State v. Benson , 305 Neb. 949 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2020 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. BENSON
Cite as 305 Neb. 949
State of Nebraska, appellee, v.
Michael D. Benson, appellant.
___ N.W.2d ___
Filed May 29, 2020. No. S-19-486.
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. Pleadings: Judgments: Appeal and Error. A trial court’s denial of
a motion to sever will not be disturbed on appeal absent an abuse of
discretion.
3. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
4. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), pro-
hibits the use of statements derived during custodial interrogation unless
the prosecution demonstrates the use of procedural safeguards that are
effective to secure the privilege against self-incrimination.
5. Miranda Rights: Self-Incrimination. Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), requires law enforce-
ment to give a particular set of warnings to a person in custody before
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STATE v. BENSON
Cite as 305 Neb. 949
interrogation, including that he or she has the right to remain silent, that
any statement he or she makes may be used as evidence against him or
her, and that he or she has the right to an attorney.
6. Miranda Rights: Self-Incrimination: Evidence. Miranda warnings are
considered prerequisites to the admissibility of any statement made by a
defendant during custodial interrogation.
7. Miranda Rights. Miranda warnings are required only when a suspect
interrogated by the police is in custody.
8. ____. The ultimate inquiry for determining whether a person is in cus-
tody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), is whether there is a formal arrest or restraint
on freedom of movement of degree associated with a formal arrest.
9. ____. Custody under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), is to be determined based on how a
reasonable person in the suspect’s situation would perceive his or her
circumstances.
10. Constitutional Law: Search and Seizure. A seizure under the Fourth
Amendment occurs only if, in view of all the circumstances surrounding
the incident, a reasonable person would have believed that he or she was
not free to leave.
11. Miranda Rights. In considering whether a suspect is in custody for
purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), relevant considerations include, but are not limited
to: the location of the interaction, who initiated the interaction, the
duration of the interaction, the type and approach of questioning, the
freedom of movement of the suspect, the duration of the interaction,
and whether the suspect was placed under arrest at the termination of
the interaction.
12. ____. The test for determining custody under Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is an objective
inquiry that does not depend on the subjective views harbored by either
the interrogating officer or person being interrogated.
13. Miranda Rights: Waiver: Words and Phrases. To be a valid waiver
of Miranda rights, a waiver must be knowingly and voluntarily made.
A waiver is knowing if it is made with a full awareness of both the
nature of the right being abandoned and the consequences of the deci-
sion to abandon it. A waiver is voluntary if it is the product of a free
and deliberate choice rather than through intimidation, coercion, or
deception.
14. Miranda Rights: Waiver. Whether a knowing and voluntary waiver of
Miranda rights has been made is determined by looking to the totality
of the circumstances.
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15. Miranda Rights: Waiver: Police Officers and Sheriffs. While waiver
must be knowingly made, law enforcement is not required to inform a
suspect of all aspects of the investigation prior to the waiver of the sus-
pect’s Miranda rights.
16. Miranda Rights: Police Officers and Sheriffs. Law enforcement offi-
cers are not required to rewarn suspects from time to time of their
Miranda rights. The Miranda rule and its requirements are met if a
suspect receives adequate Miranda warnings, understands them, and
has an opportunity to invoke the rights before giving any answers or
admissions.
17. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In
reviewing the strength of an affidavit submitted as a basis for finding
probable cause to issue a search warrant, an appellate court applies a
totality of the circumstances test.
18. ____: ____: ____: ____. In reviewing the strength of an affidavit sub-
mitted as a basis for finding probable cause to issue a search warrant,
the question is whether, under the totality of the circumstances illus-
trated by the affidavit, the issuing magistrate had a substantial basis for
finding that the affidavit established probable cause.
19. Search Warrants: Probable Cause: Words and Phrases. Probable
cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found.
20. Search Warrants: Affidavits: Evidence: Appeal and Error. In evalu-
ating the sufficiency of an affidavit used to obtain a search warrant,
an appellate court is restricted to consideration of the information and
circumstances contained within the four corners of the affidavit, and
evidence which emerges after the warrant is issued has no bearing on
whether the warrant was validly issued.
21. Search Warrants: Time: Appeal and Error. A search warrant and
application’s indicating incorrect dates of their drafting and signing is
not per se fatal to the validity of a warrant.
22. Search Warrants: Appeal and Error. Misstatements within an appli-
cation and warrant may still produce a valid warrant if the rest of the
warrant and attached application cures any defect resulting from the
scrivener’s error when read together.
23. Constitutional Law: Trial: Joinder. There is no constitutional right to
a separate trial.
24. Trial: Joinder: Appeal and Error. Whether offenses were properly
joined involves a two-stage analysis: (1) whether the offenses were suf-
ficiently related to be joinable and (2) whether the joinder was prejudi-
cial to the defendant.
25. Trial: Joinder: Presumptions. There is a strong presumption against
severing properly joined counts.
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26. Trial: Joinder: Appeal and Error. While Neb. Rev. Stat. § 29-2002
(Reissue 2016) presents two separate questions, there is no error under
either subsection (1) or (3) if joinder was not prejudicial, and a denial of
a motion to sever will be reversed only if clear prejudice and an abuse
of discretion are shown.
27. ____: ____: ____. An appellate court will find an abuse of discretion in
the denial of a motion to sever only where the denial caused the defend­
ant substantial prejudice amounting to a miscarriage of justice.
28. Trial: Joinder. Prejudice from joinder cannot be shown if evidence of
one charge would have been admissible in a separate trial of another
charge.
29. Criminal Law: Witnesses. Evidence of a defendant’s attempted intimi-
dation or intimidation of a State’s witness is relevant evidence of a
defendant’s conscious guilt that a crime has been committed.
30. Trial: Joinder: Juries: Evidence. Joined charges do not usually result
in prejudice if the evidence is sufficiently simple and distinct for the
jury to easily separate evidence of the charges during deliberations.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Beau Finley, of Law Offices of Beau Finley, P.C., L.L.O.,
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.
Funke, J.
Michael D. Benson was convicted of second degree murder,
use of a deadly weapon to commit a felony, possession of a
deadly weapon by a prohibited person, and two counts of tam-
pering with a witness. On appeal, Benson claims the district
court erred in failing to suppress statements he made to law
enforcement and cell phone data acquired pursuant to a search
warrant. Benson also claims the court committed reversible
error by declining to sever the two counts of tampering with
a witness from the other charges. Finally, Benson claims there
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STATE v. BENSON
Cite as 305 Neb. 949
was insufficient evidence to support his convictions. For the
reasons set forth herein, we affirm.
BACKGROUND
This case concerns the fatal shooting of James Womack on
September 18, 2017. Pursuant to this shooting, Benson was
charged by amended information with second degree murder,
use of a deadly weapon (firearm) to commit a felony, and
possession of a deadly weapon by a prohibited person. The
information was amended a second time to add two counts of
tampering with a juror, witness, or informant regarding tele-
phone calls made by Benson to witnesses Deja Jefferson and
Erica Guitron on February 11 and 12, 2019.
Motion to Suppress Statements
Prior to trial, Benson filed a motion to suppress and exclude
any and all statements made by him to officers of the Omaha
Police Department (Department) on September 20 and 23,
2017. On September 20, Benson had made statements to Officer
Mark Negrete to report that his pickup had been stolen and that
he believed it may have been used in the commission of the
shooting. Benson argued that his statements on September 20
were inadmissible because he was subjected to custodial inter-
rogation and never informed of his Miranda rights. Benson’s
statements on September 23 occurred in an interview with
Det. Ryan Davis on the report that his pickup had been stolen.
Davis, who had been investigating Womack’s death, had evi-
dence contradicting Benson’s claim that his pickup had been
stolen and had evidence that indicated Benson was a party with
knowledge of the shooting. While Benson waived his rights
following Davis’ reading of a Miranda notice, Benson argued
such waiver was not knowingly and freely given.
At a hearing on the motion, Negrete testified he was work-
ing patrol in his police uniform on September 20, 2017, and
responded to a call concerning an individual wishing to report
a stolen vehicle. Negrete first spoke to Sgt. Michael Ratliff of
the homicide division, who gave him the assignment. Negrete
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testified that it was not typical on a day-to-day basis to get
assignments from the homicide unit. Ratliff told Negrete that
he wanted him to take the report from the vehicle’s owner,
advised that the “vehicle may have been involved in a homi-
cide,” and mentioned Benson’s name. Ratliff talked to Negrete
about Negrete’s body camera recording of his interaction with
Benson. Ratliff’s call with Negrete lasted about 3 minutes
and occurred about 15 minutes prior to Negrete’s receiving
another call from dispatch about taking the report on the sto-
len vehicle.
When Negrete arrived at Benson’s apartment, he met Benson
in the parking lot. Negrete asked for Benson’s name and proof
of identification, but Benson did not have his identification, so
he turned to get it from his apartment. Before Benson could go
to his apartment, however, Negrete continued to ask him ques-
tions and get the information about the stolen vehicle while the
parties were in the parking lot. Benson reported that at about
2 to 3 a.m. on September 17, 2017, he was visiting someone’s
residence and went outside to find his pickup was missing.
After taking most of the information for the report, Negrete
returned to his patrol vehicle, and Benson went to his apart-
ment, where he located his identification and then provided it
to Negrete.
Det. Derek Mois testified that he works on a team within
the homicide division led by Ratliff and in which Davis was
a member. This team was assigned the Womack homicide,
and Davis was its lead detective. Mois explained that through
initial investigation, the Department had acquired and released
to the public details and photographs of a potential suspect’s
vehicle. Pursuant to calls from the public describing the loca-
tion of a pickup matching the released information, officers
were able to locate a pickup matching the description and
observed particular identifiers known by the Department. This
pickup was registered to Benson and to Jefferson, and Mois
explained that Davis obtained a search warrant to collect
and process it. The processing of the pickup revealed items
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including shell casings and a September 18, 2017, receipt
from a Hy-Vee grocery store on 96th and Q Streets in Omaha,
Nebraska. Mois testified that he conducted followup with
Hy-Vee employees and watched Hy-Vee’s video surveillance,
which showed Benson with his pickup at around 2 p.m., about
3 hours before Womack was shot.
Mois testified that on September 20, 2017, he fielded a call
from a man identifying himself as the owner of the pickup
which had been seized the day before. The man was concerned
about reports that the pickup had been used in connection with
a crime and wanted to report it as stolen. Mois told the man
that if he had not been in possession of the pickup and believed
it was stolen, he first needed to call the 911 emergency dis-
patch service to issue a report. The parties did not discuss the
matter further, and Mois informed Ratliff of the call once he
hung up. Mois explained that at the time of the call, the team
only had reason to believe the pickup was potentially involved
in a crime and had no other reasons to suspect that Benson, as
the owner of the pickup, was himself involved.
Mois described that he was in his Department office on
September 23, 2017, when Davis interviewed Benson concern-
ing the pickup and the evidence conflicting with the report
Benson gave to Negrete. At that point, Mois explained, investi-
gators suspected Benson’s participation in Womack’s homicide
due to the identification of his pickup, evidence found in the
search of the pickup, and evidence contradicting Benson’s
report that his pickup was stolen. Mois testified that the
interview was conducted on the fourth floor of Department
headquarters in a homicide interview room. Mois had been
in and out of a conference room where detectives could lis-
ten in on the interview, and he later reviewed a recording of
the interview.
Mois explained that Davis read Benson his Miranda rights
and that Benson waived his rights and agreed to speak. Davis
initially asked Benson for details surrounding the theft of his
pickup, and Benson’s answers did not vary substantively from
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STATE v. BENSON
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the report he gave Negrete. After this initial questioning, Davis
left the room for around 90 seconds, and when he returned,
Mois described that the questioning changed. For about the
next 11⁄2 hours, Davis confronted Benson about evidence which
contradicted his report and repeatedly brought up the evidence
that showed Benson with the pickup at Hy-Vee after the time
he reported the pickup had been stolen. Benson was arrested
after the interview once Davis had an opportunity to confer
with Ratliff and possibly the county attorney’s office.
Davis also testified concerning Benson’s interview on
September 23, 2017. According to Davis, Ratliff had informed
him earlier in the day that Benson would be coming in for
the interview. Davis’ first interaction with Benson was after
he had already been led into the interview room by other law
enforcement personnel. Davis explained that he performed
a pat-down search, introduced himself, and asked Benson
identifying information. At this point, Davis read Benson his
Miranda rights and Benson waived those rights and agreed to
speak with Davis. For around the first 45 minutes, Davis and
Benson discussed Benson’s report. However, Davis was aware
of Benson’s previous statements to Negrete and the evidence
contradicting his allegations and the timeline. Davis left the
interview room briefly, and when he returned, his question-
ing shifted to confronting and questioning Benson about the
contradictions, including the evidence about his presence at
Hy-Vee with the pickup after he alleged that it had been stolen.
Davis explained that this shift in questioning was because he
first wanted to give Benson an opportunity to provide clarify-
ing information that explained the contradictions. After the
interview, Benson was arrested.
Following the hearing, the district court denied Benson’s
motion. The court found Benson’s September 20, 2017, state-
ments to Negrete were admissible because Benson was not
in custody when Negrete was taking his report and, as such,
Benson was not required to make a knowing and voluntary
waiver of his Miranda rights before he could be questioned.
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The court also found Benson’s September 23 statements to
Davis were admissible because Davis informed Benson of his
Miranda rights, Benson waived his rights and agreed to talk to
Davis, and there is no requirement that law enforcement offi-
cers fully inform a suspect of all the evidence they have before
that suspect can make a knowing and voluntary waiver.
Motion to Suppress
Cell Phone Data
Benson filed an additional motion to suppress any and all
evidence obtained from the execution of a search warrant of
Benson’s cell phone data. Benson argued that the search war-
rant and application were facially invalid due to their use of an
incorrect date and that there was insufficient credible evidence
to establish the necessary probable cause.
A hearing was held in which Davis testified that on
September 20, 2017, he applied for a search warrant for
telephone numbers connected to Benson, which was granted.
Davis explained that the county attorney’s office notified him
in November 2018 that there appeared to be a discrepancy
with some of the dates in the search warrant and application.
Davis subsequently reviewed the search warrant and observed
typographical errors. Davis testified he did not know about the
incorrect date at the time of applying, executing, or returning
the search warrant.
Although Davis filled out the application and search war-
rant on September 20, 2017, the application and search war-
rant listed September 18, which is the date of Womack’s
homicide, as the date the application and warrant were filled
out and signed. Davis explained he used a template created by
the Department’s forensic unit and that when he mistakenly
put September 18 into the application, the template auto-
matically filled in that date throughout the application and
search warrant.
The narrative portion of the affidavit in support of the appli-
cation lists correct dates in the timeline of the offense and
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investigation, including reference to the September 20, 2017,
execution of a different search warrant. Additionally, the order
to seal attached to the search warrant and signed by the court
was dated September 20, 2017, and the return and inventory
filed by Davis described serving the warrant on September
20. A fax cover sheet sent with the application for the cell
service carrier to execute the search warrant, a confirmation
sheet from the fax machine to confirm the fax was sent, and
emailed correspondence with the cell service carrier also listed
September 20.
Following the hearing, the district court denied Benson’s
motion. The court found that there was sufficient evidence to
establish probable cause and that the erroneous dates appear-
ing on the application and search warrant were inadvertent
errors which did not affect their validity.
Motion to Sever
Benson filed a motion to sever the charges of second degree
murder, use of a deadly weapon to commit a felony, and pos-
session of a deadly weapon by a prohibited person from the
two counts of tampering with a juror, witness, or informant.
Benson argued that the claimed offenses were not similar in
character and that Benson would be prejudiced in the joining
of the charges.
The district court overruled Benson’s motion. The court
found that the counts were properly charged in the second
amended information and that joining the tampering charges to
the other charges would not prejudice Benson pursuant to Neb.
Rev. Stat. § 29-2002(3) (Reissue 2016).
Trial
Evidence presented at trial showed that around 4:30 p.m.
on September 18, 2017, law enforcement responded to 911
calls regarding a shooting at the intersection of 60th and L
Streets in Omaha. Officers observed a man, later identified as
Womack, lying on the median near the intersection. Medical
personnel arrived, took over Womack’s care, and transported
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him to a hospital where he later died from his wounds. Officers
discovered a spent “5.7 by 28 caliber casing” on the ground at
the scene.
Officers interviewed witnesses as part of their initial investi-
gation. These witnesses, taken together, indicated that Womack
and a tan-colored pickup with two occupants were stopped at a
red light. Womack’s semi-truck was in a through lane while the
tan-colored pickup was stopped in a left-turn lane. Womack got
out of his semi-truck, approached the pickup, hit the pickup’s
window with his hand, and said something to the occupants.
Womack then turned around and began walking back to his
semi-truck, and one of the pickup’s occupants fired a gun
which hit Womack twice in the back. The pickup then ran the
red light, turned left, and sped off.
Law enforcement obtained video recordings from nearby
businesses and vehicles at the intersection. From these videos,
officers were able to develop a description of the pickup as
an older, tan-colored extended-cab model with heavily tinted
windows, noticeable damage to the rear quarter panels, and a
distinctive rear bumper sticker. The video from a vehicle also
allowed officers to confirm that there were two occupants in
the pickup, gunshots came from the pickup, and the pickup ran
the red light after the shooting. Additionally, this video showed
movement of the passenger in the pickup as the shots were
being fired.
The Department released still images from the videos dis-
playing the pickup to the media for the public’s help in its
identification. On September 19, 2017, a Department detective
received a telephone call from a special agent who relayed that
one of his informants had seen the images of the pickup on the
news and believed it belonged to Benson and was parked in
a parking lot at 46th and Cass Streets in Omaha. Pursuant to
this information, officers, including that detective, went to the
parking lot and found a pickup matching the description.
The search and processing of the pickup on the morning
of September 20, 2017, revealed a Hy-Vee receipt for flowers
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from the store on 96th and Q Streets on September 18 at
1:06 p.m., two spent casings of the same caliber as the one
found at the scene, gunshot residue from various parts of the
passenger area, and a receipt from an automobile dealership
and the pickup’s registration indicating Benson and Jefferson
were its owners. Following up on the Hy-Vee receipt, Mois
obtained video from the Hy-Vee store which showed Benson
entering and leaving the store, by himself. The video also
showed Benson returning to the pickup around 1 p.m. on
September 18.
Later on September 20, 2017, another detective went to the
dealership named on the receipt, where he obtained records
for the sale of the pickup, including Benson’s cell phone num-
ber. The dealership had a lien on the pickup and had access
to a tracking device on it, data from which the dealership
provided law enforcement. This tracking device did not con-
stantly record. Instead, it recorded locations during periodic
“health check[s]” and whenever the pickup was turned on or
off, which the device determined when it detected movement
above a certain threshold or stopped moving for a certain
period of time. The tracking device recorded that during data
entries on September 17 at around 12:43 a.m., 6:44 a.m.,
and 7:49 p.m., the pickup was parked in the same location.
Additionally, the tracking data recorded that the pickup was
at the Hy-Vee parking lot on 96th and Q Streets on September
18 at 1 p.m.
Benson’s cell phone records provided data which law
enforcement was able to use to estimate the locations of his
cell phone around the time of Womack’s homicide. These
records included a 4:30 p.m. call which put the cell phone
around the intersection at 60th and L Streets.
At Benson’s direction, Jefferson called law enforcement on
September 20, 2017, to report that the pickup had been stolen
on September 17. Benson had previously told Jefferson that
the pickup was stolen but did not tell her to report it until
September 20. Negrete went to their apartment to follow up on
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the report, and Benson alleged that the pickup was stolen on
September 17.
During the execution of a search warrant of Benson’s apart-
ment on September 22, 2017, officers discovered clothing
that matched what Benson was wearing in the Hy-Vee video.
Testing of samples taken from this clothing revealed the pres-
ence of gunshot residue.
On September 23, 2017, Benson went to Department head-
quarters and was interviewed by Davis concerning the alleged
theft of his truck. After an initial discussion where Davis asked
about Benson’s allegations, Davis confronted Benson about the
evidence which contradicted his timeline. Benson maintained
he was not involved in Womack’s homicide, and at the end of
the interview, Benson was arrested.
Jefferson testified that she and Benson were in an inti-
mate relationship and that they had children together. Benson,
Jefferson, and the children lived together in the apartment, but
Benson did not always stay there. Jefferson identified the sus-
pect pickup as Benson’s, explained that Benson had asked her
to report it as stolen, and testified that Benson did not stay at
the apartment the night of the shooting.
Guitron worked with and was also in an intimate relation-
ship with Benson. Guitron testified that Benson bought her
flowers on the afternoon of September 18, 2017, and confirmed
text messages he sent her, including two from around the time
of the shooting that said “just got in2 sum shitt” and that he
could not text anything else about it.
Law enforcement recorded telephone calls from Benson to
Jefferson and Guitron while Benson was in jail. During these
calls, Benson told Jefferson and Guitron at different times not
to cooperate with the authorities.
Marvin Stockdale, who was in jail at the same time as
Benson, testified that he and Benson had a conversation while
in a holding cell. Stockdale explained that Benson talked
with him about his case and said, among other things, that he
“‘got rid of the gun after [he] smoked the dude’” and that he
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was worried about the forensics on the hooded sweatshirt and
whether investigators would find gunpowder on it. Additionally,
Stormy Figueroa, a friend and coworker of Benson’s, said that
she talked with him about the shooting and that Benson said,
“‘Well, yeah, I mean, if somebody like that came in my prop-
erty, then, yeah, I’d shoot him, too.’”
Following the presentation of evidence and arguments from
the parties, Benson was found guilty and sentenced to 40 to 50
years’ imprisonment for second degree murder, 20 to 25 years’
imprisonment for use of a deadly weapon to commit a felony,
5 to 10 years’ imprisonment for possession of a deadly weapon
by a prohibited person, and 1 to 2 years’ imprisonment on each
count of tampering with a witness.
ASSIGNMENTS OF ERROR
Benson assigns, restated, that the district court erred by
(1) failing to suppress Benson’s statements to Negrete on
September 20, 2017; (2) failing to suppress Benson’s state-
ments to Davis on September 23; (3) failing to suppress
Benson’s cell phone data acquired pursuant to a search warrant
issued on September 20; and (4) overruling Benson’s motion
to sever the two tampering counts from the initial charges.
Benson also assigns there was insufficient evidence to support
his convictions.
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,
an appellate court applies a two-part standard of review. 1
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 2
1
State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).
2
Id.
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[2] A trial court’s denial of a motion to sever will not be
disturbed on appeal absent an abuse of discretion. 3
[3] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. 4 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. 5
ANALYSIS
Benson’s September 20, 2017, Statements
Benson claims his statements to Negrete on September 20,
2017, should have been suppressed because he was subjected
to custodial interrogation and was not advised of his Miranda
rights. Benson argues he was detained by Negrete during the
encounter as evidenced by his attempt to return to his apart-
ment and Negrete’s continued questioning.
[4-6] Miranda v. Arizona 6 prohibits the use of statements
derived during custodial interrogation unless the prosecution
demonstrates the use of procedural safeguards that are effec-
tive to secure the privilege against self-incrimination. Miranda
requires law enforcement to give a particular set of warnings
to a person in custody before interrogation, including that he or
she has the right to remain silent, that any statement he or she
makes may be used as evidence against him or her, and that he
3
See State v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015).
4
State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017); State v.
Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).
5
Mendez-Osorio, supra note 4; Jedlicka, supra note 4.
6
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). See, also, State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).
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or she has the right to an attorney. 7 These warnings are consid-
ered prerequisites to the admissibility of any statement made
by a defendant during custodial interrogation. 8
[7-10] Miranda warnings are required only when a suspect
interrogated by the police is in custody. 9 The ultimate inquiry
for determining whether a person is in custody is whether
there is a formal arrest or restraint on freedom of movement of
degree associated with a formal arrest. 10 Custody is to be deter-
mined based on how a reasonable person in the suspect’s situ-
ation would perceive his or her circumstances. 11 Stated another
way, a seizure under the Fourth Amendment occurs only if,
in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he or she was not
free to leave. 12
[11] In considering whether a suspect is in custody for
Miranda purposes, relevant considerations include, but are not
limited to the location of the interaction, who initiated the inter-
action, the duration of the interaction, the type and approach
of questioning, the freedom of movement of the suspect, the
duration of the interaction, and whether the suspect was placed
under arrest at the termination of the interaction. 13
Here, Benson was not in custody during his interaction
with Negrete on September 20, 2017. Benson initiated the
interaction by asking Jefferson to call and report the pickup as
stolen. Negrete was assigned the task of taking the stolen vehi-
cle report and arrived at Benson’s apartment complex, where
he made contact with Benson. Throughout the conversation,
7
Miranda, supra note 6. See, also, Juranek, supra note 6.
8
State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019).
9
Id.
10
Id.
11
Id.
12
See State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).
13
See Montoya, supra note 8. See, also, U.S. v. Axsom, 289 F.3d 496 (8th
Cir. 2002); State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
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the parties’ discussion was centered on the alleged theft of
Benson’s pickup, which he requested to have documented in
the report. The majority of the conversation occurred outside
in the apartment’s parking lot. Benson’s movement was not
substantially restricted, and at one point, the parties separated
with Negrete returning to his vehicle and Benson going to his
apartment to get proof of identification. The interaction was
not uncommonly long, and at the conclusion, Benson was not
placed under arrest.
Benson argues that his movement was restricted when,
after Negrete asked for identification, Benson turned to get
his identification from his apartment but Negrete continued to
question him in the parking lot instead. Contrary to Benson’s
argument, this exchange is insufficient to show Benson was
restricted in his movement or ability to leave and terminate
the conversation. This exchange occurred shortly after the
conversation began with Negrete’s getting Benson’s name and
asking whether he had any identification on him. Benson did
not have his identification with him, and Negrete asked him
whether his identification was in the apartment. At that point,
Benson turned to go back to apartment, but before he left,
Negrete shifted the conversation by asking questions about the
theft Benson sought to report. In context, Benson was not turn-
ing to leave and terminate the conversation but was, instead,
seeking to continue the interaction by getting the documenta-
tion he thought Negrete wanted. This exchange, on its own,
does not demonstrate that Benson was in custody requiring
Miranda warnings.
Benson also points to Ratliff’s participation in assigning
Negrete to take the report. Benson argues that this fact, coupled
with Negrete’s previous knowledge of Womack’s homicide and
the use of his body camera to record the interaction, estab-
lishes that Negrete’s taking of Benson’s report was “plainly to
gain a statement from a homicide suspect in a manner that the
suspect would not at all anticipate or contemplate.” 14
14
Brief for appellant at 30.
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[12] Regardless of Ratliff’s or Negrete’s intent, the test
for determining custody is an objective inquiry that does not
depend on the subjective views harbored by either the inter-
rogating officer or person being interrogated. 15 Instead, the
question is determined based on how a reasonable person in the
suspect’s situation would perceive the circumstances. 16
As the district court found, under the totality of the circum-
stances, a reasonable person would not have believed he or she
was unable to leave or terminate the interaction. Benson initi-
ated the interaction, which occurred in an open, neutral space;
the subject of the interaction was limited to Benson’s report on
his allegedly stolen pickup; Benson was not restricted in his
movements; and the interaction was a relatively short one after
which Benson was not arrested. Benson was not in custody,
and Negrete was not required to provide Miranda warnings.
Accordingly, the district court did not err in declining to sup-
press Benson’s September 20, 2017, statements.
Benson’s September 23, 2017, Statements
Benson assigns the district court should have suppressed his
statements to Davis on September 23, 2017, because he did not
knowingly and voluntarily waive his Miranda rights.
[13,14] To be a valid waiver of Miranda rights, a waiver
must be knowingly and voluntarily made. 17 A waiver is know-
ing if it is made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to
abandon it. 18 A waiver is voluntary if it is the product of a free
and deliberate choice rather than through intimidation, coer-
cion, or deception. 19 Whether a knowing and voluntary waiver
15
Montoya, supra note 8.
16
Id.
17
See, State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018); State v.
Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
18
Id.
19
Id.
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has been made is determined by looking to the totality of the
circumstances. 20
There is no dispute that the September 23, 2017, interview
occurred after Benson was fully advised of his Miranda rights
and that Benson issued a waiver of those rights and agreed to
speak with Davis. There is also no dispute that Benson had
reason to believe the interview would concern the report of his
allegedly stolen pickup, which report Benson indicated to Mois
he wished to make because he was worried about reports it was
involved in a homicide.
Benson, instead, argues this Miranda waiver was insuf-
ficient because he did not know that he was a suspect in
Womack’s homicide and that Davis had evidence contradicting
his report. Benson also claims Davis misled him during the
interview by using Benson’s lack of knowledge presumably
to gain a “tactical edge” in the interview and get Benson to
incriminate himself. 21
[15] While waiver must be knowingly made, law enforce-
ment is not required to inform a suspect of all aspects of the
investigation prior to the waiver of the suspect’s Miranda
rights. In Colorado v. Spring, 22 the U.S. Supreme Court stated,
“‘[W]e have never read the Constitution to require that the
police supply a suspect with a flow of information to help him
calibrate his self-interest in deciding whether to speak or stand
by his rights.’” The Court explained:
This Court’s holding in Miranda specifically required
that the police inform a criminal suspect that he has
the right to remain silent and that anything he says
may be used against him. There is no qualification of
this broad and explicit warning. The warning, as formu-
lated in Miranda, conveys to a suspect the nature of his
20
Id.
21
Brief for appellant at 34.
22
Colorado v. Spring, 479 U.S. 564, 576-77, 107 S. Ct. 851, 93 L. Ed. 2d
954 (1987).
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constitutional privilege and the consequences of abandon-
ing it. Accordingly, we hold that a suspect’s awareness
of all the possible subjects of questioning in advance of
interrogation is not relevant to determining whether the
suspect voluntarily, knowingly, and intelligently waived
his Fifth Amendment privilege. 23
Davis was not required to disclose his strategy for the
interview or his knowledge of contradictory evidence prior
to Benson’s waiver. Davis was not required to explain to
Benson the interrogation strategy Davis planned to use or to
disclose to Benson the evidence Davis possessed contradict-
ing Benson’s stolen vehicle report. Davis was merely required
to advise Benson of his Miranda rights. Davis read Benson
a sufficient explanation of these rights, and Benson chose to
waive them.
Benson cites several instances where he claims Davis made
misleading statements that indicated he was concerned only
about the return of Benson’s allegedly stolen pickup, and, as
such, Benson argues such representation prohibited a knowing
and voluntary waiver because it caused Benson to be unaware
of the actual topic of discussion. It is unclear how Benson is
claiming these statements led to an invalid waiver, because
they were made after Benson was read and waived his Miranda
rights. Regardless, and contrary to Benson’s argument, he was
informed of the nature of the interview. As explained above,
Benson had called Mois seeking to report his pickup as stolen
due to concerns it may have been involved in Womack’s shoot-
ing. He then provided a report to Negrete alleging someone
had stolen the pickup the day before Womack was killed. It
is unchallenged that all parties understood the September 23,
2017, interview as followup to this report.
[16] Benson also takes issue with Davis’ shift in ques-
tioning from asking questions to clarify Benson’s report to
confronting Benson on evidence contradicting his report. As
23
Id., 479 U.S. at 577.
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explained above, Davis was not required to reveal his inter-
rogation strategy prior to Benson’s waiver. Additionally, to the
extent Benson’s argument could be claiming that the differ-
ence in interview strategy would necessitate a further waiver,
we have previously stated that law enforcement officers “‘are
not required to rewarn suspects from time to time.’” 24 The
Miranda rule and its requirements are met if a suspect receives
adequate Miranda warnings, understands them, and has an
opportunity to invoke the rights before giving any answers or
admissions. 25
In consideration of all of the above, Benson’s waiver of his
Miranda rights before the interview with Davis was knowingly
and voluntarily given and the district court did not err in declin-
ing to suppress Benson’s September 23, 2017, statements.
Search Warrant For Benson’s
Cell Phone Data
Benson’s assignment that the district court erred in failing to
suppress his cell phone data centers on his argument that the
search warrant granting access to this data was invalidly defi-
cient due to misstatements of the warrant and the application’s
drafting and approval date.
The Fourth Amendment to the U.S. Constitution provides
that warrants may not be granted “but upon probable cause,
supported by Oath or affirmation, and particularly describ-
ing the place to be searched, and the persons or things to
be seized.” The Nebraska Constitution, under article I, § 7,
similarly provides that “no warrant shall issue but upon prob-
able cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to
be seized.”
[17-20] In reviewing the strength of an affidavit submitted
as a basis for finding probable cause to issue a search warrant,
24
Burries, supra note 17, 297 Neb. at 389, 900 N.W.2d at 504.
25
Id.
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an appellate court applies a totality of the circumstances test. 26
The question is whether, under the totality of the circum-
stances illustrated by the affidavit, the issuing magistrate had
a substantial basis for finding that the affidavit established
probable cause. 27 Probable cause sufficient to justify issuance
of a search warrant means a fair probability that contraband
or evidence of a crime will be found. 28 In evaluating the suf-
ficiency of an affidavit used to obtain a search warrant, an
appellate court is restricted to consideration of the informa-
tion and circumstances contained within the four corners of
the affidavit, and evidence which emerges after the warrant
is issued has no bearing on whether the warrant was val-
idly issued. 29
Benson argues that the application and search warrant fail
to provide an “accurate timeline for the events” and make no
“chronological sense” due to their use of an incorrect drafting
and approval date. 30 As such, Benson claims, they fail to pro-
vide sufficient probable cause.
We disagree with Benson’s description that the applica-
tion and warrant fail to provide an accurate timeline of the
events to establish probable cause. The incorrect dates used
in the application and warrant were limited to descriptions of
when the application and warrant were drafted and approved.
These dates are not part of the factual basis the State alleged
established probable cause. Instead, the narrative portion of
the application, where Davis provided a factual basis for the
search, lists correct dates in the timeline of the offense and
investigation. Misstating the date the application and warrant
were drafted and approved is irrelevant to establishing the
timeline of events to determine probable cause.
26
State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).
27
Id.
28
Id.
29
Id.
30
Brief for appellant at 37.
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[21,22] A search warrant and application’s indicating incor-
rect dates of their drafting and signing is not per se fatal to the
validity of a warrant. 31 Misstatements within an application and
warrant may still produce a valid warrant if the rest of the war-
rant and attached application cures any defect resulting from
the scrivener’s error when read together. 32 For instance, in the
context of warrants and applications misstating addresses of a
place to be searched, we have held that even if the numerical
address is wrong, a warrant may still be valid if the descrip-
tion is adequate to direct the officer to the correct place for
the search. 33
In this case, the totality of the warrant and its attachments
establishes that the date misidentified as the date of drafting
and approval was a typographical error and sufficiently identi-
fies September 20, 2017, as the correct date of drafting and
approval. As noted above, the narrative section of the warrant
correctly lists dates in the timeline of the offense and investi-
gation. This section describes events occurring subsequently to
September 18, including reference to the execution of a differ-
ent search warrant on September 20. Additionally, an order to
seal was attached to the search warrant which was signed by
the court at the time of the search warrant’s approval and was
dated September 20, 2017.
We conclude the warrant and application’s identification of
September 18, 2017, as the drafting and approval date was a
scrivener’s error corrected when the warrant and its attach-
ments are read together. Moreover, the misuse of these dates
does not affect the description of the timeline of the offense
and investigation which the State offered as the basis for prob-
able cause. As such, the error did not invalidate the warrant and
the district court did not err in declining to suppress Benson’s
cell phone data.
31
See State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
32
Id.
33
See, State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991); State v.
Walters, 230 Neb. 539, 432 N.W.2d 528 (1988).
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Motion to Sever
Benson assigns the district court erred in failing to sever
the tampering charges. Benson argues the charges are not
sufficiently similar to allow for joinder in that the tam-
pering counts have no elemental similarities, were not a
common scheme or plan, and concern acts which occurred
nearly 17 months after Womack’s killing, which precipitated
the other counts. Benson asserts he was prejudiced by this
joinder because the State offered evidence to establish the
tampering clauses that improperly bolstered Jefferson’s and
Guitron’s testimony and “mudd[ied] the evidentiary waters”
for the jury. 34
[23-25] There is no constitutional right to a separate trial. 35
Instead, the joinder or separation of charges for trial is gov-
erned by § 29-2002, which states, in relevant part:
(1) Two or more offenses may be charged in the
same indictment, information, or complaint in a separate
count for each offense if the offenses charged, whether
felonies or misdemeanors, or both, are of the same or
similar character or are based on the same act or trans-
action or on two or more acts or transactions connected
together or constituting parts of a common scheme or
plan.
....
(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint . . . the court may order an
election for separate trials of counts, indictments, infor-
mations, or complaints, grant a severance of defendants,
or provide whatever other relief justice requires.
Summarized, whether offenses were properly joined involves
a two-stage analysis: (1) whether the offenses were suffi-
ciently related to be joinable and (2) whether the joinder was
34
Brief for appellant at 41.
35
See State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
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prejudicial to the defendant. 36 There is a strong presumption
against severing properly joined counts. 37
[26,27] While § 29-2002 presents two separate questions,
there is no error under either subsection (1) or (3) if joinder
was not prejudicial, and a denial of a motion to sever will be
reversed only if clear prejudice and an abuse of discretion are
shown. 38 An appellate court will find such an abuse only where
the denial caused the defendant substantial prejudice amount-
ing to a miscarriage of justice. 39
A defendant appealing the denial of a motion to sever has
the burden to show compelling, specific, and actual preju-
dice. 40 Severe prejudice occurs when a defendant is deprived
of an appreciable chance for an acquittal, a chance that the
defendant would have had in a severed trial. 41
In the instant case, we need not consider whether the tam-
pering counts were sufficiently related to be properly joined
under § 29-2002(1), because Benson has failed to show preju-
dice from the joinder. Essentially, Benson argues that the
evidence of the tampering counts, which indicated he did
not want Jefferson or Guitron to provide the State damaging
testimony, influenced the jury’s verdicts because it made him
look guilty and added unwarranted emphasis to Jefferson’s and
Guitron’s testimony.
[28,29] Prejudice from joinder cannot be shown if evidence
of one charge would have been admissible in a separate trial
of another charge. 42 Benson does not explain why evidence
36
See id. See, also, State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018),
disapproved on other grounds, State v. Avina-Murillo, 301 Neb. 185, 917
N.W.2d 865 (2018).
37
Cotton, supra note 36. See, also, Briggs, supra note 35.
38
See Briggs, supra note 35.
39
See id.
40
See id.
41
Id.
42
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). See, also, Cotton,
supra note 36.
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of Benson’s telephone calls with Jefferson and Guitron would
be inadmissible in a separate trial on the other three charges.
Evidence of a defendant’s attempted intimidation or intimi-
dation of a State’s witness is relevant evidence of a defend­
ant’s “‘conscious guilt’” that a crime has been committed. 43
Accordingly, Benson’s calls with Jefferson and Guitron could
be admissible as relevant to Benson’s consciousness of guilt in
a separate trial.
[30] Additionally, joined charges do not usually result in
prejudice if the evidence is sufficiently simple and distinct
for the jury to easily separate evidence of the charges during
deliberations. 44 The jury in this case would have been able to
easily separate the evidence of the charges during deliberations
in that the evidence that Benson tampered with witnesses was
distinct. While the telephone calls may have been relevant to
the other charges and a consciousness of guilt, it was clear they
were offered to show Benson was attempting to get Jefferson
and Guitron not to participate in his prosecution.
Because Benson failed to establish prejudice from the join-
der of the charges, the district court did not abuse its discretion
in overruling Benson’s motion to sever.
Sufficiency of Evidence
On his sufficiency of the evidence assignment of error,
Benson first argues that the State presented insufficient evi-
dence on the second degree murder, use of a deadly weapon,
and possession of a deadly weapon charges. Benson argues
the State failed to meet its burden to show that he was in the
pickup at the time of the shooting and that he fired the gun.
As Benson acknowledges, the State did present evidence
as to these elements. Evidence was received that Benson
owned the pickup that was identified by witnesses and video
as being the pickup from which the shots were fired that
hit Womack and resulted in his death. Gunshot residue was
43
State v. Thorpe, 280 Neb. 11, 24, 783 N.W.2d 749, 761 (2010).
44
Briggs, supra note 35.
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discovered inside the pickup along with a casing that matched
the same weapon as the casing found at the scene. Benson’s
cell phone location put him in the area around the time of the
shooting, and the Hy-Vee video showed Benson driving the
truck 3 hours before the shooting. Gunshot residue was found
on clothes matching the clothes Benson was wearing in the
Hy-Vee video.
Witnesses testified as to statements Benson made indicat-
ing his participation. Guitron testified that Benson texted her
around the time of the incident that he had “just got in2 sum
shitt” but could not text anything about it. Figueroa testified
that she talked with Benson about the shooting and that he
said, “‘Well, yeah, I mean, if somebody like that came in my
property, then, yeah, I’d shoot him, too.’” Finally, Stockdale
testified that in talking with Benson about his case, Benson
said that he “‘got rid of the gun after [he] smoked the dude’”
and that he was worried about the forensics on the hooded
sweatshirt and whether investigators would find gunpowder
on it.
The court also received evidence of Benson’s consciousness
of guilt in his lying to law enforcement about the pickup’s
being stolen the night before the homicide and contacting wit-
nesses to encourage their noncooperation with the prosecution
of his case.
Benson seeks to overcome this evidence by contesting the
credibility of Stockdale and Figueroa and the weight of the evi-
dence of gunshot residue and the cell phone location. However,
an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh evidence when
determining the sufficiency of the evidence. 45 The jury, as the
finder of fact, heard Stockdale’s and Figueroa’s testimony,
weighed the evidence of the gunshot residue and cell phone
location evidence, and determined Benson was in the pickup
and was the shooter. We conclude, viewing the evidence in the
45
See Mendez-Osorio, supra note 4; Jedlicka, supra note 4.
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light most favorable to the State, that there was sufficient evi-
dence to support the jury’s finding of these essential elements
beyond a reasonable doubt.
As to the two counts of tampering with a witness, Benson
claims the State failed to meet its burden to prove he intended
to tamper with or obstruct Jefferson and Guitron from testi-
fying or cooperating with law enforcement. Benson argues
that the State did not offer any evidence to directly establish
intent and that it was “just as plausible” that he wanted the
two women, with whom he was in romantic relationships, “not
[to] cross paths as they likely would if both participated in
the investigation.” 46
When viewed in the light most favorable to the State, there
was again sufficient evidence for the jury to find the essential
elements of the tampering charges. Benson was charged under
Neb. Rev. Stat. § 28-919(1) (Reissue 2016), which provides, in
relevant part:
(1) A person commits the offense of tampering with
a witness . . . if, believing that an official proceeding or
investigation of a criminal . . . matter is pending . . . , he
or she attempts to induce or otherwise cause a witness or
informant to:
(a) Testify or inform falsely;
(b) Withhold any testimony, information, document, or
thing;
(c) Elude legal process summoning him or her to tes-
tify or supply evidence; or
(d) Absent himself or herself from any proceeding
or investigation to which he or she has been legally
summoned.
The State’s evidence of Jefferson’s and Guitron’s telephone
calls with Benson provided sufficient basis for finding the
required elements that Benson knew of his pending criminal
case and that he acted to induce or cause Jefferson and Guitron
46
Brief for appellant at 48.
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to refuse to comply with several subpoenas in the prosecution
of that case. The recordings of these calls include Benson’s
statement to Jefferson regarding her subpoena from the county
attorney’s office, “‘You are not going to go down there.’” Also
included is Benson’s statement to Guitron, “‘You don’t have
to come and you don’t have to testify against me.’” Even if
Benson were correct that the only reason for his telephone
calls was to prevent Jefferson and Guitron from crossing paths,
there was still evidence that he attempted to induce them not to
testify or cooperate with law enforcement. Under § 28-919, a
defendant’s reasons for attempting to induce a witness to com-
mit any of the acts enumerated in it are not relevant.
We find that the State did present sufficient evidence for
the jury to find the existence of the essential elements under
§ 28-919(1).
CONCLUSION
We conclude that Benson was not under custody for Miranda
purposes in his September 20, 2017, interview with Negrete,
that Benson knowingly and voluntarily waived his rights and
agreed to speak with Davis in his September 23 interview, and
that the search warrant for Benson’s cell phone data was not
invalidated by the mistaken use of incorrect dates on the war-
rant and application. Further, Benson did not establish adequate
prejudice from the joinder of his charges and the district court
did not abuse its discretion in overruling his motion to sever.
Finally, there was sufficient evidence to support the verdicts.
Benson’s convictions are affirmed.
Affirmed.