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
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
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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
Trial: Waiver. A party who fails to insist
upon a ruling to a proffered objection waives that objection.
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
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.
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
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.
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.
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.
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
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.
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.
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.
from the District Court for Lancaster County: Robert R. Otte,
Neb.App. 845] Matt Catlett, of Law Office of Matt Catlett,
Douglas J. Peterson, Attorney General, and Joe Meyer for
Pirtle, Bishop, and Arterburn, Judges.
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
our review, we find no merit to Ho well's assertions on
appeal. Accordingly, we affirm his conviction for theft by
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.
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.
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.
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.
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.
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
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.
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.
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
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.
ASSIGNMENTS OF ERROR
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.
Motion to Suppress
Standard of Review
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
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.
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.
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 ...