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State v. Carpenter

Supreme Court of Nebraska

June 10, 2016

State of Nebraska, appellee,
v.
Trey T. Carpenter, appellant.

         1. Rules of Evidence: Appeal and Error. When 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.

         2. Trial: Evidence: Appeal and Error. A trial court's determination of the relevancy and admissibility of evidence must be upheld in the absence of an abuse of discretion.

         3. Convictions: Evidence: Appeal and Error. In reviewing a claim that the evidence was insufficient to support a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

         4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         5. Trial: Evidence: Words and Phrases. The concept of "opening the door" is a rule of expanded relevancy which authorizes admitting evidence which otherwise would have been irrelevant in order to respond to (1) admissible evidence which generates an issue or (2) inadmissible evidence admitted by the court over objection. These two aspects of "opening the door" may be referred to as "specific contradiction" and "curative admissibility, " respectively.

         6. Evidence: Witnesses. Neb. Rev. Stat. § 27-608(2) (Reissue 2008) does not affect the admissibility of evidence that has become relevant and admissible under the specific contradiction doctrine.

          [293 Neb. 861] 7. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

         Appeal from the District Court for Buffalo County: John P. Icenogle, Judge.

          Thomas S. Stewart, Deputy Buffalo County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and George R. Love for appellee.

          Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          MILLER-LERMAN, J.

         NATURE OF CASE

         Trey T. Carpenter was convicted in the district court for Buffalo County of possession of methamphetamine with intent to deliver. The court sentenced Carpenter to imprisonment for 5 to 15 years. Carpenter appeals his conviction and sentence. He claims that the court improperly allowed the State to present on rebuttal extrinsic evidence of a prior incident in order to impeach his testimony which he presented in his own defense. He also claims that there was insufficient evidence to support his conviction and that the court imposed an excessive sentence. We affirm Carpenter's conviction and sentence.

         STATEMENT OF FACTS

         On the evening of November 20, 2014, Officer Paul Jon Loebig of the Kearney Police Department was parked in his patrol vehicle observing activity at a nearby apartment building. A car approached and parked across the street. Loebig, who was familiar with both Carpenter and his brother Eli Carpenter (Eli), recognized the car as one belonging to Eli. [293 Neb. 862] Loebig saw an unidentified person leave the back seat of the car and go to an apartment. Loebig then saw Eli get out of the driver's side of the car while Carpenter got out of the passenger side. As he watched the two getting out of the car. Loebig heard what he thought sounded like a glass pipe landing on concrete.

         As Carpenter and Eli walked away, Loebig pulled up to the car and shined a light underneath it. He observed a glass pipe on the ground on the passenger side. Loebig got out of his patrol vehicle and, after putting on gloves, picked up the glass pipe. He determined that it was the type of pipe used to smoke methamphetamine, and he observed inside the pipe some white residue which he believed to be methamphetamine. Loebig called for a K-9 unit to be brought to the scene, and as he was waiting for it to arrive, Carpenter and Eli returned to the car.

         Loebig asked Carpenter to come to his patrol vehicle to talk with him while another police officer talked with Eli. Loebig told Carpenter that he had found the pipe, and Carpenter admitted that the pipe had fallen out of his pocket. Carpenter consented to a pat-down search, and Loebig placed Carpenter into the back seat of his patrol vehicle.

         After the K-9 unit arrived, the dog sniffed around Eli's car. The dog sniff indicated that there were controlled substances inside the car. Loebig and another officer then searched the car. Loebig opened the passenger-side door and noted a strong odor of marijuana. In the center console, he found a Tupperware container which held a small baggie of marijuana, a small baggie that contained some small blue pills, and two larger bags of a white crystalline substance, which a field test indicated was methamphetamine. The officers found various other items of drug paraphernalia inside the car, including small measuring cups. Loebig also observed a black backpack on the floor on the passenger side of the front seat. Inside the backpack, Loebig found Carpenter's state identification card and a baggie that contained a small amount of a white crystalline [293 Neb. 863] substance that field-tested positive for methamphetamine. After the search, Loebig arrested Carpenter and brought him to the jail. Loebig asked Carpenter whether he would speak with the police department's drug investigator, and Carpenter replied that "he would talk to him just to tell him that everything in the car belonged to him.''

         The State charged Carpenter with two counts: (1) possession of a controlled substance, methamphetamine, with intent to deliver (at least 28 grams but less than 140 grams) and (2) possession of a controlled substance, morphine. The charge of possession of morphine was dismissed at trial after the State failed to adduce evidence that the blue pills found in the car were morphine.

         Loebig testified at trial regarding the events of November 20, 2014, as set forth above. The State also presented the testimony of a drug analyst from the Nebraska State Patrol crime laboratory who testified that she had tested the white crystalline substance that was found in the search of the car, that the substance was found to be methamphetamine, and that its weight was 32.46 grams. Another witness called by the State was Gabe Kowalek, a narcotics investigator with the Kearney Police Department. Kowalek testified regarding his training and experience as a narcotics investigator, and he testified that he had assisted Loebig in processing the evidence after Carpenter's arrest. Kowalek opined that the ...


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