State v. Olloway ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. OLLOWAY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JEROD L. OLLOWAY, APPELLANT.
Filed March 29, 2022. Nos. A-21-516, A-21-517.
Appeals from the District Court for Douglas County: J. MICHAEL COFFEY, Judge.
Affirmed.
Alton E. Mitchell, of Alton E. Mitchell Attorney at Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MOORE, BISHOP, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Jerod L. Olloway appeals from two separate cases. In case No. A-21-516, Olloway was
sentenced to a term of probation based on a conviction of carrying a concealed weapon, second
offense. Later, in case No. A-21-517, Olloway was convicted by a jury of one count of possession
of a firearm by a prohibited person. Olloway’s previously imposed term of probation was revoked
based in part on his subsequent conviction. The cases have been consolidated on appeal.
On appeal, with respect to case No. A-21-517, Olloway asserts that the district court erred
in overruling his motion for a directed verdict. With respect to case No. A-21-516, Olloway asserts
that the district court erred in (1) finding that sufficient evidence existed for the court to find that
he violated his probation, and (2) revoking his probation without first imposing 90 cumulative
days of custodial sanctions. Upon our review, we affirm Olloway’s conviction for possession of a
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firearm by a prohibited person and the district court’s decision to revoke his prior term of
probation.
BACKGROUND
On September 18, 2018, Olloway pled guilty to one count of carrying a concealed weapon,
second offense, in violation of Neb. Rev. Stat. § 28-1202 (Reissue 2016), a Class IV felony.
Olloway was originally sentenced to probation for a term of 1 year, however, Olloway’s probation
was subsequently extended through June 18, 2020. As part of the terms of his probation, Olloway
was ordered to obey all city ordinances, the laws of any state, and the laws of the United States.
He was also ordered to avoid social contact with persons having criminal records and not be present
where illegal activity is taking place. Finally, he was ordered to not own or possess a firearm,
ammunition, or any dangerous weapon.
On May 14, 2020, while Olloway was still on probation, the State charged Olloway by
information with one count of possession of a deadly weapon by a prohibited person, a Class ID
felony. The information alleged that the offense occurred on April 23. On May 17, the State filed
a motion to revoke Olloway’s probation which alleged that Olloway was charged on May 13, with
possession of a firearm by a prohibited person. The State also specifically alleged that Olloway
had social contact with known gang members, was present at a shooting, failed to report more than
10 times to probation, failed to provide proof of current employment or education, and owed $335
in probation fees.
A jury trial was held on March 10, 11, and 12, 2021, with respect to the charge of
possession of a firearm by a prohibited person. At the beginning of the trial, the parties submitted
a written stipulation which was received into evidence. The stipulation recited that Olloway was a
prohibited person as defined by Nebraska statutes in that he had previously been convicted of a
felony. The evidence presented by the State consisted of testimony from multiple police officers
and forensic unit technicians from within the Omaha Police Department and an expert DNA
analyst from the University of Nebraska Medical Center. Olloway rested his case without
presenting further evidence.
The primary investigating officers were Robert Soldo and Adam Kruse, both of whom were
assigned to the criminal investigations bureau of the Omaha Police Department. On the afternoon
of April 23, 2020, Soldo and Kruse were assigned to patrol hotspot areas due to recent violence
that had occurred. For this assignment, they were in uniform and operating a marked police vehicle.
At about 4:30 p.m. they were patrolling in the area of North 29th and Pinkney Streets, when they
turned southbound on 29th Street. At that location, 29th Street only extended about a block to the
south and ended in a cul-de-sac. The officers observed a tan Chevy Impala parked facing the wrong
direction on the west side of the road at the entrance to the cul-de-sac. The driver’s side of the
vehicle was about 1½ feet from the curb.
Soldo and Kruse testified that they saw four males either near the Chevy Impala or exiting
the car. One male wore a blue shirt and was sitting on the curb just in front of the car. A second
male wore a red shirt and was standing next to the first one near the driver’s side front quarter
panel of the car. A third male wore a black shirt and was also located near the car. A fourth male
was exiting the backseat of the car as the officers approached.
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Soldo was not initially familiar with any of the four males, but later, after reviewing video
of the interaction was able to identify the person in the blue shirt as Christopher Evans. Kruse
testified that he recognized the person in the red shirt as Olloway. Kruse noted that he had prior
law enforcement related contacts with Olloway. Kruse also identified the male that was exiting the
backseat of the vehicle as Kevin Young. Kruse spoke briefly to Young as they drove by. The
officers circled the cul-de-sac and then exited the immediate area. As they drove away, Kruse, who
was driving, told Soldo that he believed an active warrant existed for Young. Soldo utilized the
computer in the police vehicle to check the database for warrants and found that an active felony
arrest warrant did exist for Young. Upon making this discovery, the officers turned the car around
in order to return to the location on North 29th Street where they had seen Young and seek to arrest
him. Once back in the area of the cul-de-sac, Soldo and Kruse observed that a white four-door
sedan was now parked immediately in front of the tan Impala they had previously seen. The white
car was also parked facing the wrong direction, with the driver’s side nearest to the curb. As Soldo
and Kruse approached in their vehicle, they spotted Young first getting out of the white sedan,
then looking at them, and then walking quickly away. Kruse activated the emergency overhead
lights on their vehicle and pulled up onto the grass. At that point, they observed Young run behind
a house. Soldo explained that after Kruse stopped their car, he jumped out and pursued Young on
foot. Soldo pursued Young for a period of 5 to 10 minutes but was unsuccessful in locating him.
Kruse called for assistance from other officers and drove the police vehicle through the immediate
area. However, the police were unable to locate Young at that time. At the time the chase was
initiated, the cameras on the police vehicle and worn by Soldo were activated. The video reveals
that at that point in time, Olloway, Evans, and the unknown male wearing the black shirt remained
in basically the same positions near the tan Impala where they had been observed earlier.
After breaking off the pursuit of Young, Soldo and Kruse returned to the cul-de-sac. They
observed that the white sedan had left and that three males were also gone. They noted that the
Impala remained parked in the same place it was previously observed. Upon approaching it, they
discovered that it was running. Kruse approached the car and surveyed the area. While standing
next to the car, he observed Olloway, walking northbound on 29th Street, away from the car. He
testified that at that time, Olloway was approximately two blocks away.
Kruse noted that the windows on the tan Impala were partially down. Upon looking through
the rear window, he saw the handle of a handgun sticking out of a brown paper bag located on the
back seat of the Impala. At that point, a crime lab forensics investigation unit was requested to
report to the scene to collect evidence. Once taken into police possession by the forensics
investigation unit, the gun was identified as a tan-and-black Smith & Wesson .40 caliber handgun.
While waiting for personnel from the forensics investigation unit to arrive, Kruse discovered a
second handgun sitting on top of the front left (driver’s side) tire under the wheel well. Kruse
testified that this gun was very difficult to see given its color and location. Upon its seizure, the
gun was identified as a black Taurus 9mm handgun. The location where it was found was near to
the area where Olloway, Evans, and the unidentified male had been observed.
After the handguns were retrieved, Soldo and Kruse conducted a search of the inside of
the tan Impala. They testified that during this search, they located an envelope addressed to a
person with the last name of Olloway inside the glove box. The Impala had no registration, but
had in-transit stickers on it. The purchaser of the vehicle lived in close proximity to Olloway.
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On cross-examination, Soldo conceded that Olloway and Evans were both approximately
the same distance from the quarter panel area of the tan Chevy Impala where the Taurus handgun
was found. Both officers testified that they did not witness Olloway holding a gun nor did they
have any indication that Olloway had a concealed gun on his person. Neither officer saw the white
sedan arrive at or leave the scene.
Over the course of the month following the incident, police were able to locate Olloway,
Evans, and Young. Warrants were obtained to allow police to collect buccal swabs from all three
which were provided to the University of Nebraska Medical Center DNA lab for purposes of
comparison to any DNA that could be located on the two handguns recovered from the Impala.
The fourth individual seen near the Impala was never identified or tested.
Jaeyon Lee, who works for the Omaha Police Department Forensics Investigations Unit,
testified that on April 23, 2020, she was called to respond to an address near 29th Street in Omaha.
She testified that when she arrived at the address, Soldo and Kruse walked her through the scene
and showed her two different areas where they found firearms. According to Lee, the Taurus
firearm was found on top of the front driver’s side tire and another firearm was located in the back
passenger seat of the car in a paper sack. She explained that after taking the firearms, she swabbed
the grips, trigger, trigger guard, slide, sights, and magazine release of the firearms for DNA
evidence. She also checked the firearms for fingerprints but there were no prints that could be used
for identification. She conceded on cross-examination that it would be possible for DNA to move
from one item to another, but testified to the precautions taken in the lab to prevent such
contamination from occurring.
Mellissa Helligso is a forensic DNA analyst employed at the University of Nebraska
Medical Center. She completed a DNA analysis on swabs taken from both firearms that were
located by Soldo and Kruse. She found that there were three contributors to the DNA located on
the Taurus handgun. According to her analysis, the major contributor contributed 85 percent of the
mixture with the two minor contributors contributing 9 percent and 6 percent of the DNA
discovered. After comparing the mixture to the known samples received from Olloway, Young,
and Evans, Helligso determined that Olloway could not be excluded as the major contributor of
the DNA found in the mixture. She testified that given the results obtained, it is 530 septillion
times more likely that the DNA found on the Black Taurus originated from Olloway and two
unknown, unrelated individuals than if it originated from three unknown, unrelated individuals.
The number 530 septillion is 530 followed by 24 zeros. The results of the testing indicated that it
was unlikely that Evans or Young were contributors to the mixture.
With respect to the Smith & Wesson handgun, Helligso found that there were four
contributors to the DNA mixture found on the firearm. According to her analysis, the major
contributor contributed 91 percent of the mixture with the three minor contributors contributing 6
percent, 2 percent, and 1 percent respectively. Through her analysis, she compared Young’s DNA
to the mixture and found that he was not excluded as the major contributor to the Smith & Wesson
firearm. She found that the DNA profile was at least 740 octillion times more likely to have
originated from Young and three unknown, unrelated individuals than if it originated from four
unknown, unrelated individuals. The number 740 octillion is 740 followed by 27 zeros.
Helligso also compared Olloway’s DNA to the mixture found on the Smith & Wesson.
According to her analysis, the DNA profile is at least 31 times more likely if it originated from
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Olloway and three unknown, unrelated individuals than if it originated from four unknown,
unrelated individuals. However, she also determined that it was 20.7 nonillion (30 zeros) times
more likely that the sources of the DNA mixture were Young as the major contributor and Olloway
as a minor contributor, as compared to originating from four unknown, unrelated individuals. The
results of her testing also indicated that it was unlikely that Evans was a contributor to the DNA
mixture.
On cross-examination, Helligso acknowledged that she targets having between 0.3 to 1
nanograms of material to develop a full DNA profile. However, in the present case, she detected
.01777 nanograms from the swab of the Taurus handgun. However, she testified that after
amplification, the sample analyzed had .2655 nanograms of DNA material. She testified that she
had often been able to generate valid DNA profiles from samples below .3 nanograms and was
able to do so in the present case.
At the close of the evidence, Olloway orally moved for a directed verdict which the court
denied. After deliberations, the jury found Olloway guilty of the charged offense of possession of
a firearm by a prohibited person.
On April 28, 2021, a hearing was held on the motion to revoke Olloway’s probation in case
No. A-21-516. At the hearing, the State offered into evidence the judgment of conviction and the
jury verdict form with respect to Olloway’s charge of possession of a firearm by a prohibited
person. Olloway objected to the judgment of conviction and the jury verdict form arguing that
there was insufficient evidence to support that conviction; however, the district court received both
into evidence over the objection. In addition, the district court took judicial notice of the record of
Olloway’s trial on the charge of possession of a firearm by a prohibited person.
The State then called Jennifer Finigan to testify. Finigan is a supervisor in the probation
office that oversaw Olloway’s probation. In her testimony, she indicated that during his
probationary period, Olloway had been charged with possession of a deadly weapon by a
prohibited person. Such charge originated during the probationary period. Finigan also testified
that there were several other substantive probation violations committed by Olloway. These
included failing to report to his probation officer, continuing to associate with gang members, and
failing to maintain employment or an educational program.
Ultimately, the district court found that Olloway violated his probation stating that “the
matter of [Olloway]’s conviction you can take up on appeal” before noting that the other
allegations in and of themselves were sufficient to show that his probation should be revoked.
Olloway now appeals to this court.
ASSIGNMENTS OF ERROR
On appeal, Olloway assigns and argues that the district court erred by failing to grant his
motion for directed verdict prior to the jury rendering its guilty verdict as to the charge of
possession of a firearm by a prohibited person. He further assigns and argues that the district court
erred by revoking Olloway’s probation because there was not clear and convincing evidence to
establish that Olloway had violated his probation by virtue of committing a law violation, and by
revoking his probation without previously imposing 90 days of custodial sanctions for the alleged
probation violations.
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STANDARD OF REVIEW
When a motion for a directed verdict made at the close of all the evidence is overruled by
the trial court, appellate review is controlled by the rule that a directed verdict is proper only where
reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues
should be decided as a matter of law. State v. Williams, 306 Neb. 261, 945 N.W.2d 124 (2020).
When reviewing a criminal conviction for sufficiency of the evidence to sustain the
conviction, 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. Id.The revocation of probation is a matter entrusted to the discretion of a trial court. State v.
Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014). A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying a just result in matters submitted for disposition. Id.ANALYSIS
Directed Verdict.
Olloway made an oral motion to dismiss the charge of possession of a firearm by a
prohibited person at the close of the State’s presentation of evidence. The district court overruled
his motion. On appeal, Olloway asserts that the district court erred in overruling his motion.
Essentially, Olloway challenges the sufficiency of the evidence presented by the State. Upon our
review, we find sufficient evidence was presented to support Olloway’s conviction. Accordingly,
we affirm the decision of the district court to overrule the motion for a directed verdict.
In a criminal case, the court can direct a verdict only when (1) there is a complete failure
of evidence to establish an essential element of the crime charged or (2) evidence is so doubtful in
character and lacking in probative value that a finding of guilt based on such evidence cannot be
sustained. State v. Williams, supra. When we consider a criminal defendant’s motion for a directed
verdict, the State is entitled to have all of its relevant evidence accepted as true, every controverted
fact resolved in its favor, and every beneficial inference reasonably deducible from the evidence.
Id. If there is any evidence which will sustain a finding for the party against whom a motion for
directed verdict is made, the case may not be decided as a matter of law, and a verdict may not be
directed. Id.Olloway asserts that the State failed to prove that he was in possession of the firearm
because the police officers explicitly testified that they did not ever observe Olloway to be in actual
physical possession of either firearm found in the Impala. In addition, Olloway asserts that the fact
that there was DNA found on the firearms matching his DNA, does not, by itself, prove actual
physical possession. He further argues that there was not sufficient evidence to prove he had
constructive possession of the firearm. The State maintains that although the police officers did
not observe Olloway with the firearm, there was circumstantial evidence, including DNA
evidence, to support Olloway’s possession of the firearm.
Possession of a firearm may be actual or constructive. See State v. Warlick, 308 Neb. 656,
956 N.W.2d 269 (2021). Actual possession is defined as including only those weapons on one’s
person or within one’s immediate control, which is the area within which one might immediately
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gain possession of a weapon. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). Constructive
possession may be proved by mere ownership, dominion, or control over contraband itself, coupled
with the intent to exercise control over the same. State v. Warlick, supra. The fact of possession
may be proved by circumstantial evidence. State v. Long, 8 Neb. App. 353, 594 N.W.2d 310(1999).
It is undisputed that the police officers did not observe Olloway holding a gun. Nor did
they observe anything with respect to his physical appearance which indicated that he had a gun.
However, the State presented evidence that Olloway was standing near the front driver’s side of
the Impala where the 9mm Taurus handgun was found. A piece of mail was found in the glove
box of the car addressed to a person with the last name of Olloway. The owner of the car lived in
close proximity to Olloway. The car was abandoned and left running by its occupants, and Olloway
was spotted walking away from the scene after the officers pursued Young. The State then
presented DNA evidence which established that Olloway could not be excluded as the major
contributor to the DNA found on the 9mm Taurus. It was 530 septillion times more likely that
Olloway was the major contributor to the DNA found on the Taurus handgun with two unknown,
unrelated individuals compared to three unrelated, unknown individuals. DNA evidence also
demonstrated a connection of Olloway to the Smith & Wesson handgun found in the backseat of
the Impala.
A criminal conviction may soundly be based solely on circumstantial evidence regardless
of whether the inferences of guilt of each line of circumstantial proof are stronger than the
inferences of nonguilt. State v. Warlick, supra. Regardless of whether the evidence is direct,
circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure
to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard
is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the evidence. State v. Garza, supra.As we have stated, in a motion for directed verdict the State is entitled to have all of its
relevant evidence accepted as true, every controverted fact resolved in its favor, and every
beneficial inference reasonably deducible from the evidence. Given the deference that we must
give to the prosecution’s case, we find that there was sufficient evidence to support Olloway’s
conviction for possession of a firearm by a prohibited person. Therefore, there was no error by the
district court in overruling Olloway’s motion for a directed verdict. This assignment of error is
without merit.
Probation Revocation.
Olloway assigns and argues that the district court erred in revoking his probation. Olloway
concedes that the district court found that the noncriminal violations were sufficient in and of
themselves to revoke his probation. However, he also asserts that the evidence presented at the
revocation hearing did not establish that the State proved by clear and convincing evidence that he
engaged in a criminal offense. Olloway argues that the district court in essence abdicated its role
of independently determining whether the evidence was sufficient to establish a law violation on
his part. Instead, he argues the district court simply deferred to the finding made by the jury.
It has long been the law of this state that where a criminal prosecution has been started
based upon the probationer’s conduct, the probation court need not wait until the conclusion of
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those proceedings in order to revoke probation. State v. Kartman, 192 Neb. 803, 224 N.W.2d 753(1975). In addition, this court has held that a conviction not yet final may be used by the State to
prove by clear and convincing evidence that a probationer has violated the terms of his or her
probation order. State v. Sievers, 2 Neb. App. 463, 511 N.W.2d 205 (1994).
Here, the State demonstrated by clear and convincing evidence that Olloway had
committed a law violation. The evidence demonstrated the jury’s finding of guilt and Olloway’s
conviction. In addition, the court took judicial notice of the evidence at trial. We recognize that
rather than explicitly stating that Olloway had committed a law violation, the district court stated
that Olloway could take up his conviction on appeal. However, when read in conjunction with the
remainder of the court’s remarks, the record clearly reflects that the court found that Olloway had
violated his probation both by way of committing a law violation and by virtue of violating other
terms of his probation. In the end, the court sustained the State’s motion to revoke probation in its
entirety.
On our review, we find no abuse of discretion by the district court in finding that the State
proved Olloway violated his probation by clear and convincing evidence. The court relied on the
jury’s determination, its own recollection of the facts adduced at trial, and the testimony adduced
at the hearing. This assignment of error is without merit.
Custodial Sanctions.
Finally, Olloway assigns and argues that the district court abused its discretion by revoking
his probation without requiring the imposition of custodial sanctions prior to revocation.
Specifically, Olloway argues that the district court found that the violations of his probation were
“not reporting to probation at least 10 times, associating with gang members, not obtaining
employment or continuing his education.” Brief for appellant at 19. As such, Olloway argues that
because the district court relied on noncriminal violations to revoke Olloway’s probation, the
district court abused its discretion by not imposing 90 cumulative days of custodial sanctions prior
to revoking his probation.
For a probationer convicted of a felony, revocation proceedings may only be instituted in
response to a substance abuse or noncriminal violation if the probationer has served 90 days of
cumulative custodial sanctions during the current probation term. Neb. Rev. Stat. § 29-2267(3)
(Reissue 2016). However, where a probationer engages in criminal conduct, and the revocation of
probation is based, wholly or in part on that criminal conduct, the 90-day criminal sanction
requirement is not applicable. See State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).
It is undisputed that Olloway did not receive 90 days of custodial sanctions for his
noncriminal or substance abuse violations. However, as we discussed above, the State proved by
clear and convincing evidence that Olloway violated his probation when he illegally possessed a
firearm and, as a result, was convicted of the felony offense of possession of a firearm by a
prohibited person. Because Olloway committed a criminal offense while on probation, the State
could institute revocation proceedings without first showing that Olloway had served at least 90
days of cumulative custodial sanctions during his current probation term. Accordingly, we find
Olloway’s final assignment of error to be without merit.
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CONCLUSION
For the reasons set forth above, we affirm Olloway’s conviction for possession of a firearm
by a prohibited person in case No. A-21-517. We further affirm the district court’s decision to
revoke Olloway’s probation and impose a statutory sentence in case No. A-21-516.
AFFIRMED.
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