State v. Stahl

• Decision Date: 17 April 1992
• Docket Number: No. S-90-709,S-90-709
• Citation: 482 N.W.2d 829,240 Neb. 501
• Parties: STATE of Nebraska, Appellee, v. Steven L. STAHL, Appellant.
• Court: Nebraska Supreme Court

Page 829

482 N.W.2d 829

240 Neb. 501

STATE of Nebraska, Appellee, v.Steven L. STAHL, Appellant.

No. S-90-709.

Supreme Court of Nebraska.

April 17, 1992.

Syllabus by the Court

1.Trial: Rules of Evidence: Expert Witnesses: Appeal and Error.Whether a witness is qualified as an expert is a preliminary question for the trial court, whose determination will be upheld unless such ruling is clearly erroneous.

2.Trial: Rules of Evidence: Expert Witnesses.A person may qualify as an expert by virtue of either formal training or actual practical experience in the field.

3.Criminal Law: Trial: Juries: Appeal and Error.Harmless error exists in a jury trial of a criminal case when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in a verdict adverse to a substantial right of the defendant.

4.Trial: Evidence: Appeal and Error.If properly admitted evidence exists to establish that which improperly admitted evidence also establishes, the error in receiving the inadmissible evidence is not grounds for reversal.

5.Jury Instructions.Though a trial court retains discretion in the wording of jury instructions, when an instruction from the Nebraska Jury Instructions is applicable and, from a consideration of the facts and prevailing law, the trial court determines that an instruction on a particular subject is appropriate, the instruction in the Nebraska Jury Instructions should be used.

6.Entrapment: Proof.Entrapment is in the nature of an affirmative defense, and thus the burden of going forward with evidence of governmental inducement is on the defendant, who need only adduce "more than a scintilla" of evidence to satisfy this initial burden.

7.Trial: Entrapment: Evidence: Juries.It is for the trial court to initially determine whether the defendant has produced sufficient evidence to give rise to an entrapment defense, but if the defendant produces such evidence, the question of entrapment becomes one of fact for the jury.

8.Entrapment: Evidence: Proof.When a person accused of crime presents evidence sufficient to raise an entrapment defense, the burden is on the State to prove beyond a reasonable doubt that the person was not entrapped.

9.Entrapment: Verdicts: Evidence: Appeal and Error.When reviewing jury verdicts regarding the defense of entrapment, this court will disturb the jury's findings only when the preponderance of evidence against such findings is great and they clearly appear to be wrong, or when the findings are clearly contrary to law; in other words, we must sustain the jury's verdict if, taking the view most favorable to the State, there is evidence in the record to support it.

10.Entrapment: Words and Phrases.Entrapment is the governmental inducement of one to commit a crime not contemplated by the individual, in order to prosecute that individual for the commission of the criminal offense.

11.Entrapment: Intent.Nebraska utilizes the "origin of intent" test to determine questions of entrapment.

12.Entrapment: Intent.Under the "origin of intent" test, entrapment consists of two elements: (1) government inducement of the defendant to commit the offense charged, and (2)a defendant's predisposition to commit the criminal act was such that he was not otherwise ready and willing to commit the offense on any propitious opportunity.

13.Entrapment: Intent: Juries.Ultimately, the "origin of intent" test focuses on the defendant's predisposition to commit the crime, and if the jury finds that the defendant was predisposed to commit the crime, a defense of entrapment must fail.

14.Entrapment: Intent: Proof.In a case involving an entrapment defense, the burden is on the State to prove the defendant's predisposition beyond a reasonable doubt as part of its larger burden to prove that the defendant was not improperly induced.

15.Entrapment: Intent: Controlled Substances: Juries.Ready access to illicit drugs is a legitimate factor for the jury to consider on the question of predisposition to deal in such substances.

16.Entrapment: Intent: Evidence.A familiarity with and demonstrable orientation to the relevant activity is relevant evidence of a predisposition to engage in that activity.

17.Entrapment: Intent: Evidence.Inquiry into a person's willingness to participate in criminal activity, standing alone, does not constitute inducement sufficient to sustain an entrapment defense.

18.Criminal Law: Entrapment: Police Officers and Sheriffs.Law enforcement officers are not precluded from utilizing artifice and stratagem, such as the use of decoys or undercover agents, to apprehend a person engaged in a criminal enterprise, provided that they merely afford opportunities or facilities for the commission of an offense by one already predisposed or ready to commit it.

19.Entrapment: Intent.Overpersuasion, undue pressure, or coercion may indicate a reluctance or unwillingness on the part of a person to participate in the proposed criminal activity and thus a lack of predisposition to commit the crime.

20.Effectiveness of Counsel: Proof.To sustain a claim of ineffective assistance of counsel, the defendant must show that (1)counsel's performance was deficient and (2) such deficient performance prejudiced his defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different.

21.Criminal Law: Effectiveness of Counsel.In a criminal case, the standard for judging counsel's performance is whether the attorney performed at least as well as a lawyer with ordinary training and skill in the defense of a criminal case.

22.Effectiveness of Counsel.A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed.

23.Trial: Evidence: Juries.The trial court retains broad discretion to permit the jury to review during deliberations exhibits admitted into evidence at trial.

24.Trial: Evidence: Juries: Appeal and Error.In the absence of any indication in the record that the jury requested the opportunity to examine during deliberations exhibits admitted into evidence, that such evidence was sent to the jury room, or that it was in fact examined, there is no issue to review on appeal regarding the propriety of allowing the jury such a review.

25.Criminal Law: Trial: Motions to Dismiss: Evidence: Appeal and Error.On a criminal defendant's motion to dismiss for insufficient evidence of the crime charged, the State is entitled to have all its relevant evidence accepted as true and every controverted fact resolved in its favor, and if, when viewed in this light, the State's evidence is sufficient to establish all the elements of the crime charged, a denial of the defendant's motion to dismiss is without error.

26.Sentences: Presentence Reports.Sentencing courts are required to give due consideration to the information contained in a written presentence investigation report.

27.Sentences: Appeal and Error.A sentence imposed within the statutory limits will not be disturbed on appeal absent an abuse of discretion by the sentencing court.

28.Sentences: Probation and Parole: Appeal and Error.Whether the sentence imposed is probation or incarceration is a matter within the discretion of the trial court, and a judgment denying probation will be upheld unless the trial court abuses its discretion.

Thomas L. Spinar, Crete, for appellant.

Don Stenberg, Atty. Gen., and Barry Waid, Lincoln, for appellee.

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

WHITE, Justice.

This is a criminal case in which the State charged the defendant-appellant, Steven L. Stahl, with knowingly or intentionally manufacturing, distributing, delivering, dispensing, or possessing with the intent to manufacture, distribute, deliver, or dispense a controlled substance, namely, marijuana.SeeNeb.Rev.Stat. §§ 28-416(1)(a) and 28-405(c)(10)[Schedule I](Reissue 1988).The defendant pled not guilty and was tried and convicted by a jury of the offense charged in the Saline County District Court.The trial judge sentenced the defendant to 1 year in prison, with 8 days' credit for time spent in the county jail, and ordered him to pay the costs of the action.This appeal followed.

FACTUAL BACKGROUND

In late 1989, Robin Heyen, an investigator with the Saline County Sheriff's Department, became involved in an undercover narcotics investigation.During the course of the investigation Heyen convinced a suspect from whom several "control buys" were made, James Barber, to cooperate with the investigation in exchange for Heyen's promise to inform the county attorney of his assistance.Pursuant to this "understanding," Barber was to introduce Heyen to other known or suspected drug users and dealers.

Heyen first met the defendant at a social gathering hosted by Barber in mid-February 1990.The defendant was accompanied by his girl friend, Terri Ockinga, and both smoked some marijuana provided by another guest at the party.Though Ockinga testified that she observed Heyen smoking marijuana, Heyen testified that he only simulated doing so in order to dispel any suspicions that he was a police officer.When the topic of conversation at the party turned to illegal substances, the defendant stated that he had some connections and could obtain drugs quite easily.

On February 27, 1990, Heyen and Barber visited the defendant at his residence in Wilber, Nebraska, and asked him if he could find them some marijuana.The defendant identified an "Uncle Les" in Omaha as a potential source of marijuana.The defendant told them that he would check around and contact them later.At...