State v. Savage , 301 Neb. 873 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/14/2018 09:12 AM CST
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. SAVAGE
    Cite as 
    301 Neb. 873
    State of Nebraska, appellee, v.
    Courtney J. Savage, appellant.
    ___ N.W.2d ___
    Filed December 14, 2018.   No. S-17-1166.
    1.	 Criminal Law: Convictions: Evidence: Appeal and Error. When
    reviewing a criminal conviction for sufficiency of the evidence, it does
    not matter whether the evidence is direct, circumstantial, or a combi-
    nation thereof, the standard is the same: An appellate court does not
    resolve conflicts in the evidence, pass on the credibility of witnesses,
    or reweigh the evidence; such matters are for the finders of fact. The
    relevant question 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.
    2.	 Verdicts: Appeal and Error. Only where evidence lacks sufficient pro-
    bative force as a matter of law may an appellate court set aside a guilty
    verdict as unsupported by evidence beyond a reasonable doubt.
    3.	 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.
    4.	 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.
    5.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    6.	 Pleadings: Evidence: Appeal and Error. A motion in limine is a pro-
    cedural step to prevent prejudicial evidence from reaching the jury, but
    is not an appealable order. The purpose of a motion in limine is to pro-
    duce, when appropriate, an advance ruling on anticipated objectionable
    material, and the denial of the motion cannot, in and of itself, constitute
    reversible error.
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    7.	 Rules of Evidence: Proof. A proponent of evidence is not required to
    conclusively prove the genuineness of the evidence or to rule out all
    possibilities inconsistent with authenticity.
    8.	 Rules of Evidence. Generally, the foundation for the admissibility of
    text messages has two components: (1) whether the text messages were
    accurately transcribed and (2) who actually sent the text messages.
    9.	 Rules of Evidence: Proof. The proponent of text messages is not
    required to conclusively prove who authored the messages. The possibil-
    ity of an alteration or misuse by another generally goes to weight, not
    admissibility.
    10.	 Rules of Evidence: Hearsay: Proof. The State must prove by a greater
    weight of the evidence that a defendant authored or made a statement
    in order to establish preliminary admissibility as nonhearsay under 
    Neb. Rev. Stat. § 27-801
    (4)(b)(i) (Reissue 2016).
    11.	 Rules of Evidence: Proof. Under what is commonly and incorrectly
    referred to as the “best evidence rule,” in order to prove the content of
    a writing, recording, or photograph, the original writing, recording, or
    photograph is required.
    12.	 ____: ____. The “original writings rule” applies only if the party offer-
    ing the evidence is seeking to prove the contents of a writing, recording,
    or photograph.
    13.	 Rules of Evidence. The rule of completeness allows a party to admit the
    entirety of an act, declaration, conversation, or writing when the other
    party admits a part and when the entirety is necessary to make it fully
    understood.
    14.	 ____. The rule of completeness is concerned with the danger of admit-
    ting a statement out of context, but when this danger is not present, it
    is not an abuse of discretion to refuse to require the production of the
    remainder or, if it cannot be produced, to exclude all the evidence.
    15.	 Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
    defendant who moves for dismissal or a directed verdict at the close of
    the evidence in the State’s case in chief in a criminal prosecution and
    who, when the court overrules the dismissal or directed verdict motion,
    proceeds with trial and introduces evidence, waives the appellate right
    to challenge correctness in the trial court’s overruling the motion for
    dismissal or a directed verdict.
    16.	 Directed Verdict: Appeal and Error. When a defendant makes a
    motion at the close of the State’s case in chief and again at the conclu-
    sion of all the evidence, it is proper to assign as error that the defend­
    ant’s motion to dismiss made at the conclusion of all the evidence
    should have been sustained.
    17.	 Convictions: Evidence: Appeal and Error. A conviction will be
    affirmed in the absence of prejudicial error if the properly admitted
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    evidence, viewed and construed most favorably to the State, is sufficient
    to support the conviction.
    18.	   Convictions: Corroboration: Witnesses: Testimony. When the law
    requires corroboration of a witness to support a conviction, a wit-
    ness’ testimony must be accompanied by evidence other than that from
    the witness.
    19.	   Convictions: Corroboration: Witnesses: Testimony: Controlled
    Substances. Under the Uniform Controlled Substances Act, corrobora-
    tion is sufficient to satisfy the requirement that a conviction not be based
    solely upon uncorroborated testimony of an individual cooperating with
    the prosecution if the witness’ testimony is corroborated as to material
    facts and circumstances which tend to support the testimony as to the
    principal fact in issue.
    20.	   Criminal Law: Corroboration: Testimony. Testimony of a cooperating
    individual need not be corroborated on every element of a crime.
    21.	   Convictions: Controlled Substances: Evidence: Proof. Evidence that
    a defendant had constructive possession of a drug with knowledge of
    its presence and its character as a controlled substance is sufficient to
    support a finding of possession and to sustain a conviction for unlaw-
    ful possession.
    22.	   Controlled Substances: Evidence: Proof. Constructive possession may
    be proved by direct or circumstantial evidence and may be shown by
    the accused’s proximity to the substance at the time of the arrest or by a
    showing of dominion over the substance.
    23.	   Sentences. When imposing a sentence, a sentencing judge should con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (4) social and cultural background, (5) past criminal record or
    record of law-abiding conduct, and (6) motivation for the offense, as
    well as (7) the nature of the offense, and (8) the violence involved in the
    commission of the crime.
    Appeal from the District Court for Lancaster County: Susan
    I. Strong, Judge. Affirmed.
    Darik J. Von Loh, of Hernandez Frantz, Von Loh, for
    appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    STATE v. SAVAGE
    Cite as 
    301 Neb. 873
    Freudenberg, J.
    I. NATURE OF CASE
    Courtney J. Savage was arrested and charged with pos-
    session of a controlled substance with intent to deliver, in
    violation of 
    Neb. Rev. Stat. § 28-416
    (2)(a) (Reissue 2016), a
    Class II felony. He was further alleged to be a habitual crimi-
    nal pursuant to 
    Neb. Rev. Stat. § 29-2221
     (Reissue 2016).
    During trial, the State produced evidence of text messages
    from what was purported to be Savage’s cell phone, which
    indicated that Savage was selling the illegal drug metham-
    phetamine. Savage objected to the offer of the text messages
    on foundation and hearsay grounds, primarily arguing that the
    identity of the message author was unclear. The district court
    overruled his objections, and after trial, a jury found Savage
    guilty. The district court determined that Savage was a habit-
    ual criminal and ordered him to serve 10 to 18 years in prison.
    Savage appeals from his conviction.
    II. BACKGROUND
    Savage was arrested and charged with possession of a
    controlled substance with intent to deliver, in violation of
    § 28-416. Further, he was alleged to be a habitual criminal
    pursuant to § 29-2221. Following trial, he was convicted and
    found to be a habitual criminal. Savage was subsequently sen-
    tenced to a term of 10 to 18 years’ incarceration. The facts of
    his arrest and trial leading to his conviction follow.
    1. February 16 and 17, 2017, A rrest
    During the night of February 16, 2017, and the early morn-
    ing hours of February 17, Lincoln Police Department officers
    Anthony Gratz and Andrew Barksdale arrested Michael Dryden
    for possession of methamphetamine with intent to deliver.
    After being brought to the police station to be interviewed,
    Dryden received several text messages from an individual
    referred to as “Pint” seeking to sell Dryden methamphetamine.
    Later, through a review of the Lincoln Police Department’s
    records management system, it was learned that “Pint” was a
    nickname for Savage.
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    STATE v. SAVAGE
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    301 Neb. 873
    With Dryden’s permission, the officers borrowed Dryden’s
    cell phone and continued to communicate with Savage, hop-
    ing to find him and arrest him for his potential illegal meth-
    amphetamine sale to Dryden. After multiple text messages
    were exchanged, a meeting to purchase methamphetamine
    was arranged to occur at an agreed-upon location in Lincoln,
    Nebraska. When the officers arrived at that location, they
    parked in a nearby alleyway, began surveillance, and continued
    the text conversation.
    The officers received a message from Savage’s cell phone
    indicating that he was at the agreed-upon location. Seeing no
    one arrive, the officers drove around the block. The officers
    then saw a blue two-door Toyota. The police cruiser and the
    Toyota were the only vehicles in the area. Almost immediately
    after the police saw the Toyota drive by, Dryden’s cell phone
    received a text message stating: “Police [are] outside.”
    The officers concluded that Savage was in the passing
    Toyota. The officers followed the Toyota and observed it fail
    to properly signal a turn. The officers initiated a traffic stop of
    the Toyota.
    During the stop, one of the officers approached the driver’s
    side of the Toyota while the other officer approached the pas-
    senger’s side. Gratz made contact with the driver, Johnathon
    Addleman, and asked for his license and registration. When
    Addleman failed to produce the requested documentation,
    Gratz asked him to exit the Toyota. Savage was sitting in the
    passenger seat of the Toyota and appeared to be using his
    cell phone. Another passenger, Christine Tannehill, was in the
    back seat.
    While Gratz was questioning Addleman, Barksdale attempted
    to make contact with Savage in the passenger seat. However,
    Savage would not acknowledge Barksdale and maintained eye
    contact with his cell phone. After some time, Savage opened
    the door to speak with Barksdale. At that point, Barksdale
    observed that Savage’s zipper was undone and a part of his
    pants was pulled through the zipper opening.
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    Addleman later explained to Gratz that as the officers were
    pulling the Toyota over, Savage was “wrestling around in the
    groin area of . . . his pants” and threw a bag at Tannehill,
    instructing her to “put it in [her] pussy.” Tannehill was ques-
    tioned by the officers, at which time she admitted to having
    methamphetamine on her person and turned it over to the offi-
    cers. At trial, several of the State’s witnesses, including Gratz
    and Barksdale, testified that it was common for individuals
    possessing drugs to hide them in or near their genitalia.
    Within the surrendered bag, there were three smaller indi-
    vidual bags, each of which pretested positive for amphetamine.
    Later, a laboratory test confirmed that the substance was meth-
    amphetamine. The three bags, collectively, contained in excess
    of 7.6 grams of the substance. In addition to the bags of meth-
    amphetamine, an officer collected each person’s cell phone.
    Later, the cell phones were analyzed and data was extracted for
    investigative purposes.
    2. Motion in Limine
    Prior to trial, Savage filed a motion in limine to exclude
    evidence of various text messages contained on Savage’s and
    Dryden’s cell phones. Savage argued that the State would be
    unable to authenticate the text messages because, although the
    messages were being sent from Savage’s cell phone, there was
    no way to prove that Savage was the one texting Dryden at
    the relevant time. Savage further argued that the text messages
    would be hearsay and overly prejudicial. The State responded
    that it could produce the foundation for admission of the text
    messages into evidence by (1) proving that the cell phone in
    question was Savage’s, (2) proving that the cell phone was in
    Savage’s possession at the time of his arrest, and (3) present-
    ing witness testimony that Savage was sending the messages at
    issue. The district court overruled Savage’s motion in limine.
    3. Trial
    At trial, the State had several witnesses testify as to the
    events of February 16 and 17, 2017, including Gratz, Barksdale,
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    Dryden, Addleman, and Tannehill. Gratz and Barksdale specifi-
    cally testified that a typical “personal use amount” of metham-
    phetamine was about 0.2 grams, thereby indicating that the
    amount in this case was a “dealer quantity.”
    (a) Exhibit 6
    During Gratz’ testimony, the State offered exhibit 6, pho-
    tographs of the text conversation between the officers and
    Savage’s cell phone, into evidence. Savage objected to this on
    foundation and hearsay grounds, asserting that the State did
    not prove that Savage authored those text messages. The State
    claimed that it had met its burden regarding foundation and
    authentication, insofar as Gratz testified that he saw Savage
    using Savage’s cell phone at the time of the arrest. The district
    court overruled Savage’s objection.
    (b) Exhibits 8 and 23
    The State also offered into evidence exhibits 8 and 23, por-
    tions of extractions from Savage’s and Dryden’s cell phones
    containing text messages and cell phone logs from the relevant
    time period. A police officer testified that he extracted and ana-
    lyzed the data from Savage’s cell phone using a program called
    Cellbrite. The officer stated that he found that Savage’s cell
    phone’s wireless network tethering service, or access point, had
    “Savage 11” as the password associated with it. Another police
    officer testified that he extracted and analyzed the data from
    Dryden’s cell phone also using the Cellbrite program.
    Savage objected to both exhibits 8 and 23 on hearsay,
    foundation, best evidence, and completeness grounds. Savage
    elaborated that exhibit 23 was inadmissible because (1) the
    State did not prove that Savage authored the relevant messages
    and (2) it was only a portion of the Cellbrite report. The district
    court overruled the objections.
    (c) Dryden
    Both Dryden and Addleman testified in the State’s case in
    chief pursuant to cooperation agreements. Dryden testified
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    that as a dealer of methamphetamine, he purchased that drug
    from Savage, whom he knew only by the name “Pint,” on a
    few occasions. However, Dryden stated that he communicated
    with Savage only through a family member of Savage’s and
    never spoke to Savage on the cell phone directly. In fact,
    Savage was not listed as a contact in Dryden’s cell phone.
    Dryden also testified that Tannehill was always present dur-
    ing these sales and that she appeared to be “overseeing”
    the operation.
    (d) Addleman
    Addleman testified that he met Savage and Tannehill at a
    house in Lincoln and agreed to give them a ride to another
    location where they were allegedly going to drop off a large
    amount of methamphetamine. Addleman stated that Tannehill
    was giving directions to the address while appearing to use
    Savage’s cell phone.
    Addleman asserted that after the arrest, Savage devised a
    plan to implicate Tannehill. Addleman agreed with Savage’s
    request that he sign a notarized statement implicating Tannehill.
    In his testimony, he claimed that Savage had him rewrite the
    statement approximately four times. Addleman asserted that
    he agreed to write the statement only because he wanted to
    avoid being labeled a “snitch” while at the jail. After he was
    released from jail, Addleman immediately contacted the public
    defender’s office and the police department to advise them of
    Savage’s plan and the falsity of his notarized statement.
    (e) Christina Krueger
    Savage called Christina Krueger to testify on his behalf.
    Krueger was employed with the Lancaster County jail as a cor-
    rectional officer. She testified that in the course of her employ-
    ment, she regularly watched the inmates and often interacted
    with them. She stated that during Savage and Addleman’s time
    in jail, she became familiar with Savage and Addleman and
    had interacted with them. Krueger testified that she was aware
    of Savage and Addleman’s interaction regarding Addleman’s
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    notarized letter. She testified that, though she did not actually
    see the contents of the letter, Addleman did not seem under
    duress; nor did she notice any strange behaviors. Krueger
    testified that Addleman stated that he was signing freely and
    voluntarily before the notary. She noted the existence of certain
    procedures for inmates to request “protective custody” if they
    are being harassed by another inmate. On cross-examination,
    Krueger testified that Savage was the one who initiated the
    notarization process.
    (f) Tannehill
    Tannehill stated that her primary reason for testifying
    was because she was subpoenaed and wanted to ensure that
    Savage was held accountable for his actions on the night of
    February 16, 2017. She did not testify pursuant to a coopera-
    tion agreement, as she had already pled guilty to her charges.
    Tannehill stated that she was a user of methamphetamine and
    that she had previously purchased that drug from Savage,
    whom she knew only by the name “Pint” until the night of
    their arrest.
    Tannehill further testified that Savage came over to her
    house on the evening of February 16, 2017, and asked her
    to drive him to Lincoln. She agreed, and the pair eventually
    arrived at a Lincoln house where there were several people,
    including Addleman. Tannehill admitted to smoking meth-
    amphetamine given to her by Savage and observing Savage
    weighing the drug while at the house.
    Tannehill testified that Addleman later agreed to give Savage
    and Tannehill a ride to a subsequent location, where the pair
    were allegedly going to drop off “quite a big amount” of meth-
    amphetamine. Tannehill testified that while in the car, Savage
    gave her his cell phone to check the address of the location.
    She testified that she did not send or receive any text messages
    while on his cell phone, but simply utilized a map application
    thereon. Shortly after the police began following Addleman’s
    Toyota, Savage took the drugs out of his pants and instructed
    Tannehill to put them in her vagina.
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    4. Verdict
    At the close of the State’s evidence, Savage moved for
    the court to dismiss the case, alleging that the State had not
    met its burden of proof beyond a reasonable doubt. The dis-
    trict court overruled his motion. Savage renewed the motion
    for a directed verdict at the close of all the evidence, which
    motion the district court again denied. After deliberations, the
    jury found Savage guilty and the district court accepted the
    jury’s verdict.
    5. Posttrial and Sentencing
    The court held an enhancement hearing where Savage
    was determined to be a habitual criminal under § 29-2221.
    Subsequently, at the sentencing hearing, the district court sen-
    tenced Savage to a term of not less than a mandatory minimum
    of 10 years’ and not more than 18 years’ imprisonment.
    III. ASSIGNMENTS OF ERROR
    Savage assigns, rephrased and renumbered, that the dis-
    trict court erred in (1) overruling Savage’s motion in limine;
    (2) overruling Savage’s motion to dismiss at the close of the
    State’s case; (3) allowing the case to go to a jury without suf-
    ficient evidence to support a verdict; (4) allowing evidence of
    text messages from Savage’s and Dryden’s cell phones over
    hearsay, foundation, completeness, and best evidence objec-
    tions; and (5) abusing its discretion by imposing an exces-
    sive sentence.
    IV. STANDARD OF REVIEW
    [1,2] When reviewing a criminal conviction for sufficiency
    of the evidence, it does not matter whether the evidence is
    direct, circumstantial, or a combination thereof, the standard
    is the same: We do not resolve conflicts in the evidence,
    pass on the credibility of witnesses, or reweigh the evidence;
    such matters are for the finders of fact. The relevant ques-
    tion is whether, after viewing the evidence in the light most
    favorable to the prosecution, any rational trier of fact could
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    have found the essential elements of the crime beyond a rea-
    sonable doubt.1 Only where evidence lacks sufficient proba-
    tive force as a matter of law may an appellate court set aside
    a guilty verdict as unsupported by evidence beyond a reason-
    able doubt.2
    [3,4] In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the
    Nebraska Evidence Rules and judicial discretion is involved
    only when the rules make discretion a factor in determining
    admissibility.3 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.4
    [5] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.5
    V. ANALYSIS
    1. A dmissibility of Text Messages
    and Cellbrite R eports
    [6] In his first assignment of error, Savage assigns that the
    district court erred in overruling his motion in limine to pre-
    vent the State from entering into evidence the text messages
    and Cellbrite extraction reports. We have held that a motion
    in limine is a procedural step to prevent prejudicial evidence
    from reaching the jury, but is not an appealable order.6 The pur-
    pose of a motion in limine is to produce, when appropriate, an
    advance ruling on anticipated objectionable material, and the
    1
    State v. Dixon, 
    282 Neb. 274
    , 
    802 N.W.2d 866
     (2011). See, also, State v.
    Hill, 
    298 Neb. 675
    , 
    905 N.W.2d 668
     (2018).
    2
    State v. Dixon, supra note 1.
    3
    State v. Hill, 
    supra note 1
    .
    4
    
    Id.
    5
    State v. Dixon, 
    286 Neb. 334
    , 
    837 N.W.2d 496
     (2013).
    6
    See State v. Tomrdle, 
    214 Neb. 580
    , 
    335 N.W.2d 279
     (1983).
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    denial of the motion cannot, in and of itself, constitute revers-
    ible error.7 However, because Savage preserved his objections
    during trial and assigns the respective rulings thereon as errors
    in this appeal, we address the admissibility of the text mes-
    sages and Cellbrite extraction reports.
    The evidence at issue is found in exhibits 6, 8, and 23.
    Exhibit 6 contains photographs of Dryden’s cell phone with
    the text messages between Savage’s cell phone and Dryden’s
    cell phone on the screen. Exhibits 8 and 23 are portions of the
    forensic data extractions of Savage’s and Dryden’s cell phones
    containing the same text messages, as well as other messages
    and call logs occurring around the same time.
    (a) Authentication
    Savage first contends that the district court erred in allowing
    exhibits 6, 8, and 23 into evidence, because the text messages
    contained therein were not properly authenticated. A court’s
    ruling on authentication is reviewed for an abuse of discretion.8
    [7] Under the Nebraska Rules of Evidence, the requirement
    of authentication or identification as a condition precedent
    to admissibility is satisfied by evidence sufficient to support
    a finding that the matter in question is what its proponent
    claims.9 We have noted that this rule does not impose a high
    hurdle for authentication or identification.10 A proponent of
    evidence is not required to conclusively prove the genuineness
    of the evidence or to rule out all possibilities inconsistent with
    authenticity.11
    [8] Generally, the foundation for the admissibility of text
    messages has two components: (1) whether the text messages
    7
    See 
    id.
    8
    State v. Henry, 
    292 Neb. 834
    , 
    875 N.W.2d 374
     (2016); State v. Draganescu,
    
    276 Neb. 448
    , 
    755 N.W.2d 57
     (2008).
    9
    
    Neb. Rev. Stat. § 27-901
    (1) (Reissue 2016).
    10
    State v. Elseman, 
    287 Neb. 134
    , 
    841 N.W.2d 225
     (2014).
    11
    
    Id.
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    were accurately transcribed and (2) who actually sent the
    text messages.12 Savage does not challenge the first prong of
    this test, but, rather, argues that the State failed to prove that
    Savage was the author of the text messages.
    [9] The State met its burden for authentication regarding the
    text messages in exhibits 6, 8, and 23. The State need show
    only by a greater weight of the evidence that the text mes-
    sages were authored by Savage—in other words, that the text
    messages were more likely than not authored by Savage. The
    proponent of the text messages is not required to conclusively
    prove who authored the messages.13 The possibility of an alter-
    ation or misuse by another generally goes to weight, not admis-
    sibility.14 Thus, the district court did not abuse its discretion in
    overruling Savage’s foundation and authentication objections
    to the text messages found within exhibits 6, 8, and 23.
    Also respecting the authentication of text messages, Savage
    argues that the current test, as analyzed above, should be
    replaced with a test used in a Nevada case, Rodriguez v. State.15
    In Rodriguez, the Nevada Supreme Court found the follow-
    ing rule to establish the authentication of text messages from
    cell phones:
    [W]hen there has been an objection to admissibility of
    a text message, . . . the proponent of the evidence must
    explain the purpose for which the text message is being
    offered and provide sufficient direct or circumstantial cor-
    roborating evidence of authorship in order to authenticate
    the text message as a condition precedent to its admis-
    sion . . . .16
    Although he claims that the State in the current case would
    have failed both tests, he asserts that the Rodriguez standard
    12
    State v. Henry, 
    supra note 8
    .
    13
    
    Id.
    14
    
    Id.
    15
    Rodriguez v. State, 
    128 Nev. 155
    , 
    273 P.3d 845
     (2012).
    16
    Id. at 162, 
    273 P.3d at 849
    .
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    for the authentication of text messages “firmly attains the tenet
    established in the rules of evidence.”17 We fail to see how the
    adoption of the Rodriguez test would ease the analysis for the
    authentication of text messages or provide additional clarity for
    such purposes in practice. Neither do we see how an applica-
    tion of the Rodriguez test would result in a finding that the
    text messages were not properly authenticated in this case. We
    find no reason to adopt a new standard for the authentication
    of text messages.
    (b) Hearsay
    Next, Savage contends that the text message evidence in
    exhibits 6, 8, and 23 is hearsay and that the State failed to
    prove that the evidence fit within the statement-by-a-party-
    opponent hearsay exception. Generally, hearsay evidence, as
    defined by 
    Neb. Rev. Stat. § 27-801
     (Reissue 2016), is not
    admissible unless it fits within an exception to the rule against
    hearsay.18 But, pursuant to § 27-801(4)(b)(i), a statement is not
    hearsay if it is offered against a party and is his own state-
    ment.19 Therefore, whether the text messages were authored by
    Savage is a threshold matter of admissibility and a preliminary
    question for the district court.20 While we earlier determined
    that the State met its burden of proving that the text mes-
    sages were authored by Savage by a greater weight of the
    evidence for the purpose of authentication, at issue is whether
    the same standard applies for proving whether a statement
    falls under a hearsay exception. In other words, the question
    is whether the finding of authenticity under § 27-901 is suf-
    ficient to render the text messages admissible as statements by
    a party opponent.
    17
    Brief for appellant at 23.
    18
    See State v. Smith, 
    286 Neb. 856
    , 
    839 N.W.2d 333
     (2013).
    19
    State v. Reinhart, 
    283 Neb. 710
    , 
    811 N.W.2d 258
     (2012); State v.
    Draganescu, 
    supra note 8
    .
    20
    See 
    Neb. Rev. Stat. § 27-104
    (1) (Reissue 2016). See, also, State v. Ryan,
    
    226 Neb. 59
    , 
    409 N.W.2d 579
     (1987).
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    Although we never specifically addressed the standard of
    proof for the admissibility of authenticated written state-
    ments as statements by a party opponent, hearsay determina-
    tions are often treated as preliminary questions under Fed. R.
    Evid. 104(b), which requires “evidence sufficient to support
    a finding.”21 Based on our authentication analysis regarding
    the standard of proof involving Fed. R. Evid. 104, this would
    implicate a greater weight of the evidence standard. In addi-
    tion, federal courts, when determining whether statements
    were properly admitted as statements by a party opponent,
    have held that the government, as the proponent of the text
    messages, must show by a greater weight of the evidence that
    the defendant made the statement.22 Even further, we, along-
    side the Court of Appeals, have held that properly authen-
    ticated text messages allegedly written by a defendant are
    nonhearsay as statements by a party opponent, without doing
    an additional standard of proof analysis for the nonhearsay
    determination.23
    [10] We hold that the State must prove by a greater weight
    of the evidence that a defendant authored or made a statement
    in order to establish preliminary admissibility as nonhear-
    say under § 27-801(4)(b)(i). In the instant case, the district
    court implicitly found that Savage authored the text messages
    in question. And, based on the above-mentioned evidence
    regarding authentication, we find that the State’s evidence
    authenticating the text messages satisfied the greater weight
    of the evidence standard for a preliminary determination
    on hearsay.
    Applying the appropriate standard of review for clear error
    regarding the factual findings underpinning a trial court’s
    21
    See 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
    § 1:28 (4th ed. 2013). See, also, U.S. v. Harvey, 
    117 F.3d 1044
     (1997).
    22
    U.S. v. Benford, No. CR-14-321-D, 
    2015 WL 631089
     (W.D. Okla. Feb. 12,
    2015). See, also, U.S. v. Brinson, 
    772 F.3d 1314
     (10th Cir. 2014).
    23
    See, e.g., State v. Henry, 
    supra note 8
    ; State v. Wynne, 
    24 Neb. App. 377
    ,
    
    887 N.W.2d 515
     (2016).
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    hearsay ruling and de novo regarding the court’s ultimate
    determination to admit evidence over a hearsay objection,24
    we conclude that the district court did not err in overruling
    Savage’s hearsay objections.
    (c) Best Evidence and
    Completeness
    Last, concerning the admissibility of evidence, Savage
    assigns that the district court erred in overruling his best
    evidence and completeness objections to exhibits 8 and 23.
    Savage argues that because exhibits 8 and 23 were only
    redacted portions of the Cellbrite cell phone data extraction
    reports, the exhibits did not meet the “best evidence rule as to
    completeness.”25 The State responds that (1) the exhibits were
    by definition “original[s]” under 
    Neb. Rev. Stat. § 27-1001
    (Reissue 2016) and (2) the reports did not present a danger of
    admitting a statement out of context, as the redactions sought
    to include only the relevant information necessary to avoid jury
    confusion. We agree with the State.
    [11,12] Under what is commonly and incorrectly referred
    to as the “best evidence rule,” in order to prove the content
    of a writing, recording, or photograph, the original writing,
    recording, or photograph is required.26 This “‘original writings’
    rule” applies only if the party offering the evidence is seeking
    to prove the contents of a writing, recording, or photograph.27
    Under § 27-1001(3), defining an original under the rule, “[i]f
    data are stored in a computer or similar device, any printout
    or other output readable by sight, shown to reflect the data
    accurately, is an original.” Here, exhibits 8 and 23 are, by defi-
    nition, originals. They are printouts of exact data contained on
    Savage’s and Dryden’s cell phones. In sum, because exhibits 8
    24
    State v. Draganescu, 
    supra note 8
    .
    25
    Brief for appellant at 33.
    26
    
    Neb. Rev. Stat. § 27-1002
     (Reissue 2016); State v. Decker, 
    261 Neb. 382
    ,
    
    622 N.W.2d 903
     (2001).
    27
    State v. Decker, 
    supra note 26
    , 
    261 Neb. at 389
    , 
    622 N.W.2d at 911
    .
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    and 23 are “original[s]” under the definition in § 27-1001(3),
    the district court did not err in overruling Savage’s best evi-
    dence objections.
    [13,14] With regard to the completeness objections, Savage
    argues that if exhibits 8 and 23 were to be admitted, they
    should have been admissible only in their complete form, not
    in a redacted version. This argument lacks merit. The rule of
    completeness allows a party to admit the entirety of an act,
    declaration, conversation, or writing when the other party
    admits a part and when the entirety is necessary to make it
    fully understood.28 Under § 27-106(2), a judge in his or her
    discretion may either require the party thus introducing part
    of a total communication to introduce at that time such other
    parts as ought in fairness to be considered contemporaneously
    with it or permit another party to do so at that time. The rule
    of completeness is concerned with the danger of admitting a
    statement out of context, but when this danger is not present,
    it is not an abuse of discretion to refuse to require the produc-
    tion of the remainder or, if it cannot be produced, to exclude
    all the evidence.29
    Savage did not offer into evidence the entirety of the
    Cellbrite reports. Nor does Savage allege how the remain-
    der of the reports was necessary to make those documents
    fully understood. He merely alleges that the admission of the
    redacted portions was prejudicial, without explaining how the
    redactions created a danger of admitting a statement out of
    context or elaborating how the entirety of the Cellbrite reports
    would have alleviated this danger. Based on the record before
    us, there is nothing to suggest that exhibits 8 and 23, in their
    redacted form, were misleading or prejudicial. Consequently,
    the district court did not abuse its discretion when it over-
    ruled Savage’s rule of completeness objections and declined to
    require the State to offer the entirety of the Cellbrite reports.
    28
    State v. Rocha, 
    295 Neb. 716
    , 
    890 N.W.2d 178
     (2017). See 
    Neb. Rev. Stat. § 27-106
     (Reissue 2016).
    29
    State v. Manchester, 
    213 Neb. 670
    , 
    331 N.W.2d 776
     (1983).
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    2. Sufficiency of Evidence
    [15] Savage next assigns as error that because the State
    failed to meet its burden of proof, the district court erred in
    overruling his motion to dismiss at the close of the State’s
    case. A defendant who moves for dismissal or a directed ver-
    dict at the close of the evidence in the State’s case in chief in
    a criminal prosecution and who, when the court overrules the
    dismissal or directed verdict motion, proceeds with trial and
    introduces evidence, waives the appellate right to challenge
    correctness in the trial court’s overruling the motion for dis-
    missal or a directed verdict.30 Because Savage proceeded with
    trial after his motion to dismiss at the close of the State’s case
    in chief, he waived his claim that the district court erred in
    overruling his initial motion to dismiss.31
    [16] But when a defendant makes a motion at the close of
    the State’s case in chief and again at the conclusion of all the
    evidence, it is proper to assign as error that the defendant’s
    motion to dismiss made at the conclusion of all the evidence
    should have been sustained.32 Savage made such a motion at
    the close of all the evidence. As such, we proceed on Savage’s
    third assignment of error, as it is essentially a sufficiency of the
    evidence argument.33
    Savage argues that the evidence was insufficient to support
    a guilty verdict because there was no corroborating testimony
    of Savage’s guilt as required by 
    Neb. Rev. Stat. § 28-1439.01
    (Reissue 2016) and possession thus could not be proved beyond
    a reasonable doubt. We find no merit in these arguments.
    [17] Regardless of whether the evidence is direct, cir-
    cumstantial, or a combination thereof, an appellate court, in
    30
    State v. Gray, 
    239 Neb. 1024
    , 
    479 N.W.2d 796
     (1992).
    31
    See 
    id.
    32
    State v. Severin, 
    250 Neb. 841
    , 
    553 N.W.2d 452
     (1996).
    33
    See, State v. Combs, 
    297 Neb. 422
    , 
    900 N.W.2d 473
     (2017); State v.
    Severin, 
    supra note 32
    ; State v. Malone, 
    26 Neb. App. 121
    , 
    917 N.W.2d 164
     (2018).
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    reviewing a criminal conviction, does not resolve conflicts in
    the evidence, pass on the credibility of witnesses, or reweigh
    the evidence; such matters are for the finder of fact.34 A convic-
    tion will be affirmed in the absence of prejudicial error if the
    properly admitted evidence, viewed and construed most favor-
    ably to the State, is sufficient to support the conviction.35
    [18-20] Nebraska law provides, “No conviction for
    an offense punishable under any provision of the Uniform
    Controlled Substances Act shall be based solely upon the
    uncorroborated testimony of a cooperating individual.”36 When
    the law requires corroboration of a witness to support a con-
    viction, a witness’ testimony must be accompanied by evi-
    dence other than that from the witness.37 Under the Uniform
    Controlled Substances Act, corroboration is sufficient to sat-
    isfy the requirement that a conviction not be based solely upon
    uncorroborated testimony of an individual cooperating with
    the prosecution if the witness’ testimony is corroborated as
    to material facts and circumstances which tend to support the
    testimony as to the principal fact in issue.38 Testimony of a
    cooperating individual need not be corroborated on every ele-
    ment of a crime.39
    Savage claims that there was insufficient evidence to allow
    the case to go to a jury because there were no corroborating
    details regarding Savage’s alleged drug dealing as required
    under § 28-1439.01 and because there was not sufficient evi-
    dence to prove that Savage possessed methamphetamine. The
    State provided evidence of his drug dealing in the form of both
    34
    State v. Pierce, 
    248 Neb. 536
    , 
    537 N.W.2d 323
     (1995).
    35
    
    Id.
    36
    § 28-1439.01.
    37
    State v. Goodro, 
    251 Neb. 311
    , 
    556 N.W.2d 630
     (1996).
    38
    
    Id.
    39
    State v. Kramer, 
    238 Neb. 252
    , 
    469 N.W.2d 785
     (1991); State v. Taylor,
    
    221 Neb. 114
    , 
    375 N.W.2d 610
     (1985); State v. Kuta, 
    12 Neb. App. 847
    ,
    
    686 N.W.2d 374
     (2004).
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    testimony and physical evidence. Though some of the testi-
    mony was elicited from two cooperating individuals, Dryden
    and Addleman, it cannot be said that Savage’s conviction was
    based solely upon uncorroborated testimony of a cooperating
    individual. The State provided evidence of text messages that
    indicated that Savage was selling methamphetamine, as well as
    witness testimony from five other noncooperating individuals
    who generally corroborated the cooperating individuals’ testi-
    mony. Savage’s § 28-1439.01 argument has no merit.
    [21,22] We likewise find no merit to Savage’s argument that
    the evidence was insufficient to find that Savage possessed
    methamphetamine. During trial, the State relied on a theory
    of constructive possession to convict Savage. Evidence that a
    defendant had constructive possession of a drug with knowl-
    edge of its presence and its character as a controlled substance
    is sufficient to support a finding of possession and to sustain
    a conviction for unlawful possession.40 Constructive posses-
    sion may be proved by direct or circumstantial evidence and
    may be shown by the accused’s proximity to the substance
    at the time of the arrest or by a showing of dominion over
    the substance.41
    Both Addleman and Tannehill testified that Savage removed
    a bag of methamphetamine from his groin area and threw it
    to Tannehill to put into her vagina upon being pulled over by
    the police officers. The arresting police officers testified that
    Savage’s zipper was unusually unzipped at the time of the
    traffic stop, which corroborates Addleman’s and Tannehill’s
    testimony. In further support of Addleman’s and Tannehill’s
    testimony, the evidence of the text messages between Savage’s
    and Dryden’s cell phones demonstrates that Savage knew that
    he had drugs on or at least near his person because he was
    attempting to sell them. This evidence was sufficient to prove
    the element of possession of methamphetamine.
    40
    State v. Garcia, 
    216 Neb. 769
    , 
    345 N.W.2d 826
     (1984).
    41
    
    Id.
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    Viewing the evidence in the light most favorable to the
    State, we conclude that there was sufficient evidence to support
    Savage’s conviction.
    3. Excessive Sentence
    Finally, Savage assigns that the district court abused its dis-
    cretion by imposing an excessive sentence. We disagree.
    When a trial court’s sentence is within the statutory guide-
    lines, the sentence will only be disturbed by an appellate court
    when an abuse of discretion is shown.42 Here, Savage’s sen-
    tence was enhanced per Nebraska’s habitual criminal statute,
    § 29-2221. Under Nebraska law, the mandatory minimum
    Savage could have been sentenced to was a term of 10 years’
    imprisonment and the maximum term was not more than 60
    years’ imprisonment.43 Savage was sentenced to imprisonment
    for the mandatory minimum of 10 years, but no more than
    18 years.
    [23] Abuse of discretion occurs when a trial court’s deci-
    sion is based upon reasons that are untenable or unreasonable
    or if its action is clearly against justice or conscience, reason,
    and evidence.44 When imposing a sentence, a sentencing judge
    should consider the defendant’s (1) age, (2) mentality, (3)
    education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and
    (6) motivation for the offense, as well as (7) the nature of the
    offense, and (8) the violence involved in the commission of the
    crime.45 The appropriateness of a sentence is necessarily a sub-
    jective judgment and includes the sentencing judge’s observa-
    tion of the defendant’s demeanor and attitude and all the facts
    and circumstances surrounding the defendant’s life.46
    42
    State v. Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
     (2011).
    43
    § 29-2221.
    44
    State v. Collins, 
    292 Neb. 602
    , 
    873 N.W.2d 657
     (2016).
    45
    State v. Huff, supra note 42.
    46
    State v. Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
     (2015).
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    In this case, the district court considered the nature and
    circumstances of the crime and the history, character, and
    condition of Savage. In its sentencing order, the court noted
    that Savage has “a demonstrated history of criminal activity,
    disregard for the law, and an unwillingness to comport his
    conduct to comply with the law.” Savage’s sentence is on the
    lower end of the spectrum that could have been imposed under
    § 29-2221. Based on the record before us, the sentencing court
    did not consider any inappropriate or unreasonable factors in
    determining the sentence. We find that the court did not abuse
    its discretion in its imposition of Savage’s sentence.
    VI. CONCLUSION
    For the foregoing reasons, we affirm the district court’s deci-
    sion on this matter.
    A ffirmed.