State v. Botts

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State of Nebraska, appellee, v.
K irk A. Botts, appellant.
___ N.W.2d ___
Filed November 13, 2018. No. A-16-985.
1. Jury Instructions. Whether jury instructions are correct is a question
of law.
2. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
3. 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.
4. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
5. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
6. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination 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.
7. Criminal Law: Evidence: Appeal and Error. The relevant question in
reviewing a sufficiency of the evidence claim is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational
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trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Matthew K. Kosmicki, of Kosmicki Law, L.L.C., for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Pirtle, R iedmann, and Welch, Judges.
Pirtle, Judge.
INTRODUCTION
Kirk A. Botts appeals from his conviction in the district
court for Lancaster County for possession of a knife by a felon.
He challenges the court’s use of a specific jury instruction,
its overruling of objections to certain testimony at trial, and
its failure to find the evidence insufficient to find him guilty.
Based on the reasons that follow, we affirm.
BACKGROUND
This is the second time this appeal is before this court. The
first time Botts’ appeal was before us, we concluded that his
arrest was made without probable cause and that the resulting
inventory search was invalid. We reversed Botts’ conviction
and remanded the matter to the trial court with directions to
vacate Botts’ conviction and dismiss the charge against him.
We did not address Botts’ other assignments of error. See State
v. Botts, 25 Neb. Ct. App. 372, 905 N.W.2d 704 (2017), reversed
299 Neb. 806, 910 N.W.2d 779 (2018). The Nebraska Supreme
Court subsequently granted the State’s petition for further
review, reversed our decision, and “remand[ed] this appeal”
back to us “to consider Botts’ other assignments of error.” See
State v. Botts, 299 Neb. at 818, 910 N.W.2d at 789.
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The following facts were set forth in our first opinion: The
State filed an amended information charging Botts with pos-
session of a knife by a felon, a Class III felony. Botts entered a
plea of not guilty. He later filed a motion to suppress evidence
and statements, and a hearing was held on the motion.
At the motion to suppress hearing, Lincoln police officer
Jason Drager testified that on March 10, 2016, around 2:30
a.m., he was driving back to his police station in his police
cruiser. While driving, he saw a vehicle on a side street that
was not moving and was partially blocking the roadway. The
vehicle was situated at an angle, with the front end by the curb
and the back end blocking part of the street. Drager thought
maybe there had been an accident. He turned down the street
and saw an individual standing by the driver’s side of the
vehicle. Drager turned on his cruiser’s overhead lights, parked
his cruiser behind the vehicle, and contacted the individual,
later identified as Botts. He asked Botts what was going on,
and Botts initially told Drager “to mind [his] own business.”
When Drager asked Botts again about what had happened,
Botts told Drager that Botts’ vehicle was out of gas and that
he was trying to push it to the side of the road. Drager tes-
tified that he did not recall Botts’ saying that he drove the
vehicle there. Botts asked Drager if he could help him, and
Drager told him he could not help based on Lincoln Police
Department policy.
Drager testified that he decided he should remain at the
location because Botts’ vehicle was blocking the roadway and
could cause an accident. Drager then stood back by his cruiser
and watched Botts push the vehicle back and forth. Drager
stated that Botts became “verbally abusive” toward him after
he said he could not help him, so Drager decided to ask other
officers to come to the location for safety purposes. Three other
officers responded.
One of the officers who responded, Officer Phillip Tran,
advised Drager that he had stopped Botts a couple hours earlier
that night for traffic violations. Drager testified that Tran told
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him he had detected an odor of alcohol on Botts at the time of
the earlier stop. Based on the information from Tran, Drager
decided to approach Botts and ask him if he had been drinking.
Drager testified that when he asked Botts if he had been drink-
ing, Botts became angry, started yelling, and started backing
up away from him.
Drager testified that Botts’ demeanor led him to believe he
was under the influence of “some kind of alcohol or drug.”
However, Drager testified that he did not believe alcohol or
drugs were affecting Botts’ ability to answer questions. Drager
did not recall Botts’ stating that he had been drinking.
Drager testified that Botts backed up to the other side of
the street and ended up with his back against a light pole.
When he was backing up, he was not coming at the officers
and was not making threats. The four officers surrounded
Botts by the light pole. Botts started yelling “something along
the line of shoot me, shoot me.” Drager testified that Officer
David Lopez, one of the officers at the scene, pulled out his
Taser for safety purposes and to try to get Botts to comply
with their request to put his hands behind his back. He even-
tually did so and was handcuffed and placed in the back of
Drager’s cruiser.
Drager testified that the officers were telling Botts to put his
hands behind his back for their safety and Botts’ safety. Drager
stated that he was concerned for his safety because Botts was
being verbally abusive.
Drager testified that after Botts was arrested, the officers
decided to tow Botts’ vehicle because it was blocking the road.
He stated that it is Lincoln Police Department policy to search
vehicles that are going to be towed. Tran began to search the
vehicle and saw the handle of a machete sticking out from
underneath the driver’s seat. Drager testified that after Tran
discovered the machete, Botts was under arrest for being in
possession of a concealed weapon.
Tran also testified at the hearing on the motion to suppress.
He testified that he had contact with Botts around midnight
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on March 10, 2016, a couple hours before Drager made con-
tact with him. He testified that he stopped Botts for not having
his headlights on and for driving erratically. Tran testified that
during that contact, he noticed a “slight odor of alcohol,” and
that there was recently-purchased alcohol in the vehicle. Botts
was the driver of the vehicle, and there was more than one pas-
senger. Tran testified that he did not initiate a driving under the
influence investigation because he did not see enough signs to
believe that Botts was intoxicated.
Tran testified that he and another officer responded to
Drager’s call for assistance and that when they arrived, he told
Drager about his previous contact with Botts. Tran testified
that Drager and Lopez then made contact with Botts at his
vehicle, at which time his statements and demeanor became
erratic. Tran stated Botts backed away from the two officers
and was making statements such as “shoot me, kill me, things
like that.” He also heard Botts make statements indicating the
police were harassing him and treating him differently than
they would if he were “a white man.” Tran testified that Botts
backed up to a light pole and that the four officers were around
Botts. One of the officers asked Botts to put his hands behind
his back, and Botts responded that he was not doing anything
wrong. Tran testified that during that time, Lopez had his
Taser out. Botts eventually put his hands behind his back and
was handcuffed.
Tran testified that as soon as Botts was handcuffed, he
walked over to Botts’ vehicle and looked inside the driver’s
side front window, which was rolled down. He then saw the
handle of a machete sticking out from under the driver’s seat.
He retrieved the machete out of the vehicle after it was decided
that the vehicle would be towed. He testified that the officers
were required to do an inventory search every time a vehicle
is towed.
The State offered into evidence three exhibits, which were
DVD’s each containing a video recording from the encounter
with Botts: one from Drager’s cruiser, one from Drager’s body
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camera, and one from Tran’s cruiser. The exhibits showed the
interaction between Botts and the officers, including Botts’
transport to jail. The video recording from Drager’s cruiser
showed that when Botts was sitting in Drager’s cruiser, Botts
saw Tran remove the machete from Botts’ vehicle. Botts then
began making statements indicating that the machete was his
and that he knew it was in his vehicle. Specifically, he stated
multiple times that he used the machete for his business, which
involved cutting weeds. Botts also made statements indicating
that the vehicle where the machete was found was his vehicle.
Botts was never read his Miranda rights.
Following the hearing, the trial court overruled the motion
to suppress.
A jury trial was subsequently held on the charge. During the
trial, Botts renewed his motion to suppress, which was again
overruled. Drager and Tran both testified, and their testimony
was consistent with that set forth above.
Lopez also testified at trial. He testified that based on
information provided by Tran about the earlier stop, the offi-
cers thought Botts’ vehicle was possibly positioned as it was
because he had an alcohol-related accident. Lopez testified
that when he and Drager approached Botts and asked if he
had been drinking, he became very agitated. He was not act-
ing very rational and was yelling. Lopez testified that during
the encounter, he drew his Taser because of Botts’ agitated
behavior. He stated the Taser was displayed as a deescalation
tactic and as a means to get Botts to comply with the officers’
directions. He testified that he did not deploy the Taser and that
Botts was eventually handcuffed.
The State also offered into evidence an edited version of
Drager’s cruiser video recording, a photograph of the machete
found in Botts’ vehicle, and an edited version of Tran’s cruiser
video recording. Also, the parties stipulated that Botts had a
previous felony conviction. Botts did not present any evidence.
The jury returned a verdict of guilty, and the court accepted
the jury’s verdict.
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The trial court sentenced Botts to 1 year’s imprisonment
and 1 year’s postrelease supervision.
ASSIGNMENTS OF ERROR
Botts assigns that the trial court erred in (1) giving an erro-
neous and prejudicial jury instruction, (2) failing to sustain his
objections to certain testimony, and (3) finding that the evi-
dence was sufficient to support a guilty verdict.
STANDARD OF REVIEW
[1-3] Whether jury instructions are correct is a question
of law. State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211
(2016). In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. Id. 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. Id.
[4,5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appel-
late court reviews the admissibility of evidence for an abuse of
discretion. Id.
[6,7] In reviewing 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. State v. Samayoa, 292 Neb. 334, 873 N.W.2d
449 (2015). The relevant question is whether, after viewing the
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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. Id.
ANALYSIS
Jury Instruction.
Botts first assigns that the trial court erred in giving the
jury an erroneous and prejudicial instruction, specifically jury
instruction No. 4. The instruction stated:
The presence in a motor vehicle of a knife shall be
prima facie evidence that it is in the possession of all per-
sons occupying such motor vehicle.
Prima facie evidence means you may regard the basic
fact as sufficient evidence of possession, but does not
require you to do so. The evidence of the possession of
a knife in the vehicle must be shown beyond a reason-
able doubt.
The instruction was based on Neb. Rev. Stat. § 28-1212
(Reissue 2016), which provides:
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.
At the jury instruction conference, Botts objected to the
instruction, arguing that the purpose of § 28-1212 is to
establish a benchmark for the State to overcome a motion
for directed verdict and that the use of jury instruction No.
4 would violate Botts’ right to the presumption of inno-
cence and right to due process. The trial court overruled
Botts’ objection to the instruction, stating that based on
case law, the jury should be given an instruction based on
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§ 28-1212 as long as the instruction does not shift the burden
of proof.
There have been several cases that have examined jury
instructions based on § 28-1212. First, in State v. Stalder, 23l
Neb. 896, 438 N.W.2d 498 (1989), the defendant was charged
with and convicted of being a felon in possession of a firearm
with a barrel less than l8 inches in length. At trial, the court
gave a jury instruction based upon § 28-1212 which stated:
“‘The presence in a motor vehicle other than a public vehicle
of any firearm or instrument . . . 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 . . . .’” State v. Stalder, 231 Neb. at 904,
438 N.W.2d at 504. The defendant argued on appeal that the
trial court erred in giving the jury instruction because it was
unconstitutional in that it forced him to establish his innocence.
State v. Stalder, supra.
The Stalder court stated that when instructions are given
as to presumptions in a criminal case, those instructions must
conform to the requirements of Neb. Rev. Stat. § 27-303(3)
(Reissue 1985), which provided, as it now provides:
Whenever the existence of a presumed fact against the
accused is submitted to the jury, the judge shall give an
instruction that the law declares that the jury may regard
the basic facts as sufficient evidence of the presumed
fact but does not require it to do so. In addition, if the
presumed fact establishes guilt or is an element of the
offense or negatives a defense, the judge shall instruct the
jury that its existence must, on all the evidence, be proved
beyond a reasonable doubt.
The Stalder court found the trial court’s failure to follow the
requirements of § 27-303(3) to be error, reversed the convic-
tion, and remanded the cause for a new trial.
The Nebraska Supreme Court again examined a jury instruc-
tion based upon § 28-1212 in State v. Jasper, 237 Neb.
754, 467 N.W.2d 855 (1991). In Jasper, the defendant was
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charged with and convicted of possession of a short shotgun.
At trial, the jury was given an instruction based on § 28-1212
which stated:
“The presence in a motor vehicle of any firearm 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 is found, unless such firearm is
found upon the person of one of the occupants.
“Prima facie evidence is evidence sufficient in law to
raise a presumption of fact or establish the fact in ques-
tion unless rebutted.
“You may accept any presumption raised by prima
facie evidence, but you are not required to do so. The
evidence of presence of the firearm in the vehicle must be
shown beyond a reasonable doubt.”
State v. Jasper, 237 Neb. at 756, 467 N.W.2d at 858.
On appeal, the defendant argued that the jury instruction
based on § 28-1212 deprived him of due process by relieving
the State of its burden to prove beyond a reasonable doubt each
element of the crime charged and by shifting to the defendant
the burden to disprove possession of the shotgun.
The court ruled that the instruction improperly shifted the
burden of persuasion to the defendant concerning the elements
of the crime, relieving the State of its burden. The court held
that the instruction deprived the defendant of a fair trial, as
required under the constitutional guarantee of due process,
and the conviction was set aside and the cause remanded for a
new trial.
The Jasper court stated that a jury instruction founded on
a presumption created by a statute was constitutionally imper-
missible because such instruction deprived a defendant of the
due process right requiring the State to prove beyond a reason-
able doubt each element of the crime charged and that such
instruction shifted the burden to the defendant to disprove the
element of intent in the offense charged. The court stated that
the defendant was not charged with “‘presence in a vehicle
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containing a short shotgun’” but was charged with actual pos-
session. State v. Jasper, 237 Neb. at 763, 467 N.W.2d at 861.
The court stated that based on mere presence of the firearm,
there could be no constitutionally permissible instruction that
the jury must infer the defendant’s commission of the crime
charged or any element of the crime charged. The defendant’s
due process right to a fair trial was violated by an instruction
which required that the jury draw an inference adverse to the
defendant. State v. Jasper, supra.
The Jasper court further stated that even if there had been a
recognizable and constitutionally acceptable presumption avail-
able in the defendant’s case, the trial court failed to specifically
instruct the jury that possession, which was the presumed fact,
“‘must, on all the evidence, be proved beyond a reasonable
doubt,’” as expressly required by § 27-303(3). 237 Neb. at 766,
467 N.W.2d at 863.
The third case that has examined a jury instruction based
upon § 28-1212 is State v. Blackson, 1 Neb. Ct. App. 94, 487
N.W.2d 580 (1992). In Blackson, the defendant was charged
with carrying a concealed weapon after officers found two
guns in a car where the defendant had been a passenger. The
jury was instructed:
“The presence in a motor vehicle of any firearm 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 is found, unless such firearm is
found upon the person of one of the occupants.
“You may regard the basic facts as sufficient evidence
of the presumed fact, but you are not required to do so.
The presumed fact must, on all the evidence, be proved
beyond a reasonable doubt.”
Id. at 96, 487 N.W.2d at 582.
The Blackson court determined that the instruction, which
created the presumption the concealed weapon “‘is carried
by’” a defendant, was similar to the instruction in State v.
Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991), and that the
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holding in Jasper should be applied. 1 Neb. Ct. App. at 98, 487
N.W.2d at 583. It reversed the defendant’s conviction and
remanded the cause for a new trial.
The court in Blackson concluded that by giving the instruc-
tion on the presumption of § 28-1212 that all individuals
in a motor vehicle are in possession of or are carrying any
firearm found in that vehicle, the trial court in effect directed
a verdict against the defendant. The court recognized that in
giving the instruction, the trial court was quoting § 27-303(3),
but concluded that in light of the Nebraska Supreme Court’s
decision in Jasper, it had to find that the instruction adversely
affected a substantial right of the defendant. The court held
that the instruction deprived the defendant of a due process
right that the State must prove beyond a reasonable doubt
each element of the crime charged and that the instruction
shifted the burden to the defendant to disprove the element
of the offense charged that the defendant was carrying a con-
cealed weapon.
In summary, the Nebraska Supreme Court and this court
have held that a jury instruction based on § 28-1212, that shifts
the burden of proof to a defendant on any essential element of
a crime charged, violates a defendant’s due process right to a
fair trial.
The trial court may have erred in giving jury instruction
No. 4 in the present case as well. However, assuming without
deciding that the trial court did err in giving jury instruction
No. 4, we determine that it was harmless error based on the
facts of this case. The evidence showed that after Botts was
placed in Drager’s cruiser, Botts made statements indicating
that the machete belonged to him and that he knew it was in
his vehicle. Specifically, he stated multiple times that he used
the machete for his business. Botts also made statements indi-
cating that the vehicle where the machete was found was his
vehicle. Further, Botts was the only person with the vehicle,
which the officers knew he had been driving earlier, and the
machete was found under the driver’s seat. We conclude that
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if it was error to give jury instruction No. 4, which we do not
decide here, the error was harmless based on the evidence pre-
sented in this case.
Objections to Certain Testimony.
Botts next assigns that the court erred by failing to sustain
his objections to certain prejudicial and nonrelevant testimony
presented by the State. Specifically, Botts takes issue with
testimony by police officers about Botts’ demeanor during the
encounter and comments he made while the officers were try-
ing to place him in handcuffs. Botts also takes issue with testi-
mony that Botts had been stopped for a traffic stop earlier that
evening by Tran and that he suspected Botts had been drinking
alcohol. Three officers testified to Tran’s suspicion during the
earlier contact that Botts had been drinking as the reason the
officers approached Botts a second time, and that is when Botts
became upset. Botts objected to the testimony about the earlier
traffic stop based on relevancy and to the testimony about his
demeanor based on relevancy and unfair prejudice. The court
overruled the objections.
The general rule is that only relevant evidence is admis-
sible. See Neb. Rev. Stat. § 27-402 (Reissue 2016). Relevant
evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it
would be without the evidence. Neb. Rev. Stat. § 27-401
(Reissue 2016).
Although relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Neb. Rev. Stat. § 27-403
(Reissue 2016).
Botts argues that the only relevant matter for the jury’s con-
sideration was whether Botts had been convicted of a felony
and whether he possessed a knife on the date in question. He
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contends that how he reacted, his demeanor, and statements
he made to the officers, as well as information regarding the
earlier traffic stop, did not make the existence of any fact that
is of consequence to the determination of whether he was a
convicted felon that possessed a knife more probable or less
probable than it would be without the evidence. He contends
the testimony did not help the jury determine the elements
of the crime charged, but, rather, was prejudicial and was an
attempt to place Botts in a negative light.
We determine that the trial court did not err in overruling
Botts’ objections on relevance and unfair prejudice grounds.
Evidence regarding the earlier traffic stop was relevant to
establishing Botts as the driver and person in control of the
vehicle, making it more likely that he possessed the machete
found under the driver’s seat. Also, such evidence provided
context for why the officers made the decision to approach
Botts. Evidence regarding Botts’ demeanor was relevant in
that it also provided context and a complete picture of the
circumstances at the time. Further, the probative value of the
complained of testimony was not substantially outweighed
by the danger of unfair prejudice. This assignment of error is
without merit.
Sufficiency of Evidence.
Botts asserts there was insufficient evidence to support his
conviction for possession of a knife by a felon. Neb. Rev.
Stat. § 28-1206 (Reissue 2016) provides that any person who
possesses a knife and who has been previously convicted of a
felony commits the offense of possession of a deadly weapon
by a prohibited person. First, the parties stipulated that Botts
had a prior felony conviction. Second, the machete qualified as
a “[k]nife” under Neb. Rev. Stat. § 28-1201(5) (Reissue 2016).
Third, there was evidence that Botts possessed the machete.
After being placed in the cruiser, Botts repeatedly claimed that
the machete was his and that he used it for his business. In
addition, Botts was the only person with the vehicle, which the
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officers knew he had been driving earlier, and the machete was
found under the driver’s seat.
We conclude that there was sufficient evidence adduced at
trial to sustain Botts’ conviction for possession of a knife by
a felon.
CONCLUSION
We conclude that if there was any error by the court in giv-
ing jury instruction No. 4, it was harmless error. We further
conclude that the court did not err in overruling objections to
certain testimony raised by Botts and that the evidence was
sufficient to support a guilty verdict. Accordingly, Botts’ con-
viction and sentence are affirmed.
A ffirmed.