276 Neb. 448
STATE v. DRAGANESCU
STATE OF NEBRASKA, APPELLEE, v. ION DRAGANESCU, APPELLANT.
[Cite as State v. Draganescu, 276 Neb. 448]
No. S-07-797.
Supreme Court of Nebraska.
August 22, 2008
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error.
In reviewing a trial court's ruling on a motion to suppress based on the Fourth Amendment, an appellate
court will uphold its findings of fact unless they are clearly erroneous. But an appellate court reviews de
novo the trial court's ultimate determinations of reasonable suspicion to conduct an investigatory stop and
probable cause to perform a warrantless search.
2. Constitutional Law: Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Search and
Seizure. Temporary detention of individuals during the stop of an automobile by the police, even if only for
a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of the Fourth
Amendment.
3. Constitutional Law: Motor Vehicles. An individual operating or traveling in an automobile does not lose
all reasonable expectation of privacy simply because the automobile and its use are subject to government
regulation.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. An officer's stop of
a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation has
occurred.
5. Constitutional Law: Probable Cause: Intent. Subjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.
6. Investigative Stops: Police Officers and Sheriffs: Probable Cause. If an officer has probable cause to
stop a violator, the stop is objectively reasonable and any ulterior motivation is irrelevant.
7. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. To detain a
motorist for further investigation past the time reasonably necessary to conduct a routine investigation
incident to a traffic stop, an officer must have a reasonable, articulable suspicion that the motorist is
involved in criminal activity unrelated to the traffic violation.
8. ___: ___: ___: ___. Reasonable suspicion for further detention must exist after the point that an
officer issues a citation.
9. Investigative Stops: Police Officers and Sheriffs: Probable Cause. Whether a police officer has a
reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances.
10. ___: ___: ___. Courts must determine whether reasonable suspicion exists on a case-by-case basis.
11. Probable Cause: Words and Phrases. Reasonable suspicion entails some minimal level of objective
justification for detention. It is something more than an inchoate and unparticularized hunch--but less than
the level of suspicion required for probable cause.
12. Probable Cause. Factors that would independently be consistent with innocent activities may
nonetheless amount to reasonable suspicion when considered collectively.
449
13. Search and Seizure: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. Generally, the
factors supporting an officer's reasonable suspicion of illegal drug activity when coupled with a well-trained
dog's positive indication of drugs in a vehicle will give the officer probable cause to search the vehicle.
14. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of
evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
15. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence
for an abuse of discretion.
16. Judges: Appeal and Error. The exercise of judicial discretion is implicit in determining the relevance
of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of
discretion.
17. Evidence: Words and Phrases. Evidence is relevant if it tends in any degree to alter the probability
of a material fact.
18. ___: ___. Relevancy requires only that the degree of probativeness be something more than
nothing.
19. Criminal Law: Evidence. Evidence of a defendant's consciousness of guilt is relevant as a
circumstance supporting an inference that the defendant is guilty of the crime charged.
20. ___: ___. When the evidence is sufficient to justify an inference that the defendant acted with
consciousness of guilt, the fact finder can consider such evidence even if the conduct could be explained in
another way.
21. ___: ___. Unlike general denials of guilt, a defendant's exculpatory statements of fact that are
proved to be false at trial are probative of the defendant's consciousness of guilt.
22. Rules of Evidence: Hearsay. Hearsay is not admissible except as provided by the Nebraska
Evidence Rules.
23. ___: ___. A trial judge does not have discretion to admit inadmissible hearsay statements.
24. Rules of Evidence: Hearsay: Appeal and Error. Because of the factors a trial court must weigh in
deciding whether to admit evidence under the residual hearsay exception, an appellate court applies an
abuse of discretion standard to review hearsay rulings under this exception.
25. Rules of Evidence: Appeal and Error. When judicial discretion is not a factor, whether the underlying
facts satisfy the legal rules governing the admissibility of such evidence is a question of law, subject to de
novo review.
26. 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.
27. Rules of Evidence: Hearsay: Words and Phrases. A written assertion offered to prove the truth of
the matter asserted is a hearsay statement under Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3)
(Reissue 1995), unless it falls within an exception or exclusion under the hearsay rules.
450
28. Rules of Evidence: Hearsay. Computerized printouts that are merely the visual counterparts to
routine electronic business records are usually hearsay, but they can be admissible under the business
records exception.
29. Rules of Evidence: Hearsay: Pretrial Procedure: Notice. An adverse party's knowledge of a
statement is not enough to satisfy the notice requirement of Neb. Evid. R. 804(2)(e), Neb. Rev. Stat. §
27-804(2)(e) (Reissue 1995). The proponent of the evidence must provide notice before trial to the
adverse party of his or her intentions to use the statement to take advantage of the residual hearsay
exception.
30. Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial
court is correct--although such correctness is based on a ground or reason different from that assigned by
the trial court--an appellate court will affirm.
31. Rules of Evidence: Appeal and Error. An appellate court can consider whether the record clearly
shows an exhibit was admissible for the truth of the matter asserted under a different rule from the one
applied by the trial court when both parties had a fair opportunity to develop the record on the underlying
facts.
32. Rules of Evidence. When a Nebraska Evidence Rule is substantially similar to a corresponding
federal rule of evidence, Nebraska courts may look to federal decisions interpreting the corresponding
federal rule for guidance in construing the Nebraska rule.
33. Evidence. A party's possession of a written statement can be an adoption of what its contents reveal
under circumstances that tie the party to the document in a meaningful way.
34. Trial: Evidence. A court must determine whether there is sufficient foundation evidence for the
admission of physical evidence on a case-by-case basis.
35. ___: ___. Because authentication rulings are necessarily fact specific, a trial court has discretion to
determine whether evidence has been properly authenticated.
36. Trial: Evidence: Appeal and Error. An appellate court reviews a trial court's ruling on authentication
for abuse of discretion.
37. Rules of Evidence. Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 1995), does not impose a
high hurdle for authentication or identification.
38. Rules of Evidence: Proof. A proponent of evidence is not required to conclusively prove the
genuineness of the evidence or to rule out all possibilities inconsistent with authenticity.
39. ___: ___. If a proponent's showing is sufficient to support a finding that the evidence is what it
purports to be, the proponent has satisfied the requirement of Neb. Evid. R. 901(1), Neb. Rev. Stat. §
27-901(1) (Reissue 1995).
40. ___: ___. A proponent may authenticate a document under Neb. Evid. R. 901(2)(a), Neb. Rev. Stat.
§ 27-901(2)(a) (Reissue 1995), by the testimony of someone with personal knowledge that it is what it is
claimed to be, such as a person familiar with its contents.
41. ___: ___. Under Neb. Evid. R. 901(2)(d), Neb. Rev. Stat. § 27-901(2)(d) (Reissue 1995), a
proponent may authenticate a document by circumstantial evidence, or its appearance, contents,
substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
451
42. Lesser-Included Offenses. Whether a crime is a lesser-included offense is determined by a statutory
elements approach and is a question of law.
43. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.
44. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the
questions independently of the lower court's conclusions.
45. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct on a lesser-included
offense if (1) the elements of the lesser offense for which an instruction is requested are such that one
cannot commit the greater offense without simultaneously committing the lesser offense and (2) the
evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the
defendant of the lesser offense.
46. Lesser-Included Offenses. To determine whether one statutory offense is a lesserincluded offense
of the greater, Nebraska courts look to the elements of the crime and not to the facts of the case.
47. Controlled Substances: Intent: Evidence: Expert Witnesses: Juries. Evidence of the quantity of a
controlled substance possessed combined with expert testimony that such quantity indicates an intent to
deliver can be sufficient for a jury to infer an intent to deliver.
48. Lesser-Included Offenses: Jury Instructions: Evidence. When the prosecution has offered
uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary
for the lesser offense, the defendant must offer some evidence to dispute this issue if he or she wishes to
have the benefit of a lesser-offense instruction.
49. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing for sufficiency of the
evidence to sustain a 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.
50. Convictions: Evidence: Appeal and Error. 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.
51. Controlled Substances: Evidence: Circumstantial Evidence: Proof. Constructive possession of an
illegal substance may be proved by direct or circumstantial evidence.
52. Criminal Law: Motor Vehicles: Evidence. A passenger's mere presence in a vehicle with contraband
is insufficient to support a finding of joint possession.
53. Controlled Substances: Motor Vehicles: Evidence. Possession of an illegal substance can be
inferred from a vehicle passenger's proximity to the substance or other circumstantial evidence that
affirmatively links the passenger to the substance.
54. ___: ___. A passenger's joint possession of a controlled substance found in a vehicle can be
established by evidence that (1) supports an inference that the driver was involved in drug trafficking, as
distinguished from possessing illegal drugs for personal use; (2) shows the passenger acted suspiciously
during a traffic
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stop; and (3) shows the passenger was not a casual occupant but someone who had been traveling a
considerable distance with the driver.
55. Controlled Substances: Motor Vehicles: Evidence: Juries. A juror may reasonably infer that a driver
with a possessory interest in a vehicle who is transporting a large quantity of illegal drugs would not invite
someone into his or her vehicle who had no knowledge of the driver's drug activities.
56. Controlled Substances: Intent: Circumstantial Evidence. Circumstantial evidence may support a
finding that a defendant intended to distribute, deliver, or dispense a controlled substance.
57. ___: ___: ___. Circumstantial evidence to establish possession of a controlled substance with intent
to distribute or deliver may consist of several factors: the quantity of the substance, the equipment and
supplies found with it, the place it was found, the manner of packaging, and the testimony of witnesses
experienced and knowledgeable in the field.
58. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed by an appellate
court only if the sentences complained of were an abuse of judicial discretion.
59. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1)
age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the violence involved in the commission of the crime.
Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and Matthew G. Graff for appellant.
Jon Bruning, Attorney General, and Erin E. Leuenberger for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.
CONNOLLY, J.
I. SUMMARY
A jury convicted Ion Draganescu of possession of a controlled substance with intent to deliver, a Class III
felony. Although this appeal presents numerous issues, we believe there are three primary issues. First, did
the Nebraska State Patrol have probable cause to initially stop the vehicle in which Draganescu was a
passenger? Second, did the State Patrol have probable cause to search the vehicle? Third, was an airline
ticket stub, which
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the State Patrol took from Draganescu's pocket after his arrest, admissible under the residual hearsay
exception?
We spell out our holding with some specificity in the following pages, but briefly stated, it is this: We hold
that the State Patrol did have probable cause to stop the vehicle. We further hold that the State Patrol had
probable cause to search the van following a canine sniff. Finally, although the district court erred in
admitting the airline ticket stub under the residual hearsay exception, we hold that this evidence was
admissible as an adopted statement. We affirm.
II. BACKGROUND
On March 27, 2006, Nebraska State Trooper Chris Bigsby stopped a van on Interstate 80, just east of
Lincoln. He stopped the van because the driver was following a semi-truck too closely. The driver was
Herbert Truesdale; Draganescu was the passenger. While conducting an investigation incident to the stop,
Bigsby became suspicious of drug activity and requested a canine unit. Following the canine sniff, troopers
searched the van and found 275 pounds of marijuana. The State charged Draganescu with possession of
a controlled substance with intent to deliver.
Draganescu moved to suppress any evidence obtained from the stop and search of his person and the
van. He alleged that state troopers searched the van without probable cause or reasonable suspicion. The
district court held two suppression hearings. The first focused on whether Bigsby had probable cause to
stop the van; whether Bigsby had reasonable suspicion to order a canine sniff; and whether the length of
the detentions was unreasonable. The second suppression hearing concerned the reliability of Duke, the
drug dog. Draganescu argued that because Duke was unreliable, the State lacked probable cause to
search the van.
1. FIRST SUPPRESSION HEARING
(a) Initial Stop of the Van
At the hearing, the State submitted a videotape from Bigsby's patrol car camera that shows the timeline
of events. Bigsby testified that while in a marked patrol car monitoring traffic on
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Interstate 80 in Lincoln, he noticed the eastbound van in which Draganescu was a passenger. He thought
he saw Nevada plates on the van. He testified that the van caught his eye because it lalppeared to be
possibly a rental and it was from Nevada. And I've had some success as far as Nevada plated vehicles and
contraband and rental vehicles." He pulled onto the interstate to observe the van and another vehicle.
Bigsby initially passed the van when he saw that the plates were from Washington instead of Nevada.
But as he was passing the semi-truck in front of the van, he saw the van moving closer to the truck. From
his rearview mirror, he saw the van was following the truck about one car length behind it and decided to
stop the van. At 9:33 a.m., Bigsby stopped the van and asked for a vehicle registration and licenses from
Truesdale and Draganescu. He intended to issue a warning ticket and asked Truesdale to sit in the patrol
car while he issued the ticket.
(b) Detainment Before Issuing Warning Ticket
Bigsby testified that as he approached the van, he observed fast-food wrappers, trash, and pillows in
the van. He described the van as having a "lived-in" look. He stated that while he was in the patrol car, the
dispatcher informed him that the computer that runs background checks was down. He asked Truesdale
about his travels and his criminal and driving history. Truesdale stated that he had one previous arrest for
driving under the influence and another arrest because someone had possessed a gun while in his vehicle.
He said that he had flown to Seattle, Washington, around March 2, 2006, and that Draganescu had flown to
California. He said that after he rented the van in Washington, he went to Los Angeles, California, for a few
days and then met up with Draganescu in Las Vegas, Nevada. He stated that Draganescu had flown to Las
Vegas and that they stayed in Las Vegas for a couple of days in a hotel and then left on the previous
Thursday or Friday. Truesdale gave Bigsby the rental agreement for the van, which showed that Truesdale
was overdue to return the van.
Bigsby went to the van to get its vehicle identification number and return Draganescu's identification. He
asked Draganescu about his travels. Draganescu said that he worked for a transport
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company in Detroit, Michigan, and had driven a truck to Seattle for them, where he met Truesdale. He said
that he and Truesdale had left Seattle a couple of days ago and were driving straight back to Michigan on
Interstate 80, without mentioning Las Vegas. He stated that they had been sleeping in the van at truckstops
on their way back. While Bigsby was returning to the patrol car, he called for a canine unit.
At 9:58 a.m., the dispatcher reported that there were no outstanding warrants and that Truesdale's
license was valid. The dispatcher also reported that Draganescu had a drug-related criminal history. Bigsby
finished writing the warning ticket at 10:01 a.m.
(c) Detainment After Issuing Warning Ticket
After Bigsby issued the warning ticket, Truesdale started to exit the patrol car. But Bigsby asked him if
he could answer a few more questions, and Truesdale agreed. Bigsby testified that he asked Truesdale
whether he would allow Bigsby to search the van and whether he would mind waiting for a dog to "come out
and run around" the van. Truesdale refused consent. Bigsby then told him that he was being detained.
After other troopers arrived, state troopers placed Draganescu in a different patrol car to wait while they
conducted a canine sniff.
At 10:16 a.m., the canine unit arrived. At 10:25 a.m., Nebraska State Trooper Jeremy Dugger did a
prestimulation ritual with Duke. Dugger then took Duke around the vehicle three times. After this
deployment, Dugger took Duke away from the van briefly. At 10:30 a.m., Dugger deployed Duke again.
After taking Duke around the van two more times, Duke gave a final indication of drugs. At 10:32 a.m.,
Bigsby opened the van's hatch and discovered the drugs.
(d) District Court's Ruling
The district court found that there was probable cause to stop the van. It also found a sufficient factual
basis to create a reasonable suspicion that Truesdale and Draganescu were involved in a crime that was
occurring or about to occur. It further concluded that the detention for the traffic stop and the canine sniff
was reasonable in length. The court overruled the motion to suppress.
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2. SECOND SUPPRESSION HEARING REGARDING DUKE'S RELIABILITY
The second suppression hearing concerned Dugger's handling of Duke during the canine sniff.
Draganescu argued that Dugger's mishandling of Duke made Duke's indication of drugs unreliable. Thus,
he argued probable cause was lacking to conduct a search. Regarding his qualifications, Dugger testified
that he had completed 8 weeks of canine training. He also stated that Duke was one of the Patrol's "most
reliable and accurate dogs" and had received very high certification scores in 2005 and 2006.
(a) Duke's First Deployment
Dugger explained that he did a prestimulation ritual because Duke was distracted. The ritual involved
Dugger's showing Duke a sterile ball, acting suspiciously with the ball alongside the van, and then putting
the ball in his pants pocket when Duke was not watching. Without the ball, Dugger then took Duke around
the van by his leash as he moved his other hand up and down the van in the places that he wanted Duke to
sniff. They went around the van three times in this manner. Dugger stated that even though Duke seemed
distracted, he had almost immediately alerted to the rear of the van. He described an "alert" as a change in
the dog's body behavior that means the dog has noticed the odor of drugs. In contrast, an "indication" of
drugs is the dog's prescribed behavior of barking, whining, or scratching, or a combination of these
behaviors, to indicate the strongest source of the odor.
(b) Duke Tries Again
After these three rounds, Dugger told Bigsby that although Duke had alerted, the dog was distracted
because of the rain and was not sniffing properly. Dugger took Duke away briefly and had another officer
perform a prestimulation ritual with a different sterile toy. At 10:30 a.m., Dugger took Duke around the van
two more times. He testified that Duke was sharper during this deployment because he was sniffing nasally
with his mouth closed. At the end of the second round, Duke jumped up onto the rear bumper. Dugger
testified that Duke scratched at the van, giving a final indication of drugs.
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(c) Defense Expert Opines That Duke's Indication of Drugs Was "Possibly" Contaminated
The court also received, over the State's objections, an expert report from a retired Florida police
officer, Bobby G. Mutter. Mutter had expertise with drug dogs. In his report, he stated that he had reviewed
Dugger's deposition, Duke's training and service records, logs of Duke's history, and two videotape
recordings of the stop and search. He concluded that Duke was a welltrained narcotics dog and had alerted
to the rear of the van. But he believed that Dugger "could very possibly have contaminated this search by
showing the canine an object prior to the search and going to the vehicle with the object[,] thus, making the
dog think there was already drugs in the vehicle."
The district court found that "[t]he evidence is uncontested that [bugger] did not take an object to the
vehicle." It therefore overruled Draganescu's motion to suppress "due to the handling of the drug sniffing
dog."
3. DRAGANESCU'S TRIAL
During Draganescu's search incident to his arrest, troopers found an airline ticket stub in his pocket.
The ticket stub, exhibit 20, was from U.S. Airways. It showed that Draganescu had a seat on a March 23,
2006, flight from Los Angeles to Las Vegas. The court overruled Draganescu's foundation, relevance, and
hearsay objections to exhibit 20. Bigsby testified that 275 pounds of marijuana were found in the van. He
further testified that the marijuana was worth $275,000 (or $1,000 a pound). He stated that this amount was
consistent with distribution, not personal use. According to Bigsby, the State Patrol found no fingerprints or
DNA evidence linking Draganescu to the drugs. Bigsby also stated that he did not smell marijuana in the
van before or after the arrest.
After the State rested, Draganescu moved to dismiss. The court overruled the motion. At the jury
instruction conference, the court also refused Draganescu's proposed jury instruction No. 3. This
instruction set out a lesser-included offense of possession of more than 1 pound of marijuana. The jury
returned a guilty verdict. The district court sentenced Draganescu to imprisonment for 5 to 11 years, with
credit for time served. The
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court acknowledged that Draganescu's sentence was longer than Truesdale's sentence. But the court
stated that it had reached its determination because of Draganescu's criminal history.
III. ASSIGNMENTS OF ERROR
Draganescu assigns, restated, that the district court erred in (1) overruling Draganescu's motion to
suppress evidence that state troopers seized while searching the van and admitting this evidence at trial
over his objections; (2) admitting exhibit 20, an airline ticket stub, over Draganescu's objections regarding
relevancy, hearsay, and foundation; (3) failing to instruct the jury on the lesser-included offense of
possession of marijuana; (4) finding there was sufficient evidence to support a conviction; and (5) imposing
an excessive sentence.
IV. ANALYSIS
1. MOTIONS TO SUPPRESS
Draganescu argues that neither probable cause nor reasonable suspicion supported the following three
searches or seizures: (1) the initial stop of the van; (2) his continued detention after the initial stop; and (3)
the search of the van.
(a) Standard of Review
[1] In reviewing a trial court's ruling on a motion to suppress based on the Fourth Amendment, we will
uphold its findings of fact unless they are clearly erroneous.(fn1) But we review de novo the trial court's
ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to
perform a warrantless search.(fn2)
(b) Probable Cause to Stop the Van
Draganescu concedes that we have held traffic violations, no matter how minor, create probable cause
to stop the driver of a vehicle.(fn3) But he contends that the standard for determining that a driver is
following a vehicle too closely is subjective. He
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also contends that the State failed to prove Truesdale violated the governing statute. He argues that
because the standard is subjective, law enforcement officers could always rely on it to stop drivers for
inarticulate hunches. He further argues that Bigsby admitted at trial that the real reason for the stop was his
hunch that the passengers were involved in transporting contraband. He asks us to hold that under these
circumstances, an officer's stop of a vehicle for this offense violates an individual's Fourth Amendment right
to be free from unreasonable searches and seizures.
[2-4] The Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, § 7, guarantee "[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures. . . ." "Temporary detention of individuals during the stop of an automobile by the police, even if
only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of
this provision."(fn4) Further, "lain individual operating or traveling in an automobile does not lose all
reasonable expectation of privacy simply because the automobile and its use are subject to government
regulation.'"(fn5) But in determining whether the government's intrusion into a motorist's Fourth Amendment
interests was reasonable,(fn6) the question is not whether the officer issued a citation for a traffic violation
or whether the State ultimately proved the violation. Instead, a stop of a vehicle is objectively reasonable
when the officer has probable cause to believe that a traffic violation has occurred.(fn7)
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Draganescu argues that the rule he advocates is consistent with our holding in State v. Childs.(fn8) But
he ignores a critical distinction. There, a police officer stopped the motorist to check his vehicle registration
because of his in-transit tags. The motorist was not driving suspiciously and had not violated a statute. His
vehicle's in-transit tags were in compliance with the governing statutes. We held that "a constitutional
investigatory stop cannot be made solely to check a motorist's documentation when the vehicle is properly
displaying in-transit tags."(fn9) In Childs, the officer lacked outward observable signs that would support
probable cause to believe that the driver was violating any traffic regulation.(fn10)
In contrast, Bigsby had probable cause to stop the vehicle for a traffic violation--following too closely.
Neb. Rev. Stat. § 60-6,140(1) (Reissue 2004) provides: "The driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable and prudent, and such driver shall have due regard for the
speed of such vehicles and the traffic upon and the condition of the roadway." But we need not analyze
Draganescu's argument that the "reasonable and prudent" standard is too indefinite or subjective because
he has not challenged the statute for vagueness. Moreover, Bigsby testified that he used an objective
standard for determining whether the van was following the truck too closely: one car length for every 10
miles of speed. Bigsby further stated that he observed the van following one car length behind the
semi-truck while both vehicles were traveling over 70 m.p.h. in the rain.
[5,6] Because this evidence showed Bigsby had probable cause to believe a traffic violation had
occurred, the stop was objectively reasonable. Although Draganescu disputes Bigsby's motivation for
stopping the van, the issue is irrelevant. Both the U.S. Supreme Court and this court have rejected
"pretextual" arguments regarding routine traffic stops. "Subjective intentions
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play no role in ordinary, probable-cause Fourth Amendment analysis."(fn11) If an officer has probable
cause to stop a violator, the stop is objectively reasonable and any ulterior motivation is irrelevant.(fn12)
Draganescu's argument that the initial stop was unsupported by probable cause is without merit.
(c) Reasonable, Articulable Suspicion to Justify Draganescu's Continued Detention
Draganescu does not appeal the district court's decision that the length of his detention was
reasonable. Instead, he contends that Bigsby did not have reasonable suspicion to enlarge the scope of
the traffic stop and detain him for a canine sniff after Truesdale attempted to exit the patrol car.
[7,8] To detain a motorist for further investigation past the time reasonably necessary to conduct a
routine investigation incident to a traffic stop,(fn13) an officer must have a reasonable, articulable suspicion
that the motorist is involved in criminal activity unrelated to the traffic violation.(fn14) Reasonable suspicion
for further detention must exist after the point that an officer issues a citation.(fn15)
[9-11] Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends
on the totality of the circumstances.(fn16) Courts must determine whether reasonable suspicion exists on a
case-by-case basis.(fn17) Reasonable suspicion entails some minimal level of objective justification for
detention. It is something more than an inchoate and
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unparticularized hunch--but less than the level of suspicion required for probable cause.(fn18)
Regarding an officer's reasonable suspicion, we have previously considered factors similar to those
present in this case. Those factors included an officer's testimony that (1) the motorist had not taken the
most direct route from the occupants' stated point of origin to their stated destination(fn19) and (2) the
driver or passengers gave implausible or contradictory answers regarding their travel plans.(fn20) And,
although of limited usefulness, a court may consider, with other factors, evidence that the occupants
exhibited nervousness.(fn21) Finally, a court can consider, as part of the totality of the circumstances, the
officer's knowledge of a person's drug-related criminal history.(fn22)
[12] Moreover, factors that would independently be consistent with innocent activities may nonetheless
amount to reasonable suspicion when considered collectively.(fn23) For example, evidence that a motorist
is returning to his or her home state in a vehicle rented from another state is not inherently indicative of
drug trafficking when the officer has no reason to believe the motorist's explanation is untrue.(fn24) But a
court may nonetheless consider this factor when combined with other indicia that drug activity may be
occurring--particularly the occupants' contradictory answers regarding their travel purpose and plans(fn25)
or an occupant's previous drug-related convictions.(fn26)
Here, the rental agreement showed that Truesdale should have returned the van to Seattle 5 days
before the traffic stop. His
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explanation to Bigsby that he had obtained a 3-day extension did not explain why the van was in Nebraska
2 days after it was due for return in Washington.(fn27) More important, Draganescu's statement that he
and Truesdale were traveling straight back to Michigan from Washington was inconsistent with their
presence on Interstate 80 in Nebraska. And, most telling, Truesdale and Draganescu gave contradictory
answers about their travel plans. Finally, Draganescu's background check revealed a drug-related criminal
history. Considering the totality of these circumstances, we conclude that these facts, when viewed from the
standpoint of an objectively reasonable police officer,(fn28) created a reasonable, articulable suspicion.
The court did not err in concluding that Bigsby had a reasonable, articulable suspicion that Truesdale and
Draganescu were involved in unlawful activity at the time Bigsby issued the warning citation.
(d) Probable Cause to Search the Van
Draganescu argues that probable cause to search the van hinged on Duke's reliability. He claims that
the district court clearly erred in finding that Dugger did not approach the van with an object in his hand. He
also claims that the videotape clearly shows Dugger did not properly handle Duke during the canine sniff.
[13] Generally, the factors supporting an officer's reasonable suspicion of illegal drug activity when
coupled with a welltrained dog's positive indication of drugs in a vehicle will give the officer probable cause
to search the vehicle.(fn29) Draganescu's expert agreed that the evidence showed Duke was a well-trained
drug dog and had alerted to the rear of the van.
Draganescu, however, contends that the court did not need an expert to conclude that the canine sniff
was improperly conducted for two reasons. First, Duke scratched the rear of the van only after Dugger
placed his hands there. Second, it took Duke five trips around the van before he indicated drugs. But
Dugger explained that Duke was distracted during the first deployment
464
because of the rain. The videotape showed that Duke scratched the van's rear door, indicating drugs, on
his second trip around the van during the second deployment. Dugger further explained that he moves his
hands around a vehicle to direct the dog to a place he wants it to sniff, and he did this throughout both
deployments. Without countervailing evidence, Dugger's training and experience and Duke's training and
past reliability satisfy us that the procedures used did not improperly cause Duke to indicate drugs.
We agree with Draganescu's argument that the district court clearly erred in finding that Dugger did not
take an object to the van. The court apparently focused only on the second deployment. But the videotape
shows that before Duke's first deployment, Dugger displayed a ball to Duke, acted suspiciously with the ball
around the van while the dog was watching, and then showed Duke a clean hand. Again, however, Dugger
testified that this prestimulation ritual was a part of Duke's training and that he received the same training
that many states use. The statements in Draganescu's expert's report are inconclusive. Mutter stated that
Dugger "could very possibly have contaminated the search" by using this ritual during an actual
deployment because dogs are initially trained to alert by using the same method.
In an unpublished opinion, the Nebraska Court of Appeals considered this same expert's report in
reviewing Truesdale's joint suppression hearing.(fn30) It concluded that the expert's critical comments were
mere conjecture. We agree that Mutter's statements in his report did not undermine the district court's
determination that Dugger's handling of Duke had not contaminated the canine sniff. We conclude in our
de novo review that the state troopers had probable cause to search the van.
2. ADMISSIBILITY OF AIRLINE TICKET STUB
The court admitted the airline ticket stub, exhibit 20. This exhibit showed that Draganescu had a seat on
a March 23, 2006, flight from Los Angeles to Las Vegas. The court overruled
465
Draganescu's objections and ruled that (1) the evidence was relevant; (2) it was properly authenticated by
testimony that the ticket stub was found on Draganescu's person after he was arrested; and (3) it was
admissible under the residual hearsay exception. Draganescu argues that the court erred in all three
rulings.
(a) Standard of Review
[14,15] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.(fn31) Where the Nebraska Evidence Rules commit the
evidentiary question at issue to the discretion of the trial court, we review the admissibility of evidence for
an abuse of discretion.(fn32)
(b) Relevance of Exhibit 20
Draganescu contends that exhibit 20 was not relevant because it was not probative of any material
element of the crime. The State counters that exhibit 20 showed Draganescu was lying to Bigsby when he
stated that he was only in the van to catch a ride home from Washington. It contends that exhibit 20 was
therefore relevant to show Draganescu's real purpose for being in the van was his possession of the
marijuana and his intent to deliver it.
(i) Standard of Review
[16-18] The exercise of judicial discretion is implicit in determining the relevance of evidence. And a trial
court's decision regarding relevance will not be reversed absent an abuse of discretion.(fn33) Evidence is
relevant if it tends in any degree to alter the probability of a material fact.(fn34) Relevancy requires only
that the degree of probativeness be something more than nothing.(fn35)
466
(ii) Analysis
[19-21] Exhibit 20 is relevant because a juror could infer from this circumstantial evidence that
Draganescu lied about traveling with Truesdale from Washington to dissociate himself from their purpose in
California and Nevada--illegal drug activity. Evidence of a defendant's consciousness of guilt is relevant as
a circumstance supporting an inference that the defendant is guilty of the crime charged.(fn36) When the
evidence is sufficient to justify an inference that the defendant acted with consciousness of guilt, the fact
finder can consider such evidence even if the conduct could be explained in another way.(fn37) Many
courts have held that, unlike general denials of guilt, a defendant's exculpatory statements of fact that are
proved to be false at trial are probative of the defendant's consciousness of guilt.(fn38) We agree. We
conclude that the district court did not abuse its discretion in determining that evidence showing
Draganescu made false exculpatory statements is relevant to his guilt.
(c) Admissibility of Exhibit 20 Under Nebraska's Hearsay Rules
Draganescu contends that exhibit 20 was hearsay and was not admissible under the residual hearsay
exception because the State did not show that the declarant was unavailable. The State does not contend
that exhibit 20 was admissible under the residual hearsay exception. Instead, it contends that the ticket stub
was not a hearsay statement for two reasons: (1) A computer produced it, and (2) Draganescu adopted the
statement through his possession of it.
Before analyzing the hearsay issue, we explain why we are not first analyzing a preliminary
question--authentication.
467
Neb. Evid. R. 104(1),(fn39) like its federal counterpart,(fn40) requires a trial court to determine preliminary
questions of admissibility. Unlike its federal counterpart, however, Nebraska's rule 104(1) does not include
this final sentence: "In making its determination [the court] is not bound by the rules of evidence except
those with respect to privileges."(fn41) Because of this provision, federal courts frequently decide
authentication issues before hearsay issues. Those courts reason that laluthenticity and admissibility,
though often closely related, are separate inquiries. The mere fact that a document is authentic does not
necessarily mean that it is admissible in evidence."(fn42) But Nebraska's rule 104 does not permit that
order of analysis. We must first determine whether the district court properly ruled that exhibit 20 was not
hearsay before considering whether the document's contents could support the court's ruling that it was
properly authenticated.
(i) Standard of Review
[22-24] We pause here to clarify our standard of review for hearsay rulings. Hearsay is not admissible
except as provided by the Nebraska Evidence Rules.(fn43) In State v. Jacob,(fn44) we held that a trial
judge does not have discretion to admit inadmissible hearsay statements. So we overruled cases applying
an abuse of discretion standard to review rulings under the excited utterances exception to hearsay.
Shortly after issuing this opinion, however, we implicitly carved out an exception for the residual hearsay
exception. We did this because of the factors a trial court must weigh in deciding whether to admit evidence
under this exception.(fn45) Thus, we have applied an abuse of discretion
468
standard to review hearsay rulings under the residual hearsay exception.(fn46)
[25,26] In three other cases, we have stated that we will uphold a court's application of the Nebraska
Evidence Rules unless clearly erroneous when judicial discretion is not a factor in assessing
admissibility.(fn47) In these cases, however, we have not distinguished between findings of fact and
conclusions of law. "Clearly erroneous" is the standard we normally apply for reviewing a district court's
underlying factual findings when the issue on appeal presents a mixed question of fact and law.(fn48) But
when judicial discretion is not a factor, whether the underlying facts satisfy the legal rules governing the
admissibility of such evidence is a question of law, subject to de novo review.(fn49) This rule is consistent
with other courts' de novo review of a trial court's application of hearsay rules.(fn50) Thus, we adopt the
following standard of review for hearsay rulings: Apart from rulings under the residual hearsay exception,
we review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo
the court's ultimate determination to admit evidence over a hearsay objection.
(ii) Analysis
[27] We have determined that exhibit 20 was relevant to prove that Draganescu lied to Bigsby when he
stated that he and Truesdale were traveling straight back to Michigan from Washington. Thus, the airline
ticket stub was a written assertion
469
offered to prove the truth of the matter asserted, i.e., that Draganescu had a reserved seat on a flight from
Los Angeles to Las Vegas on March 23, 2006. Exhibit 20 was intended to support a finding that contrary to
his statements to Bigsby, Draganescu had been in California just before driving through Nebraska. The
State does not contend otherwise. A written assertion is a statement under Neb. Evid. R. 801(1).(fn51)
Because it was a statement offered to prove the truth of the matter asserted, it is hearsay under rule 801(3)
unless it falls within an exception or exclusion under the hearsay rules.
[28] We reject the State's assertion that the document was not hearsay because a computer produced
it. Computerized printouts that are merely the visual counterparts to routine electronic business records are
usually hearsay, but they can be admissible under the business records exception.(fn52) Here, the State
did not attempt to lay foundation for the business records exception. The court, however, admitted exhibit
20 under the residual hearsay exception.
[29] We agree with Draganescu that the district court erred in admitting exhibit 20 under the residual
hearsay exception. Neb. Evid. R. 804(2)(e)(fn53) provides in part:
A statement may not be admitted under this exception unless the proponent of it makes known to the
adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the
name and address of the declarant.
An adverse party's knowledge of a statement is not enough to satisfy the notice requirement of rule
804(2)(e).(fn54) The proponent of the evidence must provide notice before trial to the adverse party of his
or her intentions to use the statement to take advantage of the residual hearsay exception under rule
804(2)(e).(fn55)
470
[30] The record fails to show that the State provided Draganescu with advance notice of its intent to use
exhibit 20. The first mention in the record of the State's intent to use exhibit 20 is during his trial. The
court's admission of the evidence under this exception was error. But where the record adequately
demonstrates that the decision of a trial court is correct-- although such correctness is based on a ground
or reason different from that assigned by the trial court--an appellate court will affirm.(fn56) We conclude
that under these circumstances, exhibit 20 was admissible as an adopted statement. We note that when the
prevailing party has laid sufficient foundation for the application of another rule, federal appellate courts will
similarly consider whether the evidence was admissible under that rule for the same purpose--the truth of
the matter asserted.(fn57)
[31] Although a party on appeal may not assert a different ground for an objection to the admission of
evidence than was offered to the trial court,(fn58) the considerations are different when it was unnecessary
for the prevailing party to raise an alternative ground for admission to the trial court.(fn59) We agree with
the federal courts of appeals that hold an appellate court can consider whether the record clearly shows an
exhibit was admissible for the truth of the matter asserted under a different rule from the one applied by the
trial court when both parties had a fair opportunity to develop the record on the underlying facts.
[32,33] As noted, we conclude that exhibit 20 was admissible as an adopted statement. Rule 801(4)(b)
excludes a statement from the definition of hearsay if it is "offered against a party and is . . . (ii) a statement
of which he has manifested his adoption or belief in its truth." When a Nebraska Evidence Rule is
substantially similar to a corresponding federal rule
471
of evidence, Nebraska courts may look to federal decisions interpreting the corresponding federal rule for
guidance in construing the Nebraska rule.(fn60) Under the federal counterpart to Nebraska's rule 80 1
(4)(b)(ii), a party's possession of a written statement can be an adoption of what its contents reveal under
circumstances that tie the party to the document in a meaningful way.(fn61)
For example, in U.S. v. Paulino,(fn62) the First Circuit affirmed the trial court's admission of a receipt for
a postal service money order. Police found the receipt during the search of an uninhabited apartment used
as a drug distribution outlet. The receipt bore the defendant's name and the apartment's address. It also
included a notation that the money order was for the preceding month's rent. There was no testimony from
the landlord or building management. The defendant challenged the admission of the evidence on
authentication and hearsay grounds.
The First Circuit reasoned that in addition to possession, other circumstances tied the defendant to the
document. The court noted that the document bore the defendant's name and that he had a key to the
apartment, had been seen there, and was privy to the criminal enterprise. These circumstances were
sufficient to permit a finding that he had "possessed and adopted" the document.(fn63) The Ninth Circuit
similarly held that a motel receipt found on a defendant's person after his arrest was an adopted
admission.(fn64) Finally, the Sixth Circuit held that airline tickets found in the possession of the defendants
were admissible as adoptive statements.(fn65)
472
Similarly here, exhibit 20 bore Draganescu's name and was not the type of document that a person
would have had in his possession if it were not his own. Further, the evidence was consistent with
Truesdale's statement that Draganescu had flown to Las Vegas. We conclude that the circumstances are
sufficient to show that Draganescu adopted the written statement by his possession of it. Exhibit 20 was not
hearsay.
(d) Authentication of Exhibit 20
Authentication or identification of evidence is a condition precedent to its admission and is satisfied by
evidence sufficient to prove that the evidence is what the proponent claims.(fn66) Draganescu does not
contend that the State failed to establish a chain of custody showing that exhibit 20 is the document state
troopers took from his pocket when he was arrested. Instead, he contends that Bigsby's testimony was
insufficient foundation because Bigsby did not have personal knowledge that exhibit 20 is what the State
claims, i.e., an airline ticket stub. The State contends that exhibit 20 was authenticated by its appearance,
contents, substance, internal patterns, or other distinctive characteristics under Neb. Evid. R.
901(2)(d).(fn67)
(i) Standard of Review
[34-36] A court must determine whether there is sufficient foundation evidence for the admission of
physical evidence on a case-by-case basis.(fn68) Because authentication rulings are necessarily fact
specific, a trial court has discretion to determine whether evidence has been properly authenticated.(fn69)
We review a trial court's ruling on authentication for abuse of discretion.(fn70)
473
(ii) Analysis
[37-39] Rule 901 does not impose a high hurdle for authentication or identification.(fn71) A proponent of
evidence is not required to conclusively prove the genuineness of the evidence or to rule out all
possibilities inconsistent with authenticity.(fn72) If the proponent's showing is sufficient to support a finding
that the evidence is what it purports to be, the proponent has satisfied the requirement of rule 901(1).(fn73)
[40,41] A proponent may authenticate a document under rule 901(2)(a) by the testimony of someone
with personal knowledge that it is what it is claimed to be, such as a person familiar with its contents.(fn74)
But that is not the exclusive means. Under rule 901(2)(d), a proponent may authenticate a document by
circumstantial evidence, or its lalppearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances."(fn75)
Courts have recognized distinctive labels and brands as prima facie evidence of ownership or
origin.(fn76) Neb. Evid. R. 902(7)(fn77) specifically includes as self-authenticating lilnscriptions, signs, tags,
or labels purporting to have been affixed in the course of business and indicating ownership, control or
origin." In this case, exhibit 20 bears the airline's distinctive logotype on both sides and its contact
information. Exhibit 20's contents identify the passenger as Draganescu. They also provide the typical flight
information found on all airline tickets or boarding
474
passes. The information includes the date of flight, gate and seat numbers, boarding and departure times,
and departure and arrival cities.
We conclude that the information contained in exhibit 20 supported a finding that it was what it purported
to be: the tear-off portion of an airline ticket or boarding pass. A defendant challenging the "type" of
document the State produces may refute the obvious inference. Normally, external evidence would be
required to authenticate the contents of a ticket that is produced to prove that its contents are true. Here,
however, the normal foundation requirements to ensure reliability are lessened because state troopers
found the ticket stub on Draganescu's person.(fn78) We conclude that the contents of exhibit 20 and
Draganescu's possession of it were sufficient to support a finding that Draganescu flew from Los Angeles to
Las Vegas on March 23, 2006. Under the totality of the circumstances, we are satisfied that the district
court did not abuse its discretion in admitting the evidence.
3. INSTRUCTION ON LESSER-INCLUDED OFFENSE OF SIMPLE POSSESSION
The court instructed the jury that it could return a verdict of not guilty or "Guilty of Manufacture,
Distribution, Delivery, or Dispensing a Controlled Substance." The court also instructed the jury, restated
and condensed, that the State must prove beyond a reasonable doubt that Draganescu had knowingly or
intentionally (1) possessed marijuana with the intent to distribute or deliver it or (2) aided and abetted
another to possess marijuana with the intent to distribute or deliver it.(fn79)
Draganescu contends that the district court erred in failing to instruct the jury on simple possession.
Relying on a Court of Appeals' decision,(fn80) Draganescu contends that possession of
475
marijuana over 1 pound is a lesser-included offense of possession of marijuana with intent to deliver,
regardless of the weight of the marijuana possessed. He further contends that the evidence adduced at his
trial provided a rational basis for a juror to acquit him of possession with intent to deliver and convict him of
simple possession.
(a) Standard of Review
[42-44] Whether a crime is a lesser-included offense is determined by a statutory elements approach
and is a question of law.(fn81) Whether jury instructions given by a trial court are correct is a question of
law.(fn82) When reviewing questions of law, we resolve the questions independently of the lower court's
conclusions.(fn83)
(b) Analysis
[45,46] A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for
which an instruction is requested are such that one cannot commit the greater offense without
simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting
the defendant of the greater offense and convicting the defendant of the lesser offense.(fn84) To
determine whether one statutory offense is a lesserincluded offense of the greater, Nebraska courts look to
the elements of the crime and not to the facts of the case.(fn85)
In looking to the elements, Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 2006) provides in part: "Except as
authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or
intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture,
distribute, deliver, or dispense a controlled substance."
476
Marijuana is a Schedule I controlled substance.(fn86) As relevant here, § 28-416(1)(a) criminalizes the act
of knowingly or intentionally possessing marijuana with the intent to distribute or deliver it. For simple
possession, § 28-416(12) provides: "Any person knowingly or intentionally possessing marijuana weighing
more than one pound shall be guilty of a Class IV felony."
This court has previously held that possession of a controlled substance is a lesser-included offense of
distribution of the controlled substance.(fn87) The Nebraska Court of Appeals has specifically held that
possession of marijuana weighing more than 1 pound is a lesser-included offense of possession with intent
to deliver the marijuana.(fn88) The State does not dispute this point. The issue here is whether the
evidence provided a rational basis for acquitting Draganescu of the greater offense and convicting him of
the lesser offense.
Draganescu argues that the jury could have believed that he was simply catching a ride home with
Truesdale and that he was not involved in the distribution or delivery of marijuana, even if he was aware of
its presence in the van. The State contends that because of the quantity of marijuana found in the van, a
jury could not have rationally found that Draganescu possessed the marijuana without also finding that he
possessed it with the intent to deliver or distribute.
Draganescu's argument that the jury could have found he only knew there was marijuana in the van is
an argument for acquittal--it is not a rational basis upon which a jury could have convicted him of simple
possession. Proving Draganescu's knowledge alone would have been insufficient to satisfy the elements of
either simple possession of the marijuana or possession with the intent to deliver it. The State was also
required to prove Draganescu's control or dominion over the marijuana or that he aided and abetted
Truesdale's control and dominion over the marijuana.(fn89) And the court instructed the jury to that effect:
477
"`Possession' of a controlled substance means either knowingly having it on one's person or knowing of the
substance's presence and having control over the substance, mere presence is not sufficient."(fn90) Under
this instruction, the jury could not have found that Draganescu had possessed the marijuana unless it
found that he had control over it. Thus, the only issue is whether there was a rational basis for a jury to
conclude that Draganescu did not intend to deliver the marijuana.
[47,48] We have held that evidence of the quantity of a controlled substance possessed combined with
expert testimony that such quantity indicates an intent to deliver can be sufficient for a jury to infer an intent
to deliver.(fn91) When the prosecution has offered uncontroverted evidence on an element necessary for a
conviction of the greater crime but not necessary for the lesser offense, the defendant must offer some
evidence to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction.(fn92)
Because Draganescu did not dispute the State's evidence on the separate element of intent to deliver, he
was not entitled to an instruction on the lesser-included offense of simple possession.
4. SUFFICIENCY OF THE EVIDENCE
Draganescu contends that the evidence was insufficient to sustain his conviction because the only direct
evidence linking him to the marijuana was his presence in the van. He argues that his mere presence in the
place where the marijuana was found is insufficient to show his knowledge of it. The State contends that the
circumstantial evidence established Draganescu's guilt beyond a reasonable doubt.
(a) Standard of Review
[49,50] When reviewing for sufficiency of the evidence to sustain a conviction, the relevant question for
an appellate court is whether, after viewing the evidence in the light most favorable
478
to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.(fn93) 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.(fn94)
(b) Analysis
151-551 Constructive possession of an illegal substance may be proved by direct or circumstantial
evidence.(fn95) It is true that a passenger's mere presence in a vehicle with contraband is insufficient to
support a finding of joint possession.(fn96) But possession of an illegal substance can be inferred from a
vehicle passenger's proximity to the substance or other circumstantial evidence that affirmatively links the
passenger to the substance.(fn97) Generally, a passenger's joint possession of a controlled substance
found in a vehicle can be established by evidence that (1) supports an inference that the driver was
involved in drug trafficking, as distinguished from possessing illegal drugs for personal use; (2) shows the
passenger acted suspiciously during a traffic stop; and (3) shows the passenger was not a casual occupant
but someone who had been traveling a considerable distance with the driver.(fn98) Courts have reasoned
in part that a juror may reasonably infer that a driver with a possessory interest in a vehicle who is
transporting a large quantity of illegal drugs would not invite someone into his or her vehicle who had no
knowledge of the driver's drug activities.(fn99) We agree.
479
Here, Draganescu admitted that he had been traveling with Truesdale and that they had been sleeping
in the van. The drugs were easily accessible to someone from the back seat. The quantity of marijuana was
sufficient to support an inference that Truesdale was engaged in illegal drug trafficking(fn100) and that he
would not have invited Draganescu to travel with him if he had no knowledge of the scheme. Truesdale's
and Draganescu's explanations of their travel plans were contradictory. These contradictory statements
supported an inference that they were attempting to conceal their activities. Finally, Draganescu made false
exculpatory statements regarding his presence in California. A juror could reasonably infer that he was
attempting to distance himself from traveling with Truesdale in California because of their illegal activities
there. We conclude that the totality of the circumstantial evidence supported the jury's finding that
Draganescu jointly possessed the marijuana.
[56,57] Circumstantial evidence may also support a finding that a defendant intended to distribute,
deliver, or dispense a controlled substance.(fn101) Circumstantial evidence to establish possession of a
controlled substance with intent to distribute or deliver may consist of several factors: the quantity of the
substance, the equipment and supplies found with it, the place it was found, the manner of packaging, and
the testimony of witnesses experienced and knowledgeable in the field.(fn102) Bigsby's testimony
established that this quantity of marijuana showed an intent to distribute, and Draganescu does not
contend otherwise.
5. EXCESSIVE SENTENCE
Finally, Draganescu argues that his sentence was excessive because he was eligible for intensive
supervised probation and his incarceration will impose a hardship on his wife and family.
480
(a) Standard of Review
[581 Sentences within statutory limits will be disturbed by an appellate court only if the sentences
complained of were an abuse of judicial discretion.(fn103)
(b) Analysis
[59] When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense,
and (8) the violence involved in the commission of the crime.(fn104) Possession of a controlled substance
with intent to deliver is a Class III felony,(fn105) punishable by 1 to 20 years' imprisonment, a $25,000 fine,
or both.(fn106) Because of his previous drug convictions, the district court sentenced Draganescu to 5 to
11 years' imprisonment, a sentence clearly within the statutory limits. After reviewing the record and the
presentence investigation report, which reflects previous drug-related convictions and sentences of
probation, we conclude that the district court's sentence was not an abuse of its discretion.
V. CONCLUSION
We conclude that the district court did not err in overruling Draganescu's motion to suppress evidence.
The state trooper had probable cause to stop the vehicle, in which Draganescu was a passenger, for a
traffic violation; reasonable suspicion to detain the occupants for further investigation; and probable cause
to search the vehicle. We further conclude that the district court did not err in admitting exhibit 20 over
Draganescu's foundation, hearsay, and relevance objections. Nor did the court err in failing to instruct the
jury on the lesser-included offense of simple possession. Finally, we conclude that the evidence was
sufficient
481
to support Draganescu's conviction and that the court did not err in sentencing him to 5 to 11 years'
imprisonment.
AFFIRMED.
_____________________
Footnotes:
FN1. See State v. Royer, ante p. 173, N.W.2d (2008).
FN2. See id.
FN3. See, e.g., State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).
FN4. Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). Accord
State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).
FN5. State v. Childs, 242 Neb. 426, 432, 495 N.W.2d 475, 479 (1993), quoting Delaware v. Prouse, 440
U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).
FN6. See State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000).
FN7. Whren, supra note 4; State v. Dalltnann, 260 Neb. 937, 621 N.W.2d 86 (2000).
FN8. Childs, supra note 5.
FN9. State v. Bowers, 250 Neb. 151, 160, 548 N.W.2d 725, 731 (1996) (distinguishing Childs, supra
note 5).
FN10. See, State v. Crotn, 222 Neb. 273, 383 N.W.2d 461 (1986), citing Prouse, supra note 5.
FN11. Whren, supra note 4, 517 U.S. at 813.
FN12. See, Dallmann, supra note 7; State v. Bartholomew, 258 Neb. 174, 602 N.W.2d 510 (1999).
FN13. See State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
FN14. See, Louthan, supra note 3; Voichahoske, supra note 13; State v. Anderson, 258 Neb. 627, 605
N.W.2d 124 (2000), disapproved in part on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d
727 (2007).
FN15. See, State v. Lee, 265 Neb. 663, 658 N.W.2d 669 (2003); Anderson, supra note 14.
FN16. Louthan, supra note 3.
FN17. See id.
FN18. Id.
FN19. Voichahoske, supra note 13.
FN20. See, id.; State v. Verling, 269 Neb. 610, 694 N.W.2d 632 (2005); Lee, supra note 15.
FN21. Verling, supra note 20; Lee, supra note 15.
FN22. Lee, supra note 15. Accord, U.S. v. Finke, 85 F.3d 1275 (7th Cir. 1996). See, also, U.S. v.
McRae, 81 F.3d 1528 (10th Cir. 1996).
FN23. See Voichahoske, supra note 13.
FN24. See U.S. v. Beck, 140 F.3d 1129 (8th Cir. 1998).
FN25. See Verling, supra note 20.
FN26. See Finke, supra note 22.
FN27. See McRae, supra note 22.
FN28. See State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).
FN29. See Verling, supra note 20.
FN30. See State v. Truesdale, No. A-07-715, 2008 WL 582530 (Neb. App. March 4, 2008) (not
designated for permanent publication).
FN31. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
FN32. See State v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006).
FN33. See State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
FN34. State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
FN35. Id.
FN36. See, State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991); State v. Lonnecker, 237 Neb. 207,
465 N.W.2d 737 (1991).
FN37. See, State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998); State v. Curlile, 11 Neb. App. 52, 642
N.W.2d 517 (2002).
FN38. See, e.g., U.S. v. Glenn, 312 F.3d 58 (2d Cir. 2002); United States v. McDougald, 650 F.2d 532
(4th Cir. 1981); United States v. Merrill, 484 F.2d 168 (8th Cir. 1973); U.S. v. Isaac-Sigala, 448 F.3d 1206
(10th Cir. 2006); People v. Hughes, 27 Cal. 4th 287, 39 P.3d 432, 116 Cal. Rptr. 2d 401 (2002); Perry v.
State, 344 Md. 204, 686 A.2d 274 (1996).
FN39. Neb. Rev. Stat. § 27-104(1) (Reissue 1995).
FN40. Fed. R. Evid. 104(a).
FN41. Id.
FN42. U.S. v. Paulino, 13 F.3d 20, 24 (1st Cir. 1994). Accord U.S. v. Chu Kong Yin, 935 F.2d 990 (9th
Cir. 1991).
FN43. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
FN44. See State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).
FN45. State v. Toney, 243 Neb. 237, 498 N.W.2d 544 (1993), citing Huff v. White Motor Corp., 609 F.2d
286 (7th Cir. 1979).
FN46. See, e.g., State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Garner, 260 Neb.
41, 614 N.W.2d 319 (2000).
FN47. See, State v. Neal, 265 Neb. 693, 658 N.W.2d 694 (2003); State v. Rieger, 260 Neb. 519, 618
N.W.2d 619 (2000); State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).
FN48. See, e.g., State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
FN49. See, e.g., Eberly, supra note 28. See, also, U.S. v. Salgado, 250 F.3d 438 (6th Cir. 2001).
FN50. See, e.g., U.S. v. Gaitan-Acevedo, 148 F.3d 577 (6th Cir. 1998); Zacarias v. U.S., 884 A.2d 83
(D.C. 2005); Burkey v. State, 922 So. 2d 1033 (Fla. App. 2006); State v. Newell, 710 N.W.2d 6 (Iowa 2006);
State v. White, 804 A.2d 1146 (Me. 2002); Bernadyn v. State, 390 Md. 1, 887 A.2d 602 (2005); State v.
Schiefelbein, 230 S.W.3d 88 (Tenn. Crim. App. 2007).
FN51. Neb. Rev. Stat. § 27-801(1) (Reissue 1995).
FN52. See State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
FN53. Neb. Rev. Stat. § 27-804(2)(e) (Reissue 1995).
FN54. See Robinson, supra note 46.
FN55. Id. See, also, State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).
FN56. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
FN57. See, e.g., Paulino, supra note 42; U.S. v. Knox, 124 F.3d 1360 (10th Cir. 1997); U.S. v. Williams,
837 F.2d 1009 (11th Cir. 1988). See, also, United States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973)
(distinguishing U.S. Supreme Court decisions).
FN58. See Robinson, supra note 52.
FN59. See United States v. Pugliese, 712 F.2d 1574 (2d Cir. 1983). See, also, Blum v. Bacon, 457 U.S.
132, 102 S. Ct. 2355, 72 L. Ed. 2d 728 (1982).
FN60. State v. Morrow, 273 Neb. 592, 731 N.W.2d 558 (2007), disapproved in part on other grounds,
McCulloch, supra note 14.
FN61. Paulino, supra note 42, citing United States v. Ospina, 739 F.2d 448 (9th Cir. 1984). See, also,
Annot., 156 A.L.R. Fed. 217 (1999).
FN62. Paulino, supra note 42.
FN63. Id. at 24.
FN64. See Ospina, supra note 61. See, also, U.S. v. Merritt, Nos. 96-4149, 96-4177, 96-4196, 1998 WL
196614 (4th Cir. Apr. 22, 1998) (unpublished disposition listed in table of "Decisions Without Published
Opinions" at 145 F.3d 1327 (4th Cir. 1998)).
FN65. United States v. Marino, 658 F.2d 1120 (6th Cir. 1981).
FN66. Neb. Evid. R. 901(1), Neb. Rev. Stat. § 27-901(1) (Reissue 1995).
FN67. Id.
FN68. See State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).
FN69. See id. See, also, U.S. v. Alicea-Cardoza, 132 F.3d 1 (1st Cir. 1997).
FN70. See State v. Huffman, 181 Neb. 356, 148 N.W.2d 321 (1967). See, also, 5 Jack B. Weinstein &
Margaret A. Berger, Weinstein's Federal Evidence § 901.02[4] (Joseph M. McLaughlin ed., 2d ed. 2008).
FN71. See Anglemyer, supra note 68.
FN72. See id.
FN73. See id. See, also, Alicea-Cardoza, supra note 69; U.S. v. Ruggiero, 928 F.2d 1289 (2d Cir.
1991), citing 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence 91 901 (a) [01] (1990).
FN74. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).
FN75. See, U.S. v. Reilly, 33 F.3d 1396 (3d Cir. 1994); Anglemyer, supra note 68, quoting 28 U.S.C.
app. rule 901 (2000).
FN76. See, Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002),
amended on other grounds 313 F.3d 1093; State v. Rines, 269 A.2d 9 (Me. 1970). See, also, 2 McCormick
on Evidence § 229.1 (Kenneth S. Broun et al. eds., 6th ed. 2006).
FN77. Neb. Rev. Stat. § 27-902(7) (Reissue 1995).
FN78. See, Paulino, supra note 42; U.S. v. Kandiel, 865 F.2d 967 (8th Cir. 1989); U.S. v. Clabaugh, 589
F.2d 1019 (9th Cir. 1979). See, also, Burgess v. Premier Corp., 727 F.2d 826 (9th Cir. 1984); 2 McCormick
on Evidence, supra note 76, § 226.
FN79. See State v. Contreras, 268 Neb. 797, 688 N.W.2d 580 (2004).
FN80. See State v. Malone, 4 Neb. App. 904, 552 N.W.2d 772 (1996).
FN81. State v. Blair, 272 Neb. 951, 726 N.W.2d 185 (2007); State v. Molina, 271 Neb. 488, 713 N.W.2d
412 (2006).
FN82. Molina, supra note 81.
FN83. See State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007).
FN84. Blair, supra note 81; Molina, supra 81.
FN85. See, Molina, supra note 81; State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
FN86. See Neb. Rev. Stat. § 28-405(c)(10) (Cum. Supp. 2006).
FN87. State v. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001).
FN88. See Malone, supra note 80.
FN89. See, Johnson, supra note 87; State v. Neujahr, 248 Neb. 965, 540 N.W.2d 566 (1995).
FN90. See NJI2d Crim. 4.2.
FN91. State v. Utter, 263 Neb. 632, 641 N.W.2d 624 (2002).
FN92. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001); State v. Becerra, 261 Neb. 596, 624
N.W.2d 21 (2001).
FN93. See Gutierrez, supra note 43.
FN94. State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).
FN95. State v. Flores, 245 Neb. 179, 512 N.W.2d 128 (1994), disapproved in part on other grounds,
State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999).
FN96. See, e.g., State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967).
FN97. See State v. Woodruff, 205 Neb. 638, 288 N.W.2d 754 (1980). Compare, Flores, supra note 95;
Nelson, supra note 94.
FN98. See, Paez v. O'Lone, 772 F.2d 1158 (3d Cir. 1985); U.S. v. Norwood, 140 Fed. Appx. 850 (11th
Cir. 2005); State v. Palacio, 205 N.J. Super. 256, 500 A.2d 749 (1985); Robinson v. State, 174 S.W.3d 320
(Tex. App. 2005).
FN99. See, Paez, supra note 98; Palacio, supra note 98. Compare U.S. v. Garcia-Flores, 246 F.3d 451
(5th Cir. 2001).
FN100. See Anderson, supra note 14.
FN101. See, Johnson, supra note 87; State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).
FN102. See Konfrst, supra note 101.
FN103. State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).
FN104. State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).
FN105. See § 28-416(2)(b).
FN106. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2006).
NE
Neb.