Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/04/2025 09:10 AM CST
- 331 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
State of Nebraska, appellee, v.
Shaquille M. Falcon, appellant.
___ N.W.3d ___
Filed January 28, 2025. No. A-23-953.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews independently of the trial court’s determination.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
3. 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.
4. Jury Instructions. Whether jury instructions given by a trial court are
correct is a question of law.
5. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
6. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: 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. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
- 332 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
7. Constitutional Law: Search and Seizure: Warrantless Searches. Both
the Fourth Amendment to the U.S. Constitution and article I, § 7, of the
Nebraska Constitution guarantee against unreasonable searches and seizures. Searches without a valid warrant are per se unreasonable, subject
only to a few specifically established and well-delineated exceptions.
8. Warrantless Searches. The warrantless search exceptions Nebraska has
recognized include: (1) searches undertaken with consent, (2) searches
under exigent circumstances, (3) inventory searches, (4) searches of
evidence in plain view, and (5) searches incident to a valid arrest.
9. Warrantless Searches: Proof. It is the State’s burden to show that a
search falls within an exception to the warrant requirement.
10. Warrantless Searches: Motor Vehicles. Nebraska has recognized that
among the established exceptions to the warrant requirement is the automobile exception.
11. Constitutional Law: Search and Seizure: Duress. Generally, to be
effective under the Fourth Amendment, consent to a search must be a
free and unconstrained choice, and not the product of a will overborne.
12. Warrantless Searches: Duress. Consent must be given voluntarily and
not as a result of duress or coercion, whether express, implied, physical,
or psychological.
13. Constitutional Law: Search and Seizure. The determination of whether
the facts and circumstances constitute a voluntary consent to a search,
satisfying the Fourth Amendment, is a question of law.
14. Search and Seizure. Whether consent to a search was voluntary is to be
determined from the totality of the circumstances surrounding the giving
of consent.
15. Warrantless Searches: Proof. When the prosecution seeks to justify
a warrantless search by proof of voluntary consent, it is not limited to
proof that the consent was given by the defendant, but may show that
the permission to search was obtained from a third party who possessed
common authority over or other sufficient relationship to the premises or
effects sought to be inspected.
16. Warrantless Searches: Police Officers and Sheriffs. A warrantless
search is valid when based upon consent of a third party whom the
police, at the time of the search, reasonably believed possessed authority to consent to a search of the property, even if it is later demonstrated
that the individual did not possess such authority.
17. Search and Seizure: Police Officers and Sheriffs. The search of property based on consent by a third party must be judged against an objective standard: Would the facts available to the officer at the moment
- 333 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
warrant a person of reasonable caution in the belief that the consenting
party had authority over the property?
18. Search and Seizure: Warrantless Searches: Probable Cause: Motor
Vehicles. The automobile exception to the warrant requirement applies
when a vehicle is readily mobile and there is probable cause to believe
that contraband or evidence of a crime will be found in the vehicle.
19. Motor Vehicles: Words and Phrases. A vehicle is readily mobile
whenever it is not located on private property and is capable or apparently capable of being driven on the roads or highways.
20. Search and Seizure: Probable Cause: Words and Phrases. Probable
cause to search requires that the known facts and circumstances are
sufficient to warrant a person of reasonable prudence in the belief that
contraband or evidence of a crime will be found.
21. Probable Cause: Police Officers and Sheriffs: Motor Vehicles.
Probable cause may result from any of the senses, and an officer is
entitled to rely on his or her sense of smell in determining whether contraband is present in a vehicle.
22. Warrantless Searches: Probable Cause: Motor Vehicles: Controlled
Substances: Police Officers and Sheriffs. Because of marijuana’s legal
status as contraband, a trained officer who detects the odor of marijuana
emanating from a vehicle in Nebraska has firsthand information that
provides an objectively reasonable basis to suspect contraband will be
found in the vehicle. Assuming the vehicle is readily mobile, the odor of
marijuana alone provides probable cause to search the vehicle under the
automobile exception to the warrant requirement.
23. Witnesses: Evidence: Records: Telecommunications. The records custodian employed by a social media platform can attest to the accuracy
of only certain aspects of the communications exchanged over that platform, that is, confirmation that the depicted communications took place
between certain accounts, on particular dates, or at particular times.
24. Rules of Evidence: Records: Telecommunications. Social media communications are not business records that may be “self-authenticated”
by way of a certificate from a records custodian under Neb. Rev. Stat.
§ 27-902(11) (Cum. Supp. 2024).
25. Rules of Evidence: Telecommunications. Extrinsic evidence may be
used to authenticate the substantive content of social media communications under Neb. Rev. Stat. § 27-901 (Reissue 2016).
26. Rules of Evidence: Telecommunications: Hearsay. Once authenticated, social media content authored by a defendant is admissible as
an admission by a party opponent under Neb. Rev. Stat. § 27-801(4)(b)
(Cum. Supp. 2024).
- 334 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
27. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
28. Jury Instructions: Appeal and Error. All the jury instructions must be
read together, and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
29. Criminal Law: Jury Instructions. When there is an applicable instruction in the Nebraska Jury Instructions, the court should usually give that
instruction to the jury in a criminal case.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Robert Wm. Chapin, Jr., for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Pirtle, Bishop, and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Following a jury trial, Shaquille M. Falcon was convicted
of possession of a firearm by a prohibited person and driving under the influence (DUI). The Lancaster County District
Court sentenced Falcon to consecutive terms of 8 to 12 years’
imprisonment and 30 to 60 days’ imprisonment. On appeal,
Falcon challenges the district court’s denial of his motion to
suppress evidence, its allowance of certain exhibits at trial,
and one of the court’s jury instructions. Falcon also contends
there was not sufficient evidence to support his convictions.
We affirm.
II. BACKGROUND
In the early morning hours of January 1, 2022, a law
enforcement officer responded to a call for service regarding a
“traffic hazard . . . for a vehicle that had been parked or driven
up onto some railroad tracks, and it was an active railway.”
- 335 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
When the officer arrived on the scene, the two individuals
from the vehicle (Falcon and Rudy Martinez) were seated in
a bystander’s van because of the cold weather. Upon making
contact with Falcon, the officer immediately observed signs of
intoxication. Falcon and Martinez were moved to the police
cruiser so that the bystander could leave. The officer then
began a DUI investigation of Falcon, who had admitted that he
was the driver of the vehicle on the railroad tracks. Martinez
was subsequently allowed to leave the scene, but he returned
to look for his keys that he believed were in the vehicle on the
railroad tracks. Law enforcement officers escorted Martinez
to the vehicle to help him find his keys, and a handgun was
found in the center console of the vehicle.
On May 4, 2022, the State filed an information charging Falcon with two counts: count 1, possession of a firearm by a prohibited person, in violation of
Neb. Rev. Stat.
§ 28-1206 (Cum. Supp. 2022), a Class ID felony, and count 2,
“DUI- .15+,” in violation of
Neb. Rev. Stat. §§ 60-6,196 and
60-6,197.03(2) (Reissue 2021), a Class W misdemeanor. The
record indicates the information was subsequently amended so
that count 2 charged Falcon with DUI, .08 grams of alcohol
per 210 liters of breath, first offense.
1. Motion to Suppress
On August 1, 2022, Falcon filed a motion to suppress evidence seized from his person, his living quarters, his motor
vehicle, or any other place in which he had an expectation
of privacy. That same day, he also filed a motion to suppress
statements, admissions, or confessions that he made which
were not made voluntarily, intelligently, or understandingly, or
which were obtained in violation of his constitutional rights.
Hearings on the motions to suppress were held on September
15, 2022, and March 1, 2023.
At the suppression hearing on September 15, 2022, Falcon’s
counsel stated, “I did file a motion to suppress evidence, as
well as a motion to suppress statements. . . . [W]ith regard to
evidence, I would be asking the court to focus on probable
- 336 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
cause for arrest, as well as the search of the vehicle involved in
this case, primarily.”
Officer Alyssa Dirks of the Lincoln Police Department
(LPD) testified that in the early morning hours of January 1,
2022, she responded to a call for service regarding a vehicle
on railroad tracks. As described above, Falcon and Martinez
were in a bystander’s van because of the cold weather. Officer
Dirks contacted Falcon, who was in the front passenger’s seat
of the bystander’s van; she was wearing a body camera at
the time, and the video footage was received into evidence.
The video footage shows that Officer Dirks asked, “What
happened?” She also asked, “Who was driving?” Falcon
responded, “I was.”
Officer Dirks testified that she asked Falcon how the vehicle
ended up on the railroad tracks and that she “was able to
immediately observe that he was under the influence of what
[she] assumed was alcohol.” He had “[s]lurred speech” and
“[v]ery slow, slow movements.” When Falcon and Martinez
were taken to Officer Dirks’ cruiser because of the weather,
Falcon was “stumbling.” Falcon and Martinez were searched
and then seated in the back seat of the cruiser.
While seated in the cruiser, Officer Dirks called for a tow
truck because she was told the vehicle was “high centered and
there was no way to drive it off the tracks.” She also began
her DUI investigation, looked Falcon and Martinez up in the
LPD “local system,” and saw that Falcon “had a broadcast out
for him, a cite and lodge broadcast” for a domestic assault.
Other law enforcement officers arrived on the scene and
dealt with Martinez. Officer Dirks gave Falcon a preliminary
breath test. The body camera footage shows that after she told
Falcon the results of the preliminary breath test and that he
was above the legal limit to drive, he asked her, “Who told
you I was driving?” She responded, “You did. . . . It’s on my
body cam.” The footage also shows that Falcon stated that he
did not want to talk and that he would speak to his lawyer.
At the hearing, Officer Dirks confirmed that Falcon invoked
- 337 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
“his rights” and that she did not read him Miranda warnings;
“he invoked before [she] read them.” She testified that she
informed Falcon that he was under arrest for DUI (the video
footage shows that she told him that he was going to jail
for DUI, domestic assault, and the gun in the vehicle). After
Falcon was taken to the jail, a “DataMaster” instrument was
used “for the official reading on the DUI.”
Officer Dirks was asked about LPD’s policy for inventory
searches when a vehicle is towed. She responded, “If a vehicle
is being towed, we are allowed to search it, which is the inventory search, for valuable items that we just need to document
or take into our property so there’s a report if anything gets
stolen.” She was then asked if there are times after a probable
cause search that an additional inventory search will not be
done, because the vehicle had already been searched and any
valuables found; she replied in the affirmative. When asked,
“[I]n this case, if there had not been a probable cause search,
do you believe there needed to be an inventory search?”
Officer Dirks replied, “Yes.”
After Officer Dirks was excused as a witness, the district
court and counsel for both parties discussed how to proceed
with the remaining time available that day. The court stated,
“Doesn’t look like we reserved enough time. . . . I’ll let you
argue the [suppression of] statements portion of this. . . . And
then maybe we can reset[.]” After hearing arguments from the
State and Falcon, the court ruled from the bench that Falcon’s
statements prior to his request for an attorney should not be
suppressed. When the State asked for clarification regarding what, if anything, was suppressed, the court responded,
“Anything past the point where he says he wants an attorney.
I don’t think there are any statements after that.”
On March 1, 2023, the district court stated, “Before the
court for hearing this morning is [Falcon’s] motion to suppress
evidence.” It continued:
[Falcon has] also filed . . . a motion to suppress statements. It is my understanding that that particular motion
- 338 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
was heard before [a different judge] prior to [that judge’s]
retirement, and that he had reached a conclusion as to
that motion.
....
. . . So the motion to suppress evidence is what we’re
here on today.
The State said it wanted the record “to be clear what exact
evidence [the defense was] asking to suppress.” The State
“assume[d] it’s the firearm that is found in the vehicle at issue
in this case,” but pointed out “[t]he motion to suppress evidence
doesn’t specifically state that.” Falcon’s counsel responded,
“We are objecting to a warrantless search of a vehicle where a
firearm was found.”
Officer Dirks’ testimony from the September 15, 2022, suppression hearing, along with the video footage from her body
camera, was received into evidence.
LPD Officer Brian Gruber testified that in the early morning hours of January 1, 2022, he was requested to assist on a
call for service regarding a vehicle that was stuck on railroad
tracks near the intersection of 1st and F Streets. When he
arrived at the scene, he observed the vehicle, a gold Cadillac,
on the railroad tracks and Falcon and Martinez in the back seat
of Officer Dirks’ police cruiser. Officer Dirks informed Officer
Gruber that she was conducting a DUI investigation with
Falcon and that Martinez was being uncooperative and needed
to be escorted away from the scene; Officer Gruber confirmed
that he assumed Falcon was the driver, because Officer Dirks
was doing a DUI investigation of him. Martinez was let out
of the cruiser, was told to leave, and walked away from the
scene. However, a short time later, Martinez returned to the
scene and stated that he needed his house keys that he thought
were in the vehicle; at the time, Officer Gruber did not know
the identity of the registered owner of the vehicle.
Officer Gruber testified he walked to the vehicle with
Martinez because he did not know if the vehicle had been
searched and because “entering a car, especially somebody
- 339 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
who is uncooperative, there could have been a weapon or
something else in the vehicle that he could have had access
to.” LPD Officer Kathleen Brandt, who had also arrived on
the scene, followed them to the vehicle. When they got to the
vehicle, Officer Gruber opened the front passenger-side door
and Martinez opened the back passenger-side door; video
footage shows that the back door was opened 1 or 2 seconds
after the front door was opened. At that point, Officer Gruber
noticed “a strong odor of marijuana coming from inside of
the vehicle.”
The video footage from Officer Gruber’s body camera was
received into evidence and shows that once Martinez and
Officer Gruber opened the vehicle’s doors, Martinez climbed
in the back seat to look for his keys and then leaned over the
front seat to look; it was dark outside, and Officer Gruber
shined a light in the vehicle for Martinez. Officer Gruber
asked Martinez if his keys were the keys in the ignition,
and Martinez said, “No.” Martinez then pointed to the front
passenger-side floor and asked Officer Gruber, “Can you go
that way?” (Officer Gruber testified, “I interpreted that as
[Martinez] couldn’t reach that area and wanted me to look
into that area. Or, at a minimum, shine my light into that area
so he could see.”) In the video, Officer Gruber pointed his
light on the front passenger-side floor and said, “This way
down here?” Officer Gruber reached his hand forward for 2
seconds and shuffled through what appears to be trash on the
floor. Martinez asked, “Nothing?” Officer Gruber responded,
“No, man.” Officer Gruber then asked if Martinez’ keys would
be in the center console; Martinez’ response is inaudible.
(Video footage from Officer Brandt’s body camera shows that
Martinez leaned back to the back seat at that time.) It appears
on video footage from both officers’ body cameras that at that
point, Officer Gruber leaned into or entered the vehicle.
Officer Gruber testified, “I had opened the top center console and observed a firearm.” He testified Martinez was then
taken into custody “[d]ue to there being a firearm inside the
- 340 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
vehicle.” Officer Gruber stated it was his understanding that
Martinez was a passenger in the vehicle, “so there are more
investigative steps to take to identify if he was in the [vehicle]
for sure or if it was his firearm”; at that point, Officer Gruber
was not aware of the criminal histories of either Falcon or
Martinez. Martinez was placed into a police cruiser, and
Officer Gruber continued to search through the vehicle. (On
cross-examination, Officer Gruber confirmed that during his
deposition, he had indicated that Martinez never asked for
help looking for his keys. Officer Gruber also confirmed that
during his deposition, he said that he noted the odor of marijuana after Martinez opened the door and that he was going
to search the vehicle regardless once he smelled the odor of
marijuana.)
Officer Gruber was asked if at any point, either when he
came back to the cruiser to look through it or earlier, he found
any other contraband in the vehicle. He said that he observed
“at least one small, like, marijuana roach near the gear shift.”
He did not specifically collect or photograph the “roach” even
though “[t]ypically we would,” because “[a]t that time I was
focused on the firearm.” Officer Gruber learned that the firearm was not stolen. He testified that “there was one casing in
the firearm and . . . nine in the magazine.” When asked if the
firearm was registered to anyone, Officer Gruber replied, “Not
that I could recall.”
There was not a “tow report” completed in this case, which
Officer Gruber attributed to “an officer error for the main
investigating officer.” Officer Gruber stated, “[A] tow report
is a report that we complete so that [the towing company]
knows when to release the vehicle and who to release it to. . . .
And it also typically contains an inventory from the vehicle.”
Officer Gruber did not complete a tow report because he “was
focused on the firearm and then left the scene prior to the
vehicle being towed.”
The State asked, “Let’s say . . . Martinez never comes back
to the scene and you never go into the [vehicle] to search for
- 341 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
his keys. What would have been done with the vehicle in that
scenario?” Officer Gruber responded, “The vehicle would
have been towed to [the towing company]. Inventory would
have been completed and a tow report would have been completed for the vehicle.” Officer Gruber also confirmed that
if Martinez had not come back, he would not have found or
been focused on the firearm. He “would have at least asked if
[the inventory and tow report] had been completed or needed
to be completed.” According to Officer Gruber, “an inventory
search was not completed” in this case because “[b]ased on
opening the doors and smelling the odor of marijuana and
then furthermore finding the firearm, it was a probable cause
search of the vehicle.”
During a followup on the investigation, Officer Gruber
learned that the vehicle was registered to Christine Dawson.
He later discovered that Dawson was the mother of Mariah
Williams and that Falcon and Williams either were or had been
in a dating relationship.
Williams testified that she had owned the vehicle since
approximately March 2021 and that she “let a lot of people
borrow [the vehicle].” She let a friend borrow the vehicle on
“New Year’s,” and that friend let Falcon borrow it. On January
2, 2022, Williams and Dawson retrieved the vehicle from the
towing company. When asked if she noted the odor of marijuana, Willaims replied, “No.” Williams stated that the firearm
found in the vehicle belonged to her; she “had it in the middle
console” and “completely forgot about it.” Williams described
Falcon as “a friend of the family” but said she had not known
him very long. She met him when her brother passed away;
she was “[p]retty sure” her brother and Falcon were cousins.
When asked if she and Falcon had ever been involved in a
“romantic dating” relationship, Williams replied, “No.”
Martinez did not testify at the suppression hearing, but his
deposition testimony from October 27, 2022, was received
into evidence. In his deposition, Martinez testified that Falcon
picked him up in a Cadillac on New Year’s Eve. After driving
- 342 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
around for a while, they ended up going to a club. Martinez
thought they got to the club at “maybe eleven, 11:30” p.m.
When asked if they stayed until the club closed, Martinez
replied, “I think so,” but then said, “I don’t remember,” “I
remember they turned the lights on.” Martinez had “[q]uite a
bit” to drink that night and “did some other drugs.” He also
saw Falcon drinking that night. After leaving the club, Falcon
and Martinez rode in the back seat of some other people’s car,
but after a while, Falcon and Martinez were dropped off at
the Cadillac.
Martinez testified that after they got back in the Cadillac,
Falcon drove; Falcon “was drunk” and “was swerving pretty
good.” Martinez remembered “passing out for a while and
waking up again, and [becoming aware they were] still driving around.” Falcon “pulled off to the side of the road, and
that’s where [they] got high-centered . . . and then . . . both
passed out.” Martinez did not know what time they got “high-centered.” He testified, “I remember waking up to the window
getting knocked on” by a bystander “[a]nd the [bystander] is
like, ‘Hey, you guys are stuck on the railroad tracks. This is
an active railroad track.’” Martinez and Falcon then got into
the bystander’s van, Martinez fell asleep again, “and that’s
whenever the police and them showed up.”
Martinez testified that after the officer told him he could
leave, he got “a block away” and then turned back because he
did not have his keys, phone, or wallet. He asked the officer
to escort him to get his things out of the vehicle on the railroad tracks. Martinez said he told the officer, “‘[Y]ou guys
are going to have to help me find my keys ’cause . . . I ain’t
going nowhere in this weather without a way to get in my
apartment.’” Officers walked him to the vehicle, and “they
already had . . . the car doors open.” When asked during his
deposition if he noticed at any point that the vehicle smelled
like marijuana when he was in it, Martinez replied, “Not at
all ’cause [Falcon] don’t let no one smoke in his car, and he
don’t smoke [marijuana].” Martinez testified he did not know
- 343 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
that there was a gun in the vehicle and had not seen Falcon
with a gun that night.
In its order entered on April 13, 2023, the district court overruled Falcon’s motion to suppress evidence, because the odor
of marijuana provided probable cause to search the vehicle.
2. Trial
A jury trial was held over 4 days in September 2023. The
parties stipulated that Falcon had a prior felony conviction.
Falcon also preserved his motion to suppress.
Officer Dirks gave testimony that was similar to her testimony at the suppression hearing. She said she responded to a
traffic hazard call shortly before 6 a.m. on January 1, 2022; a
vehicle was on active railroad tracks. She began to interview
Falcon about how the vehicle ended up on the tracks, but
the bystander wanted to leave. Falcon and Martinez voluntarily agreed to go into the back seat of Officer Dirks’ cruiser
so that she could continue her investigation. Falcon “almost
fell” getting out of the bystander’s van, and he had slurred
speech and “very slow”-paced actions. Officer Dirks stated
that Falcon “admitted to driving the vehicle,” so she began a
DUI investigation.
Officer Dirks stated that while in the cruiser, Martinez
“started to become belligerent” so she called for another
officer to come to the scene “for safety concerns.” Officers
Brandt and Gruber responded, and Martinez was released
from Officer Dirks’ cruiser. Officer Dirks continued her DUI
investigation of Falcon, and she gave him a “portable breath
test.” At some point, Officer Dirks was informed that a firearm was found in the vehicle. Falcon was transported to the
jail because there was “probable cause to . . . cite him for the
DUI” and because the officers had learned he was a felon and
was therefore “not allowed to have a firearm.” A redacted
version of the video from Officer Dirks’ body camera was
received into evidence.
At the jail, Officer Dirks administered the DataMaster test
to get an official reading of Falcon’s breath alcohol content,
- 344 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
which was .157 grams of alcohol per 210 liters of breath on
January 1, 2022, at 7:37 a.m. (After the defense rested its
case at trial, the State and the defense stipulated that “with
the margin of error of the DataMaster, the reading would be
[.14915 grams of alcohol per 210 liters of breath].”)
Officer Gruber also gave testimony that was similar to his
testimony at the suppression hearing. On January 1, 2022,
he responded to Officer Dirks’ request for backup. When he
arrived, he observed the vehicle stuck on the railroad tracks
and two individuals (Falcon and Martinez) in the back of
Officer Dirks’ cruiser. Officer Brandt also arrived on the scene.
Officer Dirks was conducting a DUI investigation involving
Falcon, and she needed assistance getting Martinez out of the
area. Officer Gruber escorted Martinez away from Officer
Dirks’ cruiser and told him to leave. Martinez walked away
but returned “[w]ithin a minute” because he had lost his house
keys and thought they might be in the vehicle. Officers Gruber
and Brandt walked with Martinez to the vehicle. Officer
Gruber testified, “The doors were open and [one] could smell
the odor of marijuana, and then I began helping him search
for the keys.” Officer Gruber “was on the front seat, passenger seat, and . . . Martinez was in the back seat with Officer
Brandt looking for the keys.” Officer Gruber observed “[a]
small roach with marijuana residue” in an ashtray in front of
the gearshift. And while he was searching in the front passenger compartment for the keys, he “opened the center console
and observed a firearm.” Martinez was then handcuffed and
placed into Officer Brandt’s cruiser, and then Officer Gruber
returned to the vehicle to collect the firearm; the firearm had
nine bullets in the magazine and one bullet in the chamber.
Officer Gruber removed the magazine from the firearm and
pulled the slide back to eject the bullet in the chamber so
that the firearm was safe. (Officer Gruber was wearing winter gloves at the time; he was not wearing rubber gloves as
he was trained to do to preserve any DNA or fingerprints.)
The vehicle was searched, and then it was towed. A redacted
- 345 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
version of the video from Officer Gruber’s body camera was
received into evidence.
Officer Gruber testified that he received the results from the
fingerprint analysis of the firearm, and he confirmed that there
were no latent prints of value for a comparison. The forensic
scientist who analyzed the DNA found on the firearm testified
that “[a] mixture of at least four individuals was detected” and
that “due to the complexity of the sample, no comparisons
were made.” According to Officer Gruber, the serial number
from the firearm was run through a database to make sure that
it was not stolen, and the firearm was not listed as stolen. The
firearm “came back to someone in Indiana,” but attempts to
contact that person were unsuccessful.
Officer Gruber stated that the vehicle was picked up from
the towing company on January 1, 2022. Dawson was the registered owner of the vehicle on the day of the incident, but it
was subsequently registered to Williams (Dawson’s daughter).
“[B]ased on this investigation,” it was discovered that Falcon
and Williams “were in some sort of dating relationship.”
Officer Gruber also learned of a traffic stop that occurred prior
to January 1 where Falcon was driving the same vehicle.
An LPD sergeant testified that on December 12, 2021, he
conducted a traffic stop of a gold Cadillac. Falcon was the
driver and lone occupant of that vehicle at the time; however,
the vehicle was registered to Williams. Falcon was issued a
written warning for a traffic violation.
Officer Gruber testified that he authored search warrants
for Falcon’s social media accounts. When asked how he
identified an account as belonging to Falcon, Officer Gruber
responded, “It was through a court [deposition] with . . .
Martinez where he identified the account name, and then I
was able to pull that account up on Face[b]ook and verify
that the Face[b]ook profile was . . . Falcon.” The name on the
Facebook account was “Shaquille Falcon, Sr.,” and Officer
Gruber “looked at the main profile picture and observed that
it was . . . Falcon, and then went through other photographs on
- 346 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
the account and observed other photographs of him.” Officer
Gruber obtained a search warrant for the Facebook account,
sent it to Facebook, and Facebook sent back a confirmation
of having received the warrant. Officer Gruber subsequently
received a search warrant return from Facebook with the
requested information, and he went through the information.
Various parts of that information were received into evidence,
including a message thread between Falcon and another person on the night of December 30, 2021. Falcon wrote, “Is you
going all the way legit because I be havin the blick on me?”
He also wrote, “Just checking bro, I don’t want to put anyone
in a situation they don’t want to be in.” In a message thread
between Falcon and a different individual shortly before noon
on December 31, Falcon wrote, “Fell asleep in the car with the
blick and a bag on me.” According to Officer Gruber, “Blick
is a slang term for a firearm.”
Martinez was called as a witness for the defense. He confirmed that he was a convicted felon. Martinez testified that
on December 31, 2021, Falcon was driving “his Cadillac”
when he picked Martinez up and they went to a club. Martinez
stated “I tried some PCP. I done some acid that night, . . .
some shrooms and a lot of alcohol, some cocaine and meth
. . . pretty much did everything that night.” When asked if he
smoked any marijuana that evening, Martinez replied, “I’m
not sure. Probably so. I smoked [marijuana] daily.” Martinez
stated that Falcon “don’t smoke [marijuana]” and “told [him]
that [he] can’t smoke [marijuana] in [Falcon’s] car.” After
they left the club, they drove around; Falcon was driving.
Martinez did not see a gun in the vehicle, nor did Falcon mention there was a gun in the vehicle. When asked if he remembered a time when the vehicle was on the railroad tracks
and the police eventually came, Martinez replied, “Yeah.”
Martinez remembered that the police let him leave but that he
came back for his house keys. When asked if he would have
come back to the vehicle if he had known there was a gun in
the vehicle, Martinez replied, “No.” On cross-examination,
- 347 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
Martinez was impeached with audio from body camera footage during the following exchange:
Q [by the State:] All right. So, in fact you did tell
Officer Brandt that that’s not my gun and I had seen him
with it that night and it’s not mine?
A [by Martinez:] Yes.
....
Q . . . So, in fact you did tell the police that you know
. . . Falcon to carry a gun, is that right?
A Yes.
....
Q And in fact you said that at least two, maybe three
times, that he was waving the gun around that night,
correct?
A Yes.
However, Martinez testified, “[N]one of that’s true. . . . I
couldn’t say that ’cause I didn’t see it. . . . I never seen the gun
or nothing.”
3. Jury Verdicts and Sentencing
The jury found Falcon guilty of count 1, possession of a
firearm by a prohibited person, and count 2, DUI. The district
court accepted the verdicts and entered judgment accordingly.
In October 2023, the district court sentenced Falcon to consecutive sentences of 8 to 12 years’ imprisonment on count 1
and 30 to 60 days’ imprisonment on count 2. He was given
304 days’ credit for time served. Falcon was also ordered
to pay a $500 fine, and his driver’s license was revoked for
6 months.
Falcon appeals.
III. ASSIGNMENTS OF ERROR
Falcon assigns, reordered and restated, that the district court
erred by (1) not suppressing evidence; (2) allowing exhibits 55 through 61 and 63 through 66, because they “lacked
foundation,” “were altered by the State,” and “deprived [him]
the right to confront the person who allegedly put the exhibit
- 348 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
together”; and (3) allowing “Jury Instruction #4.” Falcon also
assigns that (4) there was insufficient evidence to support his
convictions.
IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
v. Hoehn, 316 Neb. 634,
6 N.W.3d 487 (2024). Regarding historical facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial court’s determination. State v.
Hoehn, supra.
[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Barnes,
317 Neb. 517,
10 N.W.3d 716 (2024). 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.
Id.
[4,5] Whether jury instructions given by a trial court are
correct is a question of law. State v. Gonzalez,
313 Neb. 520,
985 N.W.2d 22 (2023). When reviewing questions of law, we
resolve the questions independently of the lower court’s conclusions.
Id.
[6] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same:
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. 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
- 349 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
crime beyond a reasonable doubt. State v. Kalita,
317 Neb.
906,
12 N.W.3d 499 (2024).
V. ANALYSIS
1. Motion to Suppress
Falcon argues that the district court erred by not suppressing the evidence that was found in his vehicle because “[t]here
were no search warrants issued to search the vehicle nor
. . . was there any probable cause or reasonable suspicion to
believe any criminal act was involved except a possible DUI.”
Brief for appellant at 14. Falcon also argues that “[t]he notice
of marijuana smell is purely pretextual,” id., and that Martinez
and Williams “indicated there was no marijuana use or smell
in the [vehicle],” id. at 15.
[7-10] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. Searches without
a valid warrant are per se unreasonable, subject only to a few
specifically established and well-delineated exceptions. State
v. Hammond,
315 Neb. 362,
996 N.W.2d 270 (2023). The warrantless search exceptions Nebraska has recognized include:
(1) searches undertaken with consent, (2) searches under
exigent circumstances, (3) inventory searches, (4) searches of
evidence in plain view, and (5) searches incident to a valid
arrest.
Id. It is the State’s burden to show that a search falls
within an exception to the warrant requirement.
Id. Nebraska
has also recognized that among the established exceptions to
the warrant requirement is the automobile exception. State v.
Vaughn,
314 Neb. 167,
989 N.W.2d 378 (2023).
Here, the State relies on consent, the automobile exception,
and inevitable discovery (by way of an inventory search).
(a) Consent
[11-14] Generally, to be effective under the Fourth
Amendment, consent to a search must be a free and unconstrained choice, and not the product of a will overborne.
State v. Hammond, supra. Consent must be given voluntarily
- 350 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
and not as a result of duress or coercion, whether express,
implied, physical, or psychological.
Id. The determination of
whether the facts and circumstances constitute a voluntary
consent to a search, satisfying the Fourth Amendment, is a
question of law. State v.
Hammond, supra. Whether consent to
a search was voluntary is to be determined from the totality of
the circumstances surrounding the giving of consent.
Id.
[15-17] When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to
proof that the consent was given by the defendant, but may
show that the permission to search was obtained from a third
party who possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected.
State v. Andera,
307 Neb. 686,
950 N.W.2d 102 (2020).
Furthermore, a warrantless search is valid when based upon
consent of a third party whom the police, at the time of the
search, reasonably believed possessed authority to consent to
a search of the premises, even if it is later demonstrated that
the individual did not possess such authority.
Id. The search of
property based on consent by a third party must “‘“be judged
against an objective standard: would the facts available to the
officer at the moment . . . ‘warrant a [person] of reasonable
caution in the belief’” that the consenting party had authority
over the [property]?’”
Id. at 691,
950 N.W.2d at 107 (ellipsis
in original). Consent to search may be implied by action rather
than words. State v.
Hammond, supra.
There is no dispute that when Officer Gruber arrived on the
scene, Falcon and Martinez were in the back of Officer Dirks’
cruiser; Falcon remained in the cruiser until he was taken to
jail. Officer Gruber confirmed that he assumed Falcon was
the driver of the vehicle because Officer Dirks was doing a
DUI investigation of him. Martinez was then told to leave
the scene. In his deposition, Martinez testified that after the
officer told him he could leave, he got “a block away” and
then turned back because he did not have his keys, phone,
or wallet. He asked the officer to escort him to get his things
- 351 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
out of the vehicle. Martinez said he told the officer, “‘[Y]ou
guys are going to have to help me find my keys ’cause . . .
I ain’t going nowhere in this weather without a way to get
in my apartment.’” Officer Gruber testified that when they
got to the vehicle, he opened the front passenger-side door
and Martinez opened the back passenger-side door; the video
shows that the back door was opened 1 or 2 seconds after the
front door was opened.
The video footage from Officer Gruber’s body camera was
received into evidence and shows that once Martinez and
Officer Gruber opened the vehicle’s doors, Martinez climbed
in the back seat to look for his keys and then leaned over the
front seat to look; it was dark outside, and Officer Gruber
shined a light in the vehicle for Martinez. Officer Gruber
asked Martinez if his keys were the keys in the ignition,
and Martinez said, “No.” Martinez then pointed to the front
passenger-side floor and asked Officer Gruber, “Can you go
that way?” (Officer Gruber testified, “I interpreted that as
[Martinez] couldn’t reach that area and wanted me to look
into that area. Or, at a minimum, shine my light into that area
so he could see.”) In the video, Officer Gruber pointed his
light on the front passenger-side floor and said, “This way
down here?” Officer Gruber reached his hand forward for 2
seconds and shuffled through what appears to be trash on the
floor. Martinez asked, “Nothing?” Officer Gruber responded,
“No, man.” Officer Gruber then asked if Martinez’ keys would
be in the center console; Martinez’ response is inaudible.
(Video footage from Officer Brandt’s body camera shows that
Martinez leaned back to the back seat at that time.) It appears
on video footage from both officers’ body cameras that at
that point, Officer Gruber leaned into or entered the vehicle.
Officer Gruber testified that he “opened the top center console
and observed a firearm.”
We find that under the circumstances of this case, it was
reasonable for Officer Gruber to believe that Martinez had
authority to consent to the search of the vehicle of which he
- 352 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
had been a passenger in order to help locate his house keys.
Additionally, there is no evidence to suggest that Martinez’
consent was anything other than voluntary. We agree with the
State’s argument that Officer Gruber did not exceed the scope
of Martinez’ consent, “because he searched areas Martinez
directed him to and areas where keys could reasonably
belong—including the center console,” and “[a]t no time did
Martinez withdraw his consent or indicate that Officer Gruber
had exceeded any consent given.” Brief for appellee at 28.
(b) Probable Cause
The State further argues that “Officer Gruber also obtained
probable cause to search the vehicle once he opened the door
with Martinez’s consent.” Brief for appellee at 28.
[18,19] The automobile exception to the warrant requirement
applies when a vehicle is readily mobile and there is probable
cause to believe that contraband or evidence of a crime will
be found in the vehicle. State v. Seckinger, 301 Neb. 963,
920
N.W.2d 842 (2018). The Nebraska Supreme Court has stated:
In light of the overwhelming weight of authorities,
we hold that the requirement of ready mobility for the
automobile exception is met whenever a vehicle that
is not located on private property is capable or apparently capable of being driven on the roads or highways.
This inquiry does not focus on the likelihood of the
vehicle’s being moved under the particular circumstances
and is generally satisfied by the inherent mobility of
all operational vehicles. It does not depend on whether
the defendant has access to the vehicle at the time of
the search or is in custody, nor on whether the vehicle
has been impounded. The purpose of the ready mobility
requirement is to distinguish vehicles on public property
from fixed, permanent structures, in which there is a
greater reasonable expectation of privacy.
State v. Rocha, 295 Neb. 716, 755,
890 N.W.2d 178, 207
(2017). See State v. Alarcon-Chavez,
284 Neb. 322, 821 N.W.2d
- 353 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
359 (2012) (concluding vehicle was operational and therefore
readily movable). See, also, U.S. v. Watts,
329 F.3d 1282 (11th
Cir. 2003) (all that is necessary to satisfy that automobile is
readily mobile is that it is operational); U.S. v. Mercado,
307
F.3d 1226 (10th Cir. 2002) (finding car temporarily immobile
with mechanical problems had not lost its inherent mobility;
also cited to unpublished Eighth Circuit case that held truck
stuck in ditch had not lost its inherent mobility).
[20,21] Probable cause to search requires that the known
facts and circumstances are sufficient to warrant a person of
reasonable prudence in the belief that contraband or evidence
of a crime will be found. State v.
Seckinger, supra. Probable
cause may result from any of the senses, and an officer is
entitled to rely on his or her sense of smell in determining
whether contraband is present in a vehicle. State v. Vaughn,
314 Neb. 167,
989 N.W.2d 378 (2023).
[22] Because of marijuana’s legal status as contraband, a
trained officer who detects the odor of marijuana emanating
from a vehicle in Nebraska has firsthand information that
provides an objectively reasonable basis to suspect contraband will be found in the vehicle. State v.
Seckinger, supra.
Assuming the vehicle is readily mobile, the odor of marijuana
alone provides probable cause to search the vehicle under the
automobile exception to the warrant requirement.
Id.
Here, the automobile exception to the warrant requirement
applies because the vehicle was readily mobile and there was
probable cause to believe that contraband or evidence of a
crime would be found in the vehicle. See
id. The vehicle was
readily mobile; even though the vehicle was allegedly high
centered on the railroad tracks, it had not lost its inherent
mobility. Officer Gruber walked Martinez to the vehicle so
that Martinez could look for his keys. Officer Gruber opened
the front passenger-side door of the vehicle and Martinez
opened the rear passenger-side door. Officer Gruber noted the
odor of marijuana after Martinez opened the rear door. The
odor of marijuana provided Officer Gruber probable cause to
- 354 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
search the vehicle. Accordingly, the motion to suppress was
properly denied in this case.
(c) Inevitable Discovery
Because we have already determined that the motion to suppress was properly denied in this case, we need not address
the State’s inventory search or inevitable discovery argument.
State v. Brennauer, 314 Neb. 782,
993 N.W.2d 305 (2023)
(appellate court is not obligated to engage in analysis that is
not necessary to adjudicate case and controversy before it).
2. Admission of Exhibits
Falcon argues that the district court erred by admitting the
Facebook evidence, specifically exhibits 55 through 61 and
63 through 66. Falcon contends the evidence “lacked foundation and denied [him] the right to confront the person putting
the documents together to verify their authenticity.” Brief for
appellant at 17.
Exhibit 55 is a “Certificate of Authenticity of Domestic
Records of Regularly Conducted Activity” completed by
Austin Walker on December 2, 2022. Walker certified that he
was employed by Meta Platforms, Inc. (Meta); was “a duly
authorized custodian of records for Meta”; and was “qualified to certify Meta domestic records of regularly conducted
activity.” Walker stated that he had reviewed the records by
Meta in this matter in response to the search warrant and that
“[t]he records provided are an exact copy of the records that
were made and kept by the automated systems of Meta in the
course of regularly conducted activity as a regular practice of
Meta.” Exhibit 56 was the search warrant return from Meta
containing over 1,500 pages. Exhibits 57 through 61 and 63
through 66 were specific portions of the information from
exhibit 56.
At trial, Officer Gruber confirmed that exhibit 55 validated
the records in exhibit 56. When the State offered exhibits
55 and 56 into evidence, Falcon objected based on hearsay,
- 355 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
foundation, and violation of his right to confront the witness.
In response, the State said:
Your Honor, this certification is pursuant to a new law
that is now in effect as of September 2nd, I believe,
authorizing a certification by a custodian of records
through an affidavit or a document of certification, which
no longer requires that a person from Face[b]ook come
and personally testify. It’s in line with the federal rules of
evidence, as well as 33 other states.
So, I would suggest to the Court that the records are
now self-authenticating with that certification, which is
Exhibit 55, I believe. And thus, the records of 56 can
come in.
The State also argued:
[T]his is a business record and this is specifically one of
the reasons and instances that the Legislature this past
session enacted this new hearsay exception. I know this
because I was involved in that legislation and helped
write it. And this was this very specific instance which
the Legislature intended on using this for.
Regarding confrontation, what I would end up offering
from this are photographs from the account and messages
and posts that . . . Falcon made. Other people’s statements
would be used for context of . . . Falcon’s statements, so I
don’t believe there is a hearsay issue regarding that.
The hearsay issue for the records is overcome by
the hearsay exception to business records and that
certification.
The district court overruled Falcon’s objections and received
exhibits 55 and 56. The court also overruled Falcon’s foundation, relevancy, and hearsay objections to exhibits 57 through
61 and 63 through 66.
On appeal, the State argues:
Rule 901 states that the requirement of authentication
or identification as a condition precedent to admissibility
- 356 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.
Neb. Rev. Stat. § 27-901 (Reissue 2016). Rule 901 does
not erect a particularly high hurdle. . . .
Rule 902 provides for self-authentication of certain evidence. Relevant to this case, [Neb. Rev. Stat.]
§ 27-902(4) [(Cum. Supp. 2024)] provides that extrinsic
evidence of authenticity is not required when a copy of
an official record certified as correct by the custodian
or other person authorized to make the certification is
provided and § 27-902(11) provides that the original or
a copy of a domestic record shown by a certification of
the custodian or another qualified person that is made
in the regular course of business under [Neb. Rev. Stat.]
§ 27-803(6) [(Cum. Supp. 2024)] can provide authentication. Exhibit 55 is a certificate of authenticity from the
custodian of records from Meta—the parent company of
Facebook—purporting to authenticate exhibit 56, which
was the search warrant return from Falcon’s Facebook.
Brief for appellee at 30-31.
The State acknowledges that “Nebraska has not yet commented on the self-authentication of social media accounts
through § 27-902(11), as subsection (11) was only added to
Nebraska’s rule 902 in June 2023.” Brief for appellee at 31.
However, as noted by the State, Neb. Rev. Stat. § 27-902
(Cum. Supp. 2024) is similar to Fed. R. Evid. 902, and circuit
courts have considered the issue. “Circuit Courts have determined that only non-content records from social media can
be self-authenticated under rule 902 but social media content
cannot be self-authenticated, so the content of those records
must be authenticated under a standard rule 901 analysis.”
Brief for appellee at 31-32. See, U.S. v. Lamm,
5 F.4th 942
(8th Cir. 2021); U.S. v. Browne,
834 F.3d 403 (3d Cir. 2016).
We note that
Neb. Rev. Stat. §§ 27-901 and 27-803 (Reissue
2016) are similar to Fed. R. Evid. 901 and 803.
- 357 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
The Third Circuit has set forth a thorough analysis for the
authentication of social media accounts that provides guidance
on the issues raised in Falcon’s case.
In U.S. v.
Browne, supra, the Department of Homeland
Security executed a search warrant on a specific Facebook
account, which the defendant also admitted belonged to him,
and Facebook provided five sets of chats and a certificate of
authenticity executed by its records custodian. At trial, over
defense counsel’s objections, the federal district court admitted five Facebook chat logs and the certificate of authenticity
into evidence. The certificate stated, in accordance with Fed.
R. Evid. 902(11), that the records that Facebook had produced
for the named accounts met the business records requirements
of Fed. R. Evid. 803(6)(A) through (C). Tracking the language of Fed. R. Evid. 803(6), the custodian certified that the
records “‘were made and kept by the automated systems of
Facebook in the course of regularly conducted activity as a
regular practice of Facebook . . . [and] were made at or near
the time the information was transmitted by the Facebook
user.’” U.S. v. Browne,
834 F.3d at 406 (ellipsis in original).
The defendant appealed, arguing that the Facebook records
were not properly authenticated because the Government
failed to establish that he was the person who authored the
communications. More specifically, he argued that no witness identified the Facebook chat logs on the stand; nothing
in the contents of the messages was uniquely known to the
defendant; and the defendant was not the only individual with
access to the Facebook account. The Government argued the
Facebook records were business records that were properly
authenticated pursuant to Fed. R. Evid. 902(11) by way of a
certificate from Facebook’s records custodian.
The Third Circuit stated:
The proper authentication of social media records is
an issue of first impression in this Court. In view of
[the defendant’s] challenge to the authentication and
admissibility of the chat logs, our analysis proceeds in
- 358 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
three steps. First, as with non-digital records, we assess
whether the communications at issue are, in their entirety,
business records that may be “self-authenticated” by
way of a certificate from a records custodian under
Rule 902(11) of the Federal Rules of Evidence. Second,
because we conclude that they are not, we consider
whether the Government nonetheless provided sufficient
extrinsic evidence to authenticate the records under a
traditional Rule 901 analysis. And, finally, we address
whether the chat logs, although properly authenticated,
should have been excluded as inadmissible hearsay, as
well as whether their admission was harmless.
U.S. v. Browne, 834 F.3d at 408.
[23] In assessing whether the communications were “self-authenticating,” the Third Circuit stated:
To satisfy the requirement under Rule 901(a) of the
Federal Rules of Evidence that all evidence be authenticated or identified prior to admission, the proponent
of the evidence must offer “evidence sufficient to support a finding that the item is what the proponent claims
it is.” Rule 901(b), in turn, sets forth a non-exhaustive
list of appropriate methods of authentication, including
not only “[t]estimony that an item is what it is claimed
to be,” Fed. R. Evid. 901(b)(1), but also “appearance,
contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the
circumstances,” Fed. R. Evid. 901(b)(4), and “[e]vidence
describing a process or system and showing that it produces an accurate result,” Fed. R. Evid. 901(b)(9).
The central dispute in this case is complicated, however, by the Government’s contention that it authenticated the Facebook chat logs by way of Rule 902, under
which extrinsic evidence is not required for certain
documents that bear sufficient indicia of reliability as to
be “self-authenticating.” Specifically, the Government
- 359 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
relies on Rule 902(11), which provides that “records of
a regularly conducted activity” that fall into the hearsay
exception under Rule 803(6)—more commonly known
as the “business records exception”—may be authenticated by way of a certificate from the records custodian, as long as the proponent of the evidence gives the
adverse party reasonable notice and makes the record
and certificate available for inspection in advance of
trial. Fed. R. Evid. 902(11).
The viability of the Government’s position turns on
whether Facebook chat logs are the kinds of documents
that are properly understood as records of a regularly
conducted activity under Rule 803(6), such that they
qualify for self-authentication under Rule 902(11). We
conclude that they are not, and that any argument to the
contrary misconceives the relationship between authentication and relevance, as well as the purpose of the business records exception to the hearsay rule.
First, to be admissible, evidence must be relevant,
which means “its existence simply has some ‘tendency
to make the existence of any fact that is of consequence
to the determination of the action more probable or less
probable than it would be without the evidence.’”. . .
Because evidence can have this tendency only if it is
what the proponent claims it is, i.e., if it is authentic, . . .
“Rule 901(a) treats preliminary questions of authentication and identification as matters of conditional relevance
according to the standards of Rule 104(b),” . . . . Rule
104(b), in turn, provides that “[w]hen the relevance of
evidence depends on whether a fact exists, proof must
be introduced sufficient to support a finding that the fact
does exist.” Fed. R. Evid. 104(b). We have determined
that to meet the Rule 104(b) standard of sufficiency, the
proponent of the evidence must show that “the jury could
reasonably find th[ose] facts . . . by a preponderance of
the evidence.” . . .
- 360 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
Here, the relevance of the Facebook records hinges on
the fact of authorship. To authenticate the messages, the
Government was therefore required to introduce enough
evidence such that the jury could reasonably find, by a
preponderance of the evidence, that [the defendant] and
the victims authored the Facebook messages at issue. The
records custodian here, however, attested only that the
communications took place as alleged between the named
Facebook accounts. Thus, accepting the Government’s
contention that it fulfilled its authentication obligation
simply by submitting such an attestation would amount to
holding that social media evidence need not be subjected
to a “relevance” assessment prior to admission. Our sister
Circuits have rejected this proposition in both the digital
and non-digital contexts, as do we. . . .
The Government’s theory of self-authentication also
fails for a second reason: it is predicated on a misunderstanding of the business records exception itself. Rule
803(6) is designed to capture records that are likely
accurate and reliable in content, as demonstrated by the
trustworthiness of the underlying sources of information
and the process by which and purposes for which that
information is recorded. . . .
Here, Facebook does not purport to verify or rely on
the substantive contents of the communications in the
course of its business. At most, the records custodian
employed by the social media platform can attest to the
accuracy of only certain aspects of the communications
exchanged over that platform, that is, confirmation that
the depicted communications took place between certain
Facebook accounts, on particular dates, or at particular
times. This is no more sufficient to confirm the accuracy
or reliability of the contents of the Facebook chats than a
postal receipt would be to attest to the accuracy or reliability of the contents of the enclosed mailed letter. . . .
....
- 361 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
. . . [T]he Facebook records are not business records
under Rule 803(6) and thus cannot be authenticated by
way of Rule 902(11). In fact, the Government’s position
would mean that all electronic information whose storage
or transmission could be verified by a third-party service provider would be exempt from the hearsay rules—
a novel proposition indeed, and one we are unwilling
to espouse.
U.S. v. Browne, 834 F.3d 403, 408-11 (3d Cir. 2016).
[24] We agree with the Third Circuit’s reasoning, and we
likewise find that the Meta records at issue are not business
records that may be “self-authenticated” by way of a certificate from a records custodian under § 27-902(11). Like in
Browne, the relevance of the social media records depends
on authorship. The “Certificate of Authenticity” in exhibit 55
does not allow the jury to find by a preponderance of evidence
that Falcon authored the Facebook content at issue. In the
“Certificate of Authenticity,” the records custodian attested
only that “[t]he records provided are an exact copy of the
records that were made and kept by the automated systems of
Meta in the course of regularly conducted activity as a regular practice of Meta” and that “[t]he records were made at or
near the time the information was transmitted by the Meta
user.” Furthermore, like in Browne, the entity operating the
social media platform does not purport to verify or rely on the
substantive contents of the communications in the course of
its business.
Because the Third Circuit found that the communications
were not business records that may be self-authenticated by
a certificate from a records custodian under Fed. R. Evid.
902(11), it next considered whether the Government nonetheless provided sufficient extrinsic evidence to authenticate the
records under a traditional Fed. R. Evid. 901 analysis. The
Third Circuit stated:
Our conclusion that the Facebook chat logs were not
properly authenticated under Rule 902(11) does not end
- 362 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
our inquiry, for we may consider whether the Government
has presented sufficient extrinsic evidence to authenticate
the chat logs under Rule 901(a). . . . To answer this question, we look to what the rule means in the social media
context and how it applies to the facts here.
Conventionally, authorship may be established for
authentication purposes by way of a wide range of extrinsic evidence. See Fed. R. Evid. 901(b). . . .
....
We hold today that it is no less proper to consider a
wide range of evidence for the authentication of social
media records than it is for more traditional documentary evidence. The authentication of electronically stored
information in general requires consideration of the ways
in which such data can be manipulated or corrupted, . . .
and the authentication of social media evidence in particular presents some special challenges because of the
great ease with which a social media account may be
falsified or a legitimate account may be accessed by an
imposter . . . . But the authentication rules do not lose
their logical and legal force as a result. . . . Depending on
the circumstances of the case, a variety of factors could
help support or diminish the proponent’s claims as to the
authenticity of a document allegedly derived from a social
media website, and the Rules of Evidence provide the
courts with the appropriate framework within which to
conduct that analysis.
Those Courts of Appeals that have considered the issue
have reached the same conclusion. In United States v.
Barnes,
803 F.3d 209 (5th Cir. 2015), the Fifth Circuit
held that the government laid a sufficient foundation
to support the admission of the defendant’s Facebook
messages under Rule 901 where a witness testified that
she had seen the defendant using Facebook and that she
recognized his Facebook account as well as his style of
communicating as reflected in the disputed messages.
Id.
- 363 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
at 217. In United States v. Hassan, 742 F.3d 104 (4th Cir.
2014), the Fourth Circuit held that the government properly linked the Facebook pages at issue to the defend
ants by using internet protocol addresses to trace the
Facebook pages and accounts to the defendants’ mailing
and email addresses. Id. at 133. And in [U.S. v.] Vayner,
the Second Circuit held that the government failed to
adequately authenticate what it alleged was a printout of
the defendant’s profile page from a Russian social networking site where it offered no evidence to show that
the defendant had created the page. 769 F.3d [125,] 131
[(2d Cir. 2014)]. In all of these cases, the courts considered a variety of extrinsic evidence to determine whether
the government had met its authentication burden under
Rule 901—each reiterating, in the course of that analysis, that conclusive proof of authenticity is not required
and that the jury, not the court, is the ultimate arbiter of
whether an item of evidence is what its proponent claims
it to be. . . .
Applying the same approach here, we conclude the
Government provided more than adequate extrinsic evidence to support that the disputed Facebook records
reflected online conversations that took place between
[the defendant and others], such that “the jury could
reasonably find” the authenticity of the records “by a preponderance of the evidence.” . . .
U.S. v. Browne, 834 F.3d 403, 411-13 (3d Cir. 2016). In
Browne, the extrinsic evidence included the following: four
witnesses who participated in the Facebook chats at issue
offered detailed testimony about the exchanges that they
had over Facebook which was consistent with the chat logs
the Government introduced into evidence; the defendant
made significant concessions that served to link him to the
Facebook conversation, including that he owned the Facebook
account; personal information that the defendant confirmed
on the stand was consistent with personal details interspersed
- 364 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
throughout the Facebook conversation with the witnesses;
and the Government supported the accuracy of the chat logs
by obtaining them directly from Facebook and introducing a
certificate attesting to their maintenance on Facebook’s automated systems.
[25] We likewise consider whether the State has presented
sufficient extrinsic evidence, which may be used to authenticate the substantive content of social media records like
those at issue, under § 27-901. Pursuant to § 27-901(1), “The
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Section 27-901(2) provides illustrative examples
of authentication or identification conforming to the requirements of the rule:
(a) Testimony that a matter is what it is claimed to be;
(b) Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes
of the litigation;
(c) Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated;
(d) Appearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in conjunction
with circumstances;
(e) Identification of a voice, whether heard first-hand
or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at
any time under circumstances connecting it with the
alleged speaker;
(f) Telephone conversations, by evidence that a call
was made to the number assigned at the time by the
telephone company to a particular person or business,
if (i) in the case of a person, circumstances, including
self-identification, show the person answering to be the
one called, or (ii) in the case of a business, the call was
- 365 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
made to a place of business and the conversation related
to business reasonably transacted over the telephone;
(g) Evidence that a writing authorized by law to be
recorded or filed and in fact recorded or filed in a public
office, or a purported public record, report, statement, or
data compilation, in any form, is from the public office
where items of this nature are kept;
(h) Evidence that a document or data compilation, in
any form, (i) is in such condition as to create no suspicion
concerning its authenticity, (ii) was in a place where it, if
authentic, would likely be, and (iii) has been in existence
thirty years or more at the time it is offered;
(i) Evidence describing a process or system used to
produce a result and showing that the process or system
produces an accurate result; and
(j) Any method of authentication or identification provided by act of the Legislature or by other rules adopted
by the Supreme Court which are not in conflict with laws
governing such matters.
Here, Officer Gruber testified that he authored search warrants for Falcon’s social media accounts. When asked how
he identified an account as belonging to Falcon, Officer
Gruber responded, “It was through a court [deposition] with
. . . Martinez where he identified the account name [Shaquille
Falcon, Sr.], and then I was able to pull that account up on
Face[b]ook and verify that the Face[b]ook profile was . . .
Falcon.” Officer Gruber “looked at the main profile picture and
observed that it was . . . Falcon, and then went through other
photographs on the account and observed other photographs
of him.” Officer Gruber sent a “preservation letter request to
Face[b]ook” to “preserve[] the information back one year,”
received a response verifying it had been preserved, and then
“drafted a search warrant for that account.” After the search
warrant was approved, Officer Gruber sent it to Meta, and Meta
sent back a confirmation that it received the warrant. Officer
- 366 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
Gruber subsequently received a search warrant return from
Meta with the requested information; through its law enforcement portal, Meta sent a link to the Facebook account information. Officer Gruber downloaded the information, “place[d]
that on a CD,” and then went through the information.
Officer Gruber stated that LPD received the search warrant
return, a program converted the time stamps on the information to central standard time. Officer Gruber confirmed that
exhibits 57 through 61 and 63 through 66 all came from
exhibit 56. Upon inquiry of the district court, Officer Gruber
confirmed that exhibits 57 through 61 and 63 through 66 were
not changed from the original (other than to central standard
time). Officer Gruber confirmed that Investigator Chris Fields
converted the time. Investigator Fields, the electronic case
manager for the criminal investigations unit at LPD, testified
the Facebook return came in “universal time,” “[s]o all the
times in the records are off”; an analytic program converted
the times to central standard time. Investigator Fields confirmed that the text of the conversations was not changed.
As noted previously, exhibits 57 through 61 and 63 through
66 were specific portions of the information from exhibit 56
(the full search warrant return containing more than 1,500
pages). Exhibit 66 contained a message thread from November
11, 2021, in which “Shaquille Falcon Sr.” wrote that he was
“outside the house right now” “[i]n gold lac.” Officer Gruber
testified that exhibit 65 contains a photograph of Falcon in
which he appeared to be in the vehicle at issue, a gold
Cadillac; Officer Gruber confirmed that information related
to that photograph was posted by the author of the account on
November 13. Exhibit 58 contains a message thread between
“Shaquille Falcon Sr.” and another individual, wherein on
December 12, “Shaquille Falcon Sr.” told the other individual,
“Cash app me,” and when the other individual asked for the
number, “Shaquille Falcon Sr.” responded with a particular
“handle,” which Officer Gruber knew to correspond to one of
- 367 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
Falcon’s nicknames. In that same exhibit, a photograph was
posted by “Shaquille Falcon Sr.” on December 31 at 7:50 p.m.;
Officer Gruber confirmed that the person in the photograph
was Falcon and that he was wearing the same clothing that
he was wearing when law enforcement contacted him on the
morning of January 1, 2022. Exhibit 64 contained another
photograph uploaded by “Shaquille Falcon Sr.” on December
31, 2021, at 8:45 p.m.; Officer Gruber confirmed that the person in the photograph was Falcon and that he was in the same
clothing he was wearing when law enforcement had contact
with him on January 1, 2022. Additionally, Officer Gruber
confirmed that one of the comments to the photograph was
from “Martinez Strong,” an account belonging to Martinez.
Exhibit 59 contained a message thread between “Shaquille
Falcon Sr.” and “Martinez Strong” from December 31, 2021,
after 10 p.m., wherein Martinez said, “I’ll [r]ide,” and Falcon
later responded, “I’m 4 minutes away” and then, “I’m outside.”
Based on the foregoing, we find that the State produced sufficient extrinsic evidence linking Falcon as the author of the
Facebook content, and the Facebook exhibits were therefore
properly authenticated under § 27-901.
In addressing the admissibility of social media records, the
Third Circuit stated:
Having concluded that the Facebook records were
properly authenticated by way of extrinsic evidence, we
turn to [the defendant’s] more general argument that
the records were inadmissible. Evidence that is properly
authenticated may nonetheless be inadmissible hearsay if
it contains out-of-court statements, written or oral, that
are offered for the truth of the matter asserted and do not
fall under any exception enumerated under Federal Rule
of Evidence 802. . . .
Here, the Government offered more than sufficient evidence to authenticate four of the five Facebook records
as chats that [the defendant] himself participated in by
way of the [specific Facebook] account, and these four
- 368 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
records were properly admitted as admissions by a party
opponent under Rule 801(d)(2)(A).
U.S. v. Browne, 834 F.3d 403, 415 (3d Cir. 2016).
[26] As stated previously, the State provided sufficient
evidence in the instant case to authenticate the Facebook
account records. Once authenticated, any content authored
by Falcon is admissible as an admission by a party opponent
under
Neb. Rev. Stat. § 27-801(4)(b) (Cum. Supp. 2024). This
would include Facebook messages from December 30 and 31,
2021, when Falcon mentioned having a “blick” on him, which
Officer Gruber explained was a “slang term for a firearm.”
In summary, we find that the Facebook exhibits were properly admitted into evidence.
3. Jury Instruction
Falcon did not object to instruction No. 4 at trial. However,
on appeal, he argues that the instruction amounted to plain
error because the district court “should have instructed the
jury as to [Falcon’s] position that he claims to not have any
knowledge of the firearm.” Brief for appellant at 21. Plain
error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to
the integrity, reputation, or fairness of the judicial process.
State v. Brown, 317 Neb. 273,
9 N.W.3d 871 (2024).
[27,28] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. German,
316 Neb. 841,
7 N.W.3d 206 (2024). All the jury instructions
must be read together, and if, taken as a whole, they correctly
state the law, are not misleading, and adequately cover the
issues supported by the pleadings and the evidence, there is no
prejudicial error necessitating reversal.
Id.
[29] During its instructions to the jury, the district court
stated, in relevant part:
Instruction No. 4: Count 1, possession of a firearm
by a prohibited person. The material elements which the
- 369 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
State must prove by evidence beyond a reasonable doubt
in order to convict . . . Falcon of possession of a firearm
by a prohibited person are that . . . Falcon knowingly
possessed a firearm; and that at the time . . . Falcon possessed the firearm he previously had been convicted of a
felony; and that . . . Falcon did so on, about or between
December 31st, 2021, and January 1st, 2022, in Lancaster
County, Nebraska.
If you decide the State did prove each element of the
charge of possession of a firearm by a prohibited person
beyond a reasonable doubt, then you must find . . . Falcon
guilty of possession of a firearm by a prohibited person;
otherwise, you must find . . . Falcon not guilty.
....
The burden of proof is always on the State to prove
beyond a reasonable doubt the foregoing material elements of the crimes charged and this burden never shifts.
In instruction No. 5, the court provided definitions for various
terms, including “knowingly”; Falcon does not assign error to
instruction No. 5. The district court based its elements instruction (jury instruction No. 4) on NJI2d Crim. 3.0, and it was
consistent with § 28-1206 (possession of a deadly weapon by
a prohibited person). When there is an applicable instruction
in the Nebraska Jury Instructions, the court should usually
give that instruction to the jury in a criminal case. State v.
German, supra.
As noted by the State, “Falcon does not assert that the
instruction as provided was an incorrect statement of the law
or erroneous by itself but only argues that it also should have
provided his opposing position.” Brief for appellee at 39.
“However, the instruction required the jury to find all elements
beyond a reasonable doubt and if it did not find that Falcon
knowingly possessed the firearm beyond a reasonable doubt,
they were required to find him not guilty.”
Id. We agree with
the State, and we find no plain error regarding jury instruction
No. 4.
- 370 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
4. Sufficiency of Evidence
Falcon assigns that there was not sufficient evidence to support his convictions of possession of a firearm by a prohibited
person and DUI.
(a) Possession of Firearm
by Prohibited Person
Pursuant to § 28-1206(1), and as relevant here, “A person
commits the offense of possession of a deadly weapon by
a prohibited person if he or she . . . [p]ossesses a firearm
. . . and he or she . . . [h]as previously been convicted of a
felony[.]” See, also, Neb. Rev. Stat. § 28-1212 (Reissue 2016)
(presence in motor vehicle other than public vehicle of any
firearm referred to in § 28-1206 shall be prima facie evidence
that it is in possession of and is carried by all persons occupying such motor vehicle at time such firearm or instrument is
found, except that this section shall not be applicable if such
firearm or instrument is found upon person of one of occupants therein).
Falcon argues that the Facebook evidence used at trial to
show that he was in possession of a firearm at some time was
improperly admitted and that “[w]ithout that evidence there is
no evidence to indicate that [he] had been or was in possession of the firearm found in the [vehicle].” Brief for appellant
at 18. However, we have already found that the Facebook
evidence was properly admitted. Falcon’s other argument,
that “[t]he evidence at trial is conjecture[;] [n]o one saw him
with the gun,” id., goes to the weight and credibility of the
evidence. See State v. Kalita,
317 Neb. 906,
12 N.W.3d 499
(2024) (appellate court does not resolve conflicts in evidence,
pass on credibility of witnesses, or reweigh evidence; such
matters are for finder of fact).
Viewing the evidence in the light most favorable to the
prosecution, we conclude there was sufficient evidence to support Falcon’s conviction. At trial, the evidence showed that a
firearm was found in the center console of the vehicle, and
- 371 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
Falcon admitted to Officer Dirks that he had been driving that
vehicle. Martinez also testified that Falcon was driving the
vehicle that night. Although Martinez testified that he did not
see a gun, he was impeached on cross-examination with audio
from body camera footage wherein he told an officer that he
knew Falcon carried a gun and had seen him waving the gun
around that night. Additionally, in Facebook messages on
December 30 and 31, 2021, Falcon mentioned having a “blick”
on him, which Officer Gruber explained was a “slang term for
a firearm.” The parties stipulated that Falcon had a prior felony
conviction. When viewed in the light most favorable to the
prosecution, this evidence is sufficient such that a rational fact
finder could have found the essential elements of the crime of
possession of a firearm by a prohibited person beyond a reasonable doubt.
(b) DUI
Pursuant to § 60-6,196(1), and as relevant here, “It shall be
unlawful for any person to operate or be in the actual physical
control of any motor vehicle . . . [w]hen such person has a concentration of eight-hundredths of one gram or more by weight
of alcohol per two hundred ten liters of his or her breath.”
Falcon did not specifically argue the sufficiency of his
DUI conviction in his brief. An alleged error must be both
specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by an appellate court. State v. Yah, 317 Neb. 730,
11 N.W.3d 632 (2024).
Nevertheless, we briefly address the issue because in his argument regarding the sufficiency of the evidence for his conviction for possessing the firearm, he did question whether there
was evidence that he was driving the vehicle. As stated previously, Falcon admitted to Officer Dirks that he had been driving that vehicle. Additionally, Martinez testified that Falcon
was driving the vehicle. Falcon submitted to a DataMaster test
after his arrest; the State and the defense stipulated that “with
the margin of error of the DataMaster, the reading would be
- 372 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. FALCON
Cite as 33 Neb. App. 331
[.14915 grams of alcohol per 210 liters of breath].” Viewing
the evidence in the light most favorable to the prosecution,
we conclude there was sufficient evidence to support Falcon’s
conviction for DUI.
VI. CONCLUSION
For the reasons stated above, we affirm Falcon’s convictions
for possession of a firearm by a prohibited person and DUI.
Affirmed.
