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State v. Howell

Court of Appeals of Nebraska

February 5, 2019

State of Nebraska, appellee,
v.
William E. Howell, Jr., appellant.

         1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Warrantless Searches. The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest.

         3. Constitutional Law: Search and Seizure: Duress. To be effective under the Fourth Amendment, consent to a search must be a free and unconstrained choice not the product of a will overborne. Consent must be given voluntarily and not as the result of duress or coercion, whether express, implied, physical, or psychological.

         4. Search and Seizure. The determination of whether a consent to a search is voluntarily given is a question of fact to be determined from the totality of the circumstances.

         5. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a suppression motion, an appellate court will accept the factual determinations and credibility choices made by the trial court unless, in light of all the circumstances, such findings are clearly erroneous.

         6. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay [26 Neb.App. 843] ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.

         7. Evidence: Appeal and Error. Error can be based on a ruling that admits evidence only if the specific ground of objection is apparent either from a timely objection or from the context.

         8. Trial: Pretrial Procedure: Evidence: Appeal and Error. When a motion in limine to exclude evidence is overruled, the movant must object when the particular evidence which was sought to be excluded by the motion is offered during trial to preserve error for appeal.

         9. Hearsay. If an out-of-court statement is not offered for the purpose of proving the truth of the facts asserted, it is not hearsay.

         10. Trial: Hearsay: Proof. When overruling a hearsay objection on the ground that testimony about an out-of-court statement is received not for its truth but only to prove that the statement was made, a trial court should identify the specific nonhearsay purpose for which the making of the statement is relevant and probative.

         11. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.

         12. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the jury actually rested its verdict. The inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered was surely unattributable to the error.

         13. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the court abused its discretion.

         14. 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.

         15. 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.

         16. Trial: Waiver. A party who fails to insist upon a ruling to a proffered objection waives that objection.

         17. Criminal Law: Witnesses: Testimony: Rules of Evidence. When a defendant in a criminal case testifies in his own behalf, he is subject to the same rules of cross-examination as any other witness, including Neb. Evid. R. 609, Neb. Rev. Stat. § 27-609 (Reissue 2016).

         [26 Neb.App. 844] 18. Criminal Law: Witnesses: Testimony: Juries: Rules of Evidence. The purpose of Neb. Evid. R. 609, Neb. Rev. Stat. § 27-609 (Reissue 2016), is to allow the prosecution to attack the credibility of a testifying defendant, not to retry him for a separate crime or prejudice the jury by allowing unlimited access to the facts of an unrelated crime.

         19. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime.

         20.__:__. Inextricably intertwined evidence includes evidence that forms part of the factual setting of the crime, or evidence that is so blended or connected to the charged crime that proof of the charged crime will necessarily require proof of the other crimes or bad acts, or if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.

         21. Other Acts. The State will not be prohibited from presenting a portion of its case merely because the actions of the defendant proving the State's case were criminal in nature.

         22. Jury Instructions: Judgments: Appeal and Error. Whether a jury instruction given by a trial court is correct is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

         23. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction.

         24. Appeal and Error. For an alleged error to be considered by an appellate court, an appellant must both assign and specifically argue the alleged error.

         25.__. An argument that does little more than restate an assignment of error does not support the assignment, and an appellate court will not address it.

         26. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

          Appeal from the District Court for Lancaster County: Robert R. Otte, Judge.

         [26 Neb.App. 845] Matt Catlett, of Law Office of Matt Catlett, for appellant.

          Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.

          Pirtle, Bishop, and Arterburn, Judges.

          ARTERBURN, JUDGE.

         I. INTRODUCTION

         William E. Howell, Jr., was convicted by a jury of theft by unlawful taking. The district court subsequently sentenced him to 20 months' imprisonment and 12 months' postrelease supervision. Howell appeals from his conviction. On appeal, Howell assigns numerous errors, including that the district court erred in overruling his motion to suppress evidence obtained as a result of a warrantless search, in admitting hearsay into evidence, in denying his motions for mistrial made during the State's opening statement and closing argument, in not permitting him to explain the nature of his prior felony conviction, in admitting into evidence details about uncharged offenses, and in failing to properly instruct the jury.

         Upon our review, we find no merit to Ho well's assertions on appeal. Accordingly, we affirm his conviction for theft by unlawful taking.

         II. BACKGROUND

         On December 2, 2016, the State filed an information charging Howell with three separate counts of theft by unlawful taking, pursuant to Neb. Rev. Stat. § 28-511 (Reissue 2016). The first count, a Class IV felony, alleged that Howell had exercised control over movable property of another, which property was valued at more than $1, 500, but less than $5, 000. See Neb. Rev. Stat. § 28-518(2) (Reissue 2016). The second count, a Class II misdemeanor, alleged that Howell had exercised control over movable property of another, a bicycle, which property was valued at less than $500. See § 28-518(4). The third count, a Class I misdemeanor, alleged that Howell [26 Neb.App. 846] had exercised control over movable property of another, a second bicycle, which property was valued at more than $500, but less than $1, 500. See § 28-518(3). Prior to trial, the second and third counts alleged in the information were dismissed because the district court granted Howell's motion for absolute discharge on speedy trial grounds.

         The remaining charge against Howell stems from events which occurred in August and September 2016. Evidence adduced at trial revealed that on August 16, 2016, Shawn Fleischman discovered that his 2009 black Kawasaki Ninja 25OR motorcycle had been stolen from in front of his residence near 42d and Adams Streets in Lincoln, Nebraska. Fleischman reported the theft to the Lincoln Police Department. He informed the officer who took the theft report that the motorcycle was valued at $2, 500. Fleischman testified similarly at trial.

         Approximately 1 month later, on September 23, 2016, Officer Anthony Gratz, who at the time was an officer with the Lincoln Police Department, was investigating a string of motorcycle thefts which had been occurring in Lincoln. As a part of Gratz:investigation, he spoke with a confidential informant who had knowledge about the motorcycle which had been stolen from Fleischman. Specifically, the confidential informant told Gratz that Howell had taken a motorcycle from the area of 42d and Adams Streets in Lincoln to "a garage on North 27th Street, directly across from the Salvation Army." The confidential informant also told Gratz that Howell had "cut that motorcycle into pieces." Through further investigation, Gratz learned that the confidential informant was referring to a residence with a detached garage located on North 27th Street. Gratz learned from other officers that Howell "frequent[ed]" the area near that residence.

         Just after midnight on September 24, 2016, Gratz drove by the residence on North 27th Street. When he drove by, he observed a black motorcycle parked in the driveway. The motorcycle appeared to have been painted "with a thick bed [26 Neb.App. 847] liner." Gratz indicated that in his experience, that type of paint is "very common" on stolen motorcycles. Gratz suspected that the motorcycle parked in the driveway might be Fleischman's stolen motorcycle. Gratz waited for another uniformed officer to arrive and then approached the front door of the residence. Gratz knocked on the front door, but nobody answered. Gratz observed someone, who he believed to be Howell, walking through the living room of the residence. Soon, Howell appeared in the driveway from the back yard of the residence.

         When talking with the officers, Howell indicated that the black motorcycle in the driveway was his. He told Gratz that he had purchased the motorcycle about a year ago. When Gratz pointed out that the motorcycle still had a "dealer style in-transit" on the back of it, Howell indicated that he had actually purchased the motorcycle within the past year. Howell was unable to provide Gratz with any specific information about where he purchased the motorcycle or provide any paperwork to demonstrate his ownership. Howell simply indicated that he had purchased the motorcycle from someone in Colorado.

         Ultimately, Gratz determined that the motorcycle in the driveway was not Fleischman's stolen motorcycle because it was a 1989 model, rather than a 2009 model like Fleischman's motorcycle. However, Gratz continued to speak with Howell about the possibility of the stolen motorcycle being in the detached garage. Howell immediately told Gratz that there was not a stolen motorcycle in the garage. And, although Howell had been calm throughout the conversation with Gratz, when Gratz told Howell that he "had very specific information that the motorcycle . . . was currently in the garage [and] had been cut into pieces," Howell began to breathe heavily and pace. Howell admitted to Gratz that he did have property in the garage, including another motorcycle and a large quantity of tools. He then indicated that if there was a stolen motorcycle in the garage, he did not know anything about it.

         [26 Neb.App. 848] At some point during the conversation, Howell offered to go into the garage himself to see if the stolen motorcycle was there. Howell paused for a while before entering the garage and then changed his mind. He told Gratz that he was concerned that if he turned over the stolen motorcycle, Gratz would arrest him. Howell then asked if he was free to leave. When Gratz answered affirmatively, Howell went inside the residence through the front door. While Gratz was still standing in the driveway, he observed Howell exit the rear of the residence and slowly walk over to the side door of the garage. Gratz informed Howell that he did not want Howell to enter the garage and try to remove or destroy evidence. Howell then left the residence on foot.

         Police officers eventually searched the garage. Inside the garage, they found Fleischman's stolen motorcycle broken down into pieces and parts. In addition, they found two bicycles that had been reported as stolen. Gratz testified that he smelled "a very strong odor of what I would describe as . . . vehicle paint" in the garage.

         Howell testified in his own defense. During his testimony, he contradicted much of Gratz' testimony about their conversation. Specifically, Howell testified that he told Gratz "no" when Gratz asked to look in the garage. Howell testified that he "wasn't the only one that had access to the garage[, ] nor is it even technically [his] residence." Howell explained that although he had stayed at the residence "regularly" in the months leading up to September 24, 2016, his friends were the only two people on the lease. Howell admitted that he had been in the garage prior to September 24. In addition, he admitted that he had a key to the garage. However, contrary to Gratz' testimony, Howell indicated that the only two things he knew to be in the garage were a Honda motorcycle and tools. He denied that either one of these belonged to him. Howell also denied attempting to enter the garage after speaking with Gratz.

         After hearing all of the evidence, the jury convicted Howell of theft by unlawful taking. It also found that the value of the [26 Neb.App. 849] stolen motorcycle was $2, 000. The district court subsequently sentenced Howell to 20 months' imprisonment, 12 months' postrelease supervision, and a $1, 000 fine. Howell appeals his conviction here.

         III. ASSIGNMENTS OF ERROR

         On appeal, Howell assigns eight errors. Howell asserts that the district court erred in (1) denying his motion to suppress evidence obtained during the warrantless search of the garage, (2) admitting into evidence out-of-court statements made by the confidential informant and by police officers who did not testify, (3) denying his motions for mistrial which were made during the State's opening statement and closing argument, (4) allowing a police officer to testify about the value of the stolen motorcycle, (5) not permitting Howell to testify regarding the nature of his prior felony conviction, (6) admitting into evidence details about two stolen bicycles which were also located in the garage, (7) failing to properly instruct the jury, and (8) denying his motion for a new trial.

         IV. ANALYSIS

         1. Motion to Suppress

         (a) Standard of Review

         In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review. State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). Regarding historical facts, we review the trial court's findings for clear error. Id. But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination. Id.

         (b) Additional Background

         Prior to trial, Howell filed a motion to suppress the evidence obtained during the warrantless search of the detached garage. A suppression hearing was held. At the hearing, Howell argued to the district court that the search did not fall under [26 Neb.App. 850] any recognized exception to the warrant requirement, because he never provided police with consent to search the garage and because the consent provided by the two people leasing the residence, Jason Mayr and Amanda Vocasek, was not voluntarily given. The State called Gratz to testify that Mayr's and Vocasek's consent to search was, in fact, voluntarily given.

         Gratz testified that after Howell left the residence, he decided to speak with the residents, Mayr and his girlfriend, Vocasek. Both Mayr and Vocasek came onto the front porch to speak with Gratz. During the conversation, both Mayr and Vocasek indicated that they had access to the detached garage and so did Howell. They explained that Howell paid them rent so that he could store property in the garage. Mayr indicated that only he and Howell had keys to the garage. He also indicated that he was unsure about where his garage key was located. When police indicated that it was possible to pick the lock of the garage without damaging anything, both Mayr and Vocasek expressed discomfort about police entering the garage without a key.

         Ultimately, Gratz left the residence so that he could work on obtaining a search warrant. While Gratz was drafting his affidavit in support of a search warrant, he was informed that Mayr and Vocasek had located Mayr's key to the garage and that they had consented to the search by each signing a form labeled "Consent to Search Premises Without a Search Warrant." Gratz estimated that ...


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