State v. Watson, 88-421

• Citation: 231 Neb. 507,437 N.W.2d 142
• Decision Date: 17 March 1989
• Docket Number: No. 88-421,88-421
• Court: Supreme Court of Nebraska
• Parties: STATE of Nebraska, Appellee, v. Richard WATSON, Appellant.

Page 142

437 N.W.2d 142

231 Neb. 507

STATE of Nebraska, Appellee, v. Richard WATSON, Appellant.

No. 88-421.

Supreme Court of Nebraska.

March 17, 1989.

Syllabus by the Court

1. Verdicts: Appeal and Error. A jury verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support the verdict.

2. Controlled Substances: Convictions: Circumstantial Evidence: Witnesses: Proof. Proof of the identity of a substance by circumstantial evidence, including lay testimony by a person sufficiently familiar with the drug in question, may be sufficient to sustain a criminal conviction resulting from a drug prosecution, so long as this evidence establishes the identity of the drug beyond a reasonable doubt.

3. Controlled Substances: Proof: Evidence. Some of the factors to be considered in determining whether the State has met its burden of proving the identity of a controlled substance beyond a reasonable doubt include: (1) the privacy or secretiveness of the transaction, (2) references made to the drug by the defendant and others, (3) testimony by witnesses who have a significant amount of experience with the drug in question, (4) high price paid for the substance, (5) behavior characteristic of sale and use of a particular substance, (6) prior involvement by the defendant in drug trafficking, (7) corroborating testimony by officers or other experts as to the identification of the substance or the expected effects of the substance, and (8) sensory identification of the substance if the substance is sufficiently unique.

4. Rules of Evidence. Neb.Rev.Stat. § 27-403 (Reissue 1985) provides that evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Kirk E. Naylor, Jr., Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Charles A. Kandt, Lincoln County Atty., for appellee.

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

PER CURIAM.

The defendant-appellant in this action, Richard Watson, was charged with three drug-related offenses. The first count alleged that on March 14, 1985, appellant distributed methamphetamine; the second count alleged that on June 6, Watson possessed cocaine; and the final count charged that on October 6, he distributed cocaine. A jury convened in the district court for Lincoln County convicted the appellant on count III, distribution of cocaine, and acquitted him of all other charges. Watson was sentenced to a term of 2 to 5 years' imprisonment.

Watson appeals to this court, contending that the district court erred in two respects: (1) The evidence was insufficient as a matter of law to support the charge that the appellant delivered cocaine to Diane Lackey on October 6, 1985, and (2) allowing the prosecution to present, as rebuttal evidence, a portion of an unedited videotape made on October 6, 1985, containing sexual activity between the appellant and the primary witness against him, Lackey, unduly prejudiced the jury against him.

In this drug prosecution, no controlled substances were introduced into evidence against the appellant. Instead, to establish the elements of the crimes charged, the prosecution was based primarily upon the testimony of the appellant's estranged girlfriend, Lackey, and upon two versions of a videotape, one edited and one unedited, made by appellant and Lackey on October 6. There is some conflict in the evidence adduced at trial regarding the events in question; however, a jury verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Schenck, 222 Neb. 523, 384 N.W.2d 642 (1986). Therefore, we must assume that the testimony of the State's primary witness, Lackey, is credible.

Lackey had been living at Watson's home since March of 1985. She quit her job prior to moving in with him, and her primary source of support was through the appellant, Watson. Soon after she moved in, on March 14, she and the appellant met a friend of Watson's, Bruce Lingenfelter, for dinner. After dinner the three of them drove around in Watson's car and went to a few bars in town. On the way to these bars, Lackey testified that she ingested a controlled substance with Lingenfelter and Watson. Lackey testified that Watson identified the substance as "crank" and "crystal" and that it was Lingenfelter who brought the substance with him. She further stated that Watson helped her consume the substance, as this was her first time using that controlled substance. Lackey described how she ingested the substance, the physical appearance of the drug, and how the substance affected her. Later, the three of them went to Watson's residence and continued to use this substance. The day after she engaged in this activity, she was very ill.

According to her testimony, the next experience Lackey had with drugs was also with the appellant. Lackey stated that on June 6, she and the appellant did "several grams of nose candy." An expert for the State testified earlier that "nose candy" was a slang term for cocaine. On the evening of the 6th, Lackey and Watson began using "nose candy," drinking wine, and making a video of their sexual activity. According to Lackey, she and the appellant often would make videos of their sexual activity, but these would generally be destroyed soon after. Lackey went on to describe the physical appearance and effect of this drug, as distinguished from the substance she ingested with the appellant and Lingenfelter on March 14.

Finally, Lackey testified regarding the events of October 6, the date the incidents occurred that led to Watson's conviction for distribution of cocaine. Lackey testified that she could remember the date very specifically because Watson was supposed to return earlier that weekend from Colorado, but failed to do so. Before Watson returned, Lackey received a phone call that made her very upset and confirmed in her mind the suspicions she had that Watson was in Colorado with another woman. However, when the appellant returned from Colorado on October 6, Lackey said nothing to him about her suspicions. Instead, Lackey testified that when Watson returned, he wanted to get some "nose candy" and make a video of their sexual activity. The two of them went to a video store, rented the equipment necessary to make the film, and stopped at a person's house to pick up the drug. The two then returned home and began to snort the substance while making a video of their sexual acts. Lackey described ingesting the drug on that date. Lackey then hid the tape from Watson in a drawer in the bedroom.

From this point, their relationship began to deteriorate rapidly. On the evening of October 9, Watson stayed out all night and telephoned Lackey on the morning of the 10th. At that time, Lackey expressed her desire to move out of Watson's house, and he said he would come home to discuss the particulars of her departure. However, before Watson called her on the 10th, Lackey had contacted Jack Bachelor, a police officer in Valentine, Nebraska. She told Bachelor that she needed "help" because of her use of drugs and did not know where to go. Officer Bachelor put her in contact with Officer David Elliott. Lackey met Officer Elliott on October 10 and discussed her need to get help for her drug problem. At that time Lackey told Officer Elliott about the videotapes she had made with the appellant. Officer Elliott asked her if she had any of the tapes, and she agreed to turn the tape made on October 6 over to him. Lackey gave the videotape to Officer Elliott on October 11. This film is the video that was admitted into evidence. Because the tape contained explicit sexual activity, an edited version was made with all nudity and sexual activity blocked out.

To assist the jury in viewing the tape, Lackey explained the action that correlated to what the jurors were viewing and hearing. She identified the substance that was being ingested on camera as "nose candy."

The testimony of Watson conflicted with Lackey's in several respects. According to the appellant, Lackey moved into his home in North Platte during March of 1985. However, Watson vehemently denied consuming any drugs with Lackey on March 14. Regarding the events of October 6, Watson testified that when he returned from his trip to Colorado, Lackey stated that she had a "surprise" for him. The appellant contended that Lackey called this surprise "crystal" and that it was Lackey who supplied this substance, not the appellant. During the State's case in chief, an expert for the State testified that "crystal" is a common slang term for methamphetamine. Watson admitted participating in the making of the videotape and in the consuming of what he testified Lackey called "crystal," but contended that it was originally Lackey's idea to make the tape. Lackey moved out of the appellant's home on October 12, 1985.

In rebuttal, the State sought to introduce into evidence an unedited portion of the videotape made on October 6. The basis for introduction of the unedited tape was to rebut testimony by Watson that Lackey, not Watson, initiated the activities on October 6 and that she provided the controlled substance on that date. The defense objected to the introduction of any portion of the unedited tape on the basis of Neb.Rev.Stat. § 27-403 (Reissue 1985), contending that the probative value of the tape was substantially outweighed by the danger of unfair prejudice. The trial court found the unedited tape to be proper rebuttal and admitted approximately the first 10 minutes of the video, stating that "everything after that is sexual in nature."

Regarding the first assignment of error, the lack of physical evidence of the chemical content of any of the drugs allegedly ingested by the appellant and Lackey required the prosecution to rely on purely circumstantial evidence to establish the identity of the...