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.
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.
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.
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.
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.
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
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.
from the District Court for Buffalo County: John P. Icenogle,
S. Stewart, Deputy Buffalo County Public Defender, for
Douglas J. Peterson, Attorney General, and George R. Love for
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and Kelch, JJ.
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
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.
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.
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.
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.''
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.
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