State v. Faber

• Decision Date: 28 June 2002
• Docket Number: No. S-01-893.,S-01-893.
• Citation: 264 Neb. 198,647 N.W.2d 67
• Parties: STATE of Nebraska, Appellee, v. Robert FABER, Appellant.
• Court: Nebraska Supreme Court

647 N.W.2d 67

264 Neb. 198

STATE of Nebraska, Appellee, v. Robert FABER, Appellant.

No. S-01-893.

Supreme Court of Nebraska.

June 28, 2002.

Bradley C. Easland, of Johnson, Morland & Easland, P.C., Norfolk, for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

I. NATURE OF CASE

Robert Faber was charged by information in the district court for Madison County with knowing and intentional child abuse pursuant to Neb.Rev.Stat. § 28-707(1) and (4) (Cum.Supp.2000). After a bench trial, Faber was found guilty of said charge and received an indeterminate sentence of 24 to 28 months' imprisonment. On appeal, Faber challenges the constitutionality of § 28-707(1)(a) as applied to the facts of his case. This case also presents the issues of whether a search warrant was supported by probable cause, whether the evidence was sufficient to find Faber guilty of the charged offense, and whether the sentence he received was excessive.

II. BACKGROUND

Jimsonweed is a plant that grows in the eastern and midwestern regions of the United States. Each plant bears pods containing seeds, with each pod containing 50 to 100 seeds. Jimsonweed is an anticholinergic poison containing four active toxins: atropine, scopolamine, hyoscyamine, and nitrates. Although jimsonweed has some medical uses when used in small dosages, it can be toxic to humans and other animals.

When ingested, jimsonweed begins breaking down into its component toxins and begins to produce a number of harmful effects on the human body. Those portions of the central nervous system that regulate heart rate become severely impaired, resulting in a rapid increase in heart rate up to the point of cardiac arrest. Body temperature is also impaired, potentially causing hypothermia. Jimsonweed can also produce respiratory failure and can have significant effects on the digestive system. Specifically, jimsonweed slows down the processes in the digestive and urinary systems, resulting in a slow expulsion of the ingested jimsonweed from the individual and, thus, prolonged exposure to the toxins. Individuals who have ingested jimsonweed also experience an inability to focus their eyes because of dilation of the pupils and an inability to talk because of a lack of saliva in the mouth. Jimsonweed also produces a hallucinogenic effect in individuals. The confusion, poor judgment, and disorientation produced by jimsonweed can last for up to 2 weeks after ingestion.

At Faber's trial, the State presented the testimony of S.B., who was a minor at the time. S.B. testified that on an occasion prior to November 12, 2000, Faber approached her and asked if she would help Faber find people to buy jimsonweed pods from him. Eventually, S.B. and a friend ingested some of the jimsonweed seeds, causing them to become ill. S.B. later informed Faber that the seeds had made her sick, and she told Faber that he should no longer sell them. Faber replied that S.B. should have ingested more seeds than she had actually consumed.

On November 12, 2000, 15-year-old J.W. went with two friends, C.B. and C.S., also minors, to S.B.'s apartment in Norfolk, Nebraska, for the purpose of obtaining jimsonweed pods. At the apartment, J.W., C.B., and C.S. met Faber, who offered to sell several pods to J.W. for $5. Because he did not have the proper change to complete the transaction, J.W. was initially unwilling to buy any pods. This prompted Faber to offer to leave and get change for J.W. Upon returning to the apartment with the change, Faber sold three pods to J.W. Faber also instructed J.W., C.B., and C.S. how to consume the jimsonweed. Faber said that the seeds should first be separated from the stem and leaves and then should be swallowed whole, along with something to drink. Faber did not instruct them about how many seeds should be consumed at one time. Because J.W. was then on probation for a juvenile offense and subject to drug tests, Faber also told J.W. that the jimsonweed would not produce a positive drug test. Faber told J.W. that the jimsonweed would produce a "really, really hard trip." The word "trip" is often used to refer to hallucinations and other effects produced by jimsonweed.

Approximately 45 minutes to 1 hour after leaving S.B.'s apartment, J.W., C.B., and C.S. arrived at J.W.'s home. J.W. then ingested the seeds from one of the jimsonweed pods as previously instructed by Faber, while C.B. and C.S. also ingested seeds. J.W. passed out soon after taking the seeds. When he awoke, J.W. testified that his face was "beet red" and that he could not stand up because his legs were not functioning properly. He further testified that he could not talk, think, eat, or drink; that he "walked into things"; and that he "missed doorknobs and things." He also stated that he could not recognize his parents when he saw them. J.W. did not remember being taken to the hospital.

J.W.'s mother testified that when she returned home, she found "puke all over my kitchen, everywhere." She found J.W. lying on the couch and observed that he was "not coherent at all." His pupils appeared to be "bigger than the color of his eyes," and he was very aggressive, leading her to remove any sharp objects from his control to prevent him from injuring himself. She testified that when she held J.W., his body temperature was very hot. J.W.'s parents had difficulty trying to take J.W. to the hospital because J.W. repeatedly would take his clothes off in an effort to cool down.

One of the doctors who treated J.W. at the hospital testified that upon admission to the hospital, J.W.'s heart rate was escalated, his pupils were dilated, and he was confused and "not really with the program." J.W. was diagnosed as suffering from an anticholinergic reaction. The doctors testified that, to a reasonable degree of medical certainty, J.W.'s physical safety was endangered as a result of his ingestion of the jimsonweed. J.W. remained in the hospital for 4 days.

While investigating another case in the area involving jimsonweed, Investigator David Bos of the Norfolk Police Division became aware of J.W.'s case. The investigation eventually led law enforcement to Faber, and on December 5, 2000, a search warrant was issued for Faber's apartment. At the apartment, police confiscated several items, including a plastic bag containing 84 jimsonweed pods.

On December 8, 2000, Faber was arrested pursuant to an arrest warrant and was transported to the Norfolk Police Division. At the police station, Faber was interrogated by Bos. Bos began the interrogation by identifying himself and reading Faber his Miranda rights. Faber signed a rights waiver form indicating that he understood his rights. Faber then requested the services of an attorney. Bos promptly terminated the interview and left the room to arrange for Faber's transport to jail. Bos returned to the interview room and informed Faber that he would be taken to jail. Faber then began indicating that he did not want a lawyer and was willing to talk to Bos. Bos replied he was not allowed to continue the interrogation because of Faber's request for a lawyer. After Faber made several more requests to talk to Bos, Bos again reviewed the rights waiver form with Faber. Faber indicated that he understood his rights and that he wanted to proceed without an attorney.

During the interrogation, Faber indicated that he was familiar with jimsonweed and had used it in the past, but had never sold it to anyone. Faber did admit to giving it to friends in the past, but claimed he had stopped giving it away after one of his friends had gotten sick from using it. Faber described to Bos some of the hallucinogenic effects of jimsonweed, specifically comparing it to the effects produced by "acid." Faber also told Bos that he did not know J.W. However, Faber was able to recall an occasion at S.B.'s apartment where Faber gave, but did not sell, some jimsonweed to C.S. and two of C.S.'s friends, neither of whom Faber knew. Bos also confronted Faber with the fact that Faber's apartment had been searched 3 days earlier and that a bag containing jimsonweed had been discovered. Faber admitted that the bag was his.

An information was filed in district court charging Faber with knowing and intentional child abuse pursuant to § 28-707(1) and (4). On February 12, 2001, Faber filed a motion to quash the prosecution against him on the grounds that § 28-707(1) was unconstitutionally overbroad and vague, both on its face and as applied. On February 27, the district court overruled the motion to quash, citing State v. Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990). At his February 28 arraignment, Faber pled not guilty.

On April 4, 2001, Faber filed a motion to suppress all evidence seized during the search of his apartment, alleging that (1) the affidavit in support of the search warrant failed to state sufficient probable cause to believe the evidence sought would be found at the location described in the warrant; (2) the affidavit contained information that was "`stale'"; (3) statements were taken from Faber in violation of his Miranda rights and were involuntary, the products of inducements, threats, or promises, and should be suppressed according to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); (4) the affidavit in support of Faber's arrest warrant did not contain facts sufficient to establish probable cause for Faber's arrest on the charges of child abuse, and any evidence obtained from or following Faber's arrest, including any statements made by him, should be suppressed as fruit of the poisonous tree pursuant to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The district court subsequently overruled Faber's motion. After a bench trial, Faber was found guilty of knowing and intentional child abuse under § 28-707(1)(a) and (4). He was...