State v. Warlick

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/16/2021 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
State of Nebraska, appellee, v.
Jeremiah Warlick, appellant.
___ N.W.2d ___
Filed March 19, 2021. No. S-19-1137.
1. Judgments: Jurisdiction: Appeal and Error. The determination of a
jurisdictional issue which does not involve a factual dispute is a matter
of law which requires the appellate court to reach its conclusion inde-
pendent from the trial court; however, when the determination rests on
factual findings, the trial court’s decision on the issue will be upheld
unless the factual findings concerning jurisdiction are clearly incorrect.
2. Right to Counsel: Waiver: Appeal and Error. In determining whether
a defendant’s waiver of counsel was voluntary, knowing, and intelligent,
an appellate court applies a clearly erroneous standard of review.
3. Trial: Waiver. Whether a defendant could and, in fact, did waive his
or her right to attend all stages of his or her trial presents a question
of law.
4. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
5. Rules of Evidence: Appeal and Error. In all proceedings where the
Nebraska Evidence Rules apply, admissibility of evidence is controlled
by such rules, not judicial discretion, except in those instances under the
Nebraska Evidence Rules when judicial discretion is a factor involved in
the admissibility of evidence.
6. Venue. Venue is the place where a court’s inherent power to adjudicate
may be exercised.
7. Criminal Law: Venue: Jurisdiction: Waiver: Proof. In a criminal
case, proper venue is a jurisdictional fact that, in the absence of a
defend­ant’s waiver by requesting a change of venue, the State has the
burden of proving beyond a reasonable doubt.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
8. Criminal Law: Venue: Proof. The State may prove venue like any
other fact in a criminal case. It need not be established by direct testi-
mony, nor in the words of the information, but if from the facts in evi-
dence the only rational conclusion which can be drawn is that the crime
was committed in the county alleged, the proof is sufficient.
9. Venue. The venue statutes do not make the place of arrest a circum-
stance of venue.
10. ____. Neb. Rev. Stat. § 29-215 (Reissue 2016) is not a venue statute.
11. Constitutional Law: Criminal Law: Sentences: Right to Counsel. An
accused has a state and federal constitutional right to be represented by
an attorney in all critical stages of a criminal prosecution which can lead
to a sentence of confinement.
12. Right to Counsel. If an indigent defendant is to be imprisoned upon
conviction, he or she has a right to court-appointed counsel at trial,
regardless of whether the offense for which he or she may be imprisoned
is classified as petty, misdemeanor, or felony.
13. Criminal Law: Right to Counsel. An indigent defendant who refuses
to accept offered counsel without justifiable reason and elects to pro-
ceed pro se has not been deprived of his or her constitutional right
to counsel.
14. Constitutional Law: Right to Counsel: Waiver. In order to exercise
the right of self-representation, a defendant must first make a knowing
and intelligent waiver of the right to counsel.
15. Right to Counsel: Waiver. Formal warnings do not have to be given by
the trial court to establish a knowing, voluntary, and intelligent waiver
of the right to counsel.
16. ____: ____. In determining whether there has been a knowing and
voluntary waiver of the right to counsel, the key inquiry is whether the
defendant was sufficiently aware of the right to have counsel and of the
possible consequences of a decision to forgo the aid of counsel.
17. Right to Counsel: Motions for Continuance. There must be a balance
between a defendant’s right to counsel and the court’s discretionary
powers to control the progression of a case, including granting or deny-
ing continuances.
18. Criminal Law: Right to Counsel. Defendants need not be advised of
the right to counsel at every stage of the criminal proceedings.
19. Right to Counsel: Pretrial Procedure. A defendant’s knowledge during
pretrial proceedings of a right to counsel does not simply vanish by the
date of the trial.
20. Constitutional Law: Right to Counsel: Trial. When a pro se defendant
absents himself or herself from the pro se defendant’s trial of his or her
own volition, a trial judge is not constitutionally required to appoint
counsel to represent the absent defendant.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
21. Constitutional Law: Trial: Witnesses. The Confrontation Clause of the
Sixth Amendment to the U.S. Constitution and Neb. Const. art. I, § 11,
provide for the accused’s right to be present in the courtroom at every
stage of the trial.
22. Constitutional Law: Trial: Waiver. A defendant’s right to be present
at trial may be waived, but any waiver of this right must be knowing
and voluntary.
23. Constitutional Law: Trial. It is the duty of the court to have a defend­
ant who is in custody brought into court when any proceeding connected
with the trial of the case is taken.
24. Constitutional Law: Trial: Bailment: Waiver. It is the duty of a
defend­ant out on bail to attend the sessions of the court, and the failure
to do so constitutes voluntary absence on the defendant’s part and a
waiver of the defendant’s right to be present.
25. ____: ____: ____: ____. It is the duty of a defendant out on bail to con-
tinue to be present after a trial recess, and the defendant’s failure to do
so constitutes voluntary absence on the defendant’s part and a waiver of
the defendant’s right to be present.
26. Waiver: Words and Phrases. A waiver is the voluntary and intentional
relinquishment of a known right, privilege, or claim, and may be dem-
onstrated by or inferred from a person’s conduct.
27. Constitutional Law: Trial. While a court should make a reasonable
effort to secure the presence of a defendant at any proceeding during
the trial, if a defendant could prevent the completion of the trial by
voluntarily absenting himself or herself, and thus tie the hands of jus-
tice, the defendant would be permitted to take advantage of his or her
own wrong.
28. Constitutional Law: Trial: Evidence: Waiver: Appeal and Error. In
determining on direct appeal whether a defendant has waived the right
to be present, an appellate court does not merely look to the evidence
available at the moment the court pronounced the defendant’s absence to
be voluntary, but at the entirety of the evidence in the record.
29. Trial: Bailment: Evidence: Proof: Appeal and Error. An appellate
court applies to a defendant, who was out on bail and has failed without
explanation to be present at trial, the fundamental proposition that the
burden to produce evidence will rest upon the party who possesses posi-
tive and complete knowledge concerning the existence of facts which
the other party would otherwise be called upon to negative, or if the
evidence to prove a fact is chiefly within the party’s control.
30. Evidence: Appeal and Error. 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 essen-
tial elements of the crime beyond a reasonable doubt.
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308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
31. Convictions. A conviction cannot be based upon suspicion, speculation,
the weakness of the status of the accused, the embarrassing position in
which the accused finds himself or herself, or the mere fact that some
unfavorable circumstances are not satisfactorily explained.
32. Convictions: Evidence. A criminal conviction may soundly be based
solely on circumstantial evidence.
33. ____: ____. A conviction may be based on circumstantial evidence
regardless of whether the inferences of guilt of each line of circumstan-
tial proof are stronger than the inferences of nonguilt. The circumstantial
evidence, like direct evidence, is considered as an interrelated whole.
34. Words and Phrases. Actual possession is synonymous with physi-
cal possession.
35. Evidence: Proof: Intent. Constructive possession may be proved by
mere ownership, dominion, or control over contraband itself, coupled
with the intent to exercise control over the same.
36. Controlled Substances. Under the criminal narcotics statutes, posses-
sion may be either actual or constructive.
37. Evidence. Two persons may have constructive possession, or one may
have actual possession and the other have constructive possession.
38. Evidence: Proof. Constructive possession may be proved by direct or
circumstantial evidence and may be shown by the accused’s proxim-
ity to the item at the time of the arrest or by a showing of dominion
over it.
39. Controlled Substances. 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.
40. Evidence: Proof. Mere presence at a place where the item in question is
found is not sufficient to show constructive possession.
41. Controlled Substances: Motor Vehicles: Evidence. Possession of an
illegal substance can be inferred from a vehicle passenger’s proximity
to the substance or other circumstantial evidence that affirmatively links
the passenger to the substance.
42. 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 find-
ing of possession and to sustain a conviction for unlawful possession.
43. Investigative Stops: Motor Vehicles: Controlled Substances:
Evidence. A passenger’s joint possession of a controlled substance
found in a motor vehicle can be established by evidence that (1) sup-
ports an inference that the driver was involved in drug trafficking, as
distinguished from possessing illegal drugs for personal use; (2) shows
the passenger acted suspiciously during a traffic stop; and (3) shows the
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STATE v. WARLICK
Cite as 308 Neb. 656
passenger was not a casual occupant but someone who had been travel-
ing a considerable distance with the driver.
44. Investigative Stops: Motor Vehicles: Controlled Substances. A finder
of fact may reasonably infer that a driver with a possessory interest in
a vehicle who is transporting a large quantity of illegal drugs would
not invite a passenger into the vehicle unless the passenger knew of
the valuable cargo contained therein and was conscious of the risks and
ramifications involved with transporting it.
45. ____: ____: ____. 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 occu-
pants of the vehicle, or generally gives an implausible explanation for
the travels.
46. Controlled Substances: Motor Vehicles. In order to support a reason-
able inference of constructive possession, the illegal substance need not
be of such proximity to the passenger of a vehicle as to be conveniently
accessed or within immediate physical reach.
47. Weapons: Evidence: Proof. Constructive possession does not establish
the elements of Neb. Rev. Stat. § 28-1202 (Reissue 2016) of “carr[ying]”
a concealed weapon “on or about his or her person.”
48. Criminal Law: Statutes. A penal statute is to be strictly construed in
the context of the object sought to be accomplished, the evils and mis-
chiefs sought to be remedied, and the purpose sought to be served.
49. Weapons. Neb. Rev. Stat. § 28-1202 (Reissue 2016) plainly limits the
place of the weapon’s concealment to on or about his or her person.
50. Weapons: Motor Vehicles. A weapon is concealed on or about the
person if it is concealed in such proximity to the passenger of a motor
vehicle as to be convenient of access and within immediate physi-
cal reach.
51. Convictions: Presumptions: Right to Counsel: Waiver: Proof. Any
conviction after Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9
L. Ed. 2d 799 (1963), is entitled to a presumption of regularity, such
that once the government establishes the existence of a prior convic-
tion, it becomes the defendant’s burden to prove that he or she did
not have counsel and did not waive the right to counsel at the time
of conviction.
Appeal from the District Court for York County: James C.
Stecker, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Kevin V. Schlender for appellant.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
In an appeal from several convictions relating to illegal fire-
arm possession and controlled substance charges, the defendant
challenges venue, the commencement of trial while the defend­
ant was not represented by counsel, the proceeding with trial
after he failed to return to court following a noon recess, and
the sufficiency of evidence to support the convictions.
II. BACKGROUND
Following a bench trial in the York County District Court,
Jeremiah Warlick was convicted of (1) possession of a con-
trolled substance, marijuana, with intent to distribute, in viola-
tion of Neb. Rev. Stat. § 28-416 (Cum. Supp. 2020); (2) posses-
sion of a controlled substance, marijuana weighing more than 1
pound, in violation of § 28-416; (3) failing to obtain a drug tax
stamp, in violation of Neb. Rev. Stat. §§ 77-4302 and 77-4309
(Reissue 2018); (4) possession of a firearm during the com-
mission of a felony, in violation of Neb. Rev. Stat. § 28-1205
(Reissue 2016); (5) possession of a deadly weapon by a pro-
hibited person, in violation of Neb. Rev. Stat. § 28-1206 (Cum.
Supp. 2018); (6) possession of a stolen firearm, in violation of
Neb. Rev. Stat. § 28-1212.03 (Reissue 2016); and (7) carrying
a concealed weapon, in violation of Neb. Rev. Stat. § 28-1202
(Reissue 2016). Warlick’s convictions arose from a traffic stop
on July 26, 2018, of a vehicle in which Warlick was a front
seat passenger.
1. Pretrial Hearings
Warlick was first advised of his right to counsel, including
his potential right to appointed counsel, on August 29, 2018,
in county court. The matter was bound over to district court,
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
where the journal entry reflects that Warlick was advised of
“all possible penalties and rights,” and the bill of exceptions
reflects that Warlick, in response to the court’s inquiry, stated
he had no questions as to the advisement of his statutory and
constitutional rights. The court also determined that Warlick
did not suffer from any condition that would affect his ability
to understand the proceedings. Representing himself pro se,
Warlick filed a motion to dismiss, arguing that the officer who
stopped his vehicle committed perjury and that the officer
initiated the stop outside of York County, without requesting
permission from Seward County authorities, which resulted
in the officer’s having no power to enforce the law outside of
York County. Arraignment and a hearing on the motion was
continued until November 13.
At the hearing on November 13, 2018, Warlick again
appeared without counsel. The district court asked Warlick if
he intended to either hire counsel or request that counsel be
appointed to him. Warlick answered, “No.” The court then
asked Warlick if he was waiving his right to counsel, to which
Warlick responded, “Yes.” The court asked Warlick, “Has
anyone made any threats, promises, or forced you to get you
to waive your right to counsel?” Warlick answered, “No, sir.”
The court then found that Warlick freely, voluntarily, know-
ingly, and intelligently waived his right to counsel. Warlick
also waived his right to a jury trial. The court denied Warlick’s
motion to dismiss.
After the arraignment hearing, Warlick filed a motion to
quash the bindover, alleging that the York County District
Court had no jurisdiction over the offenses charged and no
jurisdiction over Warlick and that “[t]he officer who filed
the information had no authority to do so.” The State filed a
motion to consolidate Warlick’s case with the case brought
against the driver of the vehicle, Denarro Clark. These motions
were taken up at the pretrial hearing on January 29, 2019. The
court granted the motion to consolidate, indicating that since
this would be a bench trial, the court would be able to keep
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
the evidence separate. The court denied Warlick’s motion to
quash the bindover.
After the pretrial hearing, Warlick filed a “Motion for
Extension of Time” on February 11, 2019, asking the court to
continue the date for trial 120 days to allow him to find rep-
resentation and stating that “[t]his will give time to properly
prepare for trial.” The court granted Warlick a continuance
for an unspecified amount of time, but set a status hearing for
March 11.
Warlick appeared at the March 11, 2019, status hearing
still without counsel. Warlick indicated he had not signed any
contracts yet, but was “looking to do something” for the next
hearing. The court asked if Warlick was going to hire counsel
on his own or intended to ask for court-appointed counsel, and
Warlick responded, “On my own.”
The court scheduled trial to begin April 24, 2019, and told
Warlick that if he did not have counsel by then, “we’ll proceed
without counsel.” Warlick indicated he understood. Throughout
the pretrial hearings and up to trial, Warlick was at liberty after
being released on bail.
2. Trial
The consolidated bench trial of Warlick and Clark was held
on April 24, 2019. Both Warlick and Clark appeared without
counsel. When the court asked Warlick if he was ready to pro-
ceed to trial, he responded, “No, I’m not ready to proceed at
all.” But neither Warlick nor Clark objected to the trial begin-
ning at that time or asked for a continuance.
At trial, before calling its first witness, the State offered
exhibits 14 and 15, which were certified copies of statements
of conviction from Cook County, Illinois.
Exhibit 14 is evidence of a plea-based conviction in Illinois
on October 25, 2017, of “FELON POSS/USE FIREARM/
PAROLE” and “FELON POSS/USE FIREARM PRIOR,” in
violation of “720-5/24-1.1(A).” The certified statement of
conviction indicates that there was a motion to withdraw as
attorney filed on June 30, 2016, and an appearance, possibly
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308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
by a different attorney, filed on July 26, but there is no indica-
tion that Warlick proceeded pro se or was not represented by
counsel at the time he pled guilty.
Exhibit 15 is evidence of plea-based convictions in Illinois
on June 10, 2010, of “AGG VEH HIJACKING/WEAPON,”
in violation of “720-5/18-4(a)(3)”; “BURGLARY,” in viola-
tion of “720-5/19-1(a)”; and “AGGRAVATED UNLAWFUL
RESTRAINT,” in violation of “720-5/10-3.1(a).” The certified
statement of conviction describes that Warlick was appointed
a public defender on June 16, 2009, and there is no indication
that counsel sought to withdraw or that Warlick proceeded
pro se at any time before he entered his pleas.
The State argued that the exhibits established that Warlick
was a convicted felon for purposes of the possession of a
firearm by a prohibited person charge. The court overruled
Warlick’s relevancy objection to the exhibits.
The State then presented testimony from the York County
sheriff’s deputy who conducted the traffic stop of the vehicle.
The deputy testified that he observed a vehicle traveling east-
bound near mile marker 348 on Interstate 80 in York County
with no front license plate and an obstructed rear license plate
to the point he could not see the state in which the license
plate was issued. Due to heavy traffic, he was not able to catch
up to the vehicle and activate his patrol car’s overhead emer-
gency lights until mile marker 364, in York County. The deputy
stated that the vehicle crossed the county line and came to a
stop approximately a quarter mile to a half mile into Seward
County, just west of mile marker 366.
After making contact, the deputy identified the driver of the
vehicle as Clark and the front seat passenger as Warlick by
their respective Indiana and Illinois driver’s licenses. Once the
deputy had advised Clark of the traffic violation and got his
information, he asked Clark to accompany him to his patrol
car while he issued Clark a written warning.
The deputy testified that Clark told him Warlick was his
cousin and that the purpose of his trip was to go gambling
in Las Vegas, Nevada. The deputy stated that “when asking
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308 Nebraska Reports
STATE v. WARLICK
Cite as 308 Neb. 656
[Clark] questions, he seemed to pause, think about his answer
before answering.” The deputy testified that Warlick provided
a different story, telling him that Warlick and Clark had made
a trip to California, and Warlick never mentioned gambling or
a trip to Las Vegas. A criminal history check on both Warlick
and Clark indicated that both had prior weapons convictions, to
which Clark had admitted. Based on a suspicion that criminal
activity was afoot, the deputy issued Clark a written warn-
ing and then asked him for consent to search his vehicle.
Clark agreed.
Upon a search of the vehicle, the deputy discovered under-
neath the spare tire in the cargo area of the vehicle four
bundles of marijuana that were wrapped multiple times in
plastic wrap and tinfoil with a “masking agent” between each
layer. The deputy testified that a “masking agent . . . is com-
mon practice to defeat a police service dog” and indicated to
him that somebody would have knowingly done this to evade
detection. Along with the marijuana, the deputy also found
a drawstring bag located in the same area as the marijuana,
which contained a handgun, an extended magazine for the
handgun, and some hair product. The deputy testified that the
marijuana and handgun were accessible from the back seat of
the vehicle.
The deputy testified that 4 pounds of marijuana were seized
and that based on his training and experience, this amount
is consistent with distribution rather than personal use. Also,
there was no drug tax stamp located on any of the marijuana
seized. The deputy further testified that when the serial number
on the handgun was entered into law enforcement databases, a
“confirmation hit” was received, indicating that the firearm had
been reported as stolen in Illinois. The deputy also pointed out
Clark had told him that he was a barber. Subsequent research
by the deputy confirmed his suspicion that the hair product
located with the firearm was the type commonly used in barber
shops. Warlick and Clark were placed under arrest.
During the deputy’s testimony, he stated that the traffic stop
was initiated in York County, but the vehicle did not come
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STATE v. WARLICK
Cite as 308 Neb. 656
to a stop until approximately a quarter mile to a half mile
into Seward County, where the search of the vehicle occurred.
During cross-examination, the deputy testified to an error in
his affidavit stating that the arrest was made in York County.
The deputy stated that a template was used for his report and
that “[b]asically we change the name, date and time and the
charges.” And since this was an “unusual circumstance” where
it crossed county lines, “the location, York, Nebraska, usually
does not change, and it was something that was overlooked at
the time.”
While Clark was in the process of cross-examining the
deputy, the court called a noon recess and said the trial would
resume at 1:15 p.m. At 1:50 p.m., the court returned on the
record, in Warlick’s absence. The court stated, “Both . . .
Clark and . . . Warlick are absent. They were told to return
for trial at 1:15. They have failed to appear. They voluntarily
absence themselves.”
The court then allowed the State to continue with the trial.
The State presented the testimony of a forensic scientist from
the Nebraska State Patrol Crime Laboratory. He testified that
the test of the suspected marijuana from Warlick and Clark’s
vehicle confirmed that it was in fact marijuana and weighed in
excess of 1 pound.
The State rested its case and offered closing arguments.
Thereafter, the court found Warlick guilty beyond a reasonable
doubt on all seven counts. The court issued a bench warrant for
Warlick’s arrest and set a date for sentencing.
3. Posttrial Hearings
and Sentencing
On July 8, 2019, Warlick appeared with counsel. Warlick
had filed on May 3 a motion for new trial and on June 11 a
motion to continue the hearing on the motion for new trial for
60 days. The court granted the motion to continue in order
for Warlick to get a transcript prepared.
Warlick’s motion for new trial asserted that there was an
irregularity in the proceedings and orders of the court, there
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STATE v. WARLICK
Cite as 308 Neb. 656
was an abuse of discretion that prevented Warlick from hav-
ing a fair trial, Warlick’s “substantial rights” were materially
affected, the verdicts were not sustained by sufficient evidence,
and an error of law occurred at trial. At the hearing on the
motion for new trial, Warlick’s counsel argued that since the
vehicle belonged to Clark, the vehicle was driven by Clark,
and the handgun recovered was found in a bag that belonged to
Clark, Warlick’s presence as a passenger did not link him to the
items or make him guilty of possession of those items. Counsel
for Warlick also argued that the court granted a 120-day con-
tinuance, but went to trial without counsel before the 120 days
were past, and that Warlick did not knowingly and intelligently
waive counsel at trial. The court entered an order denying the
motion for new trial.
Warlick again appeared with counsel at his sentencing hear-
ing. No explanation was ever offered on the record as to any
reason for Warlick’s disappearance during his trial.
Warlick was sentenced to 1 to 2 years’ imprisonment on
count 1, possession of a controlled substance with intent to
distribute; 1 to 2 years’ imprisonment on count 3, no drug tax
stamp; 1 to 2 years’ imprisonment on count 4, possession of a
deadly weapon during the commission of a felony; 3 to 5 years’
imprisonment on count 5, possession of a deadly weapon by a
prohibited person; 1 to 2 years’ imprisonment on count 6, pos-
session of a stolen firearm; and no more than 1 year’s impris-
onment on count 7, carrying a concealed weapon. However, the
court found that sentencing Warlick on both count 1 and count
2 would equate to double jeopardy. Therefore, it did not impose
a sentence for count 2. Count 4 was ordered to be served con-
secutively to counts 1, 3, 5, 6, and 7, which were to be served
concurrently to one another. In the aggregate, Warlick was
sentenced to 4 to 7 years’ imprisonment and received credit for
time served of 159 days.
III. ASSIGNMENTS OF ERROR
Warlick assigns, renumbered and reworded, that the trial
court erred in (1) proceeding with trial without appointing
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STATE v. WARLICK
Cite as 308 Neb. 656
an attorney or standby counsel for Warlick, (2) continuing
with trial in Warlick’s absence and without counsel, (3) finding
exhibits 14 and 15 sufficient to establish prior felony convic-
tions because the exhibits failed to show that Warlick was rep-
resented by counsel or had waived counsel at the time of the
convictions and sentencing, (4) finding sufficient evidence to
convict Warlick, and (5) finding Warlick guilty when the trial
court lacked jurisdiction due to improper venue.
IV. STANDARD OF REVIEW
[1] The determination of a jurisdictional issue which does
not involve a factual dispute is a matter of law which requires
the appellate court to reach its conclusion independent from
the trial court; however, when the determination rests on fac-
tual findings, the trial court’s decision on the issue will be
upheld unless the factual findings concerning jurisdiction are
clearly incorrect. 1
[2] In determining whether a defendant’s waiver of counsel
was voluntary, knowing, and intelligent, an appellate court
applies a clearly erroneous standard of review. 2
[3] Whether a defendant could and, in fact, did waive his or
her right to attend all stages of his or her trial presents a ques-
tion of law. 3
[4] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, 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. 4
[5] In all proceedings where the Nebraska Evidence Rules
apply, admissibility of evidence is controlled by such rules,
1
State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).
2
State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009), overruled in part
on other grounds, State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
3
State v. Fox, 282 Neb. 957, 806 N.W.2d 883 (2011).
4
State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).
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STATE v. WARLICK
Cite as 308 Neb. 656
not judicial discretion, except in those instances under the
Nebraska Evidence Rules when judicial discretion is a factor
involved in the admissibility of evidence. 5
V. ANALYSIS
Warlick asserts that the York County District Court was
the wrong venue in which to bring the charges against him.
Warlick also argues that the district court violated his right to
be present and his right to counsel when it commenced trial
with Warlick’s representing himself pro se and when it con-
tinued with the trial after Warlick failed to reappear following
the noon recess. Finally, Warlick attacks the sufficiency of the
evidence to support his convictions, arguing that the evidence
failed to establish his possession of the marijuana and the
handgun and that exhibits 14 and 15 do not establish the ele-
ment of being a felon for the felon in possession conviction,
because they do not demonstrate that any prior felony convic-
tion was counseled.
1. Venue
[6,7] We first address Warlick’s argument that the district
court for York County lacked venue. Venue is the place where
a court’s inherent power to adjudicate may be exercised. 6
Article I, § 11, of the Nebraska Constitution describes that an
accused shall have the right to a “speedy public trial by an
impartial jury of the county or district in which the offense is
alleged to have been committed,” and venue is further con-
trolled by statute, principally by Neb. Rev. Stat. § 29-1301
(Reissue 2016). In a criminal case, proper venue is a juris-
dictional fact 7 that, in the absence of a defendant’s waiver
5
State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999).
6
See, State v. Gorman, 232 Neb. 738, 441 N.W.2d 896 (1989); State v.
Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).
7
State v. Laflin, 201 Neb. 824, 272 N.W.2d 376 (1978); State v. Liberator,
197 Neb. 857, 251 N.W.2d 709 (1977); Gates v. State, 160 Neb. 722, 71
N.W.2d 460 (1955); Robeen v. State, 144 Neb. 910, 15 N.W.2d 69 (1944).
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by requesting a change of venue, the State has the burden of
proving beyond a reasonable doubt. 8
[8] The State may prove venue like any other fact in a
criminal case. 9 It need not be established by direct testimony,
nor in the words of the information, but if from the facts in
evidence the only rational conclusion which can be drawn is
that the crime was committed in the county alleged, the proof
is sufficient. 10
Section 29-1301 provides that the defendant has a right,
except as otherwise provided in Neb. Rev. Stat. §§ 25-412.03
and 29-1301.01 to 29-1301.03 (Reissue 2016), or unless it shall
appear to the court by affidavits that a fair and impartial trial
cannot be had therein, to be tried in the county in which the
criminal offense is alleged to have been committed.
Section 29-1301.02 is applicable to the facts of this case. It
provides in relevant part:
When an offense is committed in this state, . . . on a
. . . motor vehicle . . . , the accused may be tried in any
county through, on, or over which the . . . motor vehicle
. . . passes in the course of its voyage or trip, or in the
county in which the voyage or trip terminates.
Warlick does not challenge the constitutionality of § 29-1301.02.
The State presented evidence that the motor vehicle Warlick
was a passenger of, which contained marijuana and a handgun,
passed through York County. The deputy who arrested Warlick
testified that he first observed Clark’s vehicle when it was
traveling eastbound on Interstate 80 in York County with no
front license plate and an obstructed rear license plate. Based
on this traffic violation, the deputy initiated a traffic stop in
York County by activating his patrol car’s emergency lights.
Thus, there was evidence from which the trier of fact could
8
See, State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018); Peterson v.
Houston, 284 Neb. 861, 824 N.W.2d 26 (2012); State v. Laflin, supra note
7. See, also, State v. Vejvoda, supra note 6.
9
State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).
10
Id.
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find beyond a reasonable doubt that, pursuant to § 29-1301.02,
the York County District Court was a proper venue for bringing
the criminal action against Warlick.
[9,10] Warlick’s focus on the county where he was
arrested is misplaced. Nowhere in the venue statutes does
the Legislature make the place of arrest a circumstance of
venue. Warlick asserts that the arresting deputy was outside
of his primary jurisdiction and was not in “a fresh attempt
to apprehend” the vehicle, as described by Neb. Rev. Stat.
§ 29-215(2)(a) (Reissue 2016), when Warlick was detained and
arrested. Section 29-215 defines the jurisdiction and powers of
law enforcement officers. 11 Section 29-215 is not a venue stat-
ute. Warlick did not challenge the evidence obtained from the
stop and arrest as illegally obtained in violation of § 29-215, 12
and it has no applicability to his assignment of error challeng-
ing venue.
2. Right to Counsel
[11-13] Having determined that the York County District
Court was a proper venue, we next consider Warlick’s asser-
tion that the district court erred by commencing the trial with-
out appointing him counsel or standby counsel. An accused
has a state and federal constitutional right to be represented
by an attorney in all critical stages of a criminal prosecution
which can lead to a sentence of confinement. 13 The same con-
stitutional provisions also guarantee the right of an accused to
self-representation. 14 Finally, these provisions guarantee that
if an indigent defendant is to be imprisoned upon convic-
tion, he or she has a right to court-appointed counsel at trial,
regardless of whether the offense for which he or she may be
11
State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
12
See, e.g., State v. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999).
13
U.S. Const. amend. VI and XIV; Neb. Const. art. 1, § 11; Scott v. Illinois,
440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979); State v. Wilson,
252 Neb. 637, 564 N.W.2d 241 (1997).
14
See State v. Wilson, supra note 13.
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imprisoned is classified as petty, misdemeanor, or felony. 15 But
an indigent defendant who refuses to accept offered counsel
without justifiable reason and elects to proceed pro se has not
been deprived of his or her constitutional right to counsel. 16
[14-16] In order to exercise the right of self-representation, a
defendant must first make a knowing and intelligent waiver of
the right to counsel. 17 Formal warnings do not have to be given
by the trial court to establish a knowing, voluntary, and intel-
ligent waiver of the right to counsel, however. 18 In determining
whether there has been a knowing and voluntary waiver of the
right to counsel, the key inquiry is whether the defendant was
sufficiently aware of the right to have counsel and of the pos-
sible consequences of a decision to forgo the aid of counsel. 19
In determining whether a defendant’s waiver of counsel was
voluntary, knowing, and intelligent, an appellate court applies
a clearly erroneous standard of review. 20
Warlick concedes he voluntarily, knowingly, and intelli-
gently waived his right to counsel at his initial arraignment.
Nevertheless, Warlick asserts that when he moved for an
extension of time to find private counsel, “it became appar-
ent that [Warlick] no longer wished to waive his right to
counsel” and instead expressed that he would be hiring pri-
vate counsel. 21
While Warlick points out that he was given less time than
he requested to find his own counsel, he does not assign as
error the court’s failure to give him the full 120 days he had
requested. Nor does Warlick argue that the 72 days given by
the court was an unreasonable amount of time in which to
15
See State v. Green, 238 Neb. 492, 471 N.W.2d 413 (1991).
16
See State v. Blunt, 197 Neb. 82, 246 N.W.2d 727 (1976).
17
State v. Wilson, supra note 13.
18
State v. Figeroa, supra note 2.
19
State v. Wilson, supra note 13.
20
State v. Figeroa, supra note 2.
21
Brief for appellant at 27.
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find counsel. 22 At the March 11, 2019, status hearing, when the
court stated it would proceed with the trial scheduled for April
24 without counsel if he did not have counsel by then, Warlick
did not object or move for a further continuance.
[17] There must be a balance between a defendant’s right
to counsel and the court’s discretionary powers to control the
progression of a case, including granting or denying contin­
uances. 23 Warlick failed to properly preserve and present the
question of whether that balance was properly struck in this
case. Nevertheless, we observe that there is nothing in the
record explaining why 21⁄2 months was an insufficient period
of time for Warlick to secure his own counsel. Further, Warlick
points to no law in support of his premise that it was the district
court’s duty on the day of trial, when Warlick appeared without
the counsel he had said he intended to procure, “to inquire into
the circumstances of his hiring an attorney.” 24
Warlick’s assignment of error is that the district court erred
by proceeding with trial without appointing, sua sponte, an
attorney or standby counsel for him—or at least inquiring anew
on the date of trial whether Warlick wanted a court-appointed
attorney or standby counsel and, if not, determining anew that
Warlick had voluntarily, knowingly, and intelligently waived
his right to counsel.
[18,19] To the extent Warlick is asserting that the court
erred in failing to give him a new advisement, we have held
that defendants need not be advised of the right to counsel
at every stage of the criminal proceedings. 25 Though a new
22
See, U.S. v. Leveto, 540 F.3d 200 (3d Cir. 2008); U.S. v. Merchant, 992
F.2d 1091 (10th Cir. 1993); United States v. Solina, 733 F.2d 1208 (7th
Cir. 1984); United States v. Leavitt, 608 F.2d 1290 (9th Cir. 1979); People
v. Lawrence, 46 Cal. 4th 186, 205 P.3d 1062, 92 Cal. Rptr. 3d 613 (2009);
People v. Gibson, 2017 IL APP (1st) 143566, 91 N.E.3d 398, 418 Ill. Dec.
697 (2017); State v. Eddy, 68 A.3d 1089 (R.I. 2013).
23
See United States v. Leavitt, supra note 22.
24
Brief for appellant at 27.
25
See State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).
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advisement may be required at sentencing despite a prior
waiver, 26 Warlick was represented by counsel at sentencing.
In conceding that he voluntarily, knowingly, and intelligently
waived his right to counsel at the arraignment, Warlick nec-
essarily concedes that he was sufficiently aware of the right
to counsel and of the possible consequences of a decision to
forgo the aid of counsel at that time. 27 A defendant’s knowl-
edge during pretrial proceedings of a right to counsel does not
simply vanish by the date of the trial. The trial court’s failure
to re-advise Warlick on April 24, 2019, of his right to coun-
sel was not reversible error and did not render any waiver by
Warlick as unknowing.
Warlick’s argument that the court should have sua sponte
appointed him counsel or standby counsel likewise lacks merit.
First, the right to appointed counsel is only for someone who
is indigent, 28 and though Warlick was ultimately allowed to
proceed with his appeal in forma pauperis, Warlick does not
assert he was indigent at the time of trial. Likewise, there was
no finding below of indigency for purposes of appointment
of counsel.
Second, Warlick repeatedly expressed that he did not want
appointed counsel. The court advised Warlick at two bond
review hearings and at his arraignment of the right to proceed
with appointed counsel upon a showing of indigency. At the
hearing on November 13, 2018, Warlick stated he did not
intend to request that counsel be appointed to represent him
and was waiving the right to counsel. At the hearing on March
11, 2019, Warlick stated he was hiring counsel, but reiter-
ated that he did not intend to ask for court-appointed counsel.
At the March 11 hearing, Warlick stated he understood that
the court would proceed with trial without counsel if he had
26
See id.
27
See State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994), overruled on
other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
28
See State v. Green, supra note 15.
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not hired counsel by that time, and Warlick made no objection
to that plan.
Thus, while during the course of the pretrial proceedings
Warlick expressed he was no longer electing to represent
himself pro se, at no point did Warlick withdraw his repeated
waiver of the right to pursue appointed counsel in the event he
was indigent. Warlick instead represented that he would hire
private counsel. The court was under no obligation to delay
trial indefinitely until such counsel was secured or to arrange,
sua sponte, standby counsel to represent Warlick so as to pre-
pare for a possibility that Warlick would not hire private coun-
sel before the trial commenced. Assuming Warlick had a right
to appointed counsel, he waived that right. We find no merit
to Warlick’s argument that the court was obligated to conduct
another waiver colloquy before proceeding with the trial on
April 24, 2019.
[20] Lastly, inasmuch as Warlick argues that he had a right
to appointed counsel by virtue of his unexplained absence
after the noon recess, we agree with those courts that hold that
when a pro se defendant absents himself or herself from the
pro se defendant’s trial of his or her own volition, a trial judge
is not constitutionally required to appoint counsel to represent
the absent defendant. 29 Doing so, in effect, interferes with the
defendant’s choices in the exercise of self-representation. 30
As we will discuss next, the record demonstrates that Warlick
absented himself from his trial of his own volition.
3. Right to Be Present
[21,22] The Confrontation Clause of the Sixth Amendment
to the U.S. Constitution and Neb. Const. art. I, § 11, provide
29
See, Torres v. U.S., 140 F.3d 392 (2d Cir. 1998); People v. Parento, 235
Cal. App. 3d 1378, 1 Cal. Rptr. 2d 444 (1991); People v. Brante, 232 P.3d
204 (Colo. App. 2009); State v. Worthy, 583 N.W.2d 270 (Minn. 1998);
State v. Lacey, 364 Or. 171, 431 P.3d 400 (2018); State v. Eddy, supra
note 22.
30
See State v. Eddy, supra note 22.
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for the accused’s right to be present in the courtroom at every
stage of the trial. 31 Neb. Rev. Stat. § 29-2001 (Cum. Supp.
2020) provides in part: “No person indicted for a felony shall
be tried unless personally present during the trial.” A defend­
ant’s right to be present at trial may be waived, but any waiver
of this right must be knowing and voluntary. 32 Whether a
defendant could and, in fact, did waive his or her right to attend
all stages of his or her trial presents a question of law. 33
Similar to his arguments concerning the right to counsel,
Warlick does not assert that he did not know of his right to
be present at trial. Neither does Warlick exactly argue that his
absence from trial was involuntary, though he focuses more on
that element.
Warlick assigns that the district court erred in proceeding
with the trial in his “absence and without counsel, and without
a knowing and intelligent waiver of appearance” and argues
that the trial court erred by failing to continue trial and fol-
low certain procedures to attempt to determine the cause of
his disappearance. According to Warlick, because the court did
not follow such procedures, “[t]here was absolutely no evi-
dence presented which would support a finding that [Warlick]
knowingly and voluntarily waived his presence at trial . . . .” 34
We disagree.
Warlick asserts that the district court should have followed
the example of the trial court in State v. Zlomke, 35 which,
after the defendant’s disappearance, had continued the trial
for several days so that law enforcement would have time to
attempt to locate the missing defendant, contact friends and
family to attempt to determine the defendant’s whereabouts,
31
See, Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353
(1970); State v. Fox, supra note 3.
32
See State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991).
33
State v. Fox, supra note 3.
34
Brief for appellant at 25.
35
State v. Zlomke, 268 Neb. 891, 689 N.W.2d 181 (2004).
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and search official records to determine if the defendant had
been arrested or injured. The court then heard testimony from
law enforcement, the clerk of the court, and the defendant’s
family members before continuing with trial.
We find that the thoroughness of the inquiry conducted
by the court in Zlomke was prudent. Nothing in this opinion
should be read as discouraging it. Among other things, such
procedures minimize the potential necessity of a new trial
upon a later showing that the absence was actually unknow-
ing or involuntary. But Warlick ultimately misunderstands the
court’s obligations in such a situation, as well as the question
presented on appeal.
[23-25] It is the duty of the court to have a defendant who is
in custody brought into court when any proceeding connected
with the trial of the case is taken. 36 However, it is the duty
of a defendant out on bail to attend the sessions of the court,
and the failure to do so constitutes voluntary absence on the
defendant’s part and a waiver of the defendant’s right to be
present. 37 The same reasoning applies to a defendant out on
bail who initially appears but who fails to attend the trial after
a recess. It is the duty of a defendant out on bail to continue to
be present after a trial recess, and the defendant’s failure to do
so constitutes voluntary absence on the defendant’s part and a
waiver of the defendant’s right to be present.
[26,27] A waiver is the voluntary and intentional relinquish-
ment of a known right, privilege, or claim, and may be dem-
onstrated by or inferred from a person’s conduct. 38 We have
explained that while a court should make a “reasonable effort
to secure the presence of [a] defendant at any proceeding dur-
ing the trial,” 39 if a defendant could “prevent the completion
of the trial by voluntarily absenting himself, and thus tie the
36
Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925). See, also, id.
37
See id.
38
State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).
39
Scott v. State, supra note 36, 113 Neb. at 661, 204 N.W. at 382.
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hands of justice, he would be permitted to take advantage of
his own wrong.” 40
Here, Warlick and Clark were present for the commence-
ment of their joint trial, but disappeared during the noon
recess. The court waited over half an hour to see if they would
reappear, before determining that they had voluntarily absented
themselves. Although the trial proceeded without Warlick and
without the court’s knowing the exact circumstances of the
sudden disappearance of Warlick and Clark, the court had
already made reasonable efforts to secure Warlick’s presence
the day of trial and was under no further obligation to hunt him
down before continuing.
[28,29] Moreover, the judgment was not final until Warlick
was sentenced. 41 In determining on direct appeal whether
a defendant has waived the right to be present, we do not
merely look to the evidence available at the moment the court
pronounced the defendant’s absence to be voluntary, but at
the entirety of the evidence in the record. Warlick had an
opportunity, through his motion for a new trial, to present any
evidence that his absence was, contrary to initial indications,
involuntary or unknowing. He did not do so. Warlick was
the person possessing the most knowledge as to the circum-
stances of his own disappearance. We apply to a defendant,
who was out on bail and has failed without explanation to be
present at trial, the fundamental proposition that the burden
to produce evidence will rest upon the party who possesses
positive and complete knowledge concerning the existence of
facts which the other party would otherwise be called upon to
negative, or if the evidence to prove a fact is chiefly within the
party’s control. 42
Warlick’s unexplained, multiple-day disappearance with
Clark, his codefendant, after the noon recess was sufficient
40
Id. at 660, 204 N.W. at 382.
41
See State v. Melton, ante p. 159, 953 N.W.2d 246 (2021).
42
See State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014).
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to support the district court’s finding that Warlick knowingly
and voluntarily waived his presence at trial. We find no merit
to any argument that the court violated Warlick’s right to
be present.
4. Sufficiency of Evidence
[30] Lastly, we consider Warlick’s attacks on the sufficiency
of the evidence to support his convictions. In reviewing a
criminal conviction for a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion 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. 43 The relevant question for an appellate court
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 reason-
able doubt. 44
[31-33] A conviction cannot be based upon suspicion, spec-
ulation, the weakness of the status of the accused, the embar-
rassing position in which the accused finds himself or herself,
or the mere fact that some unfavorable circumstances are
not satisfactorily explained. 45 But a criminal conviction may
soundly be based solely on circumstantial evidence. And a
conviction may be based on circumstantial evidence regardless
of whether the inferences of guilt of each line of circumstantial
proof are stronger than the inferences of nonguilt. 46 The cir-
cumstantial evidence, like direct evidence, is considered as an
interrelated whole. 47 The sufficiency of the evidence is often
43
State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020).
44
Id.
45
State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999); State v. Eberhardt,
176 Neb. 18, 125 N.W.2d 1 (1963).
46
See State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).
47
See id.
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tested against theoretical and speculative possibilities not fairly
raised by the record, and inferences are sometimes considered
which, though entirely possible or even probable, are drawn
from evidence which the jury may have disbelieved. 48
(a) Possession and Carrying
Warlick first asserts that there was insufficient evidence
from which a reasonable trier of fact could determine beyond
a reasonable doubt that Warlick had actual or constructive pos-
session of the marijuana or the firearm found under the spare
tire of the vehicle. Warlick thus asserts the evidence was insuf-
ficient to convict him of possession of a controlled substance
with intent to distribute 49; distributing or possessing marijuana
without affixing an official stamp, label, or other indicium of
payment of tax 50; possession of a deadly weapon during the
commission of a felony 51; possession of a deadly weapon by a
prohibited person 52; possession of a stolen firearm 53; and carry-
ing a concealed weapon. 54
Each of these crimes, with the exception of carrying a
concealed weapon, has possession as an element. 55 Further,
we find that Warlick’s assignments of error and arguments
regarding possession charges attack with sufficient specificity
the element of “carrying” a concealed weapon “on or about
his or her person.” 56 According to Warlick, the evidence was
48
Id.
49
§ 28-416.
50
§ 77-4309.
51
§ 28-1205.
52
§ 28-1206.
53
§ 28-1212.03.
54
§ 28-1202.
55
See, §§ 28-416, 77-4309, 28-1205, 28-1206, 28-1212.03, and 28-1202; In
re Interest of Shea B., 3 Neb. Ct. App. 750, 532 N.W.2d 52 (1995).
56
See § 28-1202.
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i­ nsufficient for all these convictions because the marijuana
and firearm were not found on Warlick’s person, it was not
Warlick’s vehicle where these items were found, the marijuana
and firearm were underneath a spare tire accessible only from
the back seat and with what was presumably Clark’s profes-
sional hair product, Warlick was not sitting in the back seat
but instead was sitting in the front passenger seat, and Warlick
could not have smelled the marijuana that was wrapped in
plastic wrap with a masking agent. Regarding the firearm,
Warlick further points out that it was in a separate bag, with
the hair product, next to the marijuana. Warlick argues that
any inconsistency in Warlick’s and Clark’s descriptions of their
travels to the arresting deputy was insufficient to reasonably
infer that Warlick possessed the firearm or the marijuana.
With the exception of the element of being a felon for pur-
poses of the conviction of possession of a deadly weapon by
a prohibited person, which will be addressed in the next sec-
tion, Warlick does not specifically assign and argue that the
evidence was insufficient to establish any other elements of
these “possession” crimes—such as an intent to deliver for the
crime of possession of a controlled substance with intent to
deliver or the weapon being stolen for purposes of the crime
of possessing a stolen firearm. Therefore, we do not address
those elements.
(i) Crimes of Possession of
Prohibited Substance
Black’s Law Dictionary defines “possess” as “[t]o have
in one’s actual control; to have possession of.” 57 It defines
“possession” to include, among other things, both actual and
constructive possession, 58 and our common law similarly rec-
ognizes both. 59
57
Black’s Law Dictionary 1351 (10th ed. 2014).
58
See id.
59
State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).
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[34-36] Actual possession is synonymous with physical pos-
session. 60 Constructive possession, in contrast, may be proved
by mere ownership, dominion, or control over contraband
itself, coupled with the intent to exercise control over the
same. 61 We have held under the relevant statutory language,
read as a whole, that certain crimes involving “possession,”
such as being a person who “uses a firearm . . . to commit any
felony” or who unlawfully “possesses a firearm . . . during the
commission of any felony,” 62 do not include constructive pos-
session. 63 However, we have long held under the language of
the criminal narcotics statutes here at issue that possession may
be either actual or constructive. 64
[37-39] Two persons may have constructive possession, or
one may have actual possession and the other have construc-
tive possession. 65 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. 66 Thus, 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. 67
[40-42] Warlick is correct that mere presence at a place
where the item in question is found is not sufficient to show
constructive possession. 68 But possession of an illegal sub-
stance can be inferred from a vehicle passenger’s proxim-
ity to the substance or other circumstantial evidence that
60
Id.
61
Id.
62
§ 28-1205.
63
See State v. Garza, supra note 45.
64
See State v. Schuller, supra note 59.
65
Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710 (1960).
66
See State v. Garcia, 216 Neb. 769, 345 N.W.2d 826 (1984).
67
See, e.g., State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
68
See id.
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affirmatively links the passenger to the substance. 69 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 unlawful possession. 70
[43-45] We have said that a passenger’s joint possession
of a controlled substance found in a motor vehicle can be
established by evidence that (1) supports an inference that the
driver was involved in drug trafficking, as distinguished from
possessing illegal drugs for personal use; (2) shows the pas-
senger acted suspiciously during a traffic stop; and (3) shows
the passenger was not a casual occupant but someone who
had been traveling a considerable distance with the driver. 71
On this first factor, we have explained that a finder of fact
may reasonably infer that a driver with a possessory inter-
est in a vehicle who is transporting a large quantity of illegal
drugs would not invite a passenger into the vehicle unless the
passenger knew of the valuable cargo contained therein and
was conscious of the risks and ramifications involved with
transporting it. 72 On the second factor, we have explained that
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 occupants of the vehicle, or generally gives an implau-
sible explanation for the travels. 73
[46] We have never held that in order to support a reason-
able inference of constructive possession, the illegal substance
must be of such proximity to the passenger of a vehicle as
69
Id.
70
State v. Garcia, supra note 66.
71
State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011); State v. Draganescu,
supra note 67.
72
See, State v. McGee, supra note 71; State v. Howard, 282 Neb. 352, 803
N.W.2d 450 (2011).
73
State v. Howard, supra note 72.
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to be conveniently accessed or within immediate physical
reach. While such proximity may under the circumstances
­create a stronger inference of the element of possession, it is
not necessary to prove the exercise of ownership, dominion,
or control over contraband, coupled with the intent to exercise
control over it. 74
We hold that there was sufficient evidence from which a
rational trier of fact could find that Warlick had possession of
the marijuana for purposes of the crimes of possession of a
controlled substance with intent to deliver 75 and distributing or
possessing marijuana without affixing an official stamp, label,
or other indicium of payment of tax. 76
First, there was evidence supporting an inference that Clark,
the driver, was involved in drug trafficking, as distinguished
from possessing illegal drugs for personal use. The deputy
testified that 4 pounds of marijuana were seized and that based
on his training and experience, this amount is consistent with
distribution rather than personal use.
Second, there was evidence that both Warlick and Clark
acted suspiciously during the stop. The deputy testified that
Clark told him the purpose of his trip was to go gambling in
Las Vegas, and the deputy stated that “[w]hen asking [Clark]
questions, he seemed to pause, think about his answer before
answering.” Warlick provided the deputy a different story, tell-
ing him that Warlick and Clark had made a trip to California,
and Warlick never mentioned gambling or a trip to Las Vegas.
While it is conceivable that these two versions of Warlick
and Clark’s travels have an innocent explanation, they are
sufficiently inconsistent to support an inference of construc-
tive possession. 77
74
See, State v. Schuller, supra note 59; State v. Draganescu, supra note 67;
State v. Frieze, 3 Neb. Ct. App. 263, 525 N.W.2d 646 (1994). See, also, State
v. McGee, supra note 71.
75
See § 28-416.
76
See § 77-4309.
77
See State v. McGee, supra note 71.
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Finally, both Warlick and Clark indicated Warlick had been
traveling with Clark for a considerable distance over mul-
tiple state lines. Thus, Warlick was not a casual occupant of
Clark’s vehicle.
(ii) Crimes of Possession
of Weapon
This same evidence supports the trier of fact’s finding that
Warlick was in constructive possession of a weapon for pur-
poses of possession of a deadly weapon during the commission
of a felony, 78 possession of a deadly weapon by a prohibited
person, 79 and possession of a stolen firearm. 80 In addition to
this evidence, we find Neb. Rev. Stat. § 28-1212 (Reissue
2016) applicable to these weapons convictions. Section 28-1212
states that the presence of a firearm in a motor vehicle is prima
facie evidence that it is possessed by all persons occupying the
motor vehicle when it is found.
Section 28-1212 provides in full:
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.
Prima facie evidence means that proof presented on an
issue is sufficient to submit the issue to the fact finder for
disposition and precludes a directed verdict against the party
with the burden of proof on the issue in a jury trial or exclusion
of a particular issue from consideration in a nonjury trial. 81
78
See § 28-1205.
79
See § 28-1206.
80
See § 28-1212.03.
81
State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991).
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Thus, we find no merit to Warlick’s argument that the evi-
dence was insufficient to support the element of possession in
the crimes of possession of a deadly weapon during the com-
mission of a felony; 82 possession of a deadly weapon by a pro-
hibited person, 83 and possession of a stolen firearm. 84
(iii) Crime of Carrying Concealed Weapon
We find merit, however, to Warlick’s contention that the evi-
dence was insufficient to support a finding that he was carry­
ing a weapon concealed on or about his person, in violation of
§ 28-1202, a Class I misdemeanor.
[47] Section 28-1202 sets forth that “any person who carries
a weapon or weapons concealed on or about his or her person,
such as a handgun, a knife, brass or iron knuckles, or any other
deadly weapon, commits the offense of carrying a concealed
weapon.” As noted by the Nebraska Court of Appeals in State
v. Blackson, 85 possession is not an element of a violation of
§ 28-1202. It follows that constructive possession does not
establish the elements of § 28-1202 of “carr[ying]” a concealed
weapon “on or about his or her person.”
In State v. Garza, we equated “carrying” a weapon with
actual possession and differentiated it from constructive pos-
session. 86 In rejecting the inclusion of constructive possession
for the crime of being a person who “uses a firearm . . . to
commit any felony” or who unlawfully “possesses a firearm
. . . during the commission of any felony,” in violation of
§ 28-1205, 87 we explained that the possession prong prohibited
“carrying” deadly weapons while under certain circumstances,
82
See § 28-1205.
83
See § 28-1206.
84
See § 28-1212.03.
85
State v. Blackson, 1 Neb. Ct. App. 94, 487 N.W.2d 580 (1992).
86
See State v. Garza, supra note 45.
87
But see § 28-1205(4) (providing, through amendments pursuant to 2009
Neb. Laws, L.B. 63, § 14, that “[p]os­session” of deadly weapon may be
proved through constructive pos­session immediately prior to, or immedi-
ately after, commission of felony).
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i.e., when persons commit felonies. 88 We held that the purpose
of § 28-1205 is to prevent the threat of violence and accom-
panying danger to human life that is present whenever one
has a deadly weapon “within one’s immediate control” dur-
ing the commission of a felony. 89 Therefore, we explained, to
include constructive possession for the “possession” described
in § 28-1205 would be “inconsistent with the plain meaning of
possession and the purpose of § 28-1205.” 90
[48,49] A penal statute is to be strictly construed in the
context of the object sought to be accomplished, the evils and
mischiefs sought to be remedied, and the purpose sought to
be served. 91 The phrase “to carry” is not generally defined by
the criminal statutes, but § 28-1202 plainly limits the place
of the weapon’s concealment to “on or about his or her per-
son.” In Blackson, the Court of Appeals relied on Black’s
Law Dictionary’s definition of “carrying arms or weapons”
as “wearing, bearing, or carrying them ‘upon the person or in
the clothing or in a pocket, for the purpose of use, or for the
purpose of being armed and ready for offensive or defensive
action in case of a conflict with another person.’” 92
In applying § 28-1202 to drivers of motor vehicles, we have
repeatedly held that “[a] weapon is concealed on or about the
person if it is concealed in such proximity to the driver of an
automobile as to be convenient of access and within immedi-
ate physical reach.” 93 That is not to say that for the evidence
to be sufficient to convict a driver of violating § 28-1202,
88
See id. See, also, State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989),
disapproved on other grounds, State v. Irish, 292 Neb. 513, 873 N.W.2d
161 (2016).
89
State v. Garza, supra note 45, 256 Neb. at 765, 592 N.W.2d at 494.
90
Id.
91
See State v. Garza, supra note 45.
92
State v. Blackson, supra note 85, 1 Neb. Ct. App. at 98, 487 N.W.2d at 583.
93
State v. Saccomano, 218 Neb. 435, 436, 355 N.W.2d 791, 792 (1984).
Accord State v. Goodwin, 184 Neb. 537, 169 N.W.2d 270 (1969).
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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 defendant is
charged with committing the crime. 94
[50] We see no reason not to apply this standard likewise to
the passenger of a motor vehicle. And it is consistent with our
description in Garza of “carrying” a weapon, which involves
the weapon’s being “within one’s immediate control.” 95 It
is also consistent with other jurisdictions’ understanding of
similar statutes that to be “carried,” the weapon must be within
such physical proximity to be of immediate and direct access
for prompt and immediate use. 96 Thus, a weapon is concealed
on or about the person if it is concealed in such proximity to
the passenger of a motor vehicle as to be convenient of access
and within immediate physical reach.
But, as Warlick points out, there was no evidence that the
firearm was convenient of access and within his immediate
physical reach. While the deputy testified that the weapon
was accessible from the back seat, Warlick was not in the
back seat at the time of the stop. There was no evidence pre-
sented that Warlick had been in the back seat before the stop.
Furthermore, even though the cargo area may have been acces-
sible from the back seat, the firearm was located within a bag
that was itself located underneath the spare tire within the
cargo area.
94
See, State v. Senn, 295 Neb. 315, 888 N.W.2d 716 (2016); State v.
Saccomano, supra note 93; State v. Goodwin, supra note 93; Kennedy
v. State, supra note 65; In re Interest of Cory P., 7 Neb. Ct. App. 397, 584
N.W.2d 820 (1998); In re Interest of Shea B., supra note 55.
95
State v. Garza, supra note 45, 256 Neb. at 765, 592 N.W.2d at 494.
96
See, e.g., Littrell v. State, 699 So. 2d 962 (Ala. Crim. App. 1997); People
v. Smith, 72 Cal. App. Supp. 2d 875, 164 P.2d 857 (1946); State v. Hinkle,
970 So. 2d 433 (Fla. App. 2007); People v. Niemoth, 322 Ill. 51, 152 N.E.
537 (1926); Corbin v. State, 237 Md. 486, 206 A.2d 809 (1965); State v.
Prigge, 907 N.W.2d 635 (Minn. 2018); State v. Williams, 636 P.2d 1092
(Utah 1981).
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The evidence was insufficient to demonstrate Warlick was
a “person who carries a weapon or weapons concealed on or
about his or her person” for purposes of § 28-1202. Therefore,
we reverse Warlick’s conviction and sentence for violating
§ 28-1202 and remand the cause with directions to vacate.
(b) Prior Felony Convictions
For his conviction of possession of a deadly weapon by a pro-
hibited person, in violation of § 28-1206, Warlick alternatively
argues that there was insufficient evidence to support the ele-
ment of being a “prohibited person.” Under § 28-1206(1)(a)(i),
a person who has previously been convicted of a felony is
a prohibited person. Warlick argues that exhibits 14 and 15,
showing prior felony convictions, were inadmissible because
they failed to affirmatively demonstrate he had counsel or had
waived counsel in relation to those convictions. Warlick does
not dispute that the prior convictions reflected in the exhibits,
if admissible, established he was a felon.
Warlick’s argument is premised on case law that has since
been overruled. In a line of cases, we had held that a prior
conviction could not be considered in the absence of affirma-
tive proof that the defendant had or waived counsel at the time
of conviction. 97 At the time of its inception, this line of case
law was supported by the opinion of the U.S. Supreme Court
in Burgett v. Texas, 98 which prohibited courts from presuming
that a prior conviction was obtained in compliance with the
Sixth Amendment. However, in State v. Vann, 99 we recognized
that the U.S. Supreme Court case of Parke v. Raley 100 clarified
that Burgett applied only in the narrow context in which it was
97
See, e.g., State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v.
Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002); State v. Portsche, 258
Neb. 926, 606 N.W.2d 794 (2000).
98
Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).
99
State v. Vann, supra note 4.
100
Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992).
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decided—when state criminal defendants’ federal constitutional
right to counsel had not yet been recognized.
[51] In Vann, we concluded that as a factual matter, it is
unlikely that many modern convictions are obtained in vio-
lation of a defendant’s Sixth Amendment rights, due to the
recognition of a constitutional right to counsel in Gideon v.
Wainwright 101 and the further recognition of that right in state
statutes or rules of criminal procedure. 102 Accordingly, we
held in Vann that any conviction after Gideon is entitled to
a presumption of regularity, such that once the government
establishes the existence of a prior conviction, it becomes
the defendant’s burden to prove that he or she did not have
counsel and did not waive the right to counsel at the time
of conviction. 103
Exhibit 14 is evidence of a prior conviction of felon in
possession of a firearm in Illinois in 2017, and exhibit 15 is
evidence of a prior conviction of aggravated vehicle hijacking,
burglary, and aggravated unlawful restraint in Illinois in 2010.
Both of these convictions are post-Gideon and thus are entitled
to a presumption of regularity.
We also observe that exhibit 15 explicitly states that Warlick
was appointed a public defender on June 16, 2009, and there is
no indication that counsel sought to withdraw or that Warlick
proceeded pro se at any time before he pled and was found
guilty on June 10, 2010. Further, exhibit 14 indicates that there
was a motion to withdraw as attorney filed on June 30, 2016,
and an appearance, possibly by a different attorney, filed on
July 26. There is no indication that Warlick proceeded pro se
or was not represented by counsel at the time he pled guilty on
October 25, 2017.
101
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799
(1963).
102
See, e.g., Neb. Rev. Stat. § 29-3903 (Cum. Supp. 2018).
103
State v. Vann, supra note 4.
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We find no merit to Warlick’s assertion that, because the
State failed to affirmatively demonstrate Warlick had or waived
counsel, exhibits 14 and 15 were inadmissible for purposes of
establishing the element of being a felon for the crime of felon
in possession in violation of § 28-1206.
VI. CONCLUSION
For the foregoing reasons, we affirm all of Warlick’s convic-
tions with the exception of the misdemeanor violation of carry-
ing a concealed weapon in violation of § 28-1202. We reverse,
and remand with directions for the district court to vacate the
conviction for the violation of § 28-1202 and the sentence for
that violation.
Affirmed in part, and in part reversed
and remanded with directions.