State v. Howell

26 Neb.App. 842

924 N.W.2d 349

STATE of Nebraska, Appellee,

v.William E. HOWELL, Jr., Appellant.

No. A-17-1186.

Court of Appeals of Nebraska.

Filed February 5, 2019.

Matt Catlett, of Law Office of Matt Catlett, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and Joe Meyer, for appellee.

Pirtle, Bishop, and Arterburn, Judges.

Arterburn, Judge.

I. INTRODUCTION

William E. Howell, Jr., was convicted by a jury of theft by unlawful taking. The district court subsequently sentenced him to 20 months’ imprisonment and 12 months’ postrelease supervision. Howell appeals from his conviction. On appeal, Howell assigns numerous errors, including that the district court erred in overruling his motion to suppress evidence obtained as a result of a warrantless search, in admitting hearsay into evidence, in denying his motions for mistrial made during the State’s opening statement and closing argument, in not permitting him to explain the nature of his prior felony conviction, in admitting into evidence details about uncharged offenses, and in failing to properly instruct the jury.

Upon our review, we find no merit to Howell’s assertions on appeal. Accordingly, we affirm his conviction for theft by unlawful taking.

II. BACKGROUND

On December 2, 2016, the State filed an information charging Howell with three separate counts of theft by unlawful taking, pursuant to Neb. Rev. Stat. § 28-511 (Reissue 2016). The first count, a Class IV felony, alleged that Howell had exercised control over movable property of another, which property was valued at more than $1,500, but less than $5,000. See Neb. Rev. Stat. § 28-518(2) (Reissue 2016). The second count, a Class II misdemeanor, alleged that Howell had exercised control over movable property of another, a bicycle, which property was valued at less than $500. See § 28-518(4). The third count, a Class I misdemeanor, alleged that Howell had exercised control over movable property of another, a second bicycle, which property was valued at more than $500, but less than $1,500. See § 28-518(3). Prior to trial, the second and third counts alleged in the information were dismissed because the district court granted Howell’s motion for absolute discharge on speedy trial grounds.

The remaining charge against Howell stems from events which occurred in August and September 2016. Evidence adduced at trial revealed that on August 16, 2016, Shawn Fleischman discovered that his 2009 black Kawasaki Ninja 250R motorcycle had been stolen from in front of his residence near 42d and Adams Streets in Lincoln, Nebraska. Fleischman reported the theft to the Lincoln Police Department. He informed the officer who took the theft report that the motorcycle was valued at $2,500. Fleischman testified similarly at trial.

Approximately 1 month later, on September 23, 2016, Officer Anthony Gratz, who at the time was an officer with the Lincoln Police Department, was investigating a string of motorcycle thefts which had been occurring in Lincoln. As a part of Gratz’ investigation, he spoke with a confidential informant who had knowledge about the motorcycle which had been stolen from Fleischman. Specifically, the confidential informant told Gratz that Howell had taken a motorcycle from the area of 42d and Adams Streets in Lincoln to "a garage on North 27th Street, directly across from the Salvation Army." The confidential informant also told Gratz that Howell had "cut that motorcycle into pieces." Through further investigation, Gratz learned that the confidential informant was referring to a residence with a detached garage located on North 27th Street. Gratz learned from other officers that Howell "frequent[ed]" the area near that residence.

Just after midnight on September 24, 2016, Gratz drove by the residence on North 27th Street. When he drove by, he observed a black motorcycle parked in the driveway. The motorcycle appeared to have been painted "with a thick bed liner." Gratz indicated that in his experience, that type of paint is "very common" on stolen motorcycles. Gratz suspected that the motorcycle parked in the driveway might be Fleischman’s stolen motorcycle. Gratz waited for another uniformed officer to arrive and then approached the front door of the residence. Gratz knocked on the front door, but nobody answered. Gratz observed someone, who he believed to be Howell, walking through the living room of the residence. Soon, Howell appeared in the driveway from the back yard of the residence.

When talking with the officers, Howell indicated that the black motorcycle in the driveway was his. He told Gratz that he had purchased the motorcycle about a year ago. When Gratz pointed out that the motorcycle still had a "dealer style in-transit" on the back of it, Howell indicated that he had actually purchased the motorcycle within the past year. Howell was unable to provide Gratz with any specific information about where he purchased the motorcycle or provide any paperwork to demonstrate his ownership. Howell simply indicated that he had purchased the motorcycle from someone in Colorado.

Ultimately, Gratz determined that the motorcycle in the driveway was not Fleischman’s stolen motorcycle because it was a 1989 model, rather than a 2009 model like Fleischman’s motorcycle. However, Gratz continued to speak with Howell about the possibility of the stolen motorcycle being in the detached garage. Howell immediately told Gratz that there was not a stolen motorcycle in the garage. And, although Howell had been calm throughout the conversation with Gratz, when Gratz told Howell that he "had very specific information that the motorcycle ... was currently in the garage [and] had been cut into pieces," Howell began to breathe heavily and pace. Howell admitted to Gratz that he did have property in the garage, including another motorcycle and a large quantity of tools. He then indicated that if there was a stolen motorcycle in the garage, he did not know anything about it.

At some point during the conversation, Howell offered to go into the garage himself to see if the stolen motorcycle was there. Howell paused for a while before entering the garage and then changed his mind. He told Gratz that he was concerned that if he turned over the stolen motorcycle, Gratz would arrest him. Howell then asked if he was free to leave. When Gratz answered affirmatively, Howell went inside the residence through the front door.

While Gratz was still standing in the driveway, he observed Howell exit the rear of the residence and slowly walk over to the side door of the garage. Gratz informed Howell that he did not want Howell to enter the garage and try to remove or destroy evidence. Howell then left the residence on foot.

Police officers eventually searched the garage. Inside the garage, they found Fleischman’s stolen motorcycle broken down into pieces and parts. In addition, they found two bicycles that had been reported as stolen. Gratz testified that he smelled "a very strong odor of what I would describe as ... vehicle paint" in the garage.

Howell testified in his own defense. During his testimony, he contradicted much of Gratz’ testimony about their conversation. Specifically, Howell testified that he told Gratz "no" when Gratz asked to look in the garage. Howell testified that he "wasn’t the only one that had access to the garage[,] nor is it even technically [his] residence." Howell explained that although he had stayed at the residence "regularly" in the months leading up to September 24, 2016, his friends were the only two people on the lease. Howell admitted that he had been in the garage prior to September 24. In addition, he admitted that he had a key to the garage. However, contrary to Gratz’ testimony, Howell indicated that the only two things he knew to be in the garage were a Honda motorcycle and tools. He denied that either one of these belonged to him. Howell also denied attempting to enter the garage after speaking with Gratz.

After hearing all of the evidence, the jury convicted Howell of theft by unlawful taking. It also found that the value of the stolen motorcycle was $2,000. The district court subsequently sentenced Howell to 20 months’ imprisonment, 12 months’ postrelease supervision, and a $1,000 fine.

Howell appeals his conviction here.

III. ASSIGNMENTS OF ERROR

On appeal, Howell assigns eight errors. Howell asserts that the district court erred in (1) denying his motion to suppress evidence obtained during the warrantless search of the garage, (2) admitting into evidence out-of-court statements made by the confidential informant and by police officers who did not testify, (3) denying his motions for mistrial which were made during the State’s opening statement and closing argument, (4) allowing a police officer to testify about the value of the stolen motorcycle, (5) not permitting Howell to testify regarding the nature of his prior felony conviction, (6) admitting into evidence details about two stolen bicycles which were also located in the garage, (7) failing to properly instruct the jury, and (8) denying his motion for a new trial.

IV. ANALYSIS

1. MOTION TO SUPPRESS

(a) Standard of Review

In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review. State v. Wells , 290 Neb. 186, 859 N.W.2d 316 (2015). Regarding historical facts, we review the trial court’s findings for clear error. Id . But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court’s determination. Id .

(b) Additional Background

Prior to trial, Howell filed a motion to suppress the evidence obtained during the warrantless search of the detached garage.

A suppression hearing was held. At the hearing, Howell argued to the district court that the search did not fall under any recognized exception to the warrant requirement, because he never provided police with consent to search the...