State v. Howell , 26 Neb. Ct. App. 842 ( 2019 )

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www.nebraska.gov/apps-courts-epub/
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STATE v. HOWELL
Cite as 26 Neb. Ct. App. 842
State of Nebraska, appellee, v.
William E. Howell, Jr., appellant.
___ N.W.2d ___
Filed February 5, 2019. No. A-17-1186.
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 histori-
cal 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 indepen-
dently of the trial court’s determination.
2. Warrantless Searches. The warrantless search exceptions recognized by
the Nebraska Supreme Court include: (1) searches undertaken with con-
sent, (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 total-
ity of the circumstances.
5. Motions to Suppress: Appeal and Error. In determining the correct-
ness 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
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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 cumula-
tive 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).
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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 por-
tion 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 appel-
lant 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 appel-
late 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 crimi-
nal 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 deter-
mination will not be disturbed.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
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STATE v. HOWELL
Cite as 26 Neb. Ct. App. 842
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
appellee.
Pirtle, Bishop, and A rterburn, Judges.
A rterburn, 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 super-
vision. 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 evi-
dence, in denying his motions for mistrial made during the
State’s opening statement and closing argument, in not permit-
ting 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 Howell’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 charg-
ing 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 exer-
cised 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
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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
250R 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 motor-
cycle 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
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liner.” Gratz indicated that in his experience, that type of
paint is “very common” on stolen motorcycles. Gratz sus-
pected that the motorcycle parked in the driveway might be
Fleischman’s stolen motorcycle. Gratz waited for another uni-
formed 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 infor-
mation 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.
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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 con-
cerned 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 stand-
ing 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 bicy-
cles 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 conver-
sation. 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
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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 evi-
dence 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
[1] In reviewing a trial court’s ruling on a motion to sup-
press 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 pro-
tections 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 evi-
dence 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
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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 volun-
tarily 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 sign-
ing a form labeled “Consent to Search Premises Without
a Search Warrant.” Gratz estimated that police entered the
garage approximately 45 minutes to 1 hour after Howell had
left the residence.
During his testimony at the motion to suppress hearing,
Gratz explicitly denied that he ever threatened to arrest either
Mayr or Vocasek if they did not consent to a search of the
garage. He also denied that either Mayr or Vocasek expressed a
desire to leave the residence.
Officer Quenton Smith also testified at the suppression
hearing and generally corroborated Gratz’ account of his inter-
action with Mayr and Vocasek. Smith testified that Mayr and
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Vocasek stated that “they would love to be cooperative with
officers,” but that they simply did not know where Mayr’s
garage key was located. In addition, they stated that they did
not want officers to damage the garage by attempting to gain
access without a key. Smith stayed behind to secure the garage
while Gratz left to work on obtaining a search warrant. Smith
testified that while he was waiting, Mayr and Vocasek indi-
cated that they had found the key and were willing to consent
to the search.
Smith testified that no promises or threats were made to
either Mayr or Vocasek in order to gain their consent to the
search. Specifically, no one threatened to arrest either of them
if they did not sign the consent form. Smith described Mayr
and Vocasek as acting “normal” and indicated that they both
“appeared to be extremely cooperative.” Smith indicated that
from the time he arrived on the scene, which was prior to
Howell’s leaving the residence, to the time of the search was
“a little over an hour.”
Mayr also testified at the suppression hearing and contra-
dicted the officers’ accounts of their interaction. Mayr indi-
cated that Howell has been his “good friend[]” since the two
were 18 or 19 years old. He also confirmed that in September
2016, Howell had a key to the residence and a key to the
garage. Mayr explained that Howell rented space in the garage
and stayed at the residence “more than half” of the time.
Mayr testified that when officers initially asked to search
the garage, he told them “no.” Mayr indicated that he told the
officers that he and Vocasek wanted to leave the residence to
go to the grocery store. He testified that officers told them they
could not leave and that in fact, a police vehicle was used to
block them from leaving. Mayr described how during the next
couple hours, a spotlight shined directly into the residence.
Police officers repeatedly came to the door attempting to obtain
his and Vocasek’s consent to search the garage. When he told
police that he did not know where the key was and that he
did not want them to pick the lock, police threatened to use a
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battering ram and “destroy[] the garage.” In addition, police
told him that if a subsequent search revealed stolen property
in the garage, Mayr and Vocasek would be arrested and jailed.
Mayr stated that eventually, police told him if he did not sign
the consent form, he would go to jail.
Mayr testified that ultimately, he signed the consent form
“solely to avoid . . . being charged and arrested and taken to
jail.” He also wanted the police to leave his residence and turn
off the spotlight. During the State’s cross-examination of Mayr,
he altered his rationale for signing the consent form. He stated
that he and Vocasek consented to the search because they did
not want police to obtain a search warrant and then possibly
damage the garage while attempting to gain access.
At the suppression hearing, Howell offered into evidence
the deposition of Vocasek. During her testimony, Vocasek con-
firmed that in September 2016, Howell lived in the residence
about half of every week. She also confirmed that Howell
had his own key to the residence and to the garage. Vocasek
then described the events that took place after Howell left
the residence on September 24, 2016. Vocasek described that
two police officers knocked on the front door and asked for
permission to search the garage. When she told them “no,”
police continued to ask for her consent to the search at least
four more times. Vocasek indicated that she told police that
she did not have a key to the garage and that she did not want
them to “break[]” into the garage. Vocasek testified that dur-
ing her conversation with police, Gratz indicated he could
obtain a search warrant and then threatened to charge her with
a crime if any stolen property was found in the garage and
she had not consented to the search. When she and Mayr told
police they wanted to leave the residence in order to go to the
grocery store, she was told that they could not leave. Vocasek
also described how her dog would not stop barking due to the
police presence at the residence.
Vocasek testified that, ultimately, she gave the garage key
to police and consented to the search because she did not want
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to “be in trouble” if they obtained a search warrant and found
stolen property and because she wanted the police to leave.
Vocasek testified that police did not threaten to arrest her if she
did not sign the form.
Howell also testified at the suppression hearing. He indi-
cated that he considered Mayr’s residence to also be his resi-
dence in September 2016. He explained that he had his own
key and his own space within the residence. In addition, he
paid Mayr $200 per month in rent. Howell indicated that he
was in and out of the garage very frequently, but not all of the
property in the garage was his.
After the suppression hearing, the district court entered a
detailed order denying Howell’s motion to suppress the evi-
dence obtained during the search of the garage. In the order,
the court found, “[T]he totality of the circumstances surround-
ing the consent by Vocasek and Mayr demonstrate that con-
sent was given voluntarily.” Specifically, the court found that
police did not “over-step[] their boundary in describing the
consequences that could unfold” if Vocasek and Mayr did not
cooperate with police:
They both were aware that the officers wanted to search
the garage. In fact, they knew the officers were, in fact,
going to search the garage whether Vocasek and Mayr
consented to the search or not. The fact that the officer
suggested they might be implicated if stolen property was
found in the garage does not invalidate the verbal and
written consents offered by Vocasek and Mayr.
The district court also explicitly stated that it did not find Mayr
or Vocasek to be credible witnesses. The court stated, “The
after the fact protestation of Vocasek and Mayr, while consid-
ered, ring[s] hollow.” (Emphasis in original.)
(c) Analysis
On appeal, Howell challenges the district court’s decision
to deny his motion to suppress the evidence found as a result
of the search of the garage. Specifically, he asserts that the
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evidence presented at the suppression hearing clearly dem-
onstrated that Vocasek and Mayr did not voluntarily consent
to the search of the garage. Instead, Howell asserts that their
consent was coerced by the police officers’ actions. Upon our
review, we affirm the decision of the district court.
[2] It is well settled under the Fourth Amendment that
warrantless searches and seizures are per se unreasonable,
subject to a few specifically established and well-delineated
exceptions. State v. Tucker, 262 Neb. 940, 636 N.W.2d 853
(2001). The warrantless search exceptions recognized by the
Nebraska Supreme Court include: (1) searches undertaken with
consent, (2) searches under exigent circumstances, (3) inven-
tory searches, (4) searches of evidence in plain view, and (5)
searches incident to a valid arrest. State v. Wells, 290 Neb. 186,
859 N.W.2d 316 (2015).
[3,4] 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. State v. Tucker, supra. Consent
must be given voluntarily and not as the result of duress or
coercion, whether express, implied, physical, or psychologi-
cal. Id. In determining whether consent was coerced, account
must be taken of subtly coercive police questions, as well as
the possibly vulnerable subjective state of the person who
consents. See State v. Prahin, 235 Neb. 409, 455 N.W.2d
554 (1990). Mere submission to authority is insufficient to
establish consent to a search. State v. Tucker, supra. The
determination of whether a consent to search is voluntarily
given is a question of fact to be determined from the total-
ity of the circumstances. See State v. Ready, 252 Neb. 816,
565 N.W.2d 728 (1997). The burden is on the State to prove
that consent to search was voluntarily given. See State v.
Prahin, supra.
[5] In his brief on appeal, Howell relies on the testimonies
of Mayr and Vocasek to demonstrate that their consent to
search the garage was not voluntarily given. However, as we
noted above, the district court did not find Mayr or Vocasek
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to be credible witnesses. As such, the court relied on the testi-
monies of Gratz and Smith when ruling on the motion to sup-
press. 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. State v. DeGroat, 244 Neb. 764, 508
N.W.2d 861 (1993).
Upon our review of the record, we cannot say that the dis-
trict court clearly erred in determining that Mayr and Vocasek
did not provide credible testimony about the events which led
up to their consent to search the garage. Evidence presented
at the suppression hearing supported the district court’s cred-
ibility finding. In particular, we note there was evidence that
Mayr had suffered a brain injury and that as a result of this
injury, he had problems with his memory. In addition, there
were inconsistencies between Mayr’s testimony and Vocasek’s
testimony. Although Mayr insisted that law enforcement threat-
ened to arrest him if he did not sign the consent to search
form, Vocasek testified that no such threat was made. Because
the district court did not clearly err in its credibility finding,
we, like the district court, rely on the testimonies of Gratz and
Smith in analyzing the district court’s decision to deny the
motion to suppress.
Both Gratz and Smith testified that when they spoke with
Mayr and Vocasek, both appeared to want to cooperate. In
addition, Smith testified that both appeared to be acting “nor-
mal.” Mayr’s and Vocasek’s only apparent hesitancy with
allowing police to search the garage was that they did not
know where Mayr’s key was and that they did not want the
garage damaged in any way by the police entering without a
key. Once Mayr and Vocasek located the key, they brought it
outside and gave it to Smith. They then signed the necessary
consent forms.
Gratz explicitly denied that he ever threatened to arrest
either Mayr or Vocasek. In addition, he denied telling Mayr
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and Vocasek that they were not allowed to leave the residence.
Gratz did admit that he explained to Mayr and Vocasek that
if they did not consent to the search, he could obtain a search
warrant. In fact, Gratz left the residence in order to start the
process of obtaining a search warrant. However, a statement
of a law enforcement agent that, absent a consent to search, a
warrant can be obtained does not constitute coercion. See State
v. Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001).
Smith also denied that any promises or threats were made
to Mayr and Vocasek to obtain their consent. Specifically, he
testified that no one threatened to arrest either one of them if
someone did not sign the consent form. Both Gratz and Smith
indicated that their interactions with Mayr and Vocasek lasted
approximately an hour.
Based on the totality of the facts and circumstances present,
we cannot say that the district court erred in denying Howell’s
motion to suppress. The testimony of Gratz and Smith estab-
lishes that Mayr and Vocasek were cooperative and wanted to
help police. Although Mayr and Vocasek initially denied police
access to the garage because they could not find the key, once
they did find the key, they readily provided police with such
access. Moreover, the totality of the evidence indicates that
Mayr’s and Vocasek’s consent to search was voluntarily given
and not the result of coercion or duress. We affirm the decision
of the district court.
2. Hearsay Evidence A dmitted During
Gratz’ Trial Testimony
(a) Standard of Review
[6] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection. State v. Schwaderer, 296 Neb. 932, 898
N.W.2d 318 (2017).
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(b) Additional Background
During Gratz’ testimony at trial, he indicated that he had
received information regarding his investigation of the stolen
motorcycle from a confidential informant. Prior to Gratz’ tes-
tifying to what this information entailed, Howell objected to
the testimony. The court overruled the objection and permitted
Howell to have a standing objection “as to that issue.” Gratz
then testified as follows:
This confidential informant informed myself and my part-
ner . . . at the time, I specifically asked about stolen
motorcycles in the Lincoln area as there had been an
increase in those occurring. The confidential informant
. . . informed myself and [my partner] that . . . Howell
had taken a motorcycle from the area of 42nd and Adams
Street, and had taken it to a garage on North 27th Street,
directly across from the Salvation Army, where at that
location the [confidential informant] reported that . . .
Howell had cut that motorcycle into pieces.
In the jury instructions, the district court addressed Gratz’ tes-
timony about what he learned from the confidential informant.
Jury instruction No. 12 provides:
During this trial there was evidence that was received
for specified limited purposes.
....
2. Any evidence relating to statements made by a con-
fidential informant to Officer Gratz were only offered by
the state for the limited purpose of showing how and why
Officer Gratz came to be at [the residence on] N. 27th on
September 24, 2016. You must consider that evidence
only for that limited purpose and for no other.
Later on in Gratz’ trial testimony, the State asked whether
he was able to determine whether Howell had any connection
to the residence on North 27th Street, which was described
by the confidential informant. Gratz responded to the ques-
tion, stating, “I was already familiar with . . . Howell from
prior investigations and had been in communication with other
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officers about [him] frequenting that area. But besides the
information received from those officers . . . I hadn’t located
any specific information [connecting] Howell to that address.”
Howell objected to Gratz’ testimony. He argued that Gratz’
statement that he learned from other officers that Howell
“frequent[ed]” the area was cumulative evidence and was
hearsay. The court overruled Howell’s objections.
(c) Analysis
On appeal, Howell challenges the district court’s decision to
overrule the objections he made to Gratz’ testimony about what
the confidential informant told him and about what he learned
from other officers. He asserts that Gratz’ testimony included
hearsay and that such hearsay was prejudicial.
(i) Information Received From
Confidential Informant
Before we reach the merits of Howell’s assertion on appeal
that the district court erred in overruling his hearsay objection
to Gratz’ testimony about what the confidential informant told
him, we must determine if Howell has preserved this issue for
appellate review.
Prior to trial, Howell made a motion in limine to preclude
Gratz from testifying about what the confidential informant
told him. Howell argued that such testimony was hearsay
and not relevant. The court overruled the motion in limine,
stating:
The motion in limine is a preliminary motion and is done
in anticipation of certain things. It does not preclude the
court from sustaining objections at trial but is appreciated
by the court because it gives the court a little heads up
as to what motions might be coming and gives the court
some ability to think about those in advance.
Having said that, the motion in limine is overruled in
its entirety. . . .
....
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As to why Officer Gratz was present, again, I think
that’s part of the whole res justa of the crime and the
events leading up to it and why he’s there. I think he
gets to testify as to why he was there and that the State
shouldn’t have to have an open ended, officer just show-
ing up without a particular reason given, or the circum-
stances that underpin that event.
At trial, when the State asked Gratz about how he came into
information about the stolen motorcycle, Howell objected,
stating, “Your Honor, may I approach? I’m going to object
to the question. I think it’s going to call for an answer that is
objectionable . . . .” During a conversation between Howell’s
counsel, the State, and the court, outside the presence of the
jury, Howell’s counsel informed the court that he was object-
ing to the form of the State’s question. He also asserted that
how Gratz received the knowledge was not relevant. When
the State offered to rephrase the question, Howell’s coun-
sel stated:
You guys all know what I’m trying to do here. So that’s
the issue, is how he came into the information. I think it’s
such a loaded, broad question that it invites him to give
an answer about what somebody told him. And I’ve made
that clear before and I’m going to make that — jump up
and down on that issue.
The court did not specifically rule on Howell’s objections, but
did give the State the opportunity to rephrase the question.
Later, the State asked Gratz “what specific information did
you receive with regard to a stolen motorcycle?” Howell’s
counsel told the court, “I’m going to object.” The court over-
ruled the objection and indicated that Howell could “have a
standing objection as to that issue.”
[7,8] Although it is clear that prior to trial, Howell objected
to Gratz’ testimony about what the confidential informant told
him on the basis that such testimony was hearsay, a careful
reading of the record reveals that he did not specifically renew
his hearsay objection at trial. Error can be based on a ruling
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that admits evidence only if the specific ground of objection
is apparent either from a timely objection or from the context.
State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014). The
Supreme Court has interpreted this rule to mean that where
there has been a pretrial ruling regarding the admissibility of
evidence, a party must make a timely and specific objection to
the evidence when it is offered at trial in order to preserve any
error for appellate review. Id. Thus, 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. Id.
Similarly, the failure to object to evidence at trial, even though
the evidence was the subject of a previous motion to suppress,
waives the objection, and a party will not be heard to complain
of the alleged error on appeal. Id.
Howell has failed to make a clear record of the basis for his
objections to Gratz’ testimony at trial. At trial, Howell failed
to explicitly indicate that he was objecting to Gratz’ testimony
about what the confidential informant told him on the basis
that the testimony was hearsay. He did assert a foundational
objection and a relevance objection. In addition, he made a
generalized objection to the line of questioning by the State.
The closest Howell came to making a hearsay objection was
during his conversation with the State and the district court
outside the jury’s presence. At one point during that conversa-
tion, Howell’s counsel indicated that he was objecting to the
State’s question because the question “invites [Gratz] to give
an answer about what somebody told him.”
Ultimately, we need not decide if counsel’s assertion that
he was objecting to Gratz’ testimony “about what somebody
told him” is adequate to preserve his pretrial hearsay objection,
because even if we consider him to have validly preserved this
issue, his assertion is without merit.
[9,10] Hearsay is “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” Neb.
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Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
Stated another way, if an out-of-court statement is not offered
for the purpose of proving the truth of the facts asserted, it is
not hearsay. State v. Baker, 280 Neb. 752, 789 N.W.2d 702
(2010). 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 proba-
tive. Id.
Here, the State argued that Gratz’ testimony about what
the confidential informant told him was not offered to prove
the truth of the confidential informant’s statements, but was
instead offered to demonstrate why Gratz went to the residence
on North 27th Street on September 24, 2016. The court did not
explain the limited purpose of this testimony contemporane-
ously with Gratz’ testimony, but within the jury instructions,
the district court specifically informed the jury that it was only
to consider what the confidential informant said to Gratz “for
the limited purpose of showing how and why Officer Gratz
came to be at [the residence on] N. 27th on September 24,
2016.” In the instruction, the court then reiterated that the jury
was only to consider the testimony “for that limited purpose
and for no other.”
The record reveals that the State offered Gratz’ testimony
about what the confidential informant told him not to prove
the truth of the confidential informant’s statements, but instead
to demonstrate why Gratz went to the residence on North
27th Street on September 24, 2016. Although it would have
been helpful for the district court to advise the jury about the
limited purpose for which the evidence was received at the
time the jury heard that evidence, we conclude that the district
court’s instruction to the jury at the end of trial was sufficient
to inform the jury of the limited purpose of the testimony.
Because the State did not offer the testimony to prove the
truth of the confidential informant’s statements and because
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the district court explicitly instructed the jury about the limited
purpose of that evidence, we conclude that Howell’s assertions
on appeal which relate to this issue are without merit.
(ii) Information Received
From Other Officers
[11,12] We find it unnecessary to address the admissibility
of Gratz’ testimony that he learned from other officers that
Howell “frequent[ed]” the area of the pertinent residence on
North 27th Street. Even if Gratz’ testimony included inadmis-
sible hearsay, we conclude the admission of such testimony
was harmless. Generally, an “‘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.’” State v. Ildefonso,
262 Neb. 672, 686, 634 N.W.2d 252, 265 (2001) (quoting State
v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001)). 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 ren-
dered, but whether the actual guilty verdict rendered was surely
unattributable to the error. State v. Burries, 297 Neb. 367, 900
N.W.2d 483 (2017).
The admission of Gratz’ testimony that other officers told
him that Howell frequented the area of the pertinent residence
on North 27th Street was harmless because there was other,
admissible, evidence which demonstrated that Howell was fre-
quently in the area of that residence in the months leading up
to September 24, 2016. Howell, himself, testified that he was
at the residence “regularly” in the months preceding September
24. He admitted that he had a key and uncontrolled access
to the residence’s detached garage. In addition, when Gratz
arrived at the residence on September 24, Howell was inside
the residence. Howell then left the residence to come outside to
speak with police. This evidence, which was properly admitted
and not objected to, demonstrates that Howell “frequent[ed]”
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the area of the residence on North 27th Street. As a result, even
if we were to assume Gratz’ testimony included inadmissible
hearsay, the admission of the testimony does not constitute
reversible error.
3. Motions for Mistrial
(a) Standard of Review
[13] 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. State v. Ramirez, 287
Neb. 356, 842 N.W.2d 694 (2014).
(b) Additional Background
After the State completed its opening statement, Howell’s
counsel asked to approach the bench. In a conversation
between Howell’s counsel, the State, and the district court,
Howell’s counsel moved for a mistrial based on the State’s ref-
erence during its opening statement to “what the confidential
inform­ant told . . . Gratz what Howell stole and that he has it
sitting in his garage.” Howell’s counsel referenced his pretrial
motion in limine on that subject. The district court overruled
the motion for mistrial.
During the State’s closing arguments, Howell’s counsel
again made a motion for mistrial when the State referenced
what the confidential informant told Gratz. The court again
overruled the motion.
(c) Analysis
On appeal, Howell asserts that the district court abused its
discretion in overruling his motions for mistrial. We find his
assertion to be without merit. In our analysis above, we found
that the district court did not err in allowing Gratz to testify
about what the confidential informant told him, given that the
court instructed the jury to consider such evidence only for the
limited purpose of why Gratz went to the residence on North
27th Street on September 24, 2016. Because this testimony was
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admissible, the State was permitted to reference the evidence in
its opening statement and closing argument in order to explain
how Gratz’ investigation unfolded. We note that in the jury
instructions, the district court explicitly informed the jury that
the statements and arguments by the lawyers are not to be con-
sidered as evidence. The district court did not abuse its discre-
tion in overruling Howell’s motions for mistrial.
4. Evidence of Value During Officer
Scott Chandler’s Testimony
(a) Standard of Review
[14,15] 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 admis-
sibility. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
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 dis-
cretion. State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).
(b) Additional Background
During the trial, the State called Officer Scott Chandler to
testify. Chandler testified that he took a report from Fleischman
immediately after Fleischman discovered his motorcycle had
been stolen. The State asked Chandler if Fleischman reported
the value of the motorcycle. Chandler testified that Fleischman
reported the value of the motorcycle to be $2,500. Howell
moved to strike Chandler’s testimony about value. He argued,
“That is hearsay. That’s an element of the crime, something
the state would have to prove beyond a reasonable doubt.
And I think that is not something this officer can testify to.
That’s a statement made out of court.” The district court did
not rule on Howell’s objection. Instead, the State offered to
ask a different question of Chandler. The State then proceeded
to have the following exchange with Chandler: “Q. So . . .
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Fleischman gave you an idea as to the value of that motor-
cycle, correct? A. Yes. Q. And you documented that in your
report; is that correct? A. Yes.” These were the last questions
asked of Chandler.
(c) Analysis
On appeal, Howell argues that the district court erred in not
granting his motion to strike Chandler’s testimony regarding
the value of the motorcycle. Howell asserts that the testimony
was inadmissible hearsay. Upon our review, we find Howell’s
assertion has no merit.
Our review of the record reveals that Howell has waived
his right to appeal this issue. The record indicates that the
district court did not specifically rule on Howell’s motion to
strike Chandler’s testimony and that Howell did not request
the district court to make such a ruling. Instead, it appears that
Howell was satisfied with the State’s decision to ask less direct
questions about value.
[16] It is well established that a party who fails to insist
upon a ruling to a proffered objection waives that objection.
State v. Daly, supra. The Supreme Court has explained that
“‘[i]f when inadmissible evidence is offered the party
against whom such evidence is offered consents to its
introduction, or fails to object, or to insist upon a ruling
on an objection to the introduction of the evidence, and
otherwise fails to raise the question as to its admissibility,
he is considered to have waived whatever objection he
may have had thereto, and the evidence is in the record
for consideration the same as other evidence.’”
Id. at 928, 775 N.W.2d at 68-69 (quoting State v. Nowicki, 239
Neb. 130, 474 N.W.2d 478 (1991)). Because the district court
did not rule on the motion to strike Chandler’s testimony about
value and Howell did not request such a ruling, he has waived
his objections to the testimony.
We note that even if Howell did not waive his objection to
Chandler’s testimony about value and even if such testimony
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was inadmissible hearsay, Howell’s argument on appeal would
still be without merit. Chandler’s testimony about the value
of the motorcycle was cumulative to Fleischman’s trial tes-
timony about the value of his stolen motorcycle. Chandler
testified that Fleischman reported the value of the motorcycle
to be $2,500. Fleischman testified at trial that the value of the
motorcycle when it was stolen was $2,500. Keeping in mind
the principles governing the erroneous admission of evidence
and harmless error discussed earlier in this opinion, it is clear
that even if we assume that Chandler’s testimony about the
value of the motorcycle was inadmissible hearsay, the admis-
sion of the testimony into evidence would not require reversal,
because there is other evidence to establish the value of the
stolen motorcycle.
5. Testimony R egarding Howell’s
Prior Felony Conviction
(a) Additional Background
At trial, Howell testified in his own defense. The first ques-
tion Howell’s counsel asked during the direct examination was
whether Howell had previously been convicted of a felony.
Howell answered affirmatively. Counsel then asked Howell
“what exactly was” the nature of his prior felony conviction.
The State objected. The State argued:
That’s an improper question . . . the only thing that can be
asked is whether [Howell] — or the prosecution can ask
is have you been convicted of a felony offense in the past
ten years, yes or no. There cannot be any inquiry whatso-
ever into the nature of the offense.
The district court sustained the State’s objection, and Howell
was not permitted to explain the particulars of his prior felony
conviction.
(b) Analysis
On appeal, Howell challenges the district court’s decision to
prohibit him from testifying about the particulars of his prior
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felony conviction. Specifically, he argues that he should have
been allowed to testify as to the nature of his felony conviction
because the evidentiary rule which precludes questions about
the particulars of a prior felony conviction “is intended to
protect criminal defendants, not the State.” Brief for appellant
at 35. Upon our review, we affirm the decision of the district
court to prohibit Howell’s testimony about the specifics of his
prior felony conviction.
[17,18] Neb. Evid. R. 609, Neb. Rev. Stat. § 27-609 (Reissue
2016), provides in part:
(1) For the purpose of attacking the credibility of a wit-
ness, evidence that he has been convicted of a crime shall
be admitted if elicited from him or established by public
record during cross-examination, but only if the crime (a)
was punishable by death or imprisonment in excess of
one year under the law under which he was convicted or
(b) involved dishonesty or false statement regardless of
the punishment.
The Supreme Court has previously held that 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, includ-
ing rule 609. See State v. Pitts, 212 Neb. 295, 322 N.W.2d
443 (1982). The Supreme Court has also provided specific
instructions about the proper use of prior felony convictions
during a defendant’s testimony: “The purpose of Rule 609 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 . . . .” State v. Daugherty, 215 Neb. 45, 47, 337 N.W.2d
128, 129 (1983). Once having established the conviction, the
inquiry must end there, and it is improper to inquire into the
nature of the crime, the details of the offense, or the time spent
in prison as a result thereof. State v. Johnson, 226 Neb. 618,
413 N.W.2d 897 (1987).
The Supreme Court has previously noted that its interpreta-
tion of rule 609 provides a more limited cross-examination
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regarding felony convictions than is provided for by other
jurisdictions with a similarly worded rule. The Supreme Court
has stated:
While current construction of Neb. Evid. R. 609 pro-
hibits mention of the name or identity of the crime in the
conviction used for impeachment of a witness, by far the
greater number of jurisdictions allow reference to the par-
ticular criminal offense underlying the conviction offered
for a witness’ impeachment in accordance with rules of
evidence substantially similar to Neb. Evid. R. 609.
State v. Olsan, 231 Neb. 214, 222-23, 436 N.W.2d 128, 134
(1989).
The strict application of rule 609 has been discussed more
recently in State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d
14 (2014). In that case, the State properly impeached a defense
witness during cross-examination by asking whether the wit-
ness had previously been convicted of a felony or crime of
dishonesty. On redirect examination, defense counsel asked
the witness if he had “‘been convicted of a felony,’” to which
the State objected. Id. at 388, 855 N.W.2d at 22. The trial
court sustained the objection on the ground that rule 609 does
not draw a distinction between felonies and crimes involving
dishonesty and, therefore, does not permit counsel to question
whether a witness was convicted of a felony or crime involving
dishonesty. On appeal, the Supreme Court affirmed the deci-
sion of the district court to prohibit the defense witness from
testifying regarding the specifics of his prior conviction. The
Supreme Court explained:
The inquiry is restricted, because a witness’ conviction
of a crime is meant to be used for whatever effect it
has on only the credibility of the witness, and it is not
meant to otherwise impact the jury’s view of the charac-
ter of the witness. Nebraska is among a small number of
jurisdictions that has adopted this view. The vast major-
ity of jurisdictions allow inquiry into the nature of the
underlying conviction. But a long history of case law in
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Nebraska strictly construing [rule 609] establishes that
the nature of the underlying conviction does not matter
for impeachment purposes. We see no reason to recon-
sider our prior [rule 609] jurisprudence and no reason
why the rule should not be extended to redirect examina-
tion as well.
State v. Castillo-Zamora, 289 Neb. at 389, 855 N.W.2d at 22.
We recognize that the present case presents a unique factual
scenario that has not yet been addressed in Nebraska. Here, it
is the defendant, Howell, who desired to offer details of his
prior felony conviction during his direct examination, appar-
ently in an attempt to prevent the State from asking about the
prior conviction during its cross-examination. When Howell
attempted to provide further information about his prior con-
viction, the State objected to such testimony, relying on rule
609. At trial and on appeal, Howell has failed to provide any
authority to support his proposition that this unique factual
scenario should lead us to find an exception to the Supreme
Court’s strict application of rule 609, and we have been unable
to find any such authority upon our own review. However, we
are cognizant of the concern that the application of rule 609 in
this instance could conflict with the rule prohibiting infringe-
ment of the defendant’s right to testify in his own defense. See,
e.g., Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S. Ct. 2704, 97
L. Ed. 2d 37 (1987) (“[b]ut restrictions of a defendant’s right to
testify may not be arbitrary or disproportionate to the purposes
they are designed to serve”).
In light of our review of the precedent established by the
Supreme Court as it relates to a strict application of rule 609,
we are constrained to find that the district court did not err
in prohibiting Howell from testifying as to the specifics of
his prior felony conviction. Pursuant to rule 609, Howell was
permitted to testify that he had previously been convicted of a
felony or a crime involving dishonesty. He was not permitted
to divulge the specifics of his prior conviction, as such infor-
mation was not relevant to his credibility.
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6. Evidence R egarding Stolen Bicycles
(a) Additional Background
Both prior to and during the trial, Howell objected to the
admission of evidence that two stolen bicycles were found in
the garage along with Fleischman’s stolen motorcycle. Two
hearings were held in conjunction with Howell’s objections. At
the first hearing, Gratz testified that police found two stolen,
“high end” bicycles in the garage during their search. During
the second hearing, the owner of one of the stolen bicycles
testified about when and where his bicycle was stolen and
about modifications that were made to the bicycle after it was
stolen. At these hearings, the State argued that the evidence
was admissible to prove its theory that Howell was operating a
“chop shop” out of the garage where he was taking apart stolen
motorcycles and bicycles.
Ultimately, the district court overruled Howell’s objections
to evidence regarding the stolen bicycles. The court found that
such evidence was inextricably intertwined with the criminal
charge which resulted from the stolen motorcycle. In the alter-
native, the court found that the evidence was admissible pursu-
ant to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue
2016). Prior to the jury’s hearing the testimony about the
bicycles, and prior to deliberations, the court instructed the jury
as follows:
Any evidence relating to any bicycle found in the garage,
was only offered by the state for specified limited pur-
poses which is to show motive, opportunity, intent, prepa-
ration, plan, knowledge, identity, or absence of mistake
or accident. It is for these limited purposes that the
court allows evidence of other crimes not charged in the
Information. You must consider that evidence only for
those limited purposes and for no other.
(b) Analysis
On appeal, Howell argues that the district court erred in
admitting evidence of the stolen bicycles found in the garage.
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Howell asserts that such evidence is not relevant and that
pursuant to rule 404, the State “failed to prove by clear and
convincing and admissible evidence . . . that Howell had any-
thing at all to do with the bicycles.” Brief for appellant at 35
(emphasis omitted). We note Howell’s argument in support of
his contention focuses primarily on his belief that the Nebraska
Evidence Rules apply at a pretrial 404 hearing and that as a
result, the State could not offer hearsay evidence at such a
hearing. Ultimately, we conclude that the district court did
not err in determining that evidence of the stolen bicycles was
inextricably intertwined with evidence of the stolen motorcycle
so as to exclude such evidence from the parameters of rule
404(2). Because we find that evidence of the stolen bicycles
did not constitute rule 404 evidence, it is not necessary for
us to address Howell’s assertion about whether the Nebraska
Evidence Rules apply at a pretrial rule 404 hearing.
[19,20] Rule 404(2) provides the following:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Rule 404(2) does not apply to evidence of a defendant’s other
crimes or bad acts if the evidence is inextricably intertwined
with the charged crime. State v. Burries, 297 Neb. 367,
900 N.W.2d 483 (2017). 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. Id. We find that the
evidence presented regarding the stolen bicycles was neces-
sary for the prosecution to present a coherent picture of the
charged crime.
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Evidence of the stolen bicycles was part of the factual
setting surrounding law enforcement’s search of the garage
where the stolen motorcycle was located. At trial, Gratz testi-
fied about his observations of the garage on the night of the
search. In addition, the State offered into evidence photo-
graphs of the garage. Gratz indicated that there were tools
positioned throughout the garage. In particular, he noted that
there were two air compressors in the garage which were
“hooked up to an air brush for painting motorcycles.” Gratz
testified that once he was in the garage, he smelled “a very
strong odor of what I would describe as paint or specifically
vehicle paint.” In addition, Gratz described how parts and
pieces of the stolen motorcycle were dispersed throughout the
garage. Gratz indicated that officers also found two bicycles
in the garage. Later, the owner of one of the stolen bicycles
testified that one of the bicycles found in the garage was his
and explained how the bicycle had been modified after it was
stolen from him.
[21] The record supports the district court’s conclusion
that evidence of the stolen bicycles was inextricably inter-
twined with evidence of the stolen motorcycle. Evidence of
the stolen bicycles was instrumental in the State’s ability to
present a coherent picture of where the stolen motorcycle
was located and what was going on at that location. We have
previously stated that 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. State v. Wisinski, 12 Neb. Ct. App. 549, 680 N.W.2d 205
(2004) (finding evidence that defendant was driving stolen
truck when he was found to be in possession of stolen prop-
erty was admissible, even though defendant had not been
charged with stealing truck). See, also, State v. Castellanos,
ante p. 310, 918 N.W.2d 345 (2018) (finding evidence that
defendant was in possession of stolen firearm was inextricably
intertwined with charged crime of possession of firearm by
prohibited person).
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The State’s theory of the case was that Howell was operat-
ing a “chop shop” out of the garage where he was modifying
stolen goods. Evidence which supported the State’s theory was
relevant to demonstrate an element of the charged crime—that
Howell took or exercised control over the motorcycle with
the intent to permanently deprive the owner of possession.
The fact that the stolen motorcycle was found in pieces in a
garage with a number of tools and with at least one bicycle
which had also been modified from its original form provides
a complete picture of the circumstances surrounding Howell’s
possession of the stolen motorcycle. Accordingly, we find
that the district court did not err in admitting evidence of
the stolen bicycles found in the garage during law enforce-
ment’s search.
7. Jury Instructions
(a) Standard of Review
[22] Whether a jury instruction given by a trial court is cor-
rect is a question of law. When reviewing questions of law, an
appellate court has an obligation to resolve the questions inde-
pendently of the conclusion reached by the trial court. Roth v.
Wiese, 271 Neb. 750, 716 N.W.2d 419 (2006).
[23] 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. Id.
(b) Background
During the jury instruction conference, Howell objected to
two of the district court’s proposed jury instructions: instruc-
tion No. 7 and instruction No. 12. Jury instruction No. 7 pro-
vided to the jury a definition of multiple terms associated with
the elements of theft by unlawful taking, including, “‘[o]n,
about, or between’”; “‘[m]ovable property’”; “‘[d]eprive’”;
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“‘[p]roperty of another’”; and “‘[i]ntentionally.’” Howell
requested that the district court also include a definition of
the term “exercise control.” Specifically, Howell proposed that
the court should define “exercise control” for the jury as “the
power and . . . intent to exercise control.” The district court
overruled Howell’s request to alter proposed jury instruction
No. 7.
The district court’s proposed jury instruction No. 12 provided
the jury with an explanation of evidence that was received for
only a specified limited purpose. Ultimately, the court altered
this instruction somewhat in accordance with the requests of
Howell. Jury instruction No. 12, as read to the jury, provided
as follows:
During this trial there was evidence that was received
for specified limited purposes.
1. Any evidence relating to any bicycle found in the
garage, was only offered by the state for specified limited
purposes which is to show motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mis-
take or accident. It is for these limited purposes that the
court allows evidence of other crimes not charged in the
Information. You must consider that evidence only for
those limited purposes and for no other.
2. Any evidence relating to statements made by a con-
fidential informant to Officer Gratz were only offered by
the state for the limited purpose of showing how and why
Officer Gratz came to be at [the residence on] N. 27th on
September 24, 2016. You must consider that evidence
only for that limited purpose and for no other.
Although the district court did make some alterations to
the jury instruction pursuant to Howell’s requests, the dis-
trict court declined to grant Howell’s request to also include
the specific purpose of the “statements made by the per-
sons Officer Gratz testified were law enforcement offi-
cers that [Howell] frequented the residence located [on] N.
27th Street.”
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(c) Analysis
In his brief on appeal, Howell assigns as error the district
court’s refusal to give his proposed jury instructions and in
overruling his objections to jury instructions Nos. 7 and 12,
which were read to the jury prior to deliberations. In the argu-
ment section of his brief, Howell restates the language con-
tained in his proposed jury instructions Nos. 7 and 12. He then
states, “The district judge refused these proposed instructions.
. . . Instead, the district judge gave Jury Instruction[s] Nos. 7
and 12, over Howell’s objections.” Brief for appellant at 39.
Howell does not provide any explanation as to his specific
argument about why the given jury instructions were incorrect
or why those instructions should have been replaced by his
proposed instructions.
[24,25] For an alleged error to be considered by an appel-
late court, an appellant must both assign and specifically argue
the alleged error. State v. Smith, 292 Neb. 434, 873 N.W.2d
169 (2016). 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. Id. Because Howell’s
argument simply restates the language of his proposed jury
instruction and then restates his assigned error, the argument
is not sufficient and we decline to consider this assigned error
any further.
8. Motion for New Trial
(a) Standard of Review
[26] 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. State v. Hairston, 298 Neb. 251, 904 N.W.2d
1 (2017).
(b) Additional Background
After the jury found Howell guilty, he filed a timely motion
for new trial pursuant to Neb. Rev. Stat. § 29-2101 (Reissue
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2016). In the motion, he alleged that irregularity in the pro-
ceedings prevented him from having a fair trial; that there was
misconduct by the jury, the State, or the witnesses for the State;
that the verdict was not sustained by sufficient evidence; and
that an error of law occurred at the trial.
At the hearing on his motion for new trial, Howell indicated
he was abandoning his assertion that a new trial was warranted
due to misconduct by the jury, the State, or the witnesses for
the State. He did argue that a new trial was warranted because
the district court admitted evidence of the stolen bicycles and
allowed Gratz to testify about what a confidential informant
told him. In addition, he argued that the district court erred in
prohibiting him from testifying as to the nature of his felony
conviction and in overruling his motion to suppress. Finally,
Howell asserted that the State failed to sufficiently prove the
value of the stolen motorcycle. The district court overruled the
motion for new trial.
(c) Analysis
Given our analyses regarding these issues raised in Howell’s
motion for new trial, we do not find that the district court
abused its discretion in overruling the motion for new trial.
V. CONCLUSION
Having found no error or, alternatively, only harmless error
in the orders and rulings challenged by Howell herein, we
hereby affirm Howell’s conviction.
A ffirmed.