Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/10/2016 08:06 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. CARPENTER
Cite as 293 Neb. 860
State of Nebraska, appellee, v.
Trey T. Carpenter, appellant.
___ N.W.2d ___
Filed June 10, 2016. No. S-15-697.
1. Rules of Evidence: Appeal and Error. When 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.
2. Trial: Evidence: Appeal and Error. A trial court’s determination of the
relevancy and admissibility of evidence must be upheld in the absence
of an abuse of discretion.
3. Convictions: Evidence: Appeal and Error. In reviewing a claim that
the evidence was insufficient to support a criminal conviction, an appellate court 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 evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.
4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion
by the trial court.
5. Trial: Evidence: Words and Phrases. The concept of “opening the
door” is a rule of expanded relevancy which authorizes admitting evidence which otherwise would have been irrelevant in order to respond
to (1) admissible evidence which generates an issue or (2) inadmissible
evidence admitted by the court over objection. These two aspects of
“opening the door” may be referred to as “specific contradiction” and
“curative admissibility,” respectively.
6. Evidence: Witnesses. Neb. Rev. Stat. § 27-608(2) (Reissue 2008) does
not affect the admissibility of evidence that has become relevant and
admissible under the specific contradiction doctrine.
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7. 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 amount of violence
involved in the commission of the crime.
Appeal from the District Court for Buffalo County: John P.
Icenogle, Judge. Affirmed.
Thomas S. Stewart, Deputy Buffalo County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Miller-Lerman, J.
NATURE OF CASE
Trey T. Carpenter was convicted in the district court for
Buffalo County of possession of methamphetamine with intent
to deliver. The court sentenced Carpenter to imprisonment
for 5 to 15 years. Carpenter appeals his conviction and sentence. He claims that the court improperly allowed the State
to present on rebuttal extrinsic evidence of a prior incident in
order to impeach his testimony which he presented in his own
defense. He also claims that there was insufficient evidence to
support his conviction and that the court imposed an excessive
sentence. We affirm Carpenter’s conviction and sentence.
STATEMENT OF FACTS
On the evening of November 20, 2014, Officer Paul Jon
Loebig of the Kearney Police Department was parked in his
patrol vehicle observing activity at a nearby apartment building. A car approached and parked across the street. Loebig,
who was familiar with both Carpenter and his brother Eli
Carpenter (Eli), recognized the car as one belonging to Eli.
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STATE v. CARPENTER
Cite as 293 Neb. 860
Loebig saw an unidentified person leave the back seat of
the car and go to an apartment. Loebig then saw Eli get out
of the driver’s side of the car while Carpenter got out of the
passenger side. As he watched the two getting out of the car,
Loebig heard what he thought sounded like a glass pipe landing on concrete.
As Carpenter and Eli walked away, Loebig pulled up to the
car and shined a light underneath it. He observed a glass pipe
on the ground on the passenger side. Loebig got out of his
patrol vehicle and, after putting on gloves, picked up the glass
pipe. He determined that it was the type of pipe used to smoke
methamphetamine, and he observed inside the pipe some
white residue which he believed to be methamphetamine.
Loebig called for a K-9 unit to be brought to the scene, and
as he was waiting for it to arrive, Carpenter and Eli returned
to the car.
Loebig asked Carpenter to come to his patrol vehicle to talk
with him while another police officer talked with Eli. Loebig
told Carpenter that he had found the pipe, and Carpenter admitted that the pipe had fallen out of his pocket. Carpenter consented to a pat-down search, and Loebig placed Carpenter into
the back seat of his patrol vehicle.
After the K-9 unit arrived, the dog sniffed around Eli’s car.
The dog sniff indicated that there were controlled substances
inside the car. Loebig and another officer then searched the car.
Loebig opened the passenger-side door and noted a strong odor
of marijuana. In the center console, he found a Tupperware
container which held a small baggie of marijuana, a small baggie that contained some small blue pills, and two larger bags
of a white crystalline substance, which a field test indicated
was methamphetamine. The officers found various other items
of drug paraphernalia inside the car, including small meas
uring cups. Loebig also observed a black backpack on the
floor on the passenger side of the front seat. Inside the backpack, Loebig found Carpenter’s state identification card and
a baggie that contained a small amount of a white crystalline
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substance that field-tested positive for methamphetamine. After
the search, Loebig arrested Carpenter and brought him to the
jail. Loebig asked Carpenter whether he would speak with the
police department’s drug investigator, and Carpenter replied
that “he would talk to him just to tell him that everything in the
car belonged to him.”
The State charged Carpenter with two counts: (1) possession of a controlled substance, methamphetamine, with intent
to deliver (at least 28 grams but less than 140 grams) and (2)
possession of a controlled substance, morphine. The charge of
possession of morphine was dismissed at trial after the State
failed to adduce evidence that the blue pills found in the car
were morphine.
Loebig testified at trial regarding the events of November
20, 2014, as set forth above. The State also presented the testimony of a drug analyst from the Nebraska State Patrol crime
laboratory who testified that she had tested the white crystalline substance that was found in the search of the car, that
the substance was found to be methamphetamine, and that its
weight was 32.46 grams. Another witness called by the State
was Gabe Kowalek, a narcotics investigator with the Kearney
Police Department. Kowalek testified regarding his training
and experience as a narcotics investigator, and he testified
that he had assisted Loebig in processing the evidence after
Carpenter’s arrest. Kowalek opined that the amount of methamphetamine found in the search of the car was considered to
be “typical of distribution weight” and that other items found
in the search were indicative of distribution.
In his defense, Carpenter presented testimony by his mother.
She testified that on the evening of November 19, 2014, she
had seen a Tupperware container in the sole possession of
her other son, Eli, and that it was the same container that was
found in the November 20 search of Eli’s car. She also stated
that she was testifying in this case “[b]ecause [Carpenter]
sat in jail for like five months for something I knew wasn’t
his . . . .”
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STATE v. CARPENTER
Cite as 293 Neb. 860
Carpenter also testified in his own defense. He admitted
that the backpack and the small amount of methamphetamine
inside it were his, but he testified that he did not know about
the 32.46 grams of methamphetamine in the Tupperware container in Eli’s car. Carpenter admitted that he was addicted
to methamphetamine. But what is important for our purposes on appeal is his direct testimony that he did not “deal,
sell, [or] give away methamphetamine” and that he was not
“working in concert with [Eli] for the sale of methamphetamine.” He testified to the same effect on cross-examination.
Carpenter further testified that when he told Loebig that
everything in the car was his, he was referring only to the
small amount of methamphetamine inside his backpack and
he was not aware of the larger amount of methamphetamine in
the Tupperware container.
For its rebuttal, the State made an offer of proof of the proposed testimony by Kowalek and by a drug investigator for
the Buffalo County sheriff’s office. The two officers would
testify to the jury that in September 2014, they were told
by a confidential informant that he could buy methamphetamine from Carpenter. The officers then set up a controlled
purchase and listened in on a transaction in which the confidential informant bought methamphetamine from Carpenter.
A warrant for Carpenter’s arrest was issued as a result of the
September incident, and charges against Carpenter related to
the September incident were pending at the time of trial in
this case.
Following the State’s offer of proof, the district court ruled
that it would allow the State to present the officers’ testimony
on rebuttal. The officers thereafter testified to the jury regarding the September 2014 controlled purchase from Carpenter.
After the officers testified, the court admonished the jury that
the “evidence was received only for the limited purpose of
[its] evaluation of the testimony of [Carpenter]” and that the
jury “must consider that evidence for that limited purpose
and for no other.” When it submitted the case to the jury, the
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STATE v. CARPENTER
Cite as 293 Neb. 860
court gave an instruction in which it referred to the officers’
testimony in the State’s rebuttal and stated that the evidence
“was received only for the limited purpose of your evaluation
of the testimony of [Carpenter], and not whether he acted in
conformity in this matter with his alleged acts in September
of 2014.”
The jury found Carpenter guilty of possession of methamphetamine with intent to deliver, and it found that the amount
of methamphetamine possessed by Carpenter was 32.46 grams.
The court entered judgment on the verdict. The court thereafter
sentenced Carpenter to imprisonment for “a mandatory minimum of 5 years and no more than 15 years.”
Carpenter appeals his conviction and sentence.
ASSIGNMENTS OF ERROR
Carpenter claims that the district court erred when it allowed
the State to rebut his testimony by presenting the testimony of
the officers regarding the September 2014 incident. He also
claims that there was insufficient evidence to support his conviction and that the court imposed an excessive sentence.
STANDARDS OF REVIEW
[1,2] When 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.
State v. Johnson, 290 Neb. 862,
862 N.W.2d 757, (2015). A
trial court’s determination of the relevancy and admissibility of
evidence must be upheld in the absence of an abuse of discretion. State v. Oliveira-Coutinho,
291 Neb. 294,
865 N.W.2d
740 (2015).
[3] In reviewing a claim that the evidence was insufficient
to support a criminal conviction, an appellate court 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 evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support
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STATE v. CARPENTER
Cite as 293 Neb. 860
the conviction. State v. Custer,
292 Neb. 88,
871 N.W.2d
243 (2015).
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Russell,
292 Neb. 501,
874 N.W.2d
8 (2016).
ANALYSIS
Court Did Not Err When It Allowed the State
to Present Rebuttal Evidence to Specifically
Contradict Carpenter’s Direct Testimony.
Carpenter claims that the district court erred when it
allowed the State to present rebuttal evidence consisting of
the officers’ testimony regarding Carpenter’s sale of methamphetamine during the September 2014 controlled purchase to
contradict Carpenter’s direct testimony given in his defense.
We determine that the officers’ testimony was admissible to
specifically contradict Carpenter’s direct testimony to the
effect that he did not distribute methamphetamine. Therefore,
the court did not abuse its discretion when it admitted the officers’ testimony.
Carpenter contends that the purpose of the officers’ testimony regarding the September 2014 incident was to impeach
his testimony which he presented in his defense and that such
rebuttal evidence could not be used for that purpose under Neb.
Rev. Stat. § 27-608 (Reissue 2008). Section 27-608(1) generally provides that, subject to certain limitations, reputation or
opinion evidence may be used to attack a witness’ credibility.
However, § 27-608(2) provides that “[s]pecific instances of the
conduct of a witness, for the purpose of attacking or supporting
his credibility, . . . may not be proved by extrinsic evidence.”
Nevertheless, § 27-608(2) provides that if such instances of
conduct are determined to be probative of the witness’ truthfulness or untruthfulness, they may be inquired into only on
cross-examination of the witness.
Carpenter argues that the officers’ testimony was extrinsic evidence of specific instances of conduct and that under
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STATE v. CARPENTER
Cite as 293 Neb. 860
§ 27-608(2), such extrinsic evidence could not be used to
impeach his testimony. Carpenter notes that under § 27-608(2),
such specific instances of conduct may be “inquired into on
cross-examination of the witness,” but that the State in this
case made no effort to cross-examine him on his claim he
did not sell methamphetamine and that it instead offered only
extrinsic evidence of the incident in its rebuttal.
The State argues in response that § 27-608(2) “does not
apply where the defendant takes the stand and lies.” Brief
for appellee at 5. The State contends that Carpenter could not
falsely testify that he did not deal drugs and then claim that the
State was powerless to rebut Carpenter’s untruths. We understand that the State further suggests that because the charge
against Carpenter was possession of methamphetamine with
intent to deliver, the issue of “intent to deliver” was a fact
question about which the September 2014 incident was highly
relevant to the fact finder’s consideration.
The State relies on a line of federal cases beginning with
Walder v. United States,
347 U.S. 62,
74 S. Ct. 354,
98 L. Ed.
503 (1954), which is generally regarded as the source of the
“specific contradiction doctrine.” In Walder, the U.S. Supreme
Court affirmed a conviction in a case where the defendant had
testified on direct examination in his own defense that “he had
never dealt in or possessed any narcotics.”
347 U.S. at 65.
The trial court in Walder allowed the prosecution to present
evidence of a prior incident wherein the defendant had been in
possession of heroin. The U.S. Supreme Court stated in Walder
that “there is hardly justification for letting the defendant
affirmatively resort to perjurious testimony in reliance on the
Government’s disability to challenge his credibility.”
347 U.S.
at 65.
The specific contradiction doctrine is said to apply when
one party has introduced admissible evidence that creates a
misleading advantage and the opponent is then allowed to
introduce previously suppressed or otherwise inadmissible evidence to counter the misleading advantage. State v. Wamala,
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Nebraska A dvance Sheets
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STATE v. CARPENTER
Cite as 293 Neb. 860158 N.H. 583,
972 A.2d 1071 (2009). It is not enough that the
opponent’s contradictory proffered evidence is merely relevant;
the initial evidence must have reasonably misled the fact finder
in some way.
Id. Summarizing the case law, commentators
generally agree that although the rules of evidence do not
explicitly recognize the admissibility of contradiction evidence,
admissibility can be inferred from the relevance rules,
Neb.
Rev. Stat. §§ 27-401 and 27-402 (Reissue 2008), defining
relevance and presuming admissibility, respectively. See 27
Charles Alan Wright & Victor James Gold, Federal Practice
and Procedure § 6096 (2d ed. 2007).
In their consideration of the specific contradiction doctrine,
other state and federal courts have concluded that rules of
evidence similar to § 27-608 do not prohibit the admission of
evidence that has the purpose of specifically contradicting a
fact asserted in direct testimony by the defendant in a criminal
case. In People v. Thomas,
345 P.3d 959, 966 (Co. App. 2014),
the court concluded that “evidence may be introduced that specifically contradicts a defendant’s direct testimony” and that
“CRE 608(b) [the Colorado equivalent of § 27-608(2)] is no
impediment to the introduction of such evidence.” In addition
to finding that the specific contradiction doctrine was consist
ent with the rules of evidence, the Colorado court referred to
federal cases explaining and applying the specific contradiction
doctrine and further concluded that the specific contradiction
doctrine was consistent with Colorado precedent “involving a
defendant’s opening the door to rebuttal evidence.” People v.
Thomas,
345 P.3d at 968.
Nebraska jurisprudence also recognizes the concept that a
party may “open the door” to evidence that otherwise would
have been irrelevant. See Huber v. Rohrig,
280 Neb. 868,
791
N.W.2d 590 (2010), and Sturzenegger v. Father Flanagan’s
Boys’ Home,
276 Neb. 327,
754 N.W.2d 406 (2008). It has
been noted that courts often use the concept of “opening the
door” to describe two different evidentiary concepts—specific contradiction and curative admissibility. See Francis A.
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Gilligan & Edward J. Imwinkelried, Bringing the “Opening
the Door” Theory to a Close: The Tendency to Overlook the
Specific Contradiction Doctrine in Evidence Law,
41 Santa
Clara L. Rev. 807 (2001) (arguing that those two concepts differ and that courts should not treat them as single concept at
risk of confusing them). See, also, State v. Wamala,
158 N.H.
at 589,
972 A.2d at 1076 (stating that “[t]he opening the door
doctrine comprises two doctrines, the ‘curative admissibility’
and ‘specific contradiction’ doctrines”).
[5] We have described “opening the door” as a rule of
expanded relevancy which authorizes admitting evidence which
otherwise would have been irrelevant in order to respond to (1)
admissible evidence which generates an issue or (2) inadmissible evidence admitted by the court over objection. Huber v.
Rohrig, supra; Sturzenegger v. Father Flanagan’s Boys’ Home,
supra. Thus, we have used “opening the door” to describe both
specific contradiction, i.e., responding to “admissible evidence
which generates an issue,” and curative admissibility, i.e.,
responding to “inadmissible evidence admitted by the court
over objection.” Although we have not referred to the “specific contradiction doctrine” in our discussion of “opening the
door,” our cases illustrate our acceptance of the concept and we
apply it in this case.
In the present case, the parties do not contend that
Carpenter’s testimony was inadmissible evidence. Given the
rules of evidence and our case law, we analyze the admissibility of the State’s challenged rebuttal testimony under
the specific contradiction doctrine, which relates to evidence offered to respond to admissible evidence presented
by the other party which generates an issue which calls
for a response. The question then is whether the evidence
presented by Carpenter, consisting of his direct testimony
that he did not distribute methamphetamine and that he did
not work in concert with Eli to do so, generated an issue to
which the State needed to respond and, if so, whether the
State was properly allowed to present evidence that was not
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previously relevant or perhaps not previously admissible.
As we explain below, we conclude that the State’s offer of
rebuttal evidence of the September 2014 controlled purchase
of methamphetamine was warranted as relevant and not otherwise inadmissible.
Carpenter asserts that the State’s challenged rebuttal evidence was offered to impeach Carpenter and that admission
of this evidence violated § 27-608(2). Carpenter frames his
argument under § 27-608(2), and we do likewise. We reject
Carpenter’s argument that § 27-608(2) prohibits admission of
extrinsic evidence of his specific conduct in September 2014.
Instead, we agree with the reasoning in People v. Thomas,
345 P.3d 959 (Co. App. 2014), and the federal criminal cases
cited therein, which have concluded that where the evidence
is not offered for the sole purpose of proving a witness’ character for truthfulness, evidence rules similar to § 27-608(2)
do not prohibit the admission of evidence that is intended
to specifically contradict a criminal defendant’s direct testimony. It was stated in 27 Charles Alan Wright & Victor James
Gold, Federal Practice and Procedure § 6096 at 665-66 (2d
ed. 2007):
Testimony on direct by a defendant in a criminal case
can open the door to admission of extrinsic evidence to
contradict even though the contradictory evidence is otherwise inadmissible and, thus, collateral. For example, if
defendant on direct denies committing prior bad acts, the
defendant may be contradicted with extrinsic evidence of
such acts even though that evidence would be inadmissible to prove conduct under Rule 404 or character for
truthfulness under Rule 608(b). This open-door approach
has been justified on the ground that the defendant
should not be permitted to engage in perjury, mislead the
trier of fact, and then shield herself from impeachment by
asserting the collateral matter doctrine.
Accord Thomas, supra. We note particularly that in this case,
as in Thomas, the testimony sought to be contradicted by
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the State’s rebuttal evidence was the defendant’s direct testimony rather than testimony elicited by the State on cross-
examination. Whether the specific contradiction doctrine may
be applied to testimony that the State elicits from the defend
ant on cross-examination is not at issue in this case.
Section § 27-608(2), upon which Carpenter relies, excludes
evidence offered “for the purpose of attacking or supporting
[the witness’] credibility.” Thus, by its terms, § 27-608(2)
concerns itself with evidence the sole purpose of which is to
attack the witness’ credibility by proving instances in which
the witness was shown to be dishonest or untruthful. In this
respect, we note that in Sturzenegger v. Father Flanagan’s
Boys’ Home,
276 Neb. 327, 347,
754 N.W.2d 406, 426 (2008),
where appellant challenged the admission of evidence under
both § 27-608(2) and
Neb. Rev. Stat. § 27-404(2) (Reissue
1995), we stated that § 27-608(2)
applies when extrinsic evidence is offered to impeach a
witness, to show the character of the witness for untruthfulness—in other words, where the only theory of relevance is impeachment by prior misconduct. [Section
27-608(2)] affects only evidence of prior instances of
conduct when properly relevant solely for the purpose of
attacking or supporting a witness’ credibility . . . .
In our consideration of the challenge under § 27-404(2), in
Sturzenegger, we continued and observed that § 27-608(2)
“in no way affects the admission of evidence of such prior
acts for other purposes under [§ 27-]404(2).” 276 Neb. at
347,
754 N.W.2d at 426. Under the reasoning in Sturzenegger,
§ 27-608(2) does not prevent the admission of the challenged evidence where such challenged evidence is admissible
under another rule or, by extension, a doctrine derived from
the rules.
[6] Similarly to Sturzenegger, we determine that § 27-608(2)
does not affect the admissibility of evidence that has become
relevant and admissible under the specific contradiction doctrine. When evidence is admissible pursuant to the specific
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contradiction doctrine, the purpose of the evidence is limited
to disproving a specific fact to which the witness testified
rather than generally attacking the witness’ credibility. In other
words, § 27-608(2) applies to evidence that is intended to show
that the witness is generally untruthful and therefore that the
witness’ testimony is not credible, whereas the specific contradiction doctrine applies to evidence that is intended to disprove
a specific fact to which the witness testified. Thus, where the
evidence has been made relevant for the purpose of responding
to a purported fact contained in the witness’ testimony and the
evidence was not offered solely for the purpose of attacking
the witness’ credibility, the evidence becomes admissible under
the specific contradiction doctrine.
In the present case, Carpenter testified on direct that he did
not “deal, sell, [or] give away methamphetamine.” In response,
the State offered evidence in rebuttal that in September 2014,
Carpenter had sold methamphetamine to a confidential inform
ant. The State’s offered evidence became relevant under the
specific contradiction doctrine in order for the State to respond
to the issue of fact, generated by Carpenter’s testimony, regarding whether or not Carpenter distributed methamphetamine. The
evidence was not offered for the purpose of generally attacking
Carpenter’s credibility, a concern of § 27-608, but instead to
contradict specific testimony regarding a factual matter.
We note that the court’s instruction to the jury in this case
was consistent with the purpose for which the evidence of
the September 2014 controlled purchase was admitted, i.e.,
to specifically contradict a statement by Carpenter. The court
instructed the jury that it was to use the evidence for “evaluation of the testimony of [Carpenter], and not whether he
acted in conformity in this matter with his alleged acts in
September of 2014.” This instruction was carefully crafted.
The instruction limited the jury’s use of the State’s rebuttal
evidence to the purpose for which it was received, i.e., to
evaluate Carpenter’s specific testimony that he did not distribute methamphetamine, and also admonished the jury that the
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evidence was not to be used to show Carpenter’s character or
propensity to act in a certain way.
We conclude that under the specific contradiction doctrine,
§ 27-608(2) did not prohibit the admission of the State’s
relevant rebuttal evidence regarding the September 2014
incident offered for the purpose of specifically contradicting
Carpenter’s direct testimony that he did not “deal, sell, [or]
give away methamphetamine.” The district court therefore did
not abuse its discretion when it allowed the State on rebuttal to present the officers’ testimony regarding the September
2014 incident.
There Was Sufficient Evidence to
Support Carpenter’s Conviction.
Carpenter next claims that there was not sufficient evidence
to support his conviction. We reject this claim.
The jury found Carpenter guilty of possession of methamphetamine with intent to deliver, a violation of
Neb. Rev. Stat.
§ 28-416 (Cum. Supp. 2014), and it found that the amount of
methamphetamine possessed by Carpenter was 32.46 grams.
The evidence presented by the State, as set forth in the statement of facts above, was sufficient for the jury to find that the
white crystalline substance found in the car was methamphetamine and that the quantity was 32.46 grams. The jury also
could have found from the evidence that the methamphetamine
was in Carpenter’s possession and that he possessed it with the
intent to deliver.
Carpenter argues that the State’s evidence was insufficient
because he presented evidence which indicated that the methamphetamine belonged to his brother Eli. Carpenter testified in
his defense that he was merely a passenger in the car and that
he did not know the two large bags of methamphetamine were
in the car. Carpenter testified that Eli possessed the methamphetamine without Carpenter’s knowledge. In addition to his
own testimony, Carpenter notes his mother’s testimony that she
saw Eli with the Tupperware container of methamphetamine
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on the day prior to the arrest and that she was told he intended
to sell it.
In reviewing for sufficiency of the evidence, we do not
resolve conflicts in the evidence or pass on the credibility of
witnesses, because such matters are for the finder of fact. See
State v. Custer,
292 Neb. 88,
871 N.W.2d 243 (2015). By its
verdict, the jury as fact finder determined, based on all the
evidence, that the crime charged had been committed. The
jury evidently found the State’s evidence to be more credible than the evidence Carpenter presented in his defense.
We do not question the jury’s determinations of credibility
on appeal; instead, we determine that the evidence admitted
at trial, viewed and construed most favorably to the State,
was sufficient to support Carpenter’s conviction for possession of methamphetamine with intent to deliver. We reject
Carpenter’s claim that the evidence was not sufficient to support his conviction.
Court Did Not Impose an
Excessive Sentence.
Carpenter finally claims that the sentence of imprisonment
for 5 to 15 years imposed by the district court was excessive.
We conclude that the sentencing was within statutory guidelines and that the court did not abuse its discretion.
Carpenter was convicted of possession of methamphetamine
with intent to deliver, and the jury found that the amount
of methamphetamine possessed by Carpenter was 32.46
grams. Therefore, the offense was a Class IC felony under
§ 28-416(10)(b). The penalty range for a Class IC felony was
imprisonment for a mandatory minimum of 5 years and a maximum of 50 years.
Neb. Rev. Stat. § 28-105(1) (Cum. Supp.
2014). Therefore, Carpenter’s sentence of imprisonment for 5
to 15 years is within statutory limits.
[7] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
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in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed. State v. Casares,
291 Neb. 150,
864 N.W.2d 667
(2015). With regard to the relevant factors that must be considered and applied, we have stated that 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 amount of violence
involved in the commission of the crime.
Id.
Carpenter argues generally that the district court “did not
seriously consider all the mitigating factors” set forth above.
Brief for appellant at 11. However, Carpenter recognizes that
the district court had no choice but to impose the mandatory
minimum sentence of imprisonment for 5 years. He argues
instead that by imposing the mandatory minimum rather than
a higher minimum, the court showed that it had “doubts” as
to his guilt but was “handcuffed” by the mandatory minimum
sentence.
Id.
Carpenter makes only a general argument that the court did
not consider the mitigating factors, and he does not specify any
particular factors that were not given adequate consideration.
As he acknowledges, the court’s discretion was limited by the
mandatory minimum set forth by statute. The court imposed
a sentence that was at the lower end of the statutory range
and that would allow Carpenter to be eligible for parole after
serving the mandatory minimum of 5 years. We conclude that
Carpenter has failed to show that the district court abused its
discretion or imposed an excessive sentence.
CONCLUSION
Having rejected Carpenter’s assignments of error, we affirm
his conviction for possession of methamphetamine with intent
to deliver and the sentence of imprisonment for 5 to 15 years.
A ffirmed.
