State v. Massa

• Decision Date: 18 December 1992
• Docket Number: No. S-91-648,S-91-648
• Citation: State v. Massa, 242 Neb. 70, 493 N.W.2d 175 (Neb. 1992)
• Parties: STATE of Nebraska, Appellee, v. William G. MASSA, Appellant.
• Court: Nebraska Supreme Court

Page 175

493 N.W.2d 175

242 Neb. 70

STATE of Nebraska, Appellee, v. William G. MASSA, Appellant.

No. S-91-648.

Supreme Court of Nebraska.

Dec. 18, 1992.

Syllabus by the Court

1. Motions to Dismiss: Directed Verdict: Waiver: Convictions: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the State's case, proceeds with trial, and introduces evidence waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict, but may challenge sufficiency of the evidence for the defendant's conviction.

2. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, an appellate court will not set aside a guilty verdict in a criminal case if the verdict is supported by relevant evidence.

3. Verdicts: Appeal and Error. An appellate court may set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt only where the evidence lacks sufficient probative force as a matter of law.

4. Indictments and Informations: Lesser-Included Offenses: Juries: Convictions. Under the cognate-evidence approach, a lesser-included offense determination is based on the elements of the crime as charged in the information, as well as the evidence averred to in the information, and the facts of the case which could reasonably support the charge. The lesser-included offense determination is neither solely controlled nor exclusively dictated by the specific statutory elements of the crimes themselves. The cognate-evidence approach necessarily requires the court to ask whether, considering the statutory elements of both the greater and the lesser offenses in light of the facts alleged and presented at trial, the jury could reasonably believe that the defendant was guilty of a lesser offense while concurrently finding the evidence insufficient to support a conviction on the greater offense.

5. Jury Instructions: Lesser-Included Offenses. When the defendant offers evidence to controvert one of the elevating elements of the greater offense or when the defense asserts an alibi or an insanity defense, but evidence nonetheless appears in the record to controvert one of the elevating elements, the court should submit the requested lesser-included instruction to the jury.

6. Indictments and Informations: Jury Instructions: Lesser-Included Offenses: Appeal and Error. Only when the evidence entirely fails to show the offense of the lesser degree than that charged in the information will the failure to give a lesser-included offense instruction not be prejudicial error.

Dennis R. Keefe, Lancaster County Public Defender, Robert G. Hays, and Kristi J. Egger, Lincoln, for appellant.

Don Stenberg, Atty. Gen., and James A. Elworth, Lincoln, for appellee.

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

WHITE, Justice.

Following a jury trial in the district court for Lancaster County, William G. Massa was convicted of possession of marijuana with intent to deliver, a Class III felony, and possession of lysergic acid diethylamide (LSD), a Class IV felony. Massa was sentenced on count I, the marijuana conviction, to 5 years' probation with 6 months' incarceration conditioned on probation. Massa was sentenced on count II, the LSD conviction, to 2 years' probation with 90 days' incarceration conditioned on probation. The court ordered the probation periods to run concurrently and the conditional jail time to be served consecutively.

Massa's assignments of error summarily assert that his convictions should be reversed or remanded because there was insufficient evidence to support the verdicts, because the trial court refused to instruct the jury on the lesser-included offense of simple possession of marijuana, and because the trial court erred in overruling the defendant's objections to certain jury instructions.

The Nebraska State Patrol was investigating Romona Alvaro for selling marijuana and hoped to find Alvaro's drug source. On the morning of June 23, 1990, a confidential informant accompanied Alvaro while she purchased marijuana from the defendant's girl friend, Michelle Daffer. The informant was wearing a radio transmitter for the investigation. The purchase took place at a residence leased to Daffer, and arrangements were made for a second sale later that afternoon. Defendant Massa was not present during the morning sale.

Narcotics investigators obtained a search warrant based on the morning sale. The supporting affidavit for the warrant described Daffer's involvement in drug transactions, but did not name or refer to Massa. When law enforcement personnel executed the warrant that afternoon, Massa opened the door to the residence. Daffer was found hiding in the basement.

A search of the living room uncovered what were later verified to be illegal controlled substances. Hidden under the couch was a cookie tin containing nine baggies of marijuana, a hand-held scale, and various drug paraphernalia. Two squares of LSD were found in plain view on a table in the living room. Various small amounts of loose marijuana were found in several areas in plain view in the living room. A search of the rest of the house uncovered a small baggie of marijuana in a leather jacket located among women's clothing in an adult's bedroom closet. A search of Massa disclosed $532.88 in cash, a pipe, and a baggie of marijuana in his jeans pocket.

The officers also found evidence relating to Massa's use of the house as a residence. Testimony and photographs were offered at trial to disclose his motorcycle parked outside the residence, a bedroom closet full of men's clothing, and a picture on a bedroom dresser of Massa, Daffer, and Daffer's son. A receipt bearing Massa's name, but a different address, and an envelope addressed to Massa at another address were found. A registration to a vehicle owned by Massa that listed a Denton, Nebraska, address was found in the cookie tin hidden under the couch. A roll of film found on the premises was later developed and revealed one photograph of Massa coming out of the shower at the residence, plus four other photographs depicting Massa outside of the residence.

At trial, an investigating officer testified that nine baggies containing approximately one-quarter ounce each of suspected marijuana were recovered from the cookie tin found hidden under a couch at the residence. Two narcotics investigators testified that in their experience, this packaging was consistent with distribution rather than personal use. The State Patrol's forensic drug chemist verified that the suspected LSD found in the residence and the suspected marijuana found in Massa's jeans pocket were in fact LSD and marijuana. The chemist also stated that he weighed each baggie of marijuana as part of his routine examination and that the weight of each separate exhibit of marijuana was marked on the outside of the plastic baggies or envelopes when they were resealed. These baggies and envelopes, along with their contents, were offered and admitted at trial.

On Massa's behalf, his employer testified that he paid the defendant his weekly wages of $300 in cash on June 23, 1990. The employer further stated that he let Massa live in a backroom at his place of business. Daffer testified that Massa did not reside at her house, but only occasionally stayed there, and that some of the clothes in the closet belonged to her ex-husband. She also testified that except for the marijuana found on Massa's person, the LSD and the marijuana in the house belonged to her, and that she alone was involved in packaging and selling the marijuana.

The defendant asserts that the court erred in overruling his motion to dismiss at the close of the State's case and in overruling his motion for directed verdict at the close of the evidence. He also claims that his convictions were not supported by sufficient evidence and were contrary to law.

A defendant who moves for dismissal or a directed verdict at the close of the State's case, proceeds with trial, and introduces evidence waives any error in the ruling on that motion for dismissal or directed verdict, but may challenge sufficiency of the evidence for the defendant's conviction. State v. Back, 241 Neb. 301, 488 N.W.2d 26 (1992).

The information filed against Massa contained two counts. Count I alleged that Massa unlawfully and knowingly possessed marijuana with the intent to deliver. Count II alleged that Massa unlawfully and knowingly possessed LSD. The defendant asserts that except for the marijuana found on his person, the evidence was insufficient to establish that he exercised control or dominion over either the marijuana or the LSD seized from the residence of Daffer.

On a claim of insufficiency of...