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State v. Franco

Court of Appeals of Nebraska

November 12, 2013

State of Nebraska, appellee,
v.
Luis A. Franco, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Hall County: Teresa K. Luther, Judge.

Matthew C. Boyle, of Lauritsen, Brownell, Brostrom & Stehlik, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

Irwin, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Irwin, Judge.

I. INTRODUCTION

Luis A. Franco appeals his convictions for possession of marijuana with intent to distribute and possession of methamphetamine with intent to distribute. On appeal, Franco challenges the sufficiency of the evidence to sustain the convictions, asserts that his jury pool lacked sufficient diversity, and alleges that the State failed to comply with a discovery order. Franco's challenge to the sufficiency of the evidence is presented entirely as a challenge to the credibility of the State's primary witness, and we will not reassess witness credibility on appeal. Franco's other assertions are not supported by an adequate record. We find no merit to Franco's assignments of error, and we affirm.

II. BACKGROUND

A United Parcel Service (UPS) security supervisor in Omaha, Nebraska, testified at trial that UPS has a "roll port" in Louisville, Kentucky, and that a Louisville narcotics task force "runs dogs through that facility quite often." She testified that when a "dog hits on a package, " the task force will notify the UPS facility where the package is being shipped. In February 2012, she received a call from the Louisville task force about "a particular package that the dog had hit on in Louisville." She testified that the package was scheduled for delivery to the Grand Island, Nebraska, UPS center.

The security supervisor then contacted the "preload supervisor" at the UPS facility in Grand Island and asked her to "pull the package, take it to the office, contact . . . the Grand Island Task Force, [and] fill out [a] seizure form." The preload supervisor then met with a Nebraska State Patrol officer, who completed all of the necessary paperwork to take control of the package.

A Grand Island Police Department officer testified that he was contacted by the Nebraska State Patrol and that he took his drug canine to a State Patrol facility. The officer took his canine to a utility room and deployed the canine to perform "a drug sniff." The canine did not indicate to anything in the room, and the officer removed the canine from the room. The UPS package at issue was then placed into the room, and the officer returned to the room with the canine and deployed the canine to perform another drug sniff. The canine then indicated to the package at issue.

A Nebraska State Patrol officer completed paperwork to obtain a search warrant for the package and for the residence to which the package was addressed, and the officer was fitted with a UPS uniform to complete delivery of the package. A preliminary search of the package revealed marijuana. The officer resealed the package and initiated delivery to the residence.

At the residence, Franco answered the door. Franco was asked twice if he was "Jim Cass, " and he responded affirmatively each time. Franco signed for the package. An entry team then entered the residence and secured the package. A more thorough search of the package revealed approximately 2 pounds of marijuana, with an estimated street value of $1, 300 to $1, 600 and approximately 56 grams of methamphetamine, with a street value of $5, 000 to $6, 000. The State Patrol officer testified that the amounts of ...


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