State v. Dandridge

• Decision Date: 04 May 1993
• Docket Number: No. A-92-414,A-92-414
• Citation: 1 Neb.App. 786,511 N.W.2d 527
• Parties: STATE of Nebraska, Appellee, v. Geary L. DANDRIDGE, Appellant.
• Court: Nebraska Court of Appeals

Page 527

511 N.W.2d 527

1 Neb.App. 786

STATE of Nebraska, Appellee, v. Geary L. DANDRIDGE, Appellant.

No. A-92-414.

Court of Appeals of Nebraska.

May 4, 1993.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, for appellant.

Don Stenberg, Atty. Gen., and Kimberly A. Klein, for appellee.

SIEVERS, C.J., and HANNON and IRWIN, JJ.

IRWIN, Judge.

In this case, we review criminal convictions for possession of a controlled substance, cocaine, Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1992), and being a felon in possession of a firearm, Neb.Rev.Stat. § 28-1206 (Reissue 1989). Appellant was determined to be a habitual criminal under Neb.Rev.Stat. § 29-2221 (Reissue 1989). Appellant argues that the district court erred by (1) overruling his motion to prohibit joinder of the two substantive charges, (2) overruling his motion to dismiss at the close of the evidence, (3) finding him to be a habitual criminal, and (4) imposing an excessive sentence. He also argues a fifth error on appeal--the evidence is insufficient to support the verdicts. We affirm for the reasons discussed below.

I. FACTUAL BACKGROUND

On September 27, 1991, officers of the Lincoln Police Department executed a search warrant shortly before midnight at the residence of Geary L. Dandridge, appellant. The residence is located at 645 North 30th Street, Lincoln, Nebraska. No issue regarding the warrant is raised by appellant.

Four persons, including appellant, were found in the home. Appellant was found in the bathroom shower. He was unclothed but dry at the time. The other three persons were located in the kitchen. Also found in the bathroom with appellant were a pair of jeans, a shirt, a pair of shoes, and some towels, which were all in a pile next to the bathroom cabinet. The police allowed appellant to put on the jeans that were in the pile of clothes. Found by the police in the pile of clothes was a 9-mm handgun, which was obscured from view by the clothes. On the counter next to the sink, they found a pair of scissors with a wad of cotton held in the tips; a cigarette lighter; an item of "narcotics paraphernalia," which was apparently a smoking device of some type; and some money. The pile of clothing also yielded a man's billfold containing the Nebraska driver's license of appellant.

On top of the toilet tank, a shot glass containing fluid was discovered. A small piece of an off-white, hard substance was floating in the fluid. This substance ultimately tested positive for cocaine base, otherwise known as crack cocaine. The shot glass was processed for fingerprints, and one latent print was found. When the latent print was compared to the known fingerprint of appellant, it was found that the prints did not match. No fingerprints of any value for comparison purposes were found on the gun, clip, or shells.

Several people testified in appellant's case in chief, including Donald Shubert, Jr., and Jason Shubert, Donald's son. Both of these individuals claimed that the handgun found in the pile with appellant's clothing belonged to Donald Shubert. Appellant stipulated that he had a prior felony conviction. He testified that the items recovered by the police were not his.

Appellant was subsequently convicted of both counts charged in the information. A hearing on the habitual criminal allegation was held, and appellant was found to be a habitual criminal within the meaning of the statute. He was then sentenced to a period of incarceration of not less than 15 nor more than 30 years on each count, the sentences to run concurrently. Additionally, appellant was taxed with the costs of the prosecution. He was given credit for 218 days served in custody. Appellant has timely filed his appeal with this court.

II. DISCUSSION

Appellant asserts that the trial court erred by allowing the felon in possession of a firearm count to be tried together with the drug possession count. Proof of appellant's prior felony conviction was introduced as an element of the possession of a firearm charge. Such proof would have been inadmissible in a separate trial for possession of illegal drugs unless appellant chose to testify. Appellant contends on appeal, as he contended at the hearing on the motion to sever, that he was impermissibly prejudiced by the trial court's refusal to sever the counts.

1. JOINDER GENERALLY

The trial court's authority to join the offenses with which appellant was charged may be found in Neb.Rev.Stat. § 29-2002 (Reissue 1989), which provides:

(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 transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

....

(4) If it appears that a defendant or the state would be prejudiced by a joinder of offenses ... in an indictment, information, or complaint, or by such joinder of offenses in separate indictments, informations, or complaints for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.

A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991); State v. Thompson, 231 Neb. 771, 438 N.W.2d 131 (1989). Whether or not separate trials are required depends upon a showing by the defendant that prejudice will result from a joint trial. State v. Illig, supra; State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).

2. JOINDER ANALYSIS

(a) Are the Charges Joinable?

In order to determine if offenses are properly joinable under § 29-2002(1), we must first determine how the offenses are related. State v. Illig, supra.

In State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982), the Nebraska Supreme Court dealt with the phrase "same act or transaction," which phrase is contained in § 29-2002. The court noted that no definition had been propounded by the Supreme Court prior to Brehmer. The court discussed the fact that several federal courts have dealt with the phrase "same act or transaction," since that phrase is also included in the federal joinder rules under Fed.R.Crim.P. 8. The Nebraska court noted that joinder has as one of its goals maximum trial convenience consistent with minimum prejudice to the defendant. The Brehmer court went on to quote with approval an Oregon test for determination of whether offenses are based on the same act or transaction, which test stated that " 'the two charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge.' " State v. Brehmer, 211 Neb. at 36-37, 317 N.W.2d at 890, quoting State v. Fitzgerald, 267 Or. 266, 516 P.2d 1280 (1973). The court went on in Brehmer to note inferentially that if substantially the same facts need be adduced in order to prove each of the offenses, then they arise from the same transaction.

In Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 17.1 at 762 (2d ed. 1992), the phrase "same transaction" was discussed as follows: "[U]nder the general notion that the offenses must arise out of the same sequence of events [same transaction], it is sufficient that they were occurring simultaneously but yet not part of a common scheme."

The U.S. Courts of Appeals for the Fifth and Eighth Circuits have dealt with the phrase "same act or transaction" also. In United States v. Park, 531 F.2d 754 (5th Cir.1976), the appellant argued that finding drugs and a gun during a search of his home was an insufficient nexus to say that the charges arose from the same act or transaction. Citing United States v. Pietras, 501 F.2d 182 (8th Cir.1974), cert. denied 419 U.S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668, the court approved the joinder and held that the offenses were based on the same transaction. Pietras involved a defendant charged with armed bank robbery, kidnapping, transportation of a firearm in interstate commerce by a convicted felon, transportation of stolen property, and possession of an unregistered firearm. Pietras sought to sever the count relating to the possession of an unregistered firearm from the other counts, since the weapon was not used in connection with the robbery, but was merely found in the van. No error was found in the joinder. Likewise, in United States v. Abshire, 471 F.2d 116 (5th Cir.1972), the court of appeals found that the trial court had not erred in refusing to sever charges of interstate transportation of a stolen motor vehicle and interstate transportation of a firearm by a felon. Both offenses were found to have arisen out of the same sequence of events, and joinder was proper.

As defined in Park, the word "transaction" has a flexible meaning. It may encompass a series of occurrences, depending not so much upon the immediacy of their connection as upon their logical relationship.

The two possession offenses in the case before us occurred at the same time and same place and are logically connected. In the facts before us regarding constructive possession of a gun and drugs by appellant, the offenses are both part of the same transaction, as discussed above. They occurred simultaneously, even though they were not part of a common scheme. They were closely linked in time, place, and circumstance. A complete account of one crime could not be related without detailing a substantial amount of evidence related to the other crime. The charges were joinable under § 29-2002.

(b) Although Joinable, Should Charges be Severed due to Prejudice?

The above discussion does not end the analysis of the joinder...