State v. Eary

11 Citing cases

  1. State v. Kramer

    469 N.W.2d 785 (Neb. 1991)   Cited 7 times
    In State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991), it was emphasized that the purpose of the offer of proof is to bring to the attention of the trier of fact and the appellate court the substance of the evidence offered so that both the trial court and the appellate court may determine whether the refusal to accept the evidence was error, citing Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922 (1977).

    In a criminal case, a court can sustain a defendant's motion for a directed verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. State v. Perez, 235 Neb. 796, 457 N.W.2d 448 (1990); State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990); State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990). Defendant contends there was a complete failure of evidence to establish the fact that he was the person who sold the marijuana to a confidential informant, because the informant's testimony was not corroborated as required by Neb. Rev. Stat. ยง 28-1439.

  2. U.S. v. Moore

    956 F.2d 843 (8th Cir. 1992)   Cited 86 times
    Holding evidence obtained in violation of federal knock-and-announce requirements did not have to be excluded because the officers reasonably believed the no-knock warrant complied with the state law and the Fourth Amendment

    Although the Meyer decision can be read as more fact specific, we conclude that Officer Terrell and the County Court judge acted in "objectively reasonable reliance" upon this decision of the highest court in the state in concluding that a no-knock search warrant could be issued on the basis of Terrell's affidavit without violating ยง 29-411 or the Fourth Amendment. Indeed, shortly after the issuance of this warrant, the Supreme Court of Nebraska issued two decisions expressly reaffirming Meyer's broad "judicial notice" approach to this issue. See State v. Eary, 235 Neb. 254, 454 N.W.2d 685, 690 (1990); State v. Armendariz, 234 Neb. 170, 449 N.W.2d 555, 558 (1989). Thus, under Nebraska law, the no-knock application and warrant pass muster under Leon.

  3. State v. Chambers

    241 Neb. 66 (Neb. 1992)   Cited 11 times
    In State v. Chambers, 241 Neb. 66, 70, 486 N.W.2d 481, 484 (1992), we held that "the erroneous admission of evidence in a bench trial of a law action, including a criminal case tried without a jury, is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's necessary factual findings.

    Similarly, in citing State v. Hoxworth, 218 Neb. 647, 358 N.W.2d 208 (1984), we wrote: "Though the officer had no experience in botany and knew little about the scientific tests used to identify marijuana, he did have 9 years' experience in law enforcement, during which time he learned `"what it looks like and what the seeds look like."'" Stahl, 240 Neb. at 506, 482 N.W.2d at 835. See, State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990); State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989). The focus in determining whether someone qualifies as an expert is on the individual's knowledge on a topic, irrespective of whether that knowledge was derived from formal education or practical experience.

  4. State v. Groves

    239 Neb. 660 (Neb. 1991)   Cited 34 times
    In Groves, the defendant argued that the trial court erred by allowing the admission of evidence that he had a prior burglary conviction.

    However, whether the proof satisfies this test is determined by the circumstances of each case. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990). In general, no more than a reasonable time may have elapsed between the occurrence of facts and the issuance of a search warrant based thereon.

  5. State v. Palser

    238 Neb. 193 (Neb. 1991)   Cited 11 times
    Declining to infer reliability even though the statement fell within the exception for statements against penal interests

    In the absence of a request to admonish the jury to disregard the three questions and of any showing that the questions were so damaging that a fair trial was impossible, there was no abuse of discretion in denying the motion. See State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990). JURY INSTRUCTION

  6. State v. Rodgers

    237 Neb. 506 (Neb. 1991)   Cited 11 times

    While ostensibly true, this court has recognized that possession with intent to deliver a controlled substance is not a victimless crime. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990). Additional factors to consider include past criminal conduct.

  7. State v. Zitterkopf

    236 Neb. 743 (Neb. 1990)   Cited 38 times
    In Zitterkopf, the court summarized the controlling evidentiary factors that resulted in its refusal to grant a directed verdict for the defendant on a possession with intent to distribute charge.

    "`"Possession of a quantity of a controlled substance in a form customarily used for delivery or distribution will support an inference of possession with intent to deliver or distribute."'" State v. Oldfield, supra at 445, 461 N.W.2d at 562 (quoting State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990)). As detailed above, at the Zitterkopf residence officers seized a box of plastic sandwich baggies found near two bags of marijuana totaling 9.56 ounces.

  8. State v. Oldfield

    236 Neb. 433 (Neb. 1990)   Cited 50 times
    Holding "an excludable period under ยง 29-1207 commences on the day immediately after the filing of a defendant's pretrial motion"

    Circumstantial evidence to establish that possession of a controlled substance was with intent to distribute or deliver may consist of the quantity of the substance, the equipment and supplies found with it; the place it was found; the manner of packaging; and the testimony of witnesses experienced and knowledgeable in the field. See, also, State v. Eary, 235 Neb. 254, 261, 454 N.W.2d 685, 691 (1990): "`Possession of a quantity of a controlled substance in a form customarily used for delivery or distribution will support an inference of possession with intent to deliver or distribute'" (quoting from State v. Salas, 231 Neb. 471, 436 N.W.2d 547 (1989)); State v. Britt, 228 Neb. 201, 421 N.W.2d 791 (1988); State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987). Based on the quantity of methamphetamine in Oldfield's possession, combined with the articles found with the methamphetamine, including the locked box in which these items were discovered, and the testimony of a witness with specialized knowledge about controlled substances and illicit transactions involving those substances, we cannot conclude the trial court was clearly erroneous in its finding that Oldfield was in possession of methamphetamine with intent to distribute the methamphetamine.

  9. State v. Walker

    236 Neb. 155 (Neb. 1990)   Cited 23 times   1 Legal Analyses
    Upholding admission of evidence based on search of leased residence by off-duty law enforcement officer where officer observed contraband in residence in his capacity as private citizen-landlord, not as agent of State

    In making a determination as to a trial court's ruling on a motion to suppress, the Supreme Court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses testifying in regard to such motions. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990). The record reflects that approximately 1 week prior to November 16, Davitt had been informed by Garrison's neighbor that narcotics activity may have been occurring at the house.

  10. State v. Perez

    235 Neb. 796 (Neb. 1990)   Cited 19 times

    A sentence imposed within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion. State v. Eary, ante p. 254, 454 N.W.2d 685 (1990); State v. Zaritz, ante p. 599, 456 N.W.2d 479 (1990). Defendant's criminal record shows a longstanding disregard for the rule of law.