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
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.
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
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
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.
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.
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.
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
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).
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.
___: ___. The "original writings rule" applies only
if the party offering the evidence is seeking to prove the
contents of a writing, recording, or photograph.
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
___. 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.
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
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.
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.
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
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.
Criminal Law: Corroboration: Testimony.
Testimony of a cooperating individual need not be
corroborated on every element of a crime.
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
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.
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.
from the District Court for Lancaster County: Susan I.
J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Neb. 876] FREUDENBERG, J.
NATURE OF CASE
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.
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
February 16 and 17, 2017, Arrest
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.
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.
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]
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
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.
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.
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
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.
Motion in Limine
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.
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."
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 ...