Heavican, C.J.
Jamey R. Green was convicted of possession of a deadly weapon by a prohibited person and was sentenced to 2 years' probation. He appeals. We affirm.
Green was convicted in 2007 of several felonies in Minnesota for which he was serving probation. Green and the State of Minnesota applied with the State of Nebraska for a courtesy supervision of Green's probation. An investigation was conducted by Karen Foster, a probation officer for the State of Nebraska. That investigation included, among other things, an August 29, 2011, visit by Foster to the home of Green's sister, where Green was planning to reside if the transfer was approved. Following that investigation, Green's transfer request was granted.
On September 21, 2011, Green signed paperwork agreeing to probation supervision by the State of Nebraska. At the time Green signed this paperwork, he met
About a month later, Green was assigned a new probation officer, Kristi Bender. Bender had previously been on maternity leave, and Van Winkle had been helping with Bender's caseload during her absence. On October 20, 2011, Bender met with Green at the probation office. In the month that followed that meeting, Bender spoke with Green on the telephone on at least one occasion.
On November 14, 2011, Bender and Foster conducted a surprise home visit at Green's home. While on the visit, Bender asked to view Green's bedroom. Upon being shown the room, Bender and Foster noted a sword and knife collection lining the walls of the bedroom. After returning to the office, Bender spoke with a colleague who had law enforcement experience to discuss whether Green was permitted to have the swords and knives. Based upon that conversation, Bender thought that Green might have violated the law in possessing the swords and knives, so she contacted the Lincoln Police Department. The next day, after considering the matter and consulting with others at the police department, Joshua Zarasvand, the officer assigned to Bender's call, determined that officers needed to examine the collection to determine whether it was legal for Green to possess it.
Zarasvand, along with several other uniformed officers, met Bender at a location near Green's home. Zarasvand reviewed a copy of Green's probation contract that was provided by Bender. At that point, the group approached the front door of the home. As part of the group was knocking on the front door, Officer Dawn Moore noticed that the garage door was opening. Moore and another officer approached the garage and found Green and his mother.
Bender, Zarasvand, and Officer Steven Wiese then joined Moore in the garage, and Bender informed Green that she needed to conduct a search of his residence. Green, Bender, Zarasvand, Moore, and Wiese then entered the home by the side door and went directly to the basement.
Upon entering the basement, Bender testified that the sword and knife collection was still set up as it had been the day before. Zarasvand, Moore, and Wiese all testified to the presence of the sword and knife collection. Zarasvand then asked Green if the swords and knives belonged to him; Green replied that they did. Zarasvand then placed Green under arrest. It was later determined that Green's collection consisted of 46 various swords and knives of differing quality, blade sharpness, and blade length.
Green was charged in Lancaster County Court with violation of Neb.Rev.Stat. § 28-1206 (Cum.Supp. 2012), possession of a deadly weapon by a prohibited person, a Class III felony. Following a preliminary hearing, the charge was bound over to the district court and an information was filed on March 16, 2012.
On April 25, 2012, Green filed a motion to quash on the ground that § 28-1206 and related statutes were unconstitutionally vague and overbroad. The motion to quash was overruled on May 22. Green pled not guilty on June 6.
On August 15, 2012, Green filed motions to suppress the searches of his residence on November 14 and 15, 2011, along with all items observed in or seized from his residence and any statements made by him during his contact with law enforcement during the search and arrest on November 15. His motions were overruled.
Trial was then held on December 10 and 11, 2012. Testimony was given in accordance with the facts as stated above, including a stipulation that Green was a convicted felon and testimony that various knives from the collection had blades in excess of 3½ inches in length. In addition, Green testified in his own behalf that he disclosed his sword and knife collection on paperwork he had completed with probation in the presence of Van Winkle, but acknowledged that he did not verbally inform her of the collection.
Green's sister also testified. In her testimony, she stated that the sword and knife collection was in place at the time that Foster conducted her initial home visit and that she discussed the collection with Foster insofar as she "asked her if [the collection] would be okay." Green's sister testified that Foster told her that "she didn't see that [the collection] would be a problem." Green's sister did not testify that she relayed this information to Green.
In addition, a frequent visitor to Green's home testified that she was in the house in May 2011, prior to Green's arrival from Minnesota, and that the swords and knives were in place at that time.
At the jury instruction conference, Green requested that the jury be instructed on the defense of entrapment. The district court refused the instruction. Closing arguments were then held. During the State's closing, the prosecutor stated the following:
At this point, Green objected and moved for a mistrial, arguing that "the prosecutor is arguing his personal opinion with respect to the evidence in this case. He's commenting on the fact that we're here in trial and he's confused as to why we're having a trial." The district court overruled the motion for mistrial, but instructed the jury that "it is improper for attorneys to give their own personal opinions about the evidence and if [the prosecutor] has done so, you are ordered to disregard his personal opinions."
On appeal, Green assigns, restated and consolidated, that the district court erred in (1) denying his motion to quash, (2) denying his motions to suppress, (3) failing to instruct the jury on entrapment, (4) denying his motion for mistrial, (5) finding sufficient evidence to support his guilty verdict, and (6) denying his plea in abatement.
The constitutionality of a statute is a question of law, regarding which the Supreme Court is obligated to reach a conclusion independent of the determination reached by the trial court.
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.
Whether jury instructions given by a trial court are correct is a question of law.
Whether to grant a motion for mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the court abused its discretion.
In his first assignment of error, Green asserts that the district court erred in denying his motion to quash. Green argues that the felon in possession statute under which he was charged, § 28-1206, and its definitional section, Neb.Rev.Stat. § 28-1201 (Cum.Supp.2012), are unconstitutionally vague and overbroad.
Section 28-1206(1) provides in relevant part that "[a]ny person who possesses a firearm, a knife, or brass or iron knuckles and who has previously been convicted of a felony ... commits the offense of possession of a deadly weapon by a prohibited person." Section 28-1201(5) defines knife as "any dagger, dirk, knife, or stiletto with a blade over three and one-half inches in length or any other dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds."
As a general rule, in a challenge to the overbreadth and vagueness of a law, a court's first task is to analyze overbreadth.
An attack on the overbreadth of a statute asserts that language in the statute impermissibly infringes on a constitutionally protected right.
Green argues that the statute is overbroad in that it "necessarily prohibits every item with a blade exceeding three and one-half inches" and "would seem to prohibit every sharp object a person might have in his or her possession."
But Green overlooks the fact that the definition of "knife" set forth in § 28-1201(5) does not prohibit the innocent possession of a knife with a blade in excess of 3½ inches. Rather, the possession of such a knife is only a violation of the law when the possessor, like Green, is a felon. Thus, the definition of a knife acts together with the criminal liability set forth in § 28-1206(1) to prohibit the possession of a knife in a fairly narrow set of circumstances — when that knife is possessed by a felon. This does not infringe upon a substantial amount of constitutionally protected conduct, but instead acts to deter convicted felons from possessing dangerous weapons.
Green's argument that the statutes are overbroad is without merit.
The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.
To have standing to assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute and cannot maintain that the statute is vague when applied to the conduct of others.
Green lacks standing to assert that § 28-1206 is vague because his conduct clearly violated the statute. The statute prohibits the possession of a knife by a felon. And "[k]nife" is defined in § 28-1201(5) to include a knife with a blade that exceeds 3½ inches in length. Green was undisputedly a felon; the evidence presented at trial showed, Green admitted, and a jury found, that Green was in possession of knives with blades in excess of 3½ inches as defined by the statute.
In his second assignment of error, Green assigns that the district court erred in denying his motions to suppress and in admitting the sword and knife collection and statements he made to law enforcement at the time of the search.
While Green assigns that his statements admitting that the weapons were his should have been suppressed and he restates that assignment in the facts section of his brief, he does not otherwise argue the inadmissibility of those statements. As such, the admissibility of the statements will not be discussed further. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.
Green does not contest the validity of Bender and Foster's first entry into his home on November 14, 2011, and acknowledges that once the officers were in his bedroom on November 15, the sword and knife collection was in plain view. But Green contends the November 15 search was not done pursuant to a warrant, does not fit within an exception to the warrant requirement, and was not permitted by any condition of his probation; as such, the fruits of that search — the sword and knife collection — should be suppressed.
The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures. We have stated that warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.
In this case, Green's Nebraska probation order allowed for searches for drugs or alcohol at any time. Of course, the search at issue was not done for the purposes of searching for drugs and alcohol. Rather, the record is clear that probation and law enforcement were interested in examining the sword and knife collection. But Green's Minnesota probation order included a broader search condition. Green argues that the Nebraska order narrowed the terms of his probation, but he provides no authority for his implicit assertion that the Minnesota condition on searches was no longer applicable. Indeed, the Nebraska order, which
And the search condition is reasonable and related to the rehabilitative process. While no warrant was sought, there was probable cause to obtain a warrant based upon Bender and Foster's viewing the sword and knife collection. In addition, the search was done during daylight hours, and the police located Green before conducting the search and were admitted into the home by Green. Given this context and the presence of probable cause, the search of Green's bedroom was reasonable.
Green also argues that the search condition was not related to the rehabilitative purposes of his probation because he was not convicted of a weapons violation. But state law prohibits all felons, regardless of the underlying felony, from possessing a weapon,
Finally, Green argues that the search was illegal because it was done by law enforcement "for the purpose of locating and confiscating the alleged knives and swords in ... Green's residence."
We disagree that on these facts the search was not a probation search. Law enforcement may conduct searches of probationers so long as law enforcement is acting under the direction of a probation officer.
Such was the case here. It was a probation officer, Bender, who originally expressed concern about the collection, and both Bender and Foster testified that because of safety concerns, nothing was said to Green about the collection during the home visit. Because of the probation office's questions about the legality of the collection, Bender ultimately contacted law enforcement. Finally, Bender and her supervisor were present during the search. Under these circumstances, we conclude
This result does not change because Green was ultimately charged with being a felon in possession of a weapon rather than with a probation violation.
We find this equally applicable to the probation context.
Green's second assignment of error is without merit.
In his third assignment of error, Green contends that the district court erred in not instructing the jury on the defense of entrapment.
When a defendant raises the defense of entrapment, the trial court must determine, as a matter of law, whether the defendant has presented sufficient evidence to warrant a jury instruction on entrapment.
The entrapment defense is not of constitutional dimension.
This court has also recently approved a variation on the traditional entrapment defense. In State v. Edwards,
At trial, Green sought an instruction on traditional entrapment. Specifically, Green proposed the following instruction:
In his brief on appeal, Green argues generally that there was a scintilla of evidence to support an entrapment defense because of the testimony of Green's sister, who testified that she asked Foster during the home check if Green could have the sword and knife collection and that Foster told her that the collection was permitted.
But Green now also notes the entrapment by estoppel defense. From his brief on appeal, it is not clear which instruction he now argues he should have had: the traditional entrapment instruction that he requested, or the entrapment by estoppel instruction mentioned in his brief. In his reply brief, Green seems to more clearly suggest that the entrapment by estoppel instruction was appropriate.
As an initial matter, we note that Green cannot predicate error on the district court's failure to give the entrapment by estoppel instruction when it was not asked to give that specific instruction. But in any case, Green is not entitled to an entrapment by estoppel instruction based upon the record.
Here, Green bears the initial burden of showing, among other elements, that he was affirmatively told that he could possess the sword and knife collection. But there is no evidence of that in the record. There is disputed evidence that Green's sister was told that Green could have the collection; but Green's sister is not Green. And there is no evidence that Green's sister ever communicated to Green that the collection was permissible.
There is also evidence that Green reported the collection on paperwork filed with the probation office and assumed that the collection was permitted, because he was not told otherwise. But this was not an affirmative statement from an authorized government official, nor can Green produce the paperwork where he allegedly disclosed this collection.
And the traditional entrapment defense actually sought at trial is also inapplicable in this situation. As noted above, entrapment consists of two elements: (1) the government induced the defendant to commit the offense charged and (2) the defendant's predisposition to commit the criminal act was such that the defendant was not otherwise ready and willing to commit the offense. Nebraska has adopted the "origin of intent" test for entrapment: "If the intent to commit the crime charged originated with the government
Even assuming that Foster told Green's sister that the collection was permissible, there is no evidence that Foster was attempting to trap Green into being a felon in possession of a weapon. Green already owned the weapons. In fact, the evidence suggests that Foster and the others at the probation office were not even clear that the collection was in violation of the law.
And as with the defense of entrapment by estoppel, because no law enforcement officer told Green that he could have the collection, and at most told only his sister, Green cannot prove that a law enforcement officer "talked or persuaded" him into possessing the collection.
Green's third assignment of error is without merit.
In his fourth assignment of error, Green assigns that the district court erred in denying his motion for mistrial. Green asserts that comments made by the prosecutor during closing argument were prejudicial and entitle him to a mistrial. Green also argues that the prosecutor continued to make such comments even after the court admonished the jury to disregard the personal opinions of the prosecutor.
Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper.
As an initial matter, it is not clear that the prosecutor's statements were improper. We have held that it is highly improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his or her personal belief in the guilt of the defendant, unless such belief is given as a deduction from evidence.
But even assuming that the statements were improper, the remarks were not so prejudicial as to require the granting of a mistrial. The jury was admonished that the attorneys were not permitted to give their personal opinions about the case and that if the jury believed that the prosecutor had done so, it should disregard those statements. A review of the closing arguments as a whole does not suggest that Green was deprived of his right to a fair trial.
Green's fourth assignment of error is without merit.
In his fifth and final assignment of error, Green argues that there was insufficient evidence to support his conviction. In reviewing 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.
Green's argument is primarily premised on the lack of evidence presented that he intended to "threaten or cause harm to anyone."
In this case, the parties stipulated that Green was a convicted felon and Green admitted that the sword and knife collection, found in his bedroom, was his. There was sufficient evidence to support Green's conviction.
Green also contends that the district court erred in denying his plea in abatement. He argues that there was insufficient evidence to bind his case over for trial. But any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.
Green's fifth assignment of error is without merit.
The decision of the district court is affirmed.
AFFIRMED.
