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State v. Botts

Court of Appeals of Nebraska

November 13, 2018

State of Nebraska, appellee,
Kirk A. Botts, appellant.

         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 necessitating 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 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.

         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 [26 Neb.App. 545] 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, Riedmann, and Welch, Judges

          Pirtle, Judge.


         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.


         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.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.

         [26 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.

         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 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.

         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 [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.

         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 eventually 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 ...

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