAVAGE
Cite as 301 Neb. 873
evidence, viewed and construed most favorably to the State, is sufficient
to support the conviction.
18. Convictions: Corroboration: Witnesses: Testimony. When the law
requires corroboration of a witness to support a conviction, a wit-
ness’ testimony must be accompanied by evidence other than that from
the witness.
19. Convictions: Corroboration: Witnesses: Testimony: Controlled
Substances. Under the Uniform Controlled Substances Act, corrobora-
tion is sufficient to satisfy the requirement that a conviction not be based
solely upon uncorroborated testimony of an individual cooperating with
the prosecution if the witness’ testimony is corroborated as to material
facts and circumstances which tend to support the testimony as to the
principal fact in issue.
20. Criminal Law: Corroboration: Testimony. Testimony of a cooperating
individual need not be corroborated on every element of a crime.
21. Convictions: Controlled Substances: Evidence: Proof. Evidence that
a defendant had constructive possession 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 unlaw-
ful possession.
22. Controlled Substances: Evidence: Proof. Constructive possession may
be proved by direct or circumstantial evidence and may be shown by
the accused’s proximity to the substance at the time of the arrest or by a
showing of dominion over the substance.
23. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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 violence involved in the
commission of the crime.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Darik J. Von Loh, of Hernandez Frantz, Von Loh, for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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STATE v. SAVAGE
Cite as 301 Neb. 873
Freudenberg, J.
I. NATURE OF CASE
Courtney J. Savage was arrested and charged with pos-
session of a controlled substance with intent to deliver, in
violation of Neb. Rev. Stat. § 28-416(2)(a) (Reissue 2016), a
Class II felony. He was further alleged to be a habitual crimi-
nal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2016).
During trial, the State produced evidence of text messages
from what was purported to be Savage’s cell phone, which
indicated that Savage was selling the illegal drug metham-
phetamine. Savage objected to the offer of the text messages
on foundation and hearsay grounds, primarily arguing that the
identity of the message author was unclear. The district court
overruled his objections, and after trial, a jury found Savage
guilty. The district court determined that Savage was a habit-
ual criminal and ordered him to serve 10 to 18 years in prison.
Savage appeals from his conviction.
II. BACKGROUND
Savage was arrested and charged with possession of a
controlled substance with intent to deliver, in violation of
§ 28-416. Further, he was alleged to be a habitual criminal
pursuant to § 29-2221. Following trial, he was convicted and
found to be a habitual criminal. Savage was subsequently sen-
tenced to a term of 10 to 18 years’ incarceration. The facts of
his arrest and trial leading to his conviction follow.
1. February 16 and 17, 2017, A rrest
During the night of February 16, 2017, and the early morn-
ing hours of February 17, Lincoln Police Department officers
Anthony Gratz and Andrew Barksdale arrested Michael Dryden
for possession of methamphetamine with intent to deliver.
After being brought to the police station to be interviewed,
Dryden received several text messages from an individual
referred to as “Pint” seeking to sell Dryden methamphetamine.
Later, through a review of the Lincoln Police Department’s
records management system, it was learned that “Pint” was a
nickname for Savage.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SAVAGE
Cite as 301 Neb. 873
With Dryden’s permission, the officers borrowed Dryden’s
cell phone and continued to communicate with Savage, hop-
ing to find him and arrest him for his potential illegal meth-
amphetamine sale to Dryden. After multiple text messages
were exchanged, a meeting to purchase methamphetamine
was arranged to occur at an agreed-upon location in Lincoln,
Nebraska. When the officers arrived at that location, they
parked in a nearby alleyway, began surveillance, and continued
the text conversation.
The officers received a message from Savage’s cell phone
indicating that he was at the agreed-upon location. Seeing no
one arrive, the officers drove around the block. The officers
then saw a blue two-door Toyota. The police cruiser and the
Toyota were the only vehicles in the area. Almost immediately
after the police saw the Toyota drive by, Dryden’s cell phone
received a text message stating: “Police [are] outside.”
The officers concluded that Savage was in the passing
Toyota. The officers followed the Toyota and observed it fail
to properly signal a turn. The officers initiated a traffic stop of
the Toyota.
During the stop, one of the officers approached the driver’s
side of the Toyota while the other officer approached the pas-
senger’s side. Gratz made contact with the driver, Johnathon
Addleman, and asked for his license and registration. When
Addleman failed to produce the requested documentation,
Gratz asked him to exit the Toyota. Savage was sitting in the
passenger seat of the Toyota and appeared to be using his
cell phone. Another passenger, Christine Tannehill, was in the
back seat.
While Gratz was questioning Addleman, Barksdale attempted
to make contact with Savage in the passenger seat. However,
Savage would not acknowledge Barksdale and maintained eye
contact with his cell phone. After some time, Savage opened
the door to speak with Barksdale. At that point, Barksdale
observed that Savage’s zipper was undone and a part of his
pants was pulled through the zipper opening.
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STATE v. SAVAGE
Cite as 301 Neb. 873
Addleman later explained to Gratz that as the officers were
pulling the Toyota over, Savage was “wrestling around in the
groin area of . . . his pants” and threw a bag at Tannehill,
instructing her to “put it in [her] pussy.” Tannehill was ques-
tioned by the officers, at which time she admitted to having
methamphetamine on her person and turned it over to the offi-
cers. At trial, several of the State’s witnesses, including Gratz
and Barksdale, testified that it was common for individuals
possessing drugs to hide them in or near their genitalia.
Within the surrendered bag, there were three smaller indi-
vidual bags, each of which pretested positive for amphetamine.
Later, a laboratory test confirmed that the substance was meth-
amphetamine. The three bags, collectively, contained in excess
of 7.6 grams of the substance. In addition to the bags of meth-
amphetamine, an officer collected each person’s cell phone.
Later, the cell phones were analyzed and data was extracted for
investigative purposes.
2. Motion in Limine
Prior to trial, Savage filed a motion in limine to exclude
evidence of various text messages contained on Savage’s and
Dryden’s cell phones. Savage argued that the State would be
unable to authenticate the text messages because, although the
messages were being sent from Savage’s cell phone, there was
no way to prove that Savage was the one texting Dryden at
the relevant time. Savage further argued that the text messages
would be hearsay and overly prejudicial. The State responded
that it could produce the foundation for admission of the text
messages into evidence by (1) proving that the cell phone in
question was Savage’s, (2) proving that the cell phone was in
Savage’s possession at the time of his arrest, and (3) present-
ing witness testimony that Savage was sending the messages at
issue. The district court overruled Savage’s motion in limine.
3. Trial
At trial, the State had several witnesses testify as to the
events of February 16 and 17, 2017, including Gratz, Barksdale,
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301 Nebraska R eports
STATE v. SAVAGE
Cite as 301 Neb. 873
Dryden, Addleman, and Tannehill. Gratz and Barksdale specifi-
cally testified that a typical “personal use amount” of metham-
phetamine was about 0.2 grams, thereby indicating that the
amount in this case was a “dealer quantity.”
(a) Exhibit 6
During Gratz’ testimony, the State offered exhibit 6, pho-
tographs of the text conversation between the officers and
Savage’s cell phone, into evidence. Savage objected to this on
foundation and hearsay grounds, asserting that the State did
not prove that Savage authored those text messages. The State
claimed that it had met its burden regarding foundation and
authentication, insofar as Gratz testified that he saw Savage
using Savage’s cell phone at the time of the arrest. The district
court overruled Savage’s objection.
(b) Exhibits 8 and 23
The State also offered into evidence exhibits 8 and 23, por-
tions of extractions from Savage’s and Dryden’s cell phones
containing text messages and cell phone logs from the relevant
time period. A police officer testified that he extracted and ana-
lyzed the data from Savage’s cell phone using a program called
Cellbrite. The officer stated that he found that Savage’s cell
phone’s wireless network tethering service, or access point, had
“Savage 11” as the password associated with it. Another police
officer testified that he extracted and analyzed the data from
Dryden’s cell phone also using the Cellbrite program.
Savage objected to both exhibits 8 and 23 on hearsay,
foundation, best evidence, and completeness grounds. Savage
elaborated that exhibit 23 was inadmissible because (1) the
State did not prove that Savage authored the relevant messages
and (2) it was only a portion of the Cellbrite report. The district
court overruled the objections.
(c) Dryden
Both Dryden and Addleman testified in the State’s case in
chief pursuant to cooperation agreements. Dryden testified
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301 Nebraska R eports
STATE v. SAVAGE
Cite as 301 Neb. 873
that as a dealer of methamphetamine, he purchased that drug
from Savage, whom he knew only by the name “Pint,” on a
few occasions. However, Dryden stated that he communicated
with Savage only through a family member of Savage’s and
never spoke to Savage on the cell phone directly. In fact,
Savage was not listed as a contact in Dryden’s cell phone.
Dryden also testified that Tannehill was always present dur-
ing these sales and that she appeared to be “overseeing”
the operation.
(d) Addleman
Addleman testified that he met Savage and Tannehill at a
house in Lincoln and agreed to give them a ride to another
location where they were allegedly going to drop off a large
amount of methamphetamine. Addleman stated that Tannehill
was giving directions to the address while appearing to use
Savage’s cell phone.
Addleman asserted that after the arrest, Savage devised a
plan to implicate Tannehill. Addleman agreed with Savage’s
request that he sign a notarized statement implicating Tannehill.
In his testimony, he claimed that Savage had him rewrite the
statement approximately four times. Addleman asserted that
he agreed to write the statement only because he wanted to
avoid being labeled a “snitch” while at the jail. After he was
released from jail, Addleman immediately contacted the public
defender’s office and the police department to advise them of
Savage’s plan and the falsity of his notarized statement.
(e) Christina Krueger
Savage called Christina Krueger to testify on his behalf.
Krueger was employed with the Lancaster County jail as a cor-
rectional officer. She testified that in the course of her employ-
ment, she regularly watched the inmates and often interacted
with them. She stated that during Savage and Addleman’s time
in jail, she became familiar with Savage and Addleman and
had interacted with them. Krueger testified that she was aware
of Savage and Addleman’s interaction regarding Addleman’s
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301 Nebraska R eports
STATE v. SAVAGE
Cite as 301 Neb. 873
notarized letter. She testified that, though she did not actually
see the contents of the letter, Addleman did not seem under
duress; nor did she notice any strange behaviors. Krueger
testified that Addleman stated that he was signing freely and
voluntarily before the notary. She noted the existence of certain
procedures for inmates to request “protective custody” if they
are being harassed by another inmate. On cross-examination,
Krueger testified that Savage was the one who initiated the
notarization process.
(f) Tannehill
Tannehill stated that her primary reason for testifying
was because she was subpoenaed and wanted to ensure that
Savage was held accountable for his actions on the night of
February 16, 2017. She did not testify pursuant to a coopera-
tion agreement, as she had already pled guilty to her charges.
Tannehill stated that she was a user of methamphetamine and
that she had previously purchased that drug from Savage,
whom she knew only by the name “Pint” until the night of
their arrest.
Tannehill further testified that Savage came over to her
house on the evening of February 16, 2017, and asked her
to drive him to Lincoln. She agreed, and the pair eventually
arrived at a Lincoln house where there were several people,
including Addleman. Tannehill admitted to smoking meth-
amphetamine given to her by Savage and observing Savage
weighing the drug while at the house.
Tannehill testified that Addleman later agreed to give Savage
and Tannehill a ride to a subsequent location, where the pair
were allegedly going to drop off “quite a big amount” of meth-
amphetamine. Tannehill testified that while in the car, Savage
gave her his cell phone to check the address of the location.
She testified that she did not send or receive any text messages
while on his cell phone, but simply utilized a map application
thereon. Shortly after the police began following Addleman’s
Toyota, Savage took the drugs out of his pants and instructed
Tannehill to put them in her vagina.
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301 Nebraska R eports
STATE v. SAVAGE
Cite as 301 Neb. 873
4. Verdict
At the close of the State’s evidence, Savage moved for
the court to dismiss the case, alleging that the State had not
met its burden of proof beyond a reasonable doubt. The dis-
trict court overruled his motion. Savage renewed the motion
for a directed verdict at the close of all the evidence, which
motion the district court again denied. After deliberations, the
jury found Savage guilty and the district court accepted the
jury’s verdict.
5. Posttrial and Sentencing
The court held an enhancement hearing where Savage
was determined to be a habitual criminal under § 29-2221.
Subsequently, at the sentencing hearing, the district court sen-
tenced Savage to a term of not less than a mandatory minimum
of 10 years’ and not more than 18 years’ imprisonment.
III. ASSIGNMENTS OF ERROR
Savage assigns, rephrased and renumbered, that the dis-
trict court erred in (1) overruling Savage’s motion in limine;
(2) overruling Savage’s motion to dismiss at the close of the
State’s case; (3) allowing the case to go to a jury without suf-
ficient evidence to support a verdict; (4) allowing evidence of
text messages from Savage’s and Dryden’s cell phones over
hearsay, foundation, completeness, and best evidence objec-
tions; and (5) abusing its discretion by imposing an exces-
sive sentence.
IV. STANDARD OF REVIEW
[1,2] When reviewing a criminal conviction for sufficiency
of the evidence, it does not matter whether the evidence is
direct, circumstantial, or a combination thereof, the standard
is the same: We do not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finders of fact. The relevant ques-
tion is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
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have found the essential elements of the crime beyond a rea-
sonable doubt.1 Only where evidence lacks sufficient proba-
tive force as a matter of law may an appellate court set aside
a guilty verdict as unsupported by evidence beyond a reason-
able doubt.2
[3,4] 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.3 Where the Nebraska Evidence Rules commit
the evidentiary question at issue to the discretion of the trial
court, an appellate court reviews the admissibility of evidence
for an abuse of discretion.4
[5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.5
V. ANALYSIS
1. A dmissibility of Text Messages
and Cellbrite R eports
[6] In his first assignment of error, Savage assigns that the
district court erred in overruling his motion in limine to pre-
vent the State from entering into evidence the text messages
and Cellbrite extraction reports. We have held that a motion
in limine is a procedural step to prevent prejudicial evidence
from reaching the jury, but is not an appealable order.6 The pur-
pose of a motion in limine is to produce, when appropriate, an
advance ruling on anticipated objectionable material, and the
1
State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). See, also, State v.
Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).
2
State v. Dixon, supra note 1.
3
State v. Hill, supra note 1.
4
Id.
5
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
6
See State v. Tomrdle, 214 Neb. 580, 335 N.W.2d 279 (1983).
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denial of the motion cannot, in and of itself, constitute revers-
ible error.7 However, because Savage preserved his objections
during trial and assigns the respective rulings thereon as errors
in this appeal, we address the admissibility of the text mes-
sages and Cellbrite extraction reports.
The evidence at issue is found in exhibits 6, 8, and 23.
Exhibit 6 contains photographs of Dryden’s cell phone with
the text messages between Savage’s cell phone and Dryden’s
cell phone on the screen. Exhibits 8 and 23 are portions of the
forensic data extractions of Savage’s and Dryden’s cell phones
containing the same text messages, as well as other messages
and call logs occurring around the same time.
(a) Authentication
Savage first contends that the district court erred in allowing
exhibits 6, 8, and 23 into evidence, because the text messages
contained therein were not properly authenticated. A court’s
ruling on authentication is reviewed for an abuse of discretion.8
[7] Under the Nebraska Rules of Evidence, the requirement
of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent
claims.9 We have noted that this rule does not impose a high
hurdle for authentication or identification.10 A proponent of
evidence is not required to conclusively prove the genuineness
of the evidence or to rule out all possibilities inconsistent with
authenticity.11
[8] Generally, the foundation for the admissibility of text
messages has two components: (1) whether the text messages
7
See id.
8
State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016); State v. Draganescu,
276 Neb. 448, 755 N.W.2d 57 (2008).
9
Neb. Rev. Stat. § 27-901(1) (Reissue 2016).
10
State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).
11
Id.
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were accurately transcribed and (2) who actually sent the
text messages.12 Savage does not challenge the first prong of
this test, but, rather, argues that the State failed to prove that
Savage was the author of the text messages.
[9] The State met its burden for authentication regarding the
text messages in exhibits 6, 8, and 23. The State need show
only by a greater weight of the evidence that the text mes-
sages were authored by Savage—in other words, that the text
messages were more likely than not authored by Savage. The
proponent of the text messages is not required to conclusively
prove who authored the messages.13 The possibility of an alter-
ation or misuse by another generally goes to weight, not admis-
sibility.14 Thus, the district court did not abuse its discretion in
overruling Savage’s foundation and authentication objections
to the text messages found within exhibits 6, 8, and 23.
Also respecting the authentication of text messages, Savage
argues that the current test, as analyzed above, should be
replaced with a test used in a Nevada case, Rodriguez v. State.15
In Rodriguez, the Nevada Supreme Court found the follow-
ing rule to establish the authentication of text messages from
cell phones:
[W]hen there has been an objection to admissibility of
a text message, . . . the proponent of the evidence must
explain the purpose for which the text message is being
offered and provide sufficient direct or circumstantial cor-
roborating evidence of authorship in order to authenticate
the text message as a condition precedent to its admis-
sion . . . .16
Although he claims that the State in the current case would
have failed both tests, he asserts that the Rodriguez standard
12
State v. Henry, supra note 8.
13
Id.
14
Id.
15
Rodriguez v. State, 128 Nev. 155, 273 P.3d 845 (2012).
16
Id. at 162, 273 P.3d at 849.
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for the authentication of text messages “firmly attains the tenet
established in the rules of evidence.”17 We fail to see how the
adoption of the Rodriguez test would ease the analysis for the
authentication of text messages or provide additional clarity for
such purposes in practice. Neither do we see how an applica-
tion of the Rodriguez test would result in a finding that the
text messages were not properly authenticated in this case. We
find no reason to adopt a new standard for the authentication
of text messages.
(b) Hearsay
Next, Savage contends that the text message evidence in
exhibits 6, 8, and 23 is hearsay and that the State failed to
prove that the evidence fit within the statement-by-a-party-
opponent hearsay exception. Generally, hearsay evidence, as
defined by Neb. Rev. Stat. § 27-801 (Reissue 2016), is not
admissible unless it fits within an exception to the rule against
hearsay.18 But, pursuant to § 27-801(4)(b)(i), a statement is not
hearsay if it is offered against a party and is his own state-
ment.19 Therefore, whether the text messages were authored by
Savage is a threshold matter of admissibility and a preliminary
question for the district court.20 While we earlier determined
that the State met its burden of proving that the text mes-
sages were authored by Savage by a greater weight of the
evidence for the purpose of authentication, at issue is whether
the same standard applies for proving whether a statement
falls under a hearsay exception. In other words, the question
is whether the finding of authenticity under § 27-901 is suf-
ficient to render the text messages admissible as statements by
a party opponent.
17
Brief for appellant at 23.
18
See State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
19
State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012); State v.
Draganescu, supra note 8.
20
See Neb. Rev. Stat. § 27-104(1) (Reissue 2016). See, also, State v. Ryan,
226 Neb. 59, 409 N.W.2d 579 (1987).
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Although we never specifically addressed the standard of
proof for the admissibility of authenticated written state-
ments as statements by a party opponent, hearsay determina-
tions are often treated as preliminary questions under Fed. R.
Evid. 104(b), which requires “evidence sufficient to support
a finding.”21 Based on our authentication analysis regarding
the standard of proof involving Fed. R. Evid. 104, this would
implicate a greater weight of the evidence standard. In addi-
tion, federal courts, when determining whether statements
were properly admitted as statements by a party opponent,
have held that the government, as the proponent of the text
messages, must show by a greater weight of the evidence that
the defendant made the statement.22 Even further, we, along-
side the Court of Appeals, have held that properly authen-
ticated text messages allegedly written by a defendant are
nonhearsay as statements by a party opponent, without doing
an additional standard of proof analysis for the nonhearsay
determination.23
[10] We hold that the State must prove by a greater weight
of the evidence that a defendant authored or made a statement
in order to establish preliminary admissibility as nonhear-
say under § 27-801(4)(b)(i). In the instant case, the district
court implicitly found that Savage authored the text messages
in question. And, based on the above-mentioned evidence
regarding authentication, we find that the State’s evidence
authenticating the text messages satisfied the greater weight
of the evidence standard for a preliminary determination
on hearsay.
Applying the appropriate standard of review for clear error
regarding the factual findings underpinning a trial court’s
21
See 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 1:28 (4th ed. 2013). See, also, U.S. v. Harvey, 117 F.3d 1044 (1997).
22
U.S. v. Benford, No. CR-14-321-D, 2015 WL 631089 (W.D. Okla. Feb. 12,
2015). See, also, U.S. v. Brinson, 772 F.3d 1314 (10th Cir. 2014).
23
See, e.g., State v. Henry, supra note 8; State v. Wynne, 24 Neb. Ct. App. 377,
887 N.W.2d 515 (2016).
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hearsay ruling and de novo regarding the court’s ultimate
determination to admit evidence over a hearsay objection,24
we conclude that the district court did not err in overruling
Savage’s hearsay objections.
(c) Best Evidence and
Completeness
Last, concerning the admissibility of evidence, Savage
assigns that the district court erred in overruling his best
evidence and completeness objections to exhibits 8 and 23.
Savage argues that because exhibits 8 and 23 were only
redacted portions of the Cellbrite cell phone data extraction
reports, the exhibits did not meet the “best evidence rule as to
completeness.”25 The State responds that (1) the exhibits were
by definition “original[s]” under Neb. Rev. Stat. § 27-1001
(Reissue 2016) and (2) the reports did not present a danger of
admitting a statement out of context, as the redactions sought
to include only the relevant information necessary to avoid jury
confusion. We agree with the State.
[11,12] Under what is commonly and incorrectly referred
to as the “best evidence rule,” in order to prove the content
of a writing, recording, or photograph, the original writing,
recording, or photograph is required.26 This “‘original writings’
rule” applies only if the party offering the evidence is seeking
to prove the contents of a writing, recording, or photograph.27
Under § 27-1001(3), defining an original under the rule, “[i]f
data are stored in a computer or similar device, any printout
or other output readable by sight, shown to reflect the data
accurately, is an original.” Here, exhibits 8 and 23 are, by defi-
nition, originals. They are printouts of exact data contained on
Savage’s and Dryden’s cell phones. In sum, because exhibits 8
24
State v. Draganescu, supra note 8.
25
Brief for appellant at 33.
26
Neb. Rev. Stat. § 27-1002 (Reissue 2016); State v. Decker, 261 Neb. 382,
622 N.W.2d 903 (2001).
27
State v. Decker, supra note 26, 261 Neb. at 389, 622 N.W.2d at 911.
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and 23 are “original[s]” under the definition in § 27-1001(3),
the district court did not err in overruling Savage’s best evi-
dence objections.
[13,14] With regard to the completeness objections, Savage
argues that if exhibits 8 and 23 were to be admitted, they
should have been admissible only in their complete form, not
in a redacted version. This argument lacks merit. The rule of
completeness allows a party to admit the entirety of an act,
declaration, conversation, or writing when the other party
admits a part and when the entirety is necessary to make it
fully understood.28 Under § 27-106(2), a judge in his or her
discretion may either require the party thus introducing part
of a total communication to introduce at that time such other
parts as ought in fairness to be considered contemporaneously
with it or permit another party to do so at that time. The rule
of completeness is concerned with the danger of admitting a
statement out of context, but when this danger is not present,
it is not an abuse of discretion to refuse to require the produc-
tion of the remainder or, if it cannot be produced, to exclude
all the evidence.29
Savage did not offer into evidence the entirety of the
Cellbrite reports. Nor does Savage allege how the remain-
der of the reports was necessary to make those documents
fully understood. He merely alleges that the admission of the
redacted portions was prejudicial, without explaining how the
redactions created a danger of admitting a statement out of
context or elaborating how the entirety of the Cellbrite reports
would have alleviated this danger. Based on the record before
us, there is nothing to suggest that exhibits 8 and 23, in their
redacted form, were misleading or prejudicial. Consequently,
the district court did not abuse its discretion when it over-
ruled Savage’s rule of completeness objections and declined to
require the State to offer the entirety of the Cellbrite reports.
28
State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). See Neb. Rev. Stat.
§ 27-106 (Reissue 2016).
29
State v. Manchester, 213 Neb. 670, 331 N.W.2d 776 (1983).
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2. Sufficiency of Evidence
[15] Savage next assigns as error that because the State
failed to meet its burden of proof, the district court erred in
overruling his motion to dismiss at the close of the State’s
case. A defendant who moves for dismissal or a directed ver-
dict at the close of the evidence in the State’s case in chief in
a criminal prosecution and who, when the court overrules the
dismissal or directed verdict motion, proceeds with trial and
introduces evidence, waives the appellate right to challenge
correctness in the trial court’s overruling the motion for dis-
missal or a directed verdict.30 Because Savage proceeded with
trial after his motion to dismiss at the close of the State’s case
in chief, he waived his claim that the district court erred in
overruling his initial motion to dismiss.31
[16] But when a defendant makes a motion at the close of
the State’s case in chief and again at the conclusion of all the
evidence, it is proper to assign as error that the defendant’s
motion to dismiss made at the conclusion of all the evidence
should have been sustained.32 Savage made such a motion at
the close of all the evidence. As such, we proceed on Savage’s
third assignment of error, as it is essentially a sufficiency of the
evidence argument.33
Savage argues that the evidence was insufficient to support
a guilty verdict because there was no corroborating testimony
of Savage’s guilt as required by Neb. Rev. Stat. § 28-1439.01
(Reissue 2016) and possession thus could not be proved beyond
a reasonable doubt. We find no merit in these arguments.
[17] Regardless of whether the evidence is direct, cir-
cumstantial, or a combination thereof, an appellate court, in
30
State v. Gray, 239 Neb. 1024, 479 N.W.2d 796 (1992).
31
See id.
32
State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).
33
See, State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017); State v.
Severin, supra note 32; State v. Malone, 26 Neb. Ct. App. 121, 917 N.W.2d
164 (2018).
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reviewing a criminal conviction, 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.34 A convic-
tion will be affirmed in the absence of prejudicial error if the
properly admitted evidence, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.35
[18-20] Nebraska law provides, “No conviction for
an offense punishable under any provision of the Uniform
Controlled Substances Act shall be based solely upon the
uncorroborated testimony of a cooperating individual.”36 When
the law requires corroboration of a witness to support a con-
viction, a witness’ testimony must be accompanied by evi-
dence other than that from the witness.37 Under the Uniform
Controlled Substances Act, corroboration is sufficient to sat-
isfy the requirement that a conviction not be based solely upon
uncorroborated testimony of an individual cooperating with
the prosecution if the witness’ testimony is corroborated as
to material facts and circumstances which tend to support the
testimony as to the principal fact in issue.38 Testimony of a
cooperating individual need not be corroborated on every ele-
ment of a crime.39
Savage claims that there was insufficient evidence to allow
the case to go to a jury because there were no corroborating
details regarding Savage’s alleged drug dealing as required
under § 28-1439.01 and because there was not sufficient evi-
dence to prove that Savage possessed methamphetamine. The
State provided evidence of his drug dealing in the form of both
34
State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).
35
Id.
36
§ 28-1439.01.
37
State v. Goodro, 251 Neb. 311, 556 N.W.2d 630 (1996).
38
Id.
39
State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991); State v. Taylor,
221 Neb. 114, 375 N.W.2d 610 (1985); State v. Kuta, 12 Neb. Ct. App. 847,
686 N.W.2d 374 (2004).
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testimony and physical evidence. Though some of the testi-
mony was elicited from two cooperating individuals, Dryden
and Addleman, it cannot be said that Savage’s conviction was
based solely upon uncorroborated testimony of a cooperating
individual. The State provided evidence of text messages that
indicated that Savage was selling methamphetamine, as well as
witness testimony from five other noncooperating individuals
who generally corroborated the cooperating individuals’ testi-
mony. Savage’s § 28-1439.01 argument has no merit.
[21,22] We likewise find no merit to Savage’s argument that
the evidence was insufficient to find that Savage possessed
methamphetamine. During trial, the State relied on a theory
of constructive possession to convict Savage. Evidence that a
defendant had constructive possession of a drug with knowl-
edge 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.40 Constructive posses-
sion may be proved by direct or circumstantial evidence and
may be shown by the accused’s proximity to the substance
at the time of the arrest or by a showing of dominion over
the substance.41
Both Addleman and Tannehill testified that Savage removed
a bag of methamphetamine from his groin area and threw it
to Tannehill to put into her vagina upon being pulled over by
the police officers. The arresting police officers testified that
Savage’s zipper was unusually unzipped at the time of the
traffic stop, which corroborates Addleman’s and Tannehill’s
testimony. In further support of Addleman’s and Tannehill’s
testimony, the evidence of the text messages between Savage’s
and Dryden’s cell phones demonstrates that Savage knew that
he had drugs on or at least near his person because he was
attempting to sell them. This evidence was sufficient to prove
the element of possession of methamphetamine.
40
State v. Garcia, 216 Neb. 769, 345 N.W.2d 826 (1984).
41
Id.
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Viewing the evidence in the light most favorable to the
State, we conclude that there was sufficient evidence to support
Savage’s conviction.
3. Excessive Sentence
Finally, Savage assigns that the district court abused its dis-
cretion by imposing an excessive sentence. We disagree.
When a trial court’s sentence is within the statutory guide-
lines, the sentence will only be disturbed by an appellate court
when an abuse of discretion is shown.42 Here, Savage’s sen-
tence was enhanced per Nebraska’s habitual criminal statute,
§ 29-2221. Under Nebraska law, the mandatory minimum
Savage could have been sentenced to was a term of 10 years’
imprisonment and the maximum term was not more than 60
years’ imprisonment.43 Savage was sentenced to imprisonment
for the mandatory minimum of 10 years, but no more than
18 years.
[23] Abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.44 When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the violence involved in the commission of the
crime.45 The appropriateness of a sentence is necessarily a sub-
jective judgment and includes the sentencing judge’s observa-
tion of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life.46
42
State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
43
§ 29-2221.
44
State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
45
State v. Huff, supra note 42.
46
State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
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In this case, the district court considered the nature and
circumstances of the crime and the history, character, and
condition of Savage. In its sentencing order, the court noted
that Savage has “a demonstrated history of criminal activity,
disregard for the law, and an unwillingness to comport his
conduct to comply with the law.” Savage’s sentence is on the
lower end of the spectrum that could have been imposed under
§ 29-2221. Based on the record before us, the sentencing court
did not consider any inappropriate or unreasonable factors in
determining the sentence. We find that the court did not abuse
its discretion in its imposition of Savage’s sentence.
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s deci-
sion on this matter.
A ffirmed.