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State v. Garcia

Supreme Court of Nebraska

March 8, 2019

State of Nebraska, appellee,
Carlos A. Garcia, appellant.

         1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. When 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. Mental Competency: Appeal and Error. The trial court's determination of competency will not be disturbed unless there is insufficient evidence to support the finding.

         3. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for 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. The relevant question for an appellate court 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.

         4. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.

         5. Effectiveness of Counsel: Appeal and Error. An appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel's performance was deficient or (2) a defendant [302 Neb. 407] was or was not prejudiced by a defense counsel's alleged deficient performance. 6. 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.

         7. Constitutional Law: Search and Seizure. Both the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.

         8. ___:. Under the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution, the ultimate touchstone is one of reasonableness.

         9. Constitutional Law: Search and Seizure: Warrantless Searches. Pursuant to the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution, searches and seizures must not be unreasonable, and searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions.

         10. Constitutional Law: Investigative Stops: Search and Seizure: Probable Cause. The Fourth Amendment guarantee of the right to be free of unreasonable searches and seizures requires that an arrest be based upon probable cause and limits investigatory stops to those made upon an articulable suspicion of criminal activity.

         11. Police Officers and Sheriffs: Investigative Stops: Probable Cause. In determining whether there is reasonable suspicion for an officer to make an investigatory stop, the totality of the circumstances must be taken into account.

         12. Warrantless Searches: Probable Cause: Police Officers and Sheriffs. Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, which would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime.

         13. 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.

         14. Police Officers and Sheriffs: Search and Seizure: Arrests. After an arrest is made, the arresting officer may search an arrestee's person to remove any weapons that he or she might use to resist arrest or to effect his or her escape, or to seize any evidence on the arrestee's person in order to prevent the concealment or destruction of such evidence.

         [302 Neb. 408] 15. Arrests: Search and Seizure. The justification for a search incident to a lawful arrest is absent if a search is remote in time or place from the arrest.

         16. ___: ___ . Inventory searches after an arrest are permissible. 17. Search and Seizure. The propriety of an inventory search is judged by a standard of reasonableness, and such search must be performed in accordance with standard operating procedures.

         18. ___ . Inventory searches must be conducted pursuant to an established routine, because an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.

         19. Search and Seizure: Police Officers and Sheriffs. Inventory searches are considered reasonable because they serve at least three needs unrelated to criminal investigation: (1) to protect the owner's property while it remains in police custody, (2) to protect police against claims that they lost or stole the property, and (3) to protect police from potential danger.

         20. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on a renewed objection, an appellate court considers all evidence, both from the trial and from the hearing on the motion to suppress.

         21. Trial: Testimony: Police Officers and Sheriffs: Search and Seizure. Testimony of police officers may be used to establish the existence of a standard procedure and that an inventory search was conducted in accordance with that procedure.

         22. Search and Seizure: Evidence. Evidence which would have been discovered in the course of a lawful inventory search can be admissible under the inevitable discovery doctrine.

         23. Mental Competency: Trial: Sentences: Time. A trial court can detemine a defendant's competency after trial but prior to sentencing, and it is the obligation of the court to do so.

         24. Trial: Pleas: Mental Competency. A person is competent to plead or stand trial if he or she has the capacity to understand the nature and object of the proceedings against him or her, to comprehend his or her own condition in reference to such proceedings, and to make a rational defense.

         25. Courts: Trial: Mental Competency. The question of competency to stand trial is one of fact to be determined by the court, and the means employed in resolving the question are discretionary with the court.

         26. Robbery: Words and Phrases. To find the element of taking "by putting in fear" under the robbery statute, Neb. Rev. Stat. § 28-324 (Reissue 2016), the finder of fact must determine from the context established by the evidence whether the defendant's conduct would have placed a reasonable person in fear.

         [302 Neb. 409] 27. Effectiveness of Counsel: Postconviction: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record, otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.

         28. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to recognize whether the claim was brought before the appellate court.

         29. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         30. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

         31. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are 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 amount of violence involved in the commission of the crime.

         32.___. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

          Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge.

          Peder Bartling, of Bartling Law Offices, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, Nathan A. Liss, and, on brief, Joe Meyer for appellee.

         [302 Neb. 410] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Miller-Lerman, J.


         Carlos A. Garcia was convicted and sentenced for robbery in the district court for Douglas County. Garcia appeals and claims that the district court erred when it admitted into evidence a note that was found in what he asserts was an improper search of his person and when it determined that he was competent to stand trial and for sentencing. He also claims that there was not sufficient evidence to support his conviction, that his trial counsel provided ineffective assistance, and that the court imposed an excessive sentence. We affirm Garcia's conviction and sentence.


         In the mid-afternoon of October 27, 2015, Brandon Ruser was working as a teller at a bank in Omaha, Nebraska, when a man Ruser would identify at trial as Garcia approached him. Garcia handed Ruser a note that read, "THIS IS A ROBBERY PUT THE MONEY ON THE COUNTER." Ruser testified at trial that when he saw the note, he "[f]roze" out of "[f]ear, panic." Ruser reread the note to be sure he had read it correctly. Thereafter, in accordance with the protocol he had learned in training, Ruser collected the cash that was in his drawer, placed it on the counter, and backed away. After Ruser put the cash on the counter, Garcia picked up the note, put it in his pocket, and left the bank with the cash. It was later determined that $3, 579 had been taken from the bank.

         After Garcia left the bank, Ruser reported to his coworkers what had happened. Ruser looked outside and saw Garcia get into the front passenger seat of a black Toyota RAV4 that was parked in the bank's parking lot. Ruser could not see the driver well, but he testified the driver "appeared to be a woman. I just saw longer hair." The vehicle slowly backed up and drove [302 Neb. 411] away in a manner that Ruser described as "pretty much as if nothing had happened."

         Police officers investigating the robbery learned from witnesses the license plate number for the black Toyota in which Garcia was seen leaving the bank. Using the license plate number, officers learned that the vehicle was registered to Kelli Allison. They went to the address listed for Allison on vehicle license records, and there, they spoke with Allison. Garcia was the father of Allison's two children, and she had had an "on-again-off-again" relationship with him over the years. In October 2015, they were not in an intimate relationship and were not living together, but they were friends, and she was helping him by paying the rent for a motel where he was staying.

         Allison told police that earlier in the day on October 27, 2015, she had helped Garcia by driving him to run some errands. As the final errand, Garcia asked Allison to take him to a local bank to cash a check. Allison waited in the parking lot while Garcia went into the bank. He was inside for 5 to 10 minutes before he came ...

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