State v. Reinhart

283 Neb. 710

811 N.W.2d 258

STATE of Nebraska, appellee,

v.Brandon D. REINHART, appellant.

No. S–11–464.

Supreme Court of Nebraska.

April 20, 2012.

Syllabus by the Court

1. Convictions: Evidence: Appeal and Error. 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.

2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.

3. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

4. Effectiveness of Counsel: Appeal and Error. Whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision.

5. Constitutional Law: Appeal and Error. A constitutional issue not presented to or passed upon by the trial court is not appropriate for consideration on appeal.

6. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

7. Hearsay. A statement is not hearsay if it is offered against a party and is his own statement, in either his individual or a representative capacity.

8. Trial: Evidence: Juries: Appeal and Error. Evidentiary error is harmless when improper admission of evidence did not materially influence the jury to reach a verdict adverse to substantial rights of the defendant.

9. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

10. Trial: Evidence: Appeal and Error. Given the strength of other evidence presented by the State, erroneously admitted evidence can be harmless.

11. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

12. Effectiveness of Counsel: Proof. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

13. Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Jerrod P. Jaeger, of Jaeger Law Office, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, Carrie A. Thober, and James D. Smith, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Brandon D. Reinhart was charged with using a minor to distribute a controlled substance and conspiracy to use a minor to distribute a controlled substance, specifically marijuana. A jury convicted him on both counts, and he was sentenced to 3 to 5 years' imprisonment on each conviction, with the sentences to run concurrently. Reinhart appeals.

SCOPE OF REVIEW

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. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012). And in our review, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Those matters are for the finder of fact. Id.

Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection. See State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). Whether counsel was deficient and whether the defendant was prejudiced are questions of law that we review independently of the lower court's decision. See, id.; State v. Gonzalez, 283 Neb. 1, 807 N.W.2d 759 (2012).

FACTS

In July 2008, State Patrol Trooper Timothy Stopak received a call from Micah Jennings and met Jennings at a cemetery near Albion, Nebraska, to arrange a controlled purchase of marijuana from Reinhart. At the cemetery, Sheriff Dave Spiegel searched Jennings' vehicle and Stopak searched Jennings' person for money and contraband. After Jennings was searched, Stopak placed two recording devices on Jennings and gave him $120 in “recorded buy money.”

Jennings told Stopak that he had called B.L., his girlfriend, who was at Reinhart's house and that B.L. had arranged for Jennings to buy marijuana from Reinhart at his house. B.L. was 15 years old at the time. Stopak and Spiegel kept constant visual contact with Jennings' vehicle as they followed him to Reinhart's house. Jennings was in the house for 5 to 10 minutes. He came out the same door through which he had entered, got into his vehicle, and drove past Stopak and Spiegel. While he was driving, Jennings called B.L. and spoke to Reinhart on B.L.'s telephone.

Reinhart obtained an ounce of marijuana from his bedroom and told B.L. that Jennings would be waiting at a local bike shop. Jennings drove to the far north end of the bike shop parking lot, and Stopak and Spiegel took up a surveillance position. B.L. arrived by car, met Jennings, and gave him the marijuana. Jennings gave B.L. two $50 bills and one $20 bill. Stopak saw B.L. complete the drug deal with Jennings and leave. When B.L. delivered the marijuana to Jennings, she did not know that Jennings was working with Stopak.

Stopak and Spiegel then followed Jennings back to the cemetery, where Jennings gave Stopak the package delivered by B.L. Stopak and Spiegel again searched Jennings and his vehicle for contraband and money, and Stopak recovered the recording devices. Laboratory analysis confirmed the substance in the package was marijuana. Reinhart was charged with using a minor to distribute a controlled substance and conspiracy to use a minor to distribute a controlled substance.

At trial, Reinhart took the stand, and although he admitted to having smoked marijuana, he denied ever selling marijuana or using B.L. to deliver marijuana. He also denied speaking with Jennings on B.L.'s telephone and making an agreement to personally deliver marijuana to Jennings or to deliver marijuana to Jennings through a third person.

The jury convicted Reinhart of both counts. The trial court sentenced Reinhart to 3 to 5 years' imprisonment on each count, with the sentences to run concurrently and credit for 1 day served.

ASSIGNMENTS OF ERROR

On appeal, Reinhart assigns four errors: (1) His convictions and sentences for both use of a minor to distribute a controlled substance and conspiracy to use a minor to distribute a controlled substance violate the double jeopardy provisions of the federal and state Constitutions, (2) there was insufficient evidence to convict him of the charges, (3) the trial court erred in overruling one of Reinhart's hearsay objections, and (4) trial counsel was ineffective for failing to make appropriate hearsay objections.

ANALYSIS

Double Jeopardy

Reinhart argues that his convictions and sentences for both use of a minor to distribute a controlled substance and conspiracy to commit that offense violate his right to be free from double jeopardy. However, he did not raise this claim in the trial court.

A constitutional issue not presented to or passed upon by the trial court is not appropriate for consideration on appeal. State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010). Because Reinhart failed to raise this issue in the trial court, he has waived his double jeopardy claim and we do not address it.

Sufficiency of Evidence

Reinhart alleges the evidence was insufficient to convict him of the charges. 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. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012). And in our review, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Those matters are for the finder of fact. Id.

Reinhart was charged by information with one count of use of a minor to distribute a controlled substance under Neb.Rev.Stat. § 28–416(5)(a) (Reissue 2008) and one count of conspiracy under Neb.Rev.Stat. § 28–202 (Reissue 2008). Section 28–416(5)(a) states:

Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person eighteen years of age or older to knowingly and intentionally employ, hire, use, cause, persuade, coax, induce, entice, seduce, or coerce any person under the age of eighteen years to manufacture, transport, distribute, carry, deliver, dispense, prepare for delivery, offer for...