State v. Kramer, 90-575

• Citation: 238 Neb. 252,469 N.W.2d 785
• Decision Date: 31 May 1991
• Docket Number: No. 90-575,90-575
• Parties: STATE of Nebraska, Appellee, v. Dale KRAMER, Appellant.
• Court: Nebraska Supreme Court

Page 785

469 N.W.2d 785

238 Neb. 252

STATE of Nebraska, Appellee, v. Dale KRAMER, Appellant.

No. 90-575.

Supreme Court of Nebraska.

May 31, 1991.

Syllabus by the Court

1. Criminal Law: Directed Verdict. In a criminal case, a court can sustain a defendant's motion for a directed verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

2. Convictions: Witnesses: Testimony: Corroboration. Neb.Rev.Stat. § 28-1439.01 (Reissue 1989) requires only that a conviction be based on something more than only a cooperating individual's testimony. It is sufficient if the cooperating individual's testimony is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue.

3. Motions for Mistrial: Appeal and Error. A mistrial is properly granted when an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and would result in preventing a fair trial. The decision of whether to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent an abuse of discretion.

4. Rules of Evidence: Witnesses: Prior Convictions: Time. Under Neb.Evid.R. 609(2), Neb.Rev.Stat. § 27-609(2) (Reissue 1989), cross-examination of a witness regarding the witness' previous felony convictions and the number thereof is proper, but only if 10 or fewer years have elapsed since the date of conviction or the release of the witness from confinement.

5. Trial: Evidence: Appeal and Error. Where evidence is excluded, an offer of proof is generally a prerequisite to review on appeal.

6. Sentences: Appeal and Error. A sentence imposed within the statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

Jerry J. Fogarty, Deputy Hall County Public Defender, for appellant.

Mark J. Young, Deputy Hall County Atty., for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

After a jury trial, defendant-appellant, Dale Kramer, was convicted of one count of distribution of marijuana, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1986), which subsection was later amended in an immaterial manner. See § 28-416(1)(a) (Reissue 1989). Defendant was sentenced to a term of 18 to 24 months' imprisonment. He timely appealed to this court, contending the district court erred in overruling his motion for directed verdict, in overruling his motions for mistrial, in failing to allow defendant to impeach one of the State's witnesses with a second felony conviction, and in imposing an excessive sentence.

In a criminal case, a court can sustain a defendant's motion for a directed verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. State v. Perez, 235 Neb. 796, 457 N.W.2d 448 (1990); State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990); State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990). Defendant contends there was a complete failure of evidence to establish the fact that he was the person who sold the marijuana to a confidential informant, because the informant's testimony was not corroborated as required by Neb.Rev.Stat. § 28-1439.01 (Reissue 1989), which provides, "No conviction for an offense punishable under sections 28-401 to 28-438 shall be based solely upon the uncorroborated testimony of a cooperating individual."

The record shows that Michael Drugsvold testified at trial that in December 1987 he had agreed to work with the Nebraska State Patrol as a confidential informant. Drugsvold further testified that he had known defendant since high school and "[u]sed to get drugs from [defendant] all the time." There was no objection to this testimony. On December 15, 1987, Drugsvold made two telephone calls from the Nebraska State Patrol office to the defendant's residence. He recognized the voice answering the second telephone call as that of the defendant and asked defendant if he could purchase an ounce of marijuana. Defendant said, "Yeah. Come on over."

The record shows that Investigator Steven Kolb of the Nebraska State Patrol then searched Drugsvold for money and contraband, gave him money to purchase marijuana, equipped him with an audio transmitter (a "wire"), and drove him to a house "where Kramer was living." When Drugsvold arrived at defendant's residence, he knocked on the door and someone let him in. There were approximately 10 people in the house. While inside the residence, Drugsvold spoke to defendant about purchasing marijuana. Defendant said, "Hold on for a minute," went into the bedroom, and asked Drugsvold to come in. Drugsvold followed defendant into the bedroom and asked if he could "bring somebody in" who wanted to purchase an ounce of marijuana. Defendant said he did not want to meet anybody then. Drugsvold testified that he then purchased half an ounce of marijuana from the defendant for $45 or $50. Drugsvold then left the house, met Kolb, and gave Kolb the marijuana. They returned to the patrol office, where Drugsvold was again searched.

Kolb, a drug investigator for the Nebraska State Patrol, testified that he saw Drugsvold on December 15, 1987, at the State Patrol office in Grand Island. Kolb was present when Drugsvold made the two telephone calls to defendant. After the second call, Kolb and Investigator Vincent Hernandez searched Drugsvold for money and contraband and equipped him with an audio transmitter. Drugsvold was to ask defendant if Kolb could come into defendant's house and purchase an ounce of marijuana.

Kolb testified that he and Drugsvold drove to defendant's residence in a van. Drugsvold got out, went into the house, returned to the van about 12 minutes later, and gave Kolb two plastic bags of marijuana.

Investigator Hernandez testified that on December 15, 1987, he was assisting Kolb in Hall County. Hernandez followed Kolb and Drugsvold to the defendant's residence, parked about a block west of the house, and monitored the conversations of the people inside defendant's house. The tape recordings of the conversations were not received in evidence.

We have addressed the corroboration requirement of § 28-1439.01 on several occasions. In State v. Beckner, 211 Neb. 442, 318 N.W.2d 889 (1982), the appellant argued that any testimony of a cooperating individual on the essential elements of a crime which was not corroborated by other evidence should be excluded pursuant to § 28-439 (Reissue 1979), which was the statute then in effect and is identical to § 28-1439.01. We held, however, that "[t]he statute only requires that a conviction be based on something more than only a cooperating individual's testimony." State v. Beckner, supra at 446, 318 N.W.2d at 892.

In State v. Taylor, 221 Neb. 114, 118, 375 N.W.2d 610, 614 (1985), we set out facts similar to those in the case before us: "In addition to the undercover agent's testimony, a State Patrol investigator testified that before the agent approached Taylor he had no marijuana in his possession and that upon his return he possessed an ounce of the substance." We then held that the testimony of a cooperating individual need not be corroborated on every element of the crime.

In State v. Cain, 223 Neb. 796, 801, 393 N.W.2d 727, 731 (1986), we said, "It is sufficient if the cooperating individual is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue." Accord State v. Knoefler, 227 Neb. 410, 418 N.W.2d 217 (1988).

The record shows that the material facts of Drugsvold's testimony were sufficiently corroborated. The physical evidence of the marijuana and the testimony of the State's other witnesses support Drugsvold's testimony that he purchased the marijuana from the defendant. Defendant's assertion to the contrary is without merit.

In his second assignment of error, defendant contends the trial court erred in failing to grant his motions for mistrial. On this issue, the record shows that defense counsel impeached Drugsvold on several occasions with Drugsvold's prior deposition testimony. Drugsvold also testified on cross-examination that he had not wanted to testify against defendant. On redirect, the prosecutor asked if Drugsvold was scared when he gave his deposition. Drugsvold answered, "Yes. My life had been threatened by this guy." Defense counsel objected and moved for a mistrial on the basis of Drugsvold's statement that his life had been threatened by the defendant, and claimed the testimony was irrelevant. During a conference held outside the presence of the jury, the prosecutor explained that he was trying to elicit testimony concerning reasons why some of Drugsvold's statements at trial were inconsistent with his deposition testimony. The court ultimately overruled defendant's motion for mistrial and instructed the jury to disregard the statement.

In this appeal, the State argues that the trial court properly overruled defendant's motion for mistrial because Drugsvold's statement was relevant and admissible under our decision in State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987), disapproved on other grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d 662 (1989). In State v. Clancy, supra 224 Neb. at 500, 398 N.W.2d at 716, we held that under Neb.Evid.R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 1989), "a defendant's attempted intimidation or intimidation of a State's informant or witness is relevant evidence concerning the defendant's conscious guilt that a crime has been committed, and is a circumstance...