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State v. Savage

Supreme Court of Nebraska

December 14, 2018

State of Nebraska, appellee,
v.
Courtney J. Savage, appellant.

          1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence, it does not matter 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 finders of fact. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         2. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

         3. 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.

         4. 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.

         5. 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.

         6. Pleadings: Evidence: Appeal and Error. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury, but is not an appealable order. The purpose of a motion in limine is to produce, when appropriate, an advance ruling on anticipated objectionable material, and the denial of the motion cannot, in and of itself, constitute reversible error.

         [301 Neb. 874] 7. Rules of Evidence: Proof. A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity.

         8. Rules of Evidence. Generally, the foundation for the admissibility of text messages has two components: (1) whether the text messages were accurately transcribed and (2) who actually sent the text messages.

         9. Rules of Evidence: Proof. The proponent of text messages is not required to conclusively prove who authored the messages. The possibility of an alteration or misuse by another generally goes to weight, not admissibility.

         10. Rules of Evidence: Hearsay: Proof. The State must prove by a greater weight of the evidence that a defendant authored or made a statement in order to establish preliminary admissibility as nonhearsay under Neb. Rev. Stat. § 27-801 (4)(b)(i) (Reissue 2016).

         11. Rules of Evidence: Proof. Under what is commonly and incorrectly referred to as the "best evidence rule," in order to prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required.

         12. ___: ___. The "original writings rule" applies only if the party offering the evidence is seeking to prove the contents of a writing, recording, or photograph.

         13. Rules of Evidence. The rule of completeness allows a party to admit the entirety of an act, declaration, conversation, or writing when the other party admits a part and when the entirety is necessary to make it fully understood.

         14. ___. The rule of completeness is concerned with the danger of admitting a statement out of context, but when this danger is not present, it is not an abuse of discretion to refuse to require the production of the remainder or, if it cannot be produced, to exclude all the evidence.

         15. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State's case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict.

         16. Directed Verdict: Appeal and Error. When a defendant makes a motion at the close of the State's case in chief and again at the conclusion of all the evidence, it is proper to assign as error that the defendant's motion to dismiss made at the conclusion of all the evidence should have been sustained.

         17. Convictions: Evidence: Appeal and Error. A conviction will be affirmed in the absence of prejudicial error if the properly admitted [301 Neb. 875] evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

         18. Convictions: Corroboration: Witnesses: Testimony. When the law requires corroboration of a witness to support a conviction, a witness' testimony must be accompanied by evidence other than that from the witness.

         19. Convictions: Corroboration: Witnesses: Testimony: Controlled Substances. Under the Uniform Controlled Substances Act, corroboration is sufficient to satisfy the requirement that a conviction not be based solely upon uncorroborated testimony of an individual cooperating with the prosecution if the witness' testimony is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue.

         20. Criminal Law: Corroboration: Testimony. Testimony of a cooperating individual need not be corroborated on every element of a crime.

         21. Convictions: Controlled Substances: Evidence: Proof. Evidence that a defendant had constructive possession of a drug with knowledge of its presence and its character as a controlled substance is sufficient to support a finding of possession and to sustain a conviction for unlawful possession.

         22. Controlled Substances: Evidence: Proof. Constructive possession may be proved by direct or circumstantial evidence and may be shown by the accused's proximity to the substance at the time of the arrest or by a showing of dominion over the substance.

         23. 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 violence involved in the commission of the crime.

          Appeal from the District Court for Lancaster County: Susan I. Strong, Judge.

          Darik J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

         [301 Neb. 876] FREUDENBERG, J.

         I. NATURE OF CASE

         Courtney J. Savage was arrested and charged with possession of a controlled substance with intent to deliver, in violation of Neb. Rev. Stat. § 28-416(2)(a) (Reissue 2016), a Class II felony. He was further alleged to be a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2016). During trial, the State produced evidence of text messages from what was purported to be Savage's cell phone, which indicated that Savage was selling the illegal drug metham-phetamine. Savage objected to the offer of the text messages on foundation and hearsay grounds, primarily arguing that the identity of the message author was unclear. The district court overruled his objections, and after trial, a jury found Savage guilty. The district court determined that Savage was a habitual criminal and ordered him to serve 10 to 18 years in prison. Savage appeals from his conviction.

         II. BACKGROUND

         Savage was arrested and charged with possession of a controlled substance with intent to deliver, in violation of § 28-416. Further, he was alleged to be a habitual criminal pursuant to § 29-2221. Following trial, he was convicted and found to be a habitual criminal. Savage was subsequently sentenced to a term of 10 to 18 years' incarceration. The facts of his arrest and trial leading to his conviction follow.

         1. February 16 and 17, 2017, Arrest

         During the night of February 16, 2017, and the early morning hours of February 17, Lincoln Police Department officers Anthony Gratz and Andrew Barksdale arrested Michael Dryden for possession of methamphetamine with intent to deliver. After being brought to the police station to be interviewed, Dryden received several text messages from an individual referred to as "Pint" seeking to sell Dryden methamphetamine. Later, through a review of the Lincoln Police Department's records management system, it was learned that "Pint" was a nickname for Savage.

         [301 Neb. 877] With Dryden's permission, the officers borrowed Dryden's cell phone and continued to communicate with Savage, hoping to find him and arrest him for his potential illegal meth-amphetamine sale to Dryden. After multiple text messages were exchanged, a meeting to purchase methamphetamine was arranged to occur at an agreed-upon location in Lincoln, Nebraska. When the officers arrived at that location, they parked in a nearby alleyway, began surveillance, and continued the text conversation.

         The officers received a message from Savage's cell phone indicating that he was at the agreed-upon location. Seeing no one arrive, the officers drove around the block. The officers then saw a blue two-door Toyota. The police cruiser and the Toyota were the only vehicles in the area. Almost immediately after the police saw the Toyota drive by, Dryden's cell phone received a text message stating: "Police [are] outside."

         The officers concluded that Savage was in the passing Toyota. The officers followed the Toyota and observed it fail to properly signal a turn. The officers initiated a traffic stop of the Toyota.

         During the stop, one of the officers approached the driver's side of the Toyota while the other officer approached the passenger's side. Gratz made contact with the driver, Johnathon Addleman, and asked for his license and registration. When Addleman failed to produce the requested documentation, Gratz asked him to exit the Toyota. Savage was sitting in the passenger seat of the Toyota and appeared to be using his cell phone. Another passenger, Christine Tannehill, was in the back seat.

         While Gratz was questioning Addleman, Barksdale attempted to make contact with Savage in the passenger seat. However, Savage would not acknowledge Barksdale and maintained eye contact with his cell phone. After some time, Savage opened the door to speak with Barksdale. At that point, Barksdale observed that Savage's zipper was undone and a part of his pants was pulled through the zipper opening.

         [301 Neb. 878] Addleman later explained to Gratz that as the officers were pulling the Toyota over, Savage was "wrestling around in the groin area of . . . his pants" and threw a bag at Tannehill, instructing her to "put it in [her] pussy." Tannehill was questioned by the officers, at which time she admitted to having methamphetamine on her person and turned it over to the officers. At trial, several of the State's witnesses, including Gratz and Barksdale, testified that it was common for individuals possessing drugs to hide them in or near their genitalia.

         Within the surrendered bag, there were three smaller individual bags, each of which pretested positive for amphetamine. Later, a laboratory test confirmed that the substance was methamphetamine. The three bags, collectively, contained in excess of 7.6 grams of the substance. In addition to the bags of methamphetamine, an officer collected each person's cell phone. Later, the cell phones were analyzed and data was extracted for investigative purposes.

         2. Motion in Limine

         Prior to trial, Savage filed a motion in limine to exclude evidence of various text messages contained on Savage's and Dryden's cell phones. Savage argued that the State would be unable to authenticate the text messages because, although the messages were being sent from Savage's cell phone, there was no way to prove that Savage was the one texting Dryden at the relevant time. Savage further argued that the text messages would be hearsay and overly prejudicial. The State responded that it could produce the foundation for admission of the text messages into evidence by (1) proving that the cell phone in question was Savage's, (2) proving that the cell phone was in Savage's possession at the time of his arrest, and (3) presenting witness testimony that Savage was sending the messages at issue. The district court overruled Savage's motion in limine.

         3. Trial

         At trial, the State had several witnesses testify as to the events of February 16 and 17, 2017, including Gratz, Barksdale, [301 Neb. 879] Dry den, Addleman, and Tannehill. Gratz and Barksdale specifically testified that a typical "personal use amount" of metham-phetamine was about 0.2 grams, thereby indicating that the amount in this case was a "dealer quantity."

         (a) Exhibit 6

         During Gratz' testimony, the State offered exhibit 6, photographs of the text conversation between the officers and Savage's cell phone, into evidence. Savage objected to this on foundation and hearsay grounds, asserting that the State did not prove that Savage authored those text messages. The State claimed that it had met its burden regarding foundation and authentication, insofar as Gratz testified that he saw ...


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