State v. Nelson

636 N.W.2d 620

262 Neb. 896

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

No. S-01-160.

Supreme Court of Nebraska.

December 7, 2001.

Scott A. Calkins, Omaha, of Byan & Hoarty, for appellant.

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

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

MILLER-LERMAN, Justice.

NATURE OF CASE

Richard Nelson was convicted in the district court for Douglas County of unlawful possession with intent to deliver a controlled substance. Nelson was found to be a habitual criminal and was sentenced to imprisonment for a term of 10 to 15 years. Nelson appeals his conviction and his sentencing as a habitual criminal. We affirm the conviction but vacate the sentence and remand the cause for resentencing.

STATEMENT OF FACTS

Following a bench trial held November 18, 1997, Nelson was found guilty of possession with intent to deliver a controlled substance, cocaine. At trial, Omaha police officer David Turco testified that he was on patrol in a cruiser on January 9, 1997, with his partner, Officer Shawn LeClair, in the vicinity of 33d and Parker Streets in Omaha. Turco had turned the cruiser onto Parker Street heading eastbound when he observed a blue Buick Electra in the eastbound lane of Parker Street parked facing westbound. The Buick pulled away from the curb heading westbound which required Turco to stop the cruiser in order to avoid a collision. After stopping the cruiser, Turco maneuvered around the Buick, which then proceeded westward and turned south on 33d Street. Turco made a U-turn, proceeded south on 33d Street, and saw that the Buick had pulled over to the curb. Nelson got out of the Buick and began to walk eastward. Turco asked Nelson to return to the Buick, and Nelson complied.

Because LeClair recognized Nelson, the officers ran a check of Nelson's record which revealed an outstanding warrant issued by the sheriff's department. The officers approached the Buick and advised Nelson of the warrant and that he was under arrest. Turco directed Nelson to exit the Buick and handcuffed Nelson after he had exited the vehicle. Turco patted Nelson down to check for weapons. During the pat down, Turco found some candy in Nelson's jacket pocket. Turco then brought Nelson to the cruiser, put him in the back seat, and closed the door. Turco returned to the Buick to assist LeClair with a passenger who was inside the vehicle.

The officers took Nelson to the police station. When they arrived, LeClair escorted Nelson out of the cruiser, and Turco immediately checked the back seat of the cruiser. Turco found a plastic bag containing what was later identified as 9.1 grams of crack cocaine. Nelson was then arrested on a charge of possession with intent to deliver a controlled substance. At the time of the arrest, a pager and $166 in cash, including seven $20 bills, were found in Nelson's possession.

Turco and LeClair testified that they had started their shift approximately 1 hour before the incident with Nelson. They also testified that prior to starting the shift, LeClair had searched the back seat area, and that such searches were routinely made at the start of a shift and after an arrest. LeClair testified that he specifically remembered searching the back seat that day. LeClair typically straps his duty bag into the back seat, and on that day, the seatbelts were buried underneath the back seat cushion, so he had to pull the seat cushion out to retrieve the seatbelts. LeClair testified that the search of the back seat had occurred in daylight at approximately 4 p.m. and that because of the thoroughness of his search, he did not think it possible that he had missed seeing anything in the back seat area. Turco testified that no other passenger had been in the back seat prior to Nelson's arrest and that immediately following Nelson's removal from the cruiser, Turco observed the plastic bag upon inspection of the back seat.

Turco testified that based on his experience, the amount of crack cocaine found in the bag would be characterized as "dealer amounts" rather than "user amounts" because the bag contained approximately 90 hits valued at almost $2,000. Turco further testified that the presence of several $20 bills and a pager on Nelson's person at the time of arrest was significant because pagers were typically used in narcotics transactions and $20 bills were often used in the trade of crack cocaine, which was commonly sold at $20 per hit.

At the time of Nelson's arrest, swabs were taken of his hands. The swabs were tested by a forensic chemist and tested negative for controlled substances. However, the forensic chemist testified at trial that if an individual had handled a bag containing crack cocaine, residue might be on that individual's hands if residue was on the outside of the bag, but there would not likely be residue on that individual's hands if residue was on only the inside of the bag and none on the outside.

At defense counsel's request, on July 3, 1997, fingerprint tests were performed on the bag found in the cruiser. No identifiable fingerprints were found. The crime laboratory technician who performed the test testified at trial that plastic bags are generally not hard enough to receive fingerprint impressions and noted that it had been almost 6 months between the time the bag had been found in the cruiser and the time it was tested.

Nelson was convicted following a bench trial. On December 9, 1997, an enhancement proceeding was held at which Nelson was found to be a habitual criminal. On June 16, 1998, Nelson was sentenced as a habitual criminal to a term of imprisonment of 10 to 15 years.

On November 22, 1999, Nelson filed a motion for postconviction relief asserting, inter alia, that his counsel had provided ineffective assistance of counsel by failing to perfect a direct appeal of his conviction and sentence. A postconviction evidentiary hearing was held on January 3 and 10, 2001. Thereafter, the district court entered an order finding that Nelson had been provided ineffective assistance of direct appeal counsel and concluding that, pursuant to State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000), and State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000), the appropriate relief was to grant Nelson a new direct appeal. The present direct appeal followed.

ASSIGNMENTS OF ERROR

In his new direct appeal, Nelson asserts that (1) the district court erred in finding the evidence sufficient to prove he was a habitual criminal; (2) he was rendered ineffective assistance of counsel at the enhancement hearing because trial counsel failed to object to the introduction of his prior plea-based convictions and failed to object regarding the sufficiency of the evidence in support of the habitual criminal finding; and (3) the evidence at trial was insufficient to convict him of the charge of possession with intent to deliver a controlled substance, and the district court therefore erred in failing to direct a verdict in his favor.

STANDARDS OF REVIEW

Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001). Circumstantial evidence is not inherently less probative than direct evidence. Id.

Plain error may be asserted for the first time on appeal or be noted by the appellate court on its own motion. Jolly v. State, 252 Neb. 289, 562 N.W.2d 61 (1997); Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997); In re Estate of Morse, 248 Neb. 896, 540 N.W.2d 131 (1995); Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994); Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993).

ANALYSIS

Sufficiency of Evidence—Possession With Intent to Deliver.

We first consider Nelson's assignment of error with respect to the sufficiency of evidence in the underlying conviction because if such conviction was not valid, the assignments of error regarding sentence enhancement would become moot. Nelson argues that the evidence on the possession charge was almost solely circumstantial. He claims there was no direct evidence that he was the individual responsible for placing the plastic bag containing crack cocaine in the back seat of the cruiser and that there was evidence which cast substantial doubt on the assertion that he was so responsible.

In reviewing the sufficiency of the evidence following a conviction, we must view the evidence in the light most favorable to the State to determine whether it supports a conviction for possession with intent to deliver a controlled substance. Castor, supra. In reviewing the evidence, we must remember that circumstantial evidence is equally probative as direct evidence. Id. Therefore, Nelson's complaint that the evidence against him is almost solely circumstantial is not meritorious if such evidence, even though circumstantial, is sufficient to support the conviction.

Turco testified that after he and LeClair had removed Nelson from the back seat, he noticed the bag of crack cocaine under the seat where Nelson had been sitting. LeClair testified that he had searched this area prior to their patrol shift and had not seen a bag at that location at that time. Turco further testified that during the shift, no one had been in the back seat prior to Nelson. Such testimony, if believed by the trier of fact, could reasonably lead to the finding that the bag of crack cocaine had been in Nelson's possession and deposited by him in the back seat of the cruiser.

Turco also...