State v. Lonnecker

• Decision Date: 15 February 1991
• Docket Number: No. 89-1399,89-1399
• Citation: 465 N.W.2d 737,237 Neb. 207
• Parties: STATE of Nebraska, Appellee, v. Robert G. LONNECKER, Appellant.
• Court: Nebraska Supreme Court

Page 737

465 N.W.2d 737

237 Neb. 207

STATE of Nebraska, Appellee, v. Robert G. LONNECKER, Appellant.

No. 89-1399.

Supreme Court of Nebraska.

Feb. 15, 1991.

Syllabus by the Court

1. Rules of Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be 2. Evidence. To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving an issue to be decided.

without the evidence. Neb.Evid.R. 401, Neb.Rev.Stat. § 27-401 (Reissue 1989).

3. Trial: Rules of Evidence. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Neb.Evid.R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1989).

4. Trial: Rules of Evidence: Appeal and Error. A ruling pursuant to Neb.Evid.R. 403 for exclusion of relevant evidence will be upheld on appeal unless the ruling is an abuse of discretion.

5. Rules of Evidence: Words and Phrases. In the context of Neb.Evid.R. 403, "unfair prejudice" means an undue tendency to suggest a decision on an improper basis.

6. Controlled Substances: Intent. A defendant possesses a controlled substance when the defendant knows of the nature or character of the substance and its presence and has dominion or control over the substance.

7. Controlled Substances: Evidence: Proof. A defendant's control or dominion over premises where a controlled substance is located may establish the defendant's constructive possession of the controlled substance.

Glenn A. Shapiro, of Gallup & Schaefer, and, on brief, Thomas M. Kenney, Douglas County Public Defender, and Cheryl M. Kessell, for appellant.

Robert M. Spire, Atty. Gen., and Wynn Clemmer, for appellee.

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

SHANAHAN, Justice.

A jury convicted Robert G. Lonnecker of intent to deliver marijuana which was in his possession, a violation of Neb.Rev.Stat. §§ 28-405(c)(10) [Schedule I] (Reissue 1989) and 28-416(1) (Cum.Supp.1988), which is a Class III felony under § 28-416(2). Lonnecker claims that inadmissible evidence was used in his conviction, that the evidence is insufficient to sustain his conviction, and that the sentence imposed is excessive.

Pertinent to Lonnecker's case, § 28-416(1) provides that "it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense [marijuana]...."

PROOF OF THE CHARGE

Lonnecker and Rick Brau have known each other since 1975 and lived together from 1984 to 1987 in a house identified as 4540 North 65th Avenue in Omaha. In the spring of 1988, Brau occupied the house, but Lonnecker moved into a schoolbus parked at 4510 North 65th Avenue, and on occasion showered and slept at the house where Brau lived. However, on April 12, 1989, Lonnecker delivered $200 to the landlord for the Brau house, and the landlord issued a rent receipt to "Bob Lonniker & Rick" for the period from April 10 to May 10, 1989. Lonnecker's driver's license, which was issued June 22, 1987, and bore an October 16, 1990, expiration date, listed 4540 North 65th Avenue as Lonnecker's current address.

As adduced at trial, an informant contacted Sheriff's Deputy William H. Jackson on April 15, 1989, and stated that marijuana was being cultivated and distributed at the 4540 North 65th Street residence. On April 18, Deputy Jackson obtained a search warrant for "4540 N. 65 Av., Omaha, Douglas County, Nebraska." Deputies executed the search warrant on the evening of April 18.

While securing the grounds around the house, a deputy encountered Brau and detained him outside the dwelling. Other In the house's basement, deputies discovered that half the basement had been partitioned into two rooms with Styrofoam walls covered with reflective material. In one room, there were mature marijuana plants, while the other room contained marijuana seedlings and small marijuana plants. The basement rooms also contained lamps with automatic timers, fans, plant food, a water hose, a sprayer, 350 to 400 marijuana plants, and cut marijuana leaves drying on a screen.

                deputies involved in the prospective search of the house were confronted by Brau's "pit bull on a chain by the front door" of the house.  The dog chased a deputy involved in the search, but the animal was restrained at "the end of the chain," which prevented the dog's reaching the front door of the house.  After [237 Neb. 209] maneuvering around the pit bull, deputies entered the residence as one deputy yelled, "Sheriff's office;  we have a search warrant."   Deputies then proceeded to search for occupants on the first floor.  When they found none on the first floor, the deputies proceeded to the second floor of the house and, arriving at a closed bedroom door which had been barricaded from within, heard someone moving around inside the bedroom.  Deputies entered the bedroom, which contained a bed, bedding, and men's clothing and noticed that a wall panel was ajar.  After the deputies removed the panel and entered a crawl space, they found Lonnecker hiding in the crawl space between the house's rafters and its ceiling for the first floor
                

Deputies then searched the rest of the house, which had two bedrooms, and found "marijuana being dried in every room in the house" and various drug-related items and paraphernalia, including a book entitled "Indoor Marijuana Horticulture," a scale, a magnifying glass, sandwich bags, and a smoking pipe. Also, in the house were several firearms, namely, a .22-caliber rifle, a .22 revolver, and a sawed-off .410 shotgun. Nothing indicated that the weapons belonged to Lonnecker. At trial and over Lonnecker's objection (relevance), a deputy sheriff testified about finding the firearms in the house. During presentation of Lonnecker's case, Brau, who had a serious leg injury, testified that he had some of the firearms to protect himself, since the house had been "broken into." One of the firearms had been given to Brau as a gift.

As the search proceeded, deputies, accompanied by Lonnecker, went to the kitchen. Meanwhile, the pit bull had broken its chain outside, darted into the house, ran to the kitchen, and was about to attack the deputies, who had drawn their weapons to shoot the dog, when Lonnecker yelled: "I will take care of the dog.... Let me take care of the dog." After Lonnecker had calmed the dog, he took the animal outside and chained it to a truck. Over Lonnecker's objection (relevance), a deputy testified about the pit bull event inside the house.

Lonnecker was arrested and subsequently convicted of the controlled substance charge previously mentioned in this opinion.

EVIDENTIAL QUESTIONS

Lonnecker argues that evidence of the pit bull incident in the kitchen is irrelevant or, if relevant, should have been excluded, since its probative value is substantially outweighed by the danger of unfair prejudice. As Lonnecker characterizes the situation, "the evidence concerning the dog and the weapons had no probative value, and the only thing the State accomplished by adducing the evidence was to cast [Lonnecker] as a vicious person who owned a vicious dog and surrounded himself with loaded weapons." Brief for appellant at 6.

"Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Neb.Evid.R. 401, Neb.Rev.Stat. § 27-401 (Reissue 1989). Neb.Evid.R. 402 permits the admission of relevant evidence only. State v. Robertson, 219 Neb. 782, 366 N.W.2d 429 (1985). To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Neb.Evid.R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1989). A ruling pursuant to Neb.Evid.R. 403 for exclusion of relevant evidence will be upheld on appeal unless the ruling is an abuse of discretion. State v. Baltimore, supra. In the context of Neb.Evid.R. 403, "unfair prejudice" means an undue tendency to suggest a decision on an improper basis. Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d 300 (1984).

an issue to be decided. State v. Baltimore, 236 Neb. 736, 463 N.W.2d 808 (1990); State v. Robertson, supra.

An issue in Lonnecker's case is his relationship to or association with the house where the marijuana cultivation was located.

The actions of Brau's pit bull outside the house displayed the dog's reaction toward intruders into its territory. When the dog entered the house, Lonnecker's intervention and ability to calm the pit bull as it was about to attack the deputies indicate Lonnecker's established and amicable relationship with the riled dog. Without that relationship through prior contact with the pit bull, it is improbable that Lonnecker would have risked coming between the deputies and the dog and, moreover, highly unlikely that Lonnecker would have been able to handle the dog as he did. The canine episode reflected Lonnecker's tie with a dog which was associated with the premises. In Lonnecker's case, reactions by "man's best friend" tended to provide some information for an answer to the question concerning Lonnecker's presence and connection with the premises. Hence, we are unable to conclude that the pit...