Jury Instructions. Whether jury instructions
are correct is a question of law.
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.
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 necessitating
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.
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
Evidence: Appeal and Error. In reviewing a
sufficiency of the evidence claim, whether the evidence is
direct, circumstantial, or a combination 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.
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 [26
Neb.App. 545] trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
from the District Court for Lancaster County: Robert R. Otte,
Matthew K. Kosmicki, of Kosmicki Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Pirtle, Riedmann, and Welch, Judges
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.
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.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.
Neb.App. 546] The following facts were set forth in our first
opinion: The State filed an amended information charging
Botts with possession 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.
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 testified 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.
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.
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
[26 Neb.App. 547] 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 drinking, Botts became angry,
started yelling, and started backing up away from him.
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.
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 eventually did so and was handcuffed and placed in the
back of Drager's cruiser.
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 ...