PIRTLE, Judge.
James A. Handsaker appeals his conviction in the district court for Sarpy County for child enticement by electronic communication device. He argues that the trial court erred in overruling his motion to suppress, that there was insufficient evidence to find him guilty of the charge, that the State did not meet its burden in overcoming his entrapment defense, and that the court erred in overruling his motion for new trial. Having found no merit to Handsaker's assignments of error, we affirm his conviction and sentence.
On April 27, 2009, John Danderand, a detective with the La Vista Police Department, created an online profile for a fictional 13-year-old female from La Vista, Nebraska, named "Tina Daniels" (Tina). The screen name created by Danderand was "tina_ne_13." Using the "tina_ne_13" screen name, Danderand went online, logged into "Yahoo," and entered a chat room. Tina was contacted by someone using the screen name "hndskr7," who asked Tina for her age, sex, and location. Tina indicated that she was 13 years old. After this exchange, Tina and "hndskr7" began an online conversation. "Hndskr7" added Tina to his friend's list so Tina could see his picture, which then changed his screen name to "james handsaker." As the online conversation continued, Handsaker began asking Tina questions of a sexual nature. Handsaker asked her for her body measurements and for a physical description. He asked whether or not she was a virgin, the size of her waist, and if she thought she had a "nice ass." He also asked what she was wearing, what color of underwear she had on, and her breast size. Handsaker also asked "did you ever suck him" and "did your ex ever lick you down there" referring to a fictional ex-boyfriend they had talked about. Handsaker also asked Tina if she masturbated. Handsaker also stated during this conversation that he could drive to La Vista sometime if that was okay with Tina. During this conversation, Tina mentioned again that she was 13 years old. Handsaker told Tina that he was 35 years old and that he was 6 feet 5 inches tall.
On May 1, 2009, Handsaker and Tina had another online conversation. This conversation also contained portions that were of a sexual nature. Handsaker again asked Tina what she was wearing and what color of underwear she had on.
On May 8, 2009, Handsaker and Tina had another long online conversation. During the conversation, Handsaker asked Tina what she was wearing and what color of underwear she had on. The conversation also included Handsaker's talking about visiting Tina and getting a hotel room in the area. Handsaker offered to buy condoms at one point, and he asked Tina if it bothered her that he was older. Tina replied, "as long as it doesn't bother you that I'm thirteen," to which Handsaker replied, "it doesn't, does that make me a bad guy?" Also during this conversation, Handsaker requested that Tina do a striptease for him when they meet. He also inquired about her pubic area, asking whether or not she had pubic hair and what color it was. He also talked about his penis, stating that it was "about 8½-9 inches long." He also explained ways he can be gentle when they have sexual intercourse.
The next conversation between Handsaker and Tina occurred on May 18, 2009, and several other conversations occurred between that date and June 8. During one conversation, Handsaker was talking about coming to visit Tina in the near future, and when he asked Tina what she was most excited about, she replied "first 2 see u" and asked what he was most excited about. Handsaker replied "to be honest I want to taste your sweet pussy, just being honest of all the sexual things that will happen that is what I want and you." During these conversations, Handsaker told Tina he has masturbated thinking about the two of them together, that he "gets hard" thinking about her, and that he cannot wait to be with her sexually. During one conversation, Handsaker was masturbating while they were talking and he encouraged Tina to touch herself and told her what to do. At one point, he told Tina that he did not care about her age, but that he could go to jail. During one of the last conversations, Handsaker gave Tina his address, which was in North Platte, Nebraska.
Danderand obtained a subpoena for records from "Yahoo," requesting any and all records regarding the identification of screen name "hndskr7." Pursuant to that request, Danderand identified Handsaker as the owner of the screen name. After further investigation, Danderand determined that there was a "James Handsaker" who lived at the address in North Platte given to Tina during the online conversations and who had previously lived in Texas. Danderand obtained a copy of Handsaker's driver's license photograph from the Department of Motor Vehicles in Texas and was able to compare it to a picture in Handsaker's profile on "Yahoo."
In early June 2009, Danderand requested and obtained an arrest warrant for Handsaker and a search warrant for Handsaker's residence. On June 9, Danderand decided to serve the warrants on Handsaker. Before heading to North Platte, Danderand asked Det. Ben Iverson of the La Vista Police Department to go online and log into "Yahoo" as Tina in hopes that Handsaker would be online at the time of the planned arrest. Danderand and police officers from North Platte went to Handsaker's residence, knocked on the door, and announced they had a search warrant. The door was opened by a child, and the police entered the residence and arrested Handsaker. The residence was searched and property was seized, including Handsaker's computer. While in the residence, and prior to advising Handsaker of his rights, Danderand asked Handsaker if he knew someone named "Tina Daniels." Handsaker answered that he did. Danderand did not ask Handsaker any further questions at that point. When Danderand arrived at the North Platte Police Department with Handsaker, Handsaker was advised of his Miranda rights and interviewed by Danderand. Handsaker made a short verbal statement that corresponded with a written statement he made. After the interview was completed, Danderand transported Handsaker to the Sarpy County jail.
Just before his arrest, Handsaker was online having a conversation with Tina. After Handsaker was apprehended, Danderand typed, "Ben, we[`]re in, one in custody," on Handsaker's computer, and then Iverson received the message on his computer at the La Vista police station and responded, "Clear."
On July 16, 2009, the State filed an information charging Handsaker with child enticement by electronic communication device in violation of Neb. Rev. Stat. § 28-833 (Reissue 2008). On August 21, Handsaker filed a motion to suppress asking the court to suppress "testimonial and physical evidence" obtained by the police when they arrested him. The motion claimed that the arrest warrant lacked sufficient probable cause; the magistrate abandoned his detached and neutral role in issuing the warrant; the La Vista police officers had no authority to serve the warrants outside their jurisdiction; Handsaker's home was entered without his consent or the presence of any exigent circumstances; the search was conducted without a warrant or an exception to the warrant requirement; Handsaker was questioned while in custody without proper Miranda advisements; Handsaker's statements were not voluntary and were the product of threats, promises, force, and coercion; and all statements and physical evidence were fruit of the poisonous tree of an illegal arrest.
At the hearing on the motion to suppress, Danderand testified and four exhibits were received into evidence: Danderand's affidavit of probable cause for issuance of an arrest warrant, the search warrant along with Danderand's affidavit in support thereof, a rights advisory form signed by Handsaker, and a voluntary statement form with a statement made by Handsaker.
Following the hearing, the trial court entered an order overruling Handsaker's motion to suppress, "except for any answer or reply given by [Handsaker] to the question by Detective Danderand about whether he knew Miss Tina Daniels made prior to any advisements or waiver of rights."
A bench trial was held on June 3, 2010. Handsaker preserved his objection to the introduction of evidence, on the basis of his motion to suppress. The State called three witnesses: Danderand, Iverson, and the La Vista technical services police officer who forensically examined Handsaker's computer. The transcripts of the online conversations between Handsaker and Tina were entered into evidence. Handsaker did not present any evidence. The trial court found that the State had sustained its burden of proof beyond a reasonable doubt and found Handsaker guilty of child enticement by electronic communication device. Handsaker filed a motion for new trial, which was overruled.
Handsaker assigns that the trial court erred in (1) overruling his motion to suppress, (2) finding there was sufficient evidence to convict, (3) finding that the State had met its burden in overcoming his affirmative defense of entrapment, and (4) overruling his motion for new trial.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review. Regarding historical facts, we review the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination. State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009). Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Id. Any conflicts in the evidence or questions concerning the credibility of witnesses are for the finder of fact to resolve. Id. A conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. Id.
In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
Handsaker assigns that the trial court erred in overruling the motion to suppress in four respects: there was no evidence that an arrest warrant was ever issued and the affidavit requesting an arrest warrant lacked sufficient probable cause to issue an arrest warrant; the search warrant lacked sufficient probable cause; Handsaker's statements were fruit of the poisonous tree; and Danderand had no authority to arrest and detain Handsaker outside his jurisdiction.
Handsaker first argues that the court erred in overruling the motion to suppress, because there is no evidence that an arrest warrant was ever issued, and that even if one was issued, the affidavit did not supply sufficient probable cause to issue an arrest warrant.
Handsaker contends that the arrest warrant must be in the record for the trial court to determine the warrant's validity and that the State did not offer the arrest warrant as evidence at the suppression hearing or at trial. Handsaker relies on State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011), to support his argument. In Borst, the State was relying on the validity of arrest warrants to prove an exception justifying a warrantless search of the defendant's home. The arrest warrants and supporting affidavits were not offered into evidence at either the suppression hearing or the trial. The sole evidence offered to establish that the arrest warrants were legally valid was the testimony of police officers who testified that they had outstanding warrants for the defendant's arrest. The Nebraska Supreme Court held that such evidence was not sufficient for the court to determine that the arrest warrants were legally valid and that thus, the State did not establish justification of the warrantless search. The court concluded that in order to prove a justification for a warrantless search when the justification is based on a valid arrest warrant, there must be evidence in the record from which the court can determine that the arrest warrant was legally valid.
The instant case is different from Borst in that the State was not relying on the validity of the arrest warrant to justify a warrantless search. Rather, in the present case, Danderand and the other officers that served the arrest warrant had a valid search warrant, as discussed below. In addition, unlike Borst, the evidence contains the affidavit in support of the arrest warrant, which is part of exhibit 1. Exhibit 1 also includes a criminal complaint against Handsaker alleging that he committed the crime of child enticement by electronic communication device. Exhibit 1 also has another page which contains a physical description and date of birth for Handsaker, a Texas driver's license number, and the following entry: "Probable cause hearing. Testimony taken by sworn affidavit or sworn statement under oath of Ofc./Dep. Danderand. Finding: probable cause exists for warrant to issue. Warrant ordered." Below the entry is a judge's signature. Danderand also testified at the suppression hearing that he had an arrest warrant when he went to Handsaker's residence. Therefore, in the instant case, the trial court could determine the validity of the arrest warrant without the arrest warrant itself being in the record.
Handsaker also argues that even if the arrest warrant does not have to be in the record, the supporting affidavit did not supply sufficient probable cause for the judge to issue a warrant. He also argues that the affidavit in support of the search warrant lacked sufficient probable cause as well. We will address these two arguments together as the affidavits in support of both warrants are similar.
The validity of the arrest warrant turns on whether the county court had probable cause to issue the warrant pursuant to which Handsaker was arrested. See State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000). Generally, in determining whether probable cause exists for the issuance of an arrest warrant, the issuing magistrate is to make a commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him or her, including the veracity and basis of knowledge of the persons supplying the hearsay information, there is a fair probability the defendant was implicated in the crime. Id.
Similarly, a search warrant, to be valid, must be supported by an affidavit which establishes probable cause. State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010). Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. Id. Proof of probable cause justifying issuance of a search warrant generally must consist of facts so closely related to the time of issuance of the warrant as to justify a finding of probable cause at the time. Id. In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a totality of the circumstances test. Id. The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. Id.
The affidavits supporting the issuance of both the arrest and search warrants were clearly supported by probable cause. In both affidavits, Danderand explained how he created a profile of a 13-year-old girl from La Vista named "Tina Daniels," logged into "Yahoo" and entered a chat room, and was contacted by Handsaker. He explained that Tina and Handsaker had many online conversations, often sexually explicit by Handsaker. Both affidavits set forth in detail the illegal communications of Handsaker. The affidavits also set forth a description of Handsaker and how Danderand verified the description, Handsaker's date of birth, and his home address. The affidavit in support of the search warrant also sets out in detail the property that is the subject of the search warrant, namely Handsaker's computer. We conclude that the affidavit in support of the arrest warrant and the affidavit in support of the search warrant provide probable cause to issue the warrants. Handsaker's assignments of error in regard to the lack of probable cause to issue the warrants are without merit.
In relation to the motion to suppress, Handsaker next argues that the statements he made at the police station after being advised of his Miranda rights should have been suppressed because the statement he made at his residence just after his arrest was suppressed. He suggests that his oral and written statements at the police station were fruit of the poisonous tree.
Just after Handsaker was arrested at his residence, Danderand asked him if he knew someone named "Tina Daniels" and Handsaker indicated that he did. The trial court found that because Handsaker had already been arrested and was in custody at that time, he should have been advised of his Miranda rights prior to any questioning by law enforcement. The trial court found that because Handsaker had not been advised of his Miranda rights, it was improper for Danderand to make such inquiry, and that Handsaker's response to the question must be suppressed.
After Handsaker was transported to the North Platte Police Department, he was properly advised of his Miranda rights and signed a waiver of those rights. Accordingly, the verbal and written statements he made after that point were legally obtained and need not be suppressed. Because Handsaker's initial unwarned statement was suppressed, the trial court did not err in failing to suppress Handsaker's subsequent statements as fruit of the poisonous tree.
Lastly, Handsaker argues that the motion to suppress should have been sustained because Danderand had no authority to arrest him in North Platte, which was outside Danderand's primary jurisdiction. Handsaker relies on Neb. Rev. Stat. § 29-215 (Reissue 2008), which sets forth the power and authority of a law enforcement officer outside his or her primary jurisdiction, which includes the authority to arrest and detain suspects under certain circumstances. Handsaker argues that the circumstances set out in § 29-215 do not exist under the facts of this case and that therefore, Danderand did not have the authority to arrest and detain him. However, Neb. Rev. Stat. § 29-407 (Reissue 2008) provides that the person authorized by a magistrate to execute a warrant may execute such warrant anywhere in the state. See State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966) (arrest warrant directed to sheriff of Hall County could be executed by him in any county). Although the arrest warrant is not in the record as previously discussed, Danderand is the one who requested the issuance of an arrest warrant and filed an affidavit of probable cause in support thereof. The judge found that probable cause existed to issue a warrant based on Danderand's affidavit. Danderand was the person authorized to execute the search warrant and could do so anywhere in the state.
Further, Danderand did not execute the arrest warrant on his own. He was assisted by North Platte police officers, who were in their primary jurisdiction. Before going to Handsaker's residence, Danderand went to the North Platte police station and showed the officers there the arrest warrant and the search warrant. Two North Platte officers then went with Danderand to Handsaker's residence to execute the warrants. We find no merit to Handsaker's contention that the motion to suppress should have been sustained because Danderand had no authority to arrest him.
Handsaker next assigns that the trial court erred in finding that there was sufficient evidence to convict him of the crime charged. Under this assignment of error, Handsaker primarily argues that the evidence was insufficient to convict him because the court allowed certain testimony and exhibits into evidence that it should not have. Such an argument is not an insufficiency of the evidence argument, but, rather, an argument that the court erred in the admission of certain evidence. Therefore, although Handsaker argues that certain evidence should not have been allowed by the trial court, he did not assign it as error. He only argues the improper admission of evidence in the course of his insufficient evidence assignment of error. We therefore do not address Handsaker's argument regarding the admission of certain evidence because of the established principle that errors which are argued but not assigned will not be considered on appeal. See State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
In regard to the sufficiency of the evidence, we conclude that there was sufficient evidence to find Handsaker guilty of enticement by electronic communication device beyond a reasonable doubt. Section 28-833 provides in relevant part:
The evidence showed that when Danderand logged into "Yahoo" on April 27, 2009, as Tina, he was contacted by and began having an online conversation with the screen name "hndskr7," which later changed to "james handsaker." Danderand testified that Tina told Handsaker at the beginning of the conversation that she was 13 years old. The conversation became sexual in nature, initiated by Handsaker. Handsaker and Tina had many online conversations between April 27 and June 8, portions of which were sexually explicit. Danderand identified Tina multiple times during the conversations as being 13 years old. The transcripts of the online conversations were entered into evidence.
During the conversations, Handsaker asked Tina such questions as whether she was a virgin, whether she has masturbated, and what her breast size is. He consistently asked her what she was wearing, as well as what type and what color of underwear she was wearing. He consistently called her "sexy," "sexy one," or "sexy baby." He stated he would drive to La Vista to meet her, get a hotel room, buy condoms, and teach her how to "give head" and have intercourse. When discussing a fictional ex-boyfriend of Tina's, Handsaker asked, "Did you ever suck him?" as well as "Did your ex ever lick you down there?" During conversations about the two of them meeting in person, Handsaker explained how he would be gentle if they have sexual intercourse. He told her that he had masturbated thinking about the two of them together, got "hard" thinking about her, and could not wait to be with her sexually. During one conversation, Handsaker described how he was masturbating during their conversation and asked her to touch herself.
In regard to Handsaker's age, Danderand testified that the screen name "james handsaker" identified him as being 35 years old and that Handsaker told Tina during one of their conversations that he was 35 years old. Handsaker's date of birth was verified as being in January 1974.
In regard to proving that Handsaker was the person using the screen name "james handsaker" to communicate with Tina, the evidence showed that Handsaker gave Tina his address in North Platte and that Danderand confirmed through research that Handsaker lived in North Platte. Handsaker also had described his height and hair color to Tina. Danderand obtained a driver's license photograph of Handsaker from Texas and compared it to the description Tina had received, as well as to the photograph of Handsaker on his "Yahoo" profile. Further, just before Handsaker was arrested, Iverson, as Tina, had been talking with Handsaker online. Danderand testified that after Handsaker was detained, Handsaker's computer screen displayed a chat box with Tina's screen name, "tina_ne_13." Danderand typed a message to Tina on Handsaker's computer indicating that Handsaker was in custody, which Iverson received and acknowledged. As previously stated, we conclude that the State presented sufficient evidence to convict Handsaker of child enticement by electronic communication device.
Handsaker's final two assignments are that the trial court erred in finding that the State had met its burden in overcoming his affirmative defense of entrapment and erred in overruling his motion for new trial in which he asked the court to consider the entrapment defense. Nowhere in the record does Handsaker raise entrapment as an affirmative defense. Further, the trial court's order finding Handsaker guilty of the offense charged does not contain a specific finding in regard to entrapment and in fact makes no mention or reference to such affirmative defense.
At the hearing on the motion for new trial, Handsaker's counsel asked the court to review State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009), a case that discusses entrapment. Handsaker's counsel stated that entrapment was "one of the things I think that we raised, among others, in the closing argument, but I think upon further review that might have some bearing on the trial, and ask the court to take a look at that." The closing arguments are not in the record before us.
Based on the record before us, the affirmative defense of entrapment was not presented to the trial court during the bench trial. Therefore, it cannot now be raised for the first time on appeal. In the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as the trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court. State v. Albrecht, 18 Neb.App. 402, 790 N.W.2d 1 (2010). Similarly, asking the court to consider the affirmative defense of entrapment when it was not raised at trial is not a proper ground for new trial. Handsaker's final two assignments of error are without merit.
We conclude that the trial court did not err in overruling Handsaker's motion to suppress and in finding there was sufficient evidence to convict Handsaker of child enticement by electronic communication device. We further conclude that based on the record before us, Handsaker did not present and submit the affirmative defense of entrapment for disposition in the trial court and, therefore, his two assignments of error related to entrapment are without merit. Handsaker's conviction and sentence are affirmed.
AFFIRMED.
