State v. Roberts

• Decision Date: 16 March 2001
• Docket Number: No. S-00-325.,S-00-325.
• Citation: 623 N.W.2d 298,261 Neb. 403
• Parties: STATE of Nebraska, Appellee, v. John M.C. ROBERTS, Appellant.
• Court: Nebraska Supreme Court

623 N.W.2d 298

261 Neb. 403

STATE of Nebraska, Appellee, v. John M.C. ROBERTS, Appellant.

No. S-00-325.

Supreme Court of Nebraska.

March 16, 2001.

Arthur C. Toogood, Adams County Public Defender, for appellant.

Don Stenberg, Attorney General, and Susan J. Gustafson, for appellee.

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

HENDRY, Chief Justice.

INTRODUCTION

John M.C. Roberts was found guilty of possession of a controlled substance, a Class IV felony, and sentenced to 1 year's imprisonment in the county jail. Roberts appealed to the Nebraska Court of Appeals, which summarily affirmed the decision without opinion on August 31, 2000. Roberts then petitioned for further review, which this court granted.

FACTUAL BACKGROUND

At approximately 4 a.m. on April 9, 1998, Randy Overton called the Adams County Sheriff's Department and requested that an officer come to the apartment where Overton was staying to remove Roberts. An argument had occurred between Overton and Roberts regarding which of them should be staying at the apartment. The apartment was located at 413 West Fourth Street, about one-half block from the Adams County sheriff's office in Hastings, Nebraska.

According to Roberts, his girl friend was the lessee of the apartment and she had given him a set of keys to the apartment. Apparently without informing Roberts, the lessee had in the meantime asked Overton to house-sit for 3 or 4 days while she was in the hospital and had also given Overton a set of keys. Overton had occupied the apartment for a day or two when Roberts came to the apartment on April 9, 1998, and discovered Overton was staying there.

In response to Overton's call, Officer James Konen, an Adams County deputy sheriff, walked to the residence. Having previously requested backup assistance, Officers Chad Wagner and Ed Garcia from the Hastings Police Department met Konen outside the apartment. The officers knocked on the apartment door, and Overton let them in. When the officers entered the apartment, Roberts and Overton were arguing over the apartment keys and Roberts' belongings.

Roberts asked Konen to accompany him to the bedroom where Roberts' property was located. Konen and Wagner went to the bedroom with Roberts, while Garcia remained with Overton. While in the bedroom, Konen and Wagner saw a pile of books and clothes lying on the bed. Roberts said he would leave if he could take the items on the bed with him and began gathering up the clothes and books and placing them in a bedsheet.

At this point, Wagner radioed the Hastings communications center to determine whether there were any outstanding warrants on either Overton or Roberts. Upon requesting such information, Wagner was advised there was an outstanding Adams County warrant for Roberts' arrest. Konen then informed Roberts that he was under arrest. Roberts asked Konen if he could put the items on the bed into a bedroom closet. Konen agreed, and Roberts tied the items in the sheet and placed them in the closet.

Konen then began to handcuff Roberts, whereupon Roberts asked if he could first remove his outer layer of clothing. Roberts was wearing a pair of running pants and a nylon jacket over his blue jeans and shirt. Konen gave Roberts permission to remove the jacket and running pants. Roberts removed the pants and jacket and dropped them on top of the tied-up sheet. When Roberts dropped the items, Konen heard a "thud-type sound." As he was handcuffing Roberts, Konen asked Roberts what was in the clothes. Roberts said it was a cassette tape.

After handcuffing Roberts, Konen briefly patted him down. Roberts asked repeatedly if he could smoke a cigarette and if he could take his cigarettes with him. Konen said no. Almost immediately after Roberts was handcuffed, Overton began threatening Roberts. Both men began yelling at each other. Because the hostility was escalating, Konen removed Roberts from the apartment.

While Konen was escorting Roberts out, Wagner, who had been in the bedroom the entire time, searched the jacket Roberts had just removed because he thought it was suspicious that Roberts had asked to remove some of his clothing. In searching the jacket, Wagner found 30 to 40 tiny plastic baggies inside a larger plastic bag in the jacket pocket. After calling Garcia into the room, Wagner searched Roberts' running pants. In the pocket of the pants, Wagner found a marijuana pipe, a syringe, and what appeared to be an "eightball" of methamphetamine. The "eightball" was inside a package of cigarettes, inserted between the cellophane wrapper and the paper of the cigarette package. Wagner later testified that his search began "almost immediately" after Roberts was escorted from the bedroom, after "probably less than a minute" had elapsed.

The "eightball" later tested positive for amphetamine and methamphetamine, and Roberts was charged with possession of a controlled substance. Prior to trial, Roberts filed a motion to suppress the evidence found in his running pants and jacket. After a hearing, the court determined that the search of Roberts' pants and jacket was a valid search incident to a lawful arrest.

At trial, Overton testified that Roberts came to the apartment to remove his belongings. Overton testified that Roberts "was talking and all this and that." Overton

wasn't in no mood to [sic] it, and that was it. I wanted him to get done and over with, and he was in the house so I said I'll call the police officer if I have to. And he said go ahead and call the police officer, so I did.

Roberts testified that he came to the apartment simply to clean the apartment for his girl friend. Roberts testified that he left the jacket and running pants at the apartment prior to that evening and that before the officers arrived, he put on the jacket and running pants. He further asserted that the cigarette package, syringe, and methamphetamine were not his and that they must have been planted by Overton. Roberts testified on cross-examination that the marijuana pipe found in his running pants did belong to him. He also asserted that as far as he could remember, his cigarettes were with him when he was later booked into the Adams County jail.

Debra Campbell, a drug chemist employed by the State of Nebraska, testified at trial that the suspected "eightball" found in Roberts' running pants contained amphetamine and methamphetamine. Gary Hueske, another Adams County deputy sheriff, testified as a rebuttal witness for the State. Hueske testified that Roberts did not have any cigarettes with him when Hueske booked Roberts on April 9, 1998.

The jury found Roberts guilty of possession of a controlled substance. He was sentenced to 1 year's incarceration in the county jail. At sentencing, the court noted that Roberts was not an appropriate candidate for probation. Roberts had several prior offenses including theft, assault, and three drug infractions. Roberts appealed, and the Court of Appeals summarily affirmed his conviction and sentence. Roberts then petitioned for further review, which this court granted.

ASSIGNMENTS OF ERROR

In his petition for further review, Roberts asserts the trial court erred in (1) denying his motion to suppress, (2) failing to grant a directed verdict, (3) denying his motion for new trial, (4) failing to place Roberts on probation, and (5) imposing an excessive and disproportionate sentence.

STANDARD OF REVIEW

In reviewing a district court's ruling on a motion to suppress evidence obtained through a warrantless search or seizure, an appellate court conducts a de novo review of reasonable suspicion and probable cause determinations, and reviews factual findings for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Ray, 260 Neb. 868, 620 N.W.2d 83 (2000); State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000).

When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000); State v. Abbink, 260 Neb. 211, 616 N.W.2d 8 (2000). In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).

In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000); State v. Clark, 255 Neb. 1006, 588 N.W.2d 184 (1999).

Whether probation or incarceration is ordered is a choice within the discretion of the trial court, whose judgment denying probation will be upheld in the absence of an abuse of discretion. State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).

A jail term within the statutory limits will be upheld on appeal, absent an abuse of discretion. State v. Lobato, 259 Neb. 579, 611 N.W.2d 101 (2000).

ANALYSIS

Motion to Suppress

Roberts asserts the trial court erred in overruling his motion to suppress because the methamphetamine found in the pocket of his running pants was seized in violation of his constitutional right to be free from unreasonable searches and seizures, guaranteed under the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, § 7. These constitutional provisions do not protect citizens from all governmental intrusion, but only from unreasonable intrusions. State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (...