State v. Castellanos

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/11/2018 08:08 AM CDT
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26 Nebraska A ppellate R eports
STATE v. CASTELLANOS
Cite as 26 Neb. Ct. App. 310
State of Nebraska, appellee, v.
Dominic L. Castellanos, appellant.
___ N.W.2d ___
Filed September 11, 2018. Nos. A-17-808, A-17-809.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Motions to Suppress: Warrantless Searches: Appeal and Error.
In reviewing a trial court’s denial of a motion to suppress evidence
obtained by a warrantless search under the emergency doctrine, an
appellate court employs a two-part standard in which the first part of
the analysis involves a review of the historical facts for clear error and
a review de novo of the trial court’s ultimate conclusion that exigent
circumstances were present. Where the facts are largely undisputed, the
ultimate question is an issue of law.
3. Rules of Evidence: Other Acts. An appellate court reviews for abuse
of discretion a trial court’s evidentiary rulings on the admissibility of a
defendant’s other crimes or bad acts under Neb. Evid. R. 404(2), Neb.
Rev. Stat. § 27-404(2) (Reissue 2016), or under the inextricably inter-
twined exception to the rule.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
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statement of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s failure to
give the requested instruction.
6. Jury Instructions: Appeal and Error. It is not error for a trial court to
refuse a requested instruction if the substance of the proposed instruc-
tion is contained in those instructions actually given.
7. ____: ____. If the instructions given, which are taken as a whole, cor-
rectly state the law, are not misleading, and adequately cover the issues
submissible to a jury, there is no prejudicial error concerning the instruc-
tions and necessitating a reversal.
8. Search and Seizure: Warrantless Searches. Searches without a valid
warrant are per se unreasonable, subject only to a few specifically estab-
lished and well-delineated exceptions that must be strictly confined by
their justifications.
9. Search and Seizure: Warrantless Searches: Proof. In the case of a
search and seizure conducted without a warrant, the State has the burden
of showing the applicability of one or more of the exceptions to the war-
rant requirement.
10. Search and Seizure: Warrantless Searches: Police Officers and
Sheriffs. In the case of entry into a home, a police officer who
has obtained neither an arrest warrant nor a search warrant cannot
make a nonconsensual and warrantless entry in the absence of exigent
circumstances.
11. Search and Seizure: Police Officers and Sheriffs: Words and
Phrases. The emergency doctrine is a category of exigent circum-
stances. The elements of the emergency doctrine are that (1) the police
must have reasonable grounds to believe there is an immediate need for
their assistance for the protection of life or property and (2) there must
be some reasonable basis to associate the emergency with the area or
place to be searched.
12. Search and Seizure: Warrantless Searches. The first element of the
emergency doctrine considers whether there were reasonable grounds to
find an emergency, and the second element considers the reasonableness
of the scope of the search.
13. Constitutional Law: Police Officers and Sheriffs. An action is reason-
able under the Fourth Amendment, regardless of the individual officer’s
state of mind, as long as the circumstances viewed, objectively, justify
the action.
14. Police Officers and Sheriffs: Probable Cause. The presence of an
emergency, like probable cause, hinges on the reasonable belief of the
officers in light of specific facts and the inferences derived therefrom,
not whether, in hindsight, one actually existed.
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15. Search and Seizure: Police Officers and Sheriffs: Probable Cause.
The first element of the emergency doctrine is similar to probable cause
and asks whether the facts available to the officer at the moment of
entry warranted a person of reasonable caution to believe that entry
was appropriate.
16. Search Warrants: Affidavits: Probable Cause. Where an affidavit
used for the purpose of obtaining a search warrant includes both ille-
gally obtained facts as well as facts derived from independent and law-
ful sources, a valid search warrant may issue if the lawfully obtained
facts, considered by themselves, establish probable cause to issue the
warrant; not all evidence obtained is considered fruit of the poisonous
tree, and such evidence may be admitted if there is a sufficient indepen-
dent basis for the discovery of the evidence.
17. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 2016), does not apply to evidence of a defendant’s
other crimes or bad acts if the evidence is inextricably intertwined with
the charged crime.
18. ____: ____. Inextricably intertwined evidence includes evidence that
forms part of the factual setting of the crime, or evidence that is so
blended or connected to the charged crime that proof of the charged
crime will necessarily require proof of the other crimes or bad acts, or if
the other crimes or bad acts are necessary for the prosecution to present
a coherent picture of the charged crime.
19. Jury Instructions. Whenever an applicable instruction may be taken
from the Nebraska Jury Instructions, that instruction is the one which
should usually be given to the jury in a criminal case.
20. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
Appeal from the District Court for Lancaster County: Jodi L.
Nelson and Darla S. Ideus, Judges. Affirmed.
Timothy S. Noerrlinger, of Naylor & Rappl Law Office,
P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Pirtle, R iedmann, and Bishop, Judges.
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Pirtle, Judge.
INTRODUCTION
Dominic L. Castellanos appeals his convictions in the dis-
trict court for Lancaster County for possession of a firearm by
a prohibited person and possession of methamphetamine. He
takes issue with the court’s overruling his motion to suppress,
allowing certain “[rule] 404 evidence” under the “‘inextricably
intertwined’ exception,” and failing to give his proposed jury
instructions on possession. Based on the reasons that follow,
we affirm.
BACKGROUND
On April 29, 2016, an information was filed in the district
court charging Castellanos with one count of possession of a
firearm by a prohibited person, in violation of Neb. Rev. Stat.
§ 28-1206(1) and (3)(b) (Reissue 2016). On July 13, an infor-
mation was filed in the district court charging Castellanos with
one count of possession of a controlled substance, in violation
of Neb. Rev. Stat. § 28-416(3) (Supp. 2015). The two cases
were consolidated for trial and sentencing and have been con-
solidated for purposes of appeal.
On September 12, 2016, Castellanos filed a motion to sup-
press evidence in each case. A consolidated hearing was held
on the motions. The evidence adduced at the suppression hear-
ing was as follows:
On February 19, 2016, Officer Charity Hamm of the Lincoln
Police Department was on an unrelated police call in the area
of 17th and G Streets when she heard a single gunshot nearby.
She testified that it sounded as if the gunshot came from an
area southwest of her location. She got in her marked patrol
car and headed toward the direction of the gunshot sound.
When she got to the area of 16th and D Streets, she noticed a
maroon sport utility vehicle parked oddly along the curb of D
Street. As Officer Hamm approached the vehicle, she saw that
there were three occupants in the vehicle and that the vehicle’s
passenger-side windows had both been shattered. There was
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a circular impact on the passenger side of the vehicle, in
between the two shattered windows, consistent with damage
from a shotgun.
Officer Hamm, along with other police officers who had
arrived at the scene, spoke with the three occupants in the vehi-
cle. The occupants said that as they were driving on D Street,
they observed a group of people gathered on the south side of
the street. As they drove by the group of people, they heard a
loud noise and felt the vehicle shake. The vehicle occupants
reported that the group scattered after the gunshot, running
toward a nearby house.
Officer Hamm started walking toward the house that the
vehicle occupants had pointed to, and as she did, she went
past an adjacent apartment building. She could see through the
glass front door on the north side of the building; she observed
a Hispanic male inside the building, standing in the hallway
in front of an apartment unit, later determined to be apartment
No. 2, and the door to apartment No. 2 was open. The male
was holding some type of white towel or rag in his hands. She
then observed another male come out of apartment No. 2, close
the door behind him, and talk briefly with the Hispanic male.
Officer Hamm tried to open the door to the apartment building,
but it was locked. As she was trying to enter the building, both
males ran in the opposite direction from her, toward another
exit on the south side of the building. Officer Hamm ran
around the building to chase after the two males and radioed
for assistance from other officers.
Two police officers apprehended the two males almost
immediately, locating them about a block away from the apart-
ment building. The male with the white object in his hands
was identified as Jeremy Cushing. The second male was iden-
tified as Castellanos. Officer Hamm subsequently identified
the individuals as the same males she saw in the apartment
building, outside apartment No. 2.
Officer Hamm and Lincoln police officer Richard Roh
retraced the path Castellanos and Cushing had taken when
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running from the apartment to the location where they were
apprehended. In doing so, they found a white bathmat on the
ground, which appeared to be the same white item Cushing was
holding when Officer Hamm saw him in the apartment build-
ing. There was a dark red substance on the bathmat that looked
like blood. The bathmat was wrapped around a Winchester .22
rifle. The rifle had a round jammed in the chamber, and the
serial number was defaced, such that it was unreadable.
The officers also located a 20-gauge shotgun leaning against
a fence on the west side of the apartment building. The shot-
gun had been shortened and had a spent casing in it. Both guns
were located on the general path that Castellanos and Cushing
would have taken as they ran from the apartment building.
Police officers entered the apartment building and located
apartment No. 2. Officer Hamm, who was not one of the offi-
cers inside the apartment building, testified that she heard on
the radio that the officers observed boot prints on the front
door of apartment No. 2 and that there was damage to the
doorframe, such that it appeared it had been kicked in at some
point. In addition to that information, she was aware that there
had been a shooting of the maroon sport utility vehicle and
that two people had fled from apartment No. 2, one carrying a
gun wrapped in a bathmat that had a red substance on it that
looked like blood. Officer Hamm testified that based upon this
information, the officers were concerned that there might be
some sort of emergency in apartment No. 2, such that the life
or health of others inside the apartment might be in jeopardy
and they might need assistance. The officers made the decision
to enter apartment No. 2.
Lincoln police officer Max Hubka was one of the officers
who entered apartment No. 2. He testified that before entering
apartment No. 2, he had been informed that a gun had been
discharged, causing damage to a vehicle, that there was reason
to believe someone may have been injured, and that there was
preexisting damage to the door, which appeared to have been
kicked or forced open. Officer Hubka also testified that before
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going into apartment No. 2, he knew that Castellanos lived at
the apartment, that he was a member of a gang, and that the
gang was known to have weapons. Officer Hubka further testi-
fied that the police were working on another shooting at that
time involving the same gang.
Officer Roh, who was with Officer Hamm and not inside
the apartment building, testified that he believed there was an
immediate need to enter apartment No. 2 based on the informa-
tion the officers had at the time, which included that a vehicle
had been shot; two individuals ran out of the apartment build-
ing, one carrying something white; and a rifle was found that
was wrapped in a white bathmat with a substance on it that
was possibly blood. Further, other officers in the hallway of the
apartment building observed damage to the door to apartment
No. 2, there were black marks on the door that looked like shoe
marks, and it looked as if it had been kicked in. Roh testified
the officers thought that there had possibly been a robbery and
that someone could be injured inside apartment No. 2.
Sgt. Thomas Ward with the Lincoln Police Department
testified that he made the decision to enter apartment No. 2
to make sure no one was injured inside. He testified that he
made that decision based on the gunfire that struck a vehicle
near the apartment building; the two males that ran out of
the apartment building in the opposite direction of Officer
Hamm, one of them carrying a white bathmat; the rifle,
wrapped in a white bathmat, found when officers retraced the
path of the two males; and the red substance on the bathmat
that the officers thought could be blood. Sergeant Ward also
testified that Cushing told one of the officers that when he
arrived at Castellanos’ apartment, the door had been kicked
in, and that it appeared to the officers the door had in fact
been kicked in.
Lincoln police officer Matthew Pulec was the officer that
apprehended Cushing. Officer Pulec stated in his police report
that after he apprehended Cushing, he asked him if he knew
anything about the discharge of a firearm in the area. Cushing
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did not indicate that he knew anything about the shooting, but
told Officer Pulec that he had been at Castellanos’ apartment
only a short time before he saw Officer Hamm at the front
entrance. He further stated that when he arrived at Castellanos’
apartment, he observed the front door to have been kicked in
and thought Castellanos might have been robbed.
When the police officers entered the apartment to check if
anyone was injured or needed assistance, they did not find any-
one inside the apartment. The officers observed several items
of drug paraphernalia in plain view. Subsequently, Officer
Hamm applied for and obtained a search warrant for apartment
No. 2. When the search warrant was executed, a number of
items were seized, including items of narcotics and ammuni-
tion for both guns that had been found.
Following the hearing, the trial court overruled Castellanos’
motion to suppress, finding that the police were reasonably
justified in their belief that an emergency might exist in
apartment No. 2 such that immediate assistance might be
needed to protect life. A jury trial was subsequently held, and
Castellanos renewed his objections to evidence based on his
motion to suppress.
After trial had started, the State discovered evidence that
the Winchester .22 rifle had been stolen, which the State was
not previously aware of, and it moved for a determination of
whether such evidence would be deemed “rule 404” evidence.
See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue
2016). The court held a hearing on the matter, and the follow-
ing evidence was adduced:
Richard Lorance testified that he used to own a Winchester
“Model 190” .22 rifle, which he kept in his bedroom closet in
his house. He kept the rifle in a corner of the closet and had
clothes on top of it. It was not secured in a gun safe, and the
closet door did not lock. He also testified that his bedroom
door had a lock on it, but that he did not keep it locked.
Lorance testified that between October 2015 and February
2016, his roommate would occasionally have visitors over to
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the house, including Castellanos, who would typically come
in the back door or through the roommate’s bedroom window.
Lorance testified that sometime around Christmas 2015, he
discovered that his .22 rifle was missing. He told his room-
mate about it and then waited awhile to see if the rifle would
get returned, but it was never returned. In February 2016, he
contacted the police and reported it stolen.
Lorance testified that the serial number on the rifle was
intact when he last had it and that he had the serial num-
ber stored on a document on his computer, which had since
“crashed.” He gave police permission to search his com-
puter in an effort to retrieve the document containing the
serial number. He was shown a document containing a list
of serial numbers, passwords, and model numbers, including
the serial number for a Winchester .22 rifle, and testified that
it was the document he had stored on his computer before it
quit working.
Lorance was also shown the Winchester .22 rifle found in
this case, and he testified that it was the same make and model
as the one he owned, but said that he was not entirely sure if
it was his, because it was a very common rifle, the stock had
been cut, there was tape around the end of the receiver, and
the serial number had been removed. He recalled that his rifle
had a “finicky” receiver and noticed that the one recovered in
this case did as well.
For purposes of the rule 404 hearing, the State also intro-
duced a laboratory report from Kent Weber, a forensic scientist
with the Nebraska State Patrol crime laboratory. Weber’s report
indicated that the Winchester .22 rifle recovered in this case
was examined by the crime laboratory, which included chemi-
cal processing of the defaced serial number, resulting in a full
recovery of the serial number. It was determined that the rifle’s
serial number was the same as the one Lorance had owned and
reported stolen.
The trial court found that the evidence regarding Lorance’s
stolen Winchester .22 rifle was inextricably intertwined with
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Castellanos’ charges and, therefore, was not excludable under
rule 404 and was admissible.
The jury trial continued after the rule 404 evidence hear-
ing. Officer Hamm was the primary officer to testify about
the events leading up to Castellanos’ arrest, and her testimony
was consistent with the testimony she gave at the hearing on
the motion to suppress. Lorance testified at trial, and his tes-
timony was also consistent with the testimony he gave at the
rule 404 hearing.
Weber testified about recovering the serial number on the
.22 rifle, as well as other testing he performed on both guns
recovered at the scene. He testified that the serial number was
not visible when he received the rifle at the laboratory, but
that by using a chemical reagent, he was able to read the serial
number that had been defaced.
At the conclusion of the trial, the jury found Castellanos
guilty of both charges. He was sentenced to 6 to 8 years’
imprisonment for possession of a firearm by a prohibited per-
son and 1 to 2 years’ imprisonment for possession of metham-
phetamine. His sentences were ordered to run concurrently.
ASSIGNMENTS OF ERROR
Castellanos assigns that the trial court erred in (1) overrul-
ing his motion to suppress, (2) admitting rule 404 evidence
under the inextricably intertwined exception, and (3) failing to
give his proposed jury instructions.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
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court’s determination. State v. Nolt, 298 Neb. 910, 906 N.W.2d
309 (2018).
[2] In reviewing a trial court’s denial of a motion to suppress
evidence obtained by a warrantless search under the emergency
doctrine, an appellate court employs a two-part standard in
which the first part of the analysis involves a review of the
historical facts for clear error and a review de novo of the trial
court’s ultimate conclusion that exigent circumstances were
present. Where the facts are largely undisputed, the ultimate
question is an issue of law. State v. Salvador Rodriguez, 296
Neb. 950, 898 N.W.2d 333 (2017).
[3,4] An appellate court reviews for abuse of discretion
a trial court’s evidentiary rulings on the admissibility of a
defendant’s other crimes or bad acts under rule 404(2), or
under the inextricably intertwined exception to the rule. See
State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). An
abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
[5-7] To establish reversible error from a court’s failure to
give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction. First Nat. Bank North
Platte v. Cardenas, 299 Neb. 497, 909 N.W.2d 79 (2018). It
is not error for a trial court to refuse a requested instruction
if the substance of the proposed instruction is contained in
those instructions actually given. Id. If the instructions given,
which are taken as a whole, correctly state the law, are not
misleading, and adequately cover the issues submissible to a
jury, there is no prejudicial error concerning the instructions
and necessitating a reversal. Id.
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ANALYSIS
Motion to Suppress.
Castellanos first assigns that the trial court erred in over-
ruling his motion to suppress all evidence obtained from his
apartment. He argues that the initial warrantless entry into
his apartment was unlawful and that therefore, any evidence
obtained during the subsequent search pursuant to the search
warrant was inadmissible as fruit of the poisonous tree and
should have been suppressed. The trial court found that the
initial warrantless entry was justified under the “emergency
doctrine” and that therefore, any evidence obtained as a
result of the initial search or the subsequent search warrant
was lawful.
[8,9] Searches without a valid warrant are per se unreason-
able, subject only to a few specifically established and well-
delineated exceptions that must be strictly confined by their
justifications. State v. Salvador Rodriguez, supra. The State has
the burden of showing the applicability of one or more of the
exceptions to the warrant requirement. Id.
[10] In the case of entry into a home, a police officer who
has obtained neither an arrest warrant nor a search warrant can-
not make a nonconsensual and warrantless entry in the absence
of exigent circumstances. Id.
[11] The emergency doctrine is a category of exigent cir-
cumstances. State v. Salvador Rodriguez, 296 Neb. 950, 898
N.W.2d 333 (2017). The elements of the emergency doctrine
are that (1) the police must have reasonable grounds to believe
there is an immediate need for their assistance for the protec-
tion of life or property and (2) there must be some reasonable
basis to associate the emergency with the area or place to be
searched. Id.
[12] The first element considers whether there were rea-
sonable grounds to find an emergency, and the second ele-
ment considers the reasonableness of the scope of the search.
Id. Castellanos focuses primarily on the first element and
argues that reasonable police officers would not have had
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grounds under the facts of this case to believe there was an
immediate need for their assistance for the protection of life
or property.
[13-15] An action is reasonable under the Fourth Amendment,
regardless of the individual officer’s state of mind, as long as
the circumstances viewed, objectively, justify the action. State
v. Salvador Rodriguez, supra. The presence of an emergency,
like probable cause, hinges on the reasonable belief of the offi-
cers in light of specific facts and the inferences derived there-
from, not whether, in hindsight, one actually existed. Id. The
first element of the emergency doctrine is similar to probable
cause and asks whether the facts available to the officer at the
moment of entry warranted a person of reasonable caution to
believe that entry was appropriate. Id.
In the present case, based on the totality of the circum-
stances, the police officers had a reasonable belief that there
was an immediate need to enter Castellanos’ apartment. The
police were responding to a shooting that had just occurred in
the immediate area, in which a vehicle was struck. After the
occupants of the vehicle pointed in the direction people had
scattered after the shooting, Officer Hamm saw two males
inside a nearby apartment building. One of the males, Cushing,
was holding what appeared to be a white towel or something
similar, and the second male, Castellanos, had just come out of
apartment No. 2. The two males ran when Officer Hamm tried
to open the door to the building and went out an opposite exit
of the building. The two men were quickly apprehended. When
officers retraced Castellanos and Cushing’s path, they found a
white bathmat on the ground, which appeared to be the same
white towel Officer Hamm saw Cushing holding when he was
standing in the hallway outside apartment No. 2. The bathmat
had a red substance on it that appeared to be blood, and there
was a .22 rifle wrapped inside the bathmat. The officers also
found a 20-gauge shotgun leaning against a fence outside
the apartment building. The shotgun had a spent casing in
the chamber.
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The officers went inside the apartment building and located
apartment No. 2, where Officer Hamm had seen Castellanos
and Cushing. Prior to entering apartment No. 2, they saw
boot or shoe marks on the door of the apartment and the door
appeared to have been kicked in, because there was damage
to the doorframe. The officers also knew prior to entering the
apartment that Castellanos lived in the apartment and that he
was a member of a gang. The officers were familiar with the
gang, which was known to have weapons, and police were in
the process of investigating another shooting involving the
gang. Cushing had also told Officer Pulec when he was appre-
hended that when he arrived at Castellanos’ apartment that
night, he saw that the door had been kicked in and thought
Castellanos might have been robbed. The officers then entered
the apartment for the sole purpose of making sure there was no
one in the apartment in need of assistance. Once inside, they
remained there only long enough to determine whether there
was anyone inside the apartment.
In our de novo review, we agree with the trial court that
based on facts known to the officers before entering the apart-
ment, they had reasonable grounds to believe there was an
immediate need for their assistance for the protection of life
or property. We also conclude that the officers had a reason-
able basis to associate the emergency with apartment No. 2.
Accordingly, the initial warrantless entry was justified under
the emergency doctrine, and therefore, any evidence obtained
as a result of the initial search or the subsequent search war-
rant was lawful. The trial court did not err in overruling
Castellanos’ motion to suppress.
[16] Further, even if we were to conclude the initial entry
into the apartment did not satisfy the elements of the emer-
gency doctrine, the evidence obtained pursuant to the search
warrant still would have been admissible. The affidavit seek-
ing the search warrant contained information independent from
the facts derived from the initial short sweep of the apart-
ment; such independent facts included the officer’s detailed
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summation of the entire incident, from hearing the gunshot to
apprehending Castellanos and Cushing, as well as the discov-
ery of the guns and white bathmat nearby. And although the
search warrant sought authorization to seize controlled sub-
stances and related items, it also sought firearms, ammunition,
loading devices, magazines, and other firearm paraphernalia—
all of which were independently supported by the facts leading
up to the discovery of the two guns found nearby. See State
v. Guilbeault, 214 Neb. 904, 336 N.W.2d 593 (1983) (where
affidavit used for purpose of obtaining search warrant includes
both illegally obtained facts as well as facts derived from inde-
pendent and lawful sources, valid search warrant may issue if
lawfully obtained facts, considered by themselves, establish
probable cause to issue warrant; not all evidence obtained is
considered fruit of poisonous tree, and such evidence may be
admitted if there is sufficient independent basis for discovery
of evidence).
Rule 404 Evidence.
Castellanos next assigns that the trial court erred by admit-
ting Lorance’s testimony about his missing .22 rifle. He con-
tends that this evidence was inadmissible under rule 404, and
not subject to the inextricably intertwined exception.
Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
[17,18] It should be noted that rule 404(2)’s list of permis-
sible purposes is not exhaustive. Nonetheless, under our deci-
sional law, rule 404(2) does not apply to evidence of a defend­
ant’s other crimes or bad acts if the evidence is inextricably
intertwined with the charged crime. State v. Burries, 297 Neb.
367, 900 N.W.2d 483 (2017). Inextricably intertwined evidence
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includes evidence that forms part of the factual setting of
the crime, or evidence that is so blended or connected to the
charged crime that proof of the charged crime will necessarily
require proof of the other crimes or bad acts, or if the other
crimes or bad acts are necessary for the prosecution to present
a coherent picture of the charged crime. Id.
Castellanos argues that Lorance’s testimony does not pro-
vide information that would form the factual setting for either
possession of a controlled substance or possession of a fire-
arm by a prohibited person. We disagree. Lorance’s testimony
about his missing .22 rifle was connected to the charge of
possession of a firearm by a prohibited person. The parties
stipulated at trial that Castellanos was a prohibited person on
the date in question, so the only issue the State had to prove
was whether Castellanos possessed either the shotgun or the
.22 rifle. Lorance testified that his .22 rifle was missing and
presumably stolen less than 2 months before the incident
that led to the charges against Castellanos. Castellanos was
at Lorance’s house on multiple occasions during the time-
frame that the gun went missing and would have had access
to the rifle, because it was kept in Lorance’s unlocked bed-
room closet.
Further, the evidence at the rule 404 hearing and at trial
showed that the .22 rifle recovered by the officers had the
same serial number as the one owned by Lorance, confirm-
ing that the gun recovered was Lorance’s gun. Lorance had a
document on his computer which contained the serial number
for his .22 rifle, and the document was recovered by the police
department. Weber, the forensic analyst at the State Patrol
crime laboratory, used a chemical process to reveal the defaced
serial number on the rifle recovered by the officers. The two
serial numbers matched. We conclude that Lorance’s testimony
was inextricably intertwined with the charge of possession of a
firearm by a prohibited person and that therefore, rule 404(2)
did not apply. The trial court did not err in admitting Lorance’s
testimony about his missing .22 rifle at trial.
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Even if we were to conclude that Lorance’s testimony was
not inextricably intertwined with the possession of a firearm
by a prohibited person charge and should not have been admit-
ted, it would nevertheless be harmless error. There was addi-
tional evidence linking Castellanos to the guns, specifically, the
ammunition that was found in his apartment. Numerous rounds
of .22-caliber and 20-gauge ammunition were found inside a
closet, along with other items that belonged to Castellanos,
including an identification card, a credit card, and a W-2 form.
The ammunition in the closet was the same brand and had the
same characteristics as the ammunition in the two guns found
outside the apartment building.
Proposed Jury Instructions.
Finally, Castellanos assigns that the trial court erred in fail-
ing to give two jury instructions he proposed regarding the
meaning of “possession.” The first instruction stated: “The
Defendant’s mere presence in an area where items were ulti-
mately discovered is not enough to establish that the defendant
was in ‘possession’ of said items.” The second instruction
stated: “Assuming an item is not found on the defendant’s per-
son, the defendant’s proximity to the item, standing alone, is
insufficient to prove ‘possession.’”
Castellanos argues that his proposed instructions were cor-
rect statements of the law and that because the State’s theory
of the case rested on constructive possession, the evidence sup-
ported the instructions. He also claims that he was prejudiced
by the court’s refusal to give his proposed instructions, because
there is a substantial likelihood the jury’s verdict would have
been different if his instructions had been given.
To establish reversible error from a court’s refusal to give
a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the
law, (2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction. State v. Parnell, 294 Neb. 551,
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883 N.W.2d 652 (2016), cert. denied ___ U.S. ___, 137 S. Ct.
1212, 197 L. Ed. 2d 254 (2017).
The trial court instructed the jury on the material elements
of both charges and instructed the jury that the word “posses-
sion” means “either knowingly having it on one’s person or
knowing of the object’s presence and having control over the
object.” It also instructed the jury that the word “knowingly”
means “willfully or purposely.”
[19,20] The definition of the word “possession” given by
the trial court was based on NJI2d Crim. 4.2, which reads,
“‘Possession’ of [the object] means either knowingly having it
on one’s person or knowing of the object’s presence and having
control over the object.” Whenever an applicable instruction
may be taken from the Nebraska Jury Instructions, that instruc-
tion is the one which should usually be given to the jury in a
criminal case. State v. Freemont, 284 Neb. 179, 817 N.W.2d
277 (2012). Further, all the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported
by the pleadings and the evidence, there is no prejudicial
error necessitating reversal. State v. Kibbee, 284 Neb. 72, 815
N.W.2d 872 (2012). Castellanos does not argue that the jury
instructions given were given in error. He contends only that
his proposed instructions also should have been given.
When the instructions are considered together, it is clear that
the district court properly instructed the jury on the definition
of the word “possession,” and the trial court did not err in
refusing to give Castellanos’ proposed jury instructions.
CONCLUSION
We conclude that the trial court did not err in overruling
Castellanos’ motion to suppress, admitting evidence under the
inextricably intertwined exception to rule 404, and failing to
give his proposed jury instructions. Accordingly, Castellanos’
convictions and sentences are affirmed.
A ffirmed.